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Table of Contents

v

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 2021

Commission file number: 001-32749

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    

Form 40-F    

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): ____

Table of Contents

FRESENIUS MEDICAL CARE AG & Co. KGaA

Interim Report of Financial Condition and Results of Operations for the three and six months ended June 30, 2021 and 2020

Page

FINANCIAL INFORMATION

Management’s discussion and analysis

Forward-looking statements

2

Financial condition and results of operations

4

Overview

4

Discussion of measures

9

Results of operations, financial position and net assets

17

Recently issued accounting standards

34

Financial Statements (unaudited)

Consolidated statements of income

35

Consolidated statements of comprehensive income

36

Consolidated balance sheets

37

Consolidated statements of cash flows

38

Consolidated statement of shareholders' equity

39

Notes to consolidated financial statements

40

Quantitative and qualitative disclosures about market risk

58

Controls and procedures

59

OTHER INFORMATION

Legal proceedings

60

Submission of matters to a vote of security holders

60

Exhibits

62

Signatures

63

i

Table of Contents

FRESENIUS MEDICAL CARE AG & Co. KGaA

FINANCIAL INFORMATION

Management’s discussion and analysis

In this report, “FMC-AG & Co. KGaA,” or the “Company,” “we,” “us” or “our” refers to Fresenius Medical Care AG & Co. KGaA or Fresenius Medical Care AG & Co. KGaA 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 as of and for the year ended December 31, 2020 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, included in our Annual Report on Form 20-F for the year ended December 31, 2020 (our "2020 Form 20-F").

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, production asset management, quality and supply chain management, procurement related to production as well as research and development and our Global Medical Office function, which seeks to standardize medical treatments and clinical processes within the Company. The abbreviations “THOUS” and “M” are used to denote the presentation of amounts in thousands and millions, respectively. 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.”

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 to the Patient Protection and Affordable Care Act of 2010 (Pub.L. 111-148), as amended by the Health Care and Education Reconciliation Act (Pub.L. 111-152) (collectively, “ACA”) that could result from legal challenges to the ACA;
the outcome of government and internal investigations as well as litigation;
our ability to accurately interpret and comply with complex current and future government regulations applicable to our business including sanctions and export control laws and regulations, laws and regulations in relation to environmental, social and governance topics, the impact of health care, tax and trade law reforms, in particular the potential U.S. and international tax reform, and regulation as well as, in the U.S., the Anti-Kickback Statute, the False Claims Act, the Stark Law, the Civil Monetary Penalty Law, the Health Insurance Portability and Accountability Act, the Health Information Technology for Economic and Clinical Health Act, the Foreign Corrupt Practices Act (“FCPA”) including our monitor agreement with the U.S. Department of Justice (“DOJ”), the Food, Drug and Cosmetic Act, antitrust and competition laws in the countries and localities in which we operate, and outside the U.S., inter alia, the European Union (“EU”) Medical Device Directive, which was repealed and replaced by the new EU Medical Device Regulation, which became applicable as of May 26, 2021, the EU General Data Protection Regulation, the two invoice policy and the Tendering and Bidding Law in China and other related local legislation as well as other comparable regulatory regimes in many of the countries where we supply health care services and/or products;

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the influence of commercial insurers and integrated care organizations, including efforts by these organizations to manage costs by limiting health care benefits, narrowing their networks, reducing provider reimbursement and/or restricting options for patient funding of health insurance premiums;
the impact of the on-going worldwide severe acute respiratory syndrome coronavirus 2 and the related Coronavirus disease (“COVID-19”) pandemic, including, without limitation, a significant increase of mortality of patients with chronic kidney diseases as well as an increase in persons experiencing renal failure, both of which may be attributable to COVID-19, as well as the impacts of the virus on our patients, caregivers, employees, suppliers, business and operations, consequences of an economic downturn resulting from the impacts of COVID-19 and evolving guidelines and requirements regarding the use of government provided COVID-19 related relief and any additional economic relief legislation that may be passed in the countries in which we operate;
product liability risks;
our ability to continue to grow our health care services and products businesses, including through acquisitions;
our ability to attract and retain skilled employees, including shortages of skilled clinical personnel, and risks that legislative, union, or other labor-related activities or changes will result in significant increases in our operating costs or decreases in productivity;
the impact of currency and interest rate fluctuations;
potential impairment of our goodwill, investments or other assets due to decreases in the recoverable amount of those assets relative to their book value, particularly as a result of sovereign rating agency downgrades coupled with the impact of inflation and an economic downturn in various regions;
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 and our other health care products, changes in raw material and energy costs, the inability to procure raw materials or disruptions in our supply chain;
introduction of generic or new pharmaceuticals and medical devices that compete with our products or services or the development of pharmaceuticals that 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;
potential increases in tariffs and trade barriers that could result from withdrawal by single or multiple countries from multilateral trade agreements or the imposition of retaliatory tariffs and other countermeasures in the wake of trade disputes;
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 and desired clinical outcomes in various health care risk management programs in which we participate or intend to participate;
the greater size, market power, experience and product offerings of certain competitors in certain geographic regions and business lines; and
the use of accounting estimates, judgments and accounting pronouncement interpretations in our consolidated financial statements.

Important factors that could contribute to such differences are noted in “Financial condition and results of operations – I. Overview” below, in note 2d) and note 8 of the notes to the consolidated financial statements (unaudited) included in this report, in note 22 of the notes to the consolidated financial statements included in our 2020 Form 20-F, 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 which can be accessed at the United States Securities and Exchange Commission’s internet website at www.sec.gov. 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.

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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. For a discussion of our critical accounting policies, see note 2 of the notes to the consolidated financial statements included in our 2020 Form 20-F.

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. Some figures (including percentages) in this report have been rounded in accordance with commercial rounding conventions. In some instances, such rounded figures and percentages may not add up to 100% or to the totals or subtotals contained in this report. Furthermore, totals and subtotals in tables may differ slightly from unrounded figures contained in this report due to rounding in accordance with commercial rounding conventions. A dash (“–”) indicates that no data were reported for a specific line item in the relevant financial year or period, while a zero (“0”) is used when the pertinent figure, after rounding, amounts to zero.

Financial condition and results of operations

I. Overview

We are the world's leading provider of products and services for individuals with renal diseases, based on publicly reported revenue and number of patients treated. We provide dialysis care and related services to persons who suffer from End-Stage Kidney Disease (“ESKD”) as well as other health care services. We also develop, manufacture and distribute a wide variety of health care products. Our health care products include hemodialysis machines, peritoneal dialysis cyclers, dialyzers, peritoneal dialysis solutions, hemodialysis concentrates, solutions and granulates, bloodlines, renal pharmaceuticals, systems for water treatment, acute cardiopulmonary and apheresis products. We supply dialysis clinics we own, operate or manage with a broad range of products and also sell dialysis products to other dialysis service providers. 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. Our other health care services which, prior to 2021, were described as “Care Coordination,” include value and risk-based arrangements, pharmacy services, vascular, cardiovascular and endovascular specialty services as well as ambulatory surgery center services, physician nephrology and cardiology services and ambulant treatment services. We estimate that the size of the global dialysis market was approximately €82 billion in 2020. 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 product therapy 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 payment for dialysis treatment. Therefore, the reimbursement systems and ancillary services utilization environment in various countries significantly influence our business.

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, 2021, approximately 28% of our consolidated revenue is attributable to U.S. federally-funded health care benefit programs, such as Medicare and Medicaid reimbursement, under which reimbursement rates are set by the Centers for Medicare and Medicaid (“CMS”). Legislative changes could affect Medicare reimbursement rates for a significant portion of the services we provide. The stability of reimbursement in the U.S. has been affected by (i) the End-Stage Renal Disease (“ESRD”) prospective payment system (“ESRD PPS”), (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’s 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 the ESRD PPS, a single bundled payment rate which provides a fixed payment rate, 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 in the United States that fail to achieve annual quality standards established by CMS could have base payments reduced in a subsequent year by up to 2%.

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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 2030. In particular, a 2% reduction to Medicare payments took effect on April 1, 2013 and continues in force. The 2% sequestration was temporarily suspended from May 1, 2020 through December 31, 2021 as part of the COVID-19 relief measures. Spending cuts pursuant to U.S. Sequestration have adversely affected our operating results in the past and will continue to do so after the suspension is lifted.
On July 9, 2021, CMS issued a proposed rule for the ESRD PPS rate for calendar year (“CY”) 2022. The proposed base rate per treatment for CY 2022 is $255.55, which represents a 1.0% increase from the CY 2021 base rate of $253.13. The increase of 1.0% is based on a market basket increase of 1.6% partially offset by a 0.6% multifactor productivity adjustment that is mandated by the ACA. The updated base rate includes an adjustment for the wage index budget-neutrality. CMS estimates that, on average, large dialysis organizations will receive a 1.2% increase in payments in CY 2022 compared to CY 2021 under this proposed rule. The proposed Acute Kidney Injury payment rate for CY 2022 is to equal the CY 2022 ESRD PPS base rate. As a result of the projected 1.2% overall payment increase, CMS estimates that there will be an increase in beneficiary co-insurance payments of 1.2% in CY 2022. CMS is also considering two products for the transitional add-on payment adjustment for new and innovative equipment and supplies (“TPNIES”) in CY 2022, a catheter-based treatment monitoring platform for peritoneal dialysis patients and a home hemodialysis machine as developed or manufactured by third parties. Should competing products qualify for TPNIES and, thus, receive favorable reimbursement treatment, this could have an impact on our results. CMS will make a final determination on the TPNIES payment in the final rule.
Under the ESRD QIP, CMS assesses the total performance of each facility on a set of measures specified per payment year (“PY”) and applies up to a 2 percent payment reduction to facilities that do not meet a minimum total performance score (“TPS”).  In the CY 2022 proposed rule, CMS proposed to adopt a special scoring and payment policy for PY 2022 of the ESRD QIP to address the issues in the scoring system caused by the impact of the COVID-19 Public Health Emergency on QIP data. Under the proposals, the scoring and payment methodologies would be modified to provide that no facility would receive a payment reduction for PY 2022. CMS further proposed that the existing ESRD QIP measure set remain the same for PY 2024 and 2025. CMS also proposed to set performance standards for PY 2024 using CY 2019 data, which is the most recently available full calendar year of usable data due to the impact of COVID-19 on CY 2020 data. CMS is seeking feedback on a number of topics related to the QIP including potential future COVID-19 vaccination measures.
On July 19, 2021, CMS issued the CY 2022 proposed rule for hospital outpatient and ambulatory surgery center payment systems. The proposed rule to update the Ambulatory Surgical Center ("ASC") Fee Schedule for CY 2022 generally increases the reimbursement rates for certain vascular access services. For the range of procedures provided in an ASC, the average increase is 2.3% compared to the prior year. CMS is also proposing that the device offset percentage will be calculated using ASC rates and not hospital outpatient department rates as was the previous practice. This means that any procedure in which the device cost is 30 percent of the overall ASC procedure rate will receive device-intensive status. If finalized, certain device intensive procedures will receive the higher device intensive reimbursement. CMS also updated the Physician Fee Schedule for CY 2022. On July 13, 2021 CMS released the annual Physician Fee Schedule proposed rule which cut reimbursement in CY 2022 for certain specialty services, including those related to cardiovascular and vascular access care. The proposed CY 2022 physician fee schedule conversion factor is $33.58, a decrease $1.31 from the CY 2021 physician fee schedule conversion factor of $34.89, after the expiration of the 3.75 percent payment increase provided for in CY 2021 by the Consolidated Appropriations Act, 2021.

Presently, there is considerable uncertainty regarding possible future changes in health care regulation, including the regulation of reimbursement for dialysis services, and the status of the ACA. For additional information regarding these matters, see Item 4B, “Information on the Company—Regulatory and Legal Matters—Health Care Reform” in our 2020 Form 20-F. Although Congress' efforts to date to repeal the ACA have been unsuccessful, and on June 17, 2021, the U.S. Supreme Court dismissed litigation seeking to declare the ACA as unconstitutional, further efforts to repeal or revise the ACA may affect the law’s future prospects in ways which we currently cannot quantify or predict.

For additional information, see "Risk Factors” included in our 2020 Form 20-F.

On May 22, 2020, CMS issued a final rule that, effective January 1, 2021, removes outpatient dialysis facilities from the time-and-distance standards applicable under the network adequacy rules for Medicare Advantage, also known as Medicare Part C, plans offered by private health insurers approved by CMS to provide their members with Medicare Part A, Part B and usually Part D benefits (“Medicare Advantage” plans).

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Premium assistance programs

On August 18, 2016, 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. The holding company for our U.S. operations, 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”) entitled “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 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. See Item 3.D,"Key information – Risk Factors” in our 2020 Form 20-F. 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's 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. Plaintiffs in the litigation, including FMCH, consented to the stay, which was granted by the court.

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 state 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 in a material area or scope of our U.S. operations, these efforts would have a material adverse impact on our business and operating results.

Participation in new Medicare payment arrangements

Under CMS's Comprehensive ESRD Care Model (the "Model"), dialysis providers and physicians formed entities known as ESRD Seamless Care Organizations ("ESCOs”) as part of a payment and care delivery pilot program that ended March 31, 2021 which sought to deliver better health outcomes for Medicare ESKD patients while lowering CMS's costs. Following our initial participation in six ESCOs, we ultimately expanded our participation in the Model to 23 ESCOs formed at our dialysis facilities. ESCOs that achieved the program's minimum quality thresholds and generated reductions in CMS's cost of care above certain thresholds for the ESKD patients covered by the ESCO received a share of the cost savings, adjusted based on the ESCO’s performance on certain quality metrics. ESCOs may also owe payments to CMS if actual costs of care rise above set thresholds. As of March 2021, approximately 34,800 patients were aligned to ESCOs in which we participated.

In November 2017, we announced the results from the first performance year (“PY”) 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. In the second performance year (CY 2017) the Company's ESCOs together generated more than $66.7 M (€59.0 M) in gross savings, an average 3.4% reduction in expenditures per patient. For the third performance year (CY 2018), CMS published the final settlement reports on August 14, 2020. In total the Company’s ESCOs produced more than $66.1 M (€56.0 M) in gross savings, an average 1.9% reduction in expenditures per patient. For the fourth performance year (CY 2019), CMS published the final settlement reports on October 31, 2020. In total, the Company’s ESCOs produced more than $10.8 M (€9.6 M) in gross losses, an average 0.3% increase in expenditures per patient. For the fifth performance year (CY 2020), CMS gave each ESCO the options to (a) extend participation in the program through March 31, 2021, and/or to (b) accept the following financial changes: (i) reduce 2020 downside risk by reducing shared losses by proportion of months during the COVID-19 Public Health Emergency as promulgated under the Public Health Services Act, (ii) cap gross savings upside potential at 5% gross savings, (iii) remove COVID-19 inpatient episodes, and (iv) remove the 2020 financial guarantee requirement. All of our affiliated ESCOs signed amendments to extend participation in the program through March 31, 2021 and 22 of our ESCOs accepted the financial changes related to COVID-19. The Model ended on March 31, 2021. We anticipate that CMS will publish final settlement reports for the last performance year in October 2021.

We have also entered into risk-based and value-based arrangement with certain payors to provide care to commercial and Medicare Advantage ESKD and CKD patients. Under these payment arrangements, our financial performance is based on our ability to manage a defined scope of medical costs within certain parameters for clinical outcomes.

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Executive order-based models

On July 10, 2019, an Executive Order on advancing kidney health was signed in the United States. Among other things, the order instructed the Secretary of Health and Human Services (“HHS”) to develop new Medicare payment models to encourage identification and earlier treatment of kidney disease as well as increased home dialysis and transplants. One of those models, for which the rule was finalized on September 29, 2020, the ESRD Treatment Choices (“ETC”) model, is a mandatory model that creates financial incentives for home treatment and kidney transplants with a start date in January 2021 and ending in June 2027. This model applies both upside and downside payment adjustments to claims submitted by physicians and dialysis facilities for certain Medicare home dialysis patients over the span of six and one-half years. Participants in this model are based on a random selection of thirty percent of the Hospital Referral Regions. As of June 30, 2021, 981 of our U.S. dialysis facilities, representing approximately 35% of our U.S. dialysis facilities, are within the random selection of Hospital Referral Regions and therefore are in areas selected for participation in the model. An initial upside-only payment, Home Dialysis Payment Adjustment (“HDPA”), will be applied for the first three years of the model, beginning in January 2021, in decreasing payment adjustments ranging from 3% in the first payment year, to 2% in the second payment year, and to 1% in the final payment year. This model also includes a Performance Payment Adjustment (“PPA”) beginning in July 2022. PPA payments will be a combined calculation of home dialysis and transplant rates based upon historic and/or benchmark data from comparison geographic areas. Possible PPA payment adjustments increase in time and will range from (5%) to 4% in the first payment year (beginning July 2022) for both physicians and facilities and rise to (9%) and 8% for physicians and (10%) and 8% percent for facilities in the final payment year (ending in June 2027).

Pursuant to the Executive Order, the Secretary of HHS also announced voluntary payment models, Kidney Care First (“KCF”) and Comprehensive Kidney Care Contracting (“CKCC”) model (graduated, professional and global), which aim 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 ESKD, to delay the start of dialysis, and to incentivize kidney transplants. The voluntary models allow health care providers to take on various amounts of financial risk by forming an entity known as a Kidney Care Entity (“KCE”). Two options, the CKCC global and professional models, allow renal health care providers to assume upside and downside financial risk. A third option, the CKCC graduated model, is limited to upside risk, but is unavailable to KCEs that include large dialysis organizations. Under the global model, the KCE is responsible for 100 percent of the total cost of care for all Medicare Part A and B services for aligned beneficiaries, and under the professional model, the KCE is responsible for 50 percent of such costs. Applications for the voluntary models were submitted in January 2020. We submitted 25 CKCC applications to participate in the professional model and were also included in four other CKCC applications submitted by nephrologists. All 29 of these KCE applications were accepted in June 2020. Of the 29 accepted applications, 28 KCEs have elected to participate in the implementation period, which started on October 15, 2020, and provides a start-up period during which the KCE is not at financial risk. Prior to January 1, 2022, each KCE will elect whether to continue its participation at-risk beginning in the first Performance Year which starts on January 1, 2022 and ends December 31, 2022. Two of the 28 KCEs elected to drop out of the CKCC model during the implementation period. Once implemented, the CKCC model is expected to run through 2026. The commencement date of the voluntary professional model was originally set to begin on April 1, 2021, but was extended by CMS to January 1, 2022 and, relative to our 2021 expectations, we expect to both incur additional expenses and recognize no revenue as a result of this extension. We are presently unable to predict the effects on our business of the ETC payment model and the voluntary payment models.

On July 9, 2021, CMS issued a proposed rule that proposes modifications to the ETC model, including changes to the home dialysis rate and transplant rate, the achievement and improvement benchmarking and scoring methodology, and a process for sharing certain beneficiary attribution and performance data with ETC participants. CMS has proposed additional programmatic waivers and other flexibilities regarding the Kidney Disease Education (“KDE”) benefit under the ETC model such that the KDE benefit can be furnished via telehealth. CMS is also proposing changes to the ETC model to address health and socioeconomic disparities. CMS is proposing to add a Health Equity Incentive to the improvement scoring methodology for both the home dialysis rate and the transplant rate. Participants who demonstrate significant improvement in rates of home dialysis or transplantation among beneficiaries who are dual-eligible or low-income-subsidy (“LIS”) recipients could earn additional improvement points. CMS is also proposing to stratify achievement benchmarks by proportion of beneficiaries who are dual-eligible for Medicare and Medicaid or are LIS recipients, so ETC participants who see a high volume of these patients would not face negative financial consequences as a result. Finally, CMS has requested feedback on a number of topics related to beneficiary experience in home dialysis.

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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 ESKD 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 and operating income. We do not include income taxes as we believe taxes are 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 as well as certain legal costs, 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. Products transferred to the segments are transferred 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. Our global research and development as well as its Global Medical Office, which seeks to standardize medical treatments and clinical processes within the Company, are also centrally managed. These corporate activities do not fulfill the definition of a segment according to IFRS 8. 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. See note 10 of the notes to consolidated financial statements (unaudited) found elsewhere in this report for a further discussion on our operating segments.

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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 financial measurements, is useful to our investors as it provides a basis for assessing our performance, payment obligations related to performance-based compensation, our compliance with financial covenants and enhanced transparency as well as comparability of our results. Non-IFRS financial measures should not be viewed or interpreted as a substitute for financial information presented in accordance with IFRS.

Our presentation of 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 (or “net income”) includes 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 publications 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 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. In addition, under our long-term incentive plans, we measure the attainment of certain predetermined financial targets for revenue growth and net income growth in Constant Currency. 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:

(1)

period-over-period changes in revenue, operating income, net income attributable to shareholders of FMC-AG & Co. KGaA and other items prepared in accordance with IFRS, and

(2)

Constant Currency changes in revenue, operating income, net income attributable to shareholders of FMC-AG & Co. KGaA and other items.

We caution the readers of this report not to consider these measures in isolation, but to review them in conjunction with 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 non-IFRS measures next to the growth rate derived from 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 included within "Results of operations, financial position and net assets,” below, we believe that a separate reconciliation would not provide any additional benefit.

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FRESENIUS MEDICAL CARE AG & Co. KGaA

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, including adjustments for acquisitions and divestitures made during the last twelve months with a purchase price above a €50 M threshold, consistent with the respective adjustments made in the determination of adjusted EBITDA below (see "Net leverage ratio (Non-IFRS Measure)", and expresses how efficiently we allocate the capital under our control or how well we employ our capital with regard to investment projects. Additionally, we have excluded the impairment of goodwill and trade names in the Latin America Segment driven by a macro-economic downturn and increasing risk adjustment rates for certain countries in the region ("Impairment Loss") (see note 2 a) of the notes to the consolidated financial statements included in our 2020 Form 20-F) to increase comparability of the underlying financial figures of certain Management Board compensation performance targets with the Company’s operating performance and to adequately recognize the actual performance of the members of the Management Board. An adjustment to exclude amounts related to the implementation of IFRS 16, Leases, which replaced the straight-line operating lease expense for former leases under International Accounting Standard 17, Leases, 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 “Effect from IFRS 16”) is included for the purpose of increasing the comparability of previously reported information in accordance with our long-term incentive plans in 2019. The following tables show 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 (Non-IFRS Measure, unadjusted)

in € M, except where otherwise specified

June 30,

    

March 31,

    

December 31,

    

September 30,

    

June 30,

2021

    

 2021

    

2021

    

 2020

    

2020

    

2020

Total assets

 

32,987

 

33,159

 

31,689

 

33,049

 

34,190

Plus: Cumulative goodwill amortization and Impairment Loss

 

602

 

598

 

583

 

405

 

421

Minus: Cash and cash equivalents

 

(1,408)

 

(1,073)

 

(1,082)

 

(1,599)

 

(1,890)

Minus: Loans to related parties

 

(6)

 

(1)

 

(1)

 

(51)

 

(49)

Minus: Deferred tax assets

 

(359)

 

(333)

 

(351)

 

(429)

 

(391)

Minus: Accounts payable to unrelated parties

 

(685)

 

(635)

 

(732)

 

(729)

 

(678)

Minus: Accounts payable to related parties

 

(102)

 

(105)

 

(95)

 

(132)

 

(135)

Minus: Provisions and other current liabilities (1)

 

(3,528)

 

(3,436)

 

(3,180)

 

(3,641)

 

(3,799)

Minus: Income tax payable

 

(218)

 

(232)

 

(197)

 

(269)

 

(212)

Invested capital

 

27,283

 

27,942

 

26,634

 

26,604

 

27,457

Average invested capital as of June 30, 2021

 

27,184

 

  

 

  

 

  

 

  

Operating income

 

1,992

 

  

 

  

 

  

 

  

Income tax expense (2)

 

(525)

 

  

 

  

 

  

 

  

NOPAT

 

1,467

 

  

 

  

 

  

 

  

Adjustments to average invested capital and ROIC

in € M, except where otherwise specified

    

June 30,

    

March 31,

    

December 31,

    

September 30,

    

June 30,

2021

    

 2021

    

2021

    

 2020 (3)

    

 2020 (3)

    

 2020 (3)

Total assets

 

 

 

111

 

117

 

122

Minus: Cash and cash equivalents

 

 

 

(3)

 

(3)

 

(1)

Minus: Provisions and other current liabilities (1)

 

 

 

(6)

 

(6)

 

(6)

Invested capital

 

 

 

102

 

108

 

115

Adjustment to average invested capital as of June 30, 2021

 

65

 

  

 

  

 

  

 

  

Adjustment to operating income (3)

 

3

 

  

 

  

 

  

 

  

Adjustment to income tax expense (3)

 

(1)

 

  

 

  

 

  

 

  

Adjustment to NOPAT

 

2

 

  

 

  

 

  

 

  

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FRESENIUS MEDICAL CARE AG & Co. KGaA

Reconciliation of average invested capital and ROIC (Non-IFRS Measure)

in € M, except where otherwise specified

    

June 30,

    

March 31,

    

December 31,

    

September 30,

    

June 30,

2021

    

 2021

    

2021

    

 2020 (3)

    

 2020 (3)

    

 2020 (3)

Total assets

 

32,987

 

33,159

 

31,800

 

33,165

 

34,311

Plus: Cumulative goodwill amortization and Impairment Loss

 

602

 

598

 

583

 

405

 

421

Minus: Cash and cash equivalents

 

(1,408)

 

(1,073)

 

(1,082)

 

(1,599)

 

(1,890)

Minus: Loans to related parties

 

(6)

 

(1)

 

(1)

 

(51)

 

(49)

Minus: Deferred tax assets

 

(359)

 

(333)

 

(351)

 

(429)

 

(391)

Minus: Accounts payable to unrelated parties

 

(685)

 

(635)

 

(732)

 

(729)

 

(678)

Minus: Accounts payable to related parties

 

(102)

 

(105)

 

(95)

 

(132)

 

(135)

Minus: Provisions and other current liabilities (1)

 

(3,528)

 

(3,436)

 

(3,186)

 

(3,647)

 

(3,806)

Minus: Income tax payable

 

(218)

 

(232)

 

(197)

 

(269)

 

(212)

Invested capital

 

27,283

 

27,942

 

26,739

 

26,714

 

27,571

Average invested capital as of June 30, 2021

 

27,250

 

 

  

 

  

 

  

Operating income (3)

 

1,995

 

  

 

  

 

  

 

  

Income tax expense (2), (3)

 

(526)

 

  

 

  

 

  

 

  

NOPAT

 

1,469

 

  

 

  

 

  

 

  

ROIC

 

5.4%

  

 

  

 

  

 

  

Adjustments to average invested capital and ROIC (excluding Impairment Loss)

in € M, except where otherwise specified

    

June 30,

    

March 31,

    

December 31,

    

September 30,

    

June 30,

2021

    

 2021

    

2021

    

 2020

    

2020

    

2020

Total assets

 

 

 

195

 

 

Plus: Impairment Loss

 

 

 

(195)

 

 

Invested capital

 

 

 

 

 

Average invested capital as of June 30, 2021

 

 

  

 

  

 

  

 

  

Adjustment to operating income

 

195

 

  

 

  

 

  

 

  

Adjustment to income tax expense

 

(52)

 

  

 

  

 

  

 

  

NOPAT

 

143

 

  

 

  

 

  

 

  

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FRESENIUS MEDICAL CARE AG & Co. KGaA

Reconciliation of average invested capital and ROIC (Non-IFRS Measure, excluding Impairment Loss)

in € M, except where otherwise specified

    

June 30,

    

March 31,

    

December 31,

    

September 30,

    

June 30,

2021

    

 2021

    

2021

    

 2020 (3)

    

 2020 (3)

    

 2020 (3)

Total assets

 

32,987

 

33,159

 

31,995

 

33,165

 

34,311

Plus: Cumulative goodwill amortization

 

602

 

598

 

388

 

405

 

421

Minus: Cash and cash equivalents

 

(1,408)

 

(1,073)

 

(1,082)

 

(1,599)

 

(1,890)

Minus: Loans to related parties

 

(6)

 

(1)

 

(1)

 

(51)

 

(49)

Minus: Deferred tax assets

 

(359)

 

(333)

 

(351)

 

(429)

 

(391)

Minus: Accounts payable to unrelated parties

 

(685)

 

(635)

 

(732)

 

(729)

 

(678)

Minus: Accounts payable to related parties

 

(102)

 

(105)

 

(95)

 

(132)

 

(135)

Minus: Provisions and other current liabilities (1)

 

(3,528)

 

(3,436)

 

(3,186)

 

(3,647)

 

(3,806)

Minus: Income tax payable

 

(218)

 

(232)

 

(197)

 

(269)

 

(212)

Invested capital

 

27,283

 

27,942

 

26,739

 

26,714

 

27,571

Average invested capital as of June 30, 2021

 

27,250

 

  

 

  

 

  

 

  

Operating income (3)

 

2,189

 

  

 

  

 

  

 

  

Income tax expense (2), (3)

 

(577)

 

  

 

  

 

  

 

  

NOPAT

 

1,612

 

  

 

  

 

  

 

  

ROIC (excluding Impairment Loss)

 

5.9%

  

 

  

 

  

 

  

Adjustments to average invested capital and ROIC for the Effect from IFRS 16

in € M, except where otherwise specified

    

June 30,

    

March 31,

    

December 31,

    

September 30,

    

June 30,

2021

    

 2021

    

2021

    

 2020

    

2020

    

2020

Total assets

 

(4,177)

 

(4,242)

 

(4,130)

 

(4,261)

 

(4,421)

Minus: Deferred tax assets

 

(35)

 

(30)

 

2

 

4

 

3

Minus: Provisions and other current liabilities (1)

 

(132)

 

(134)

 

(128)

 

(134)

 

(140)

Minus: Income tax payable

 

1

 

1

 

1

 

 

Invested capital

 

(4,343)

 

(4,405)

 

(4,255)

 

(4,391)

 

(4,558)

Adjustment to average invested capital as of June 30, 2021

 

(4,390)

 

  

 

 

  

 

  

Adjustment to operating income

 

(128)

 

  

 

  

 

  

 

  

Adjustment to income tax expense

 

34

 

  

 

  

 

  

 

  

Adjustment to NOPAT

 

(94)

 

  

 

  

 

  

 

  

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FRESENIUS MEDICAL CARE AG & Co. KGaA

Reconciliation of average invested capital and ROIC (Non-IFRS Measure, excluding Impairment Loss and the Effect from IFRS 16)

in € M, except where otherwise specified

    

June 30,

    

March 31,

    

December 31,

    

September 30,

    

June 30,

2021

    

 2021

    

2021

    

 2020

    

2020

    

2020

Total assets

 

28,810

 

28,917

 

27,865

 

28,904

 

29,890

Plus: Cumulative goodwill amortization

 

602

 

598

 

388

 

405

 

421

Minus: Cash and cash equivalents

 

(1,408)

 

(1,073)

 

(1,082)

 

(1,599)

 

(1,890)

Minus: Loans to related parties

 

(6)

 

(1)

 

(1)

 

(51)

 

(49)

Minus: Deferred tax assets

 

(395)

 

(364)

 

(349)

 

(426)

 

(388)

Minus: Accounts payable to unrelated parties

 

(685)

 

(635)

 

(732)

 

(729)

 

(678)

Minus: Accounts payable to related parties

 

(102)

 

(105)

 

(95)

 

(132)

 

(135)

Minus: Provisions and other current liabilities (1)

 

(3,661)

 

(3,570)

 

(3,314)

 

(3,781)

 

(3,946)

Minus: Income tax payable

 

(217)

 

(231)

 

(196)

 

(269)

 

(212)

Invested capital

 

22,938

 

23,536

 

22,484

 

22,322

 

23,013

Average invested capital as of June 30, 2021

 

22,859

 

  

 

  

 

  

 

Operating income (3)

 

2,061

 

  

 

  

 

  

 

  

Income tax expense (2), (3)

 

(543)

 

  

 

  

 

  

 

  

NOPAT

 

1,518

 

  

 

  

 

  

 

  

ROIC (excluding Impairment Loss and the Effect from IFRS 16)

 

6.6%

  

 

  

 

  

 

  

Reconciliation of average invested capital and ROIC (Non-IFRS Measure, unadjusted)

in € M, except where otherwise specified

    

December 31,

    

September 30,

    

June 30,

    

March 31,

    

December 31,

2020

    

2020

    

2020

    

2020

    

2020

    

2019

Total assets

 

31,689

 

33,049

 

34,190

 

34,072

 

32,935

Plus: Cumulative goodwill amortization and Impairment Loss

 

583

 

405

 

421

 

430

 

420

Minus: Cash and cash equivalents

 

(1,082)

 

(1,599)

 

(1,890)

 

(1,405)

 

(1,008)

Minus: Loans to related parties

 

(1)

 

(51)

 

(49)

 

(40)

 

(72)

Minus: Deferred tax assets

 

(351)

 

(429)

 

(391)

 

(382)

 

(361)

Minus: Accounts payable to unrelated parties

 

(732)

 

(729)

 

(678)

 

(762)

 

(717)

Minus: Accounts payable to related parties

 

(95)

 

(132)

 

(135)

 

(134)

 

(119)

Minus: Provisions and other current liabilities (1)

 

(3,180)

 

(3,641)

 

(3,799)

 

(2,577)

 

(2,452)

Minus: Income tax payable

 

(197)

 

(269)

 

(212)

 

(200)

 

(180)

Invested capital

 

26,634

 

26,604

 

27,457

 

29,002

 

28,446

Average invested capital as of December 31, 2020

 

27,628

 

  

 

  

 

  

 

  

Operating income

 

2,304

 

  

 

  

 

  

 

  

Income tax expense (2)

 

(688)

 

  

 

  

 

  

 

  

NOPAT

 

1,616

 

  

 

  

 

  

 

  

ROIC

 

5.8%

  

 

  

 

  

 

  

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FRESENIUS MEDICAL CARE AG & Co. KGaA

Adjustments to average invested capital and ROIC (excluding Impairment Loss)

in € M, except where otherwise specified

    

December 31,

    

September 30,

    

June 30,

    

March 31,

    

December 31,

2020

    

2020

    

2020

    

2020

    

2020

    

2019

Total assets

 

195

 

 

 

 

Plus: Impairment Loss

 

(195)

 

 

 

 

Invested capital

 

 

 

 

 

Adjustment to average invested capital as of December 31, 2020

 

 

  

 

  

 

  

 

  

Adjustment to operating income

 

195

 

  

 

  

 

  

 

  

Adjustment to income tax expense

 

19

 

  

 

  

 

  

 

  

Adjustment to NOPAT

 

214

 

  

 

  

 

  

 

  

Reconciliation of average invested capital and ROIC (Non-IFRS Measure, excluding Impairment Loss)

in € M, except where otherwise specified

    

December 31,

    

September 30,

    

June 30,

    

March 31,

    

December 31,

2020

    

2020

    

2020

    

2020

    

2020

    

2019

Total assets

 

31,884

 

33,049

 

34,190

 

34,072

 

32,935

Plus: Cumulative goodwill amortization

 

389

 

405

 

421

 

430

 

420

Minus: Cash and cash equivalents

 

(1,082)

 

(1,599)

 

(1,890)

 

(1,405)

 

(1,008)

Minus: Loans to related parties

 

(1)

 

(51)

 

(49)

 

(40)

 

(72)

Minus: Deferred tax assets

 

(351)

 

(429)

 

(391)

 

(382)

 

(361)

Minus: Accounts payable to unrelated parties

 

(732)

 

(729)

 

(678)

 

(762)

 

(717)

Minus: Accounts payable to related parties

 

(95)

 

(132)

 

(135)

 

(134)

 

(119)

Minus: Provisions and other current liabilities (1)

 

(3,180)

 

(3,641)

 

(3,799)

 

(2,577)

 

(2,452)

Minus: Income tax payable

 

(197)

 

(269)

 

(212)

 

(200)

 

(180)

Invested capital

 

26,634

 

26,604

 

27,457

 

29,002

 

28,446

Average invested capital as of December 31, 2020

 

27,628

 

  

 

  

 

  

 

  

Operating income

 

2,499

 

  

 

  

 

  

 

  

Income tax expense (2)

 

(669)

 

  

 

  

 

  

 

  

NOPAT

 

1,830

 

  

 

  

 

  

 

  

ROIC (excluding Impairment Loss)

 

6.6%

  

 

  

 

  

 

  

Adjustments to average invested capital and ROIC for the Effect from IFRS 16

in € M, except where otherwise specified

    

December 31,

    

September 30,

    

June 30,

    

March 31,

    

December 31,

2020

    

2020

    

2020

    

2020

    

2020

    

2019

Total assets

 

(4,130)

 

(4,261)

 

(4,421)

 

(4,388)

 

(4,356)

Minus: Deferred tax assets

 

2

 

4

 

3

 

3

 

2

Minus: Provisions and other current liabilities (1)

 

(128)

 

(134)

 

(140)

 

(143)

 

(140)

Minus: Income tax payable

 

1

 

 

 

 

Invested capital

 

(4,255)

 

(4,392)

 

(4,558)

 

(4,529)

 

(4,494)

Adjustment to average invested capital as of December 31, 2020

 

(4,445)

 

  

 

  

 

  

 

  

Adjustment to operating income

 

(134)

 

  

 

  

 

  

 

  

Adjustment to income tax expense

 

40

 

  

 

  

 

  

 

  

Adjustment to NOPAT

 

(94)

 

  

 

  

 

  

 

  

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Reconciliation of average invested capital and ROIC (Non-IFRS Measure, excluding Impairment Loss and the Effect from IFRS 16)

in € M, except where otherwise specified

    

December 31,

    

September 30,

    

June 30,

    

March 31,

    

December 31,

2020

    

2020

    

2020

    

2020

    

2020

    

2019

Total assets

 

27,754

 

28,788

 

29,769

 

29,684

 

28,579

Plus: Cumulative goodwill amortization

 

389

 

405

 

421

 

430

 

420

Minus: Cash and cash equivalents

 

(1,082)

 

(1,599)

 

(1,890)

 

(1,405)

 

(1,008)

Minus: Loans to related parties

 

(1)

 

(51)

 

(49)

 

(40)

 

(72)

Minus: Deferred tax assets

 

(349)

 

(426)

 

(388)

 

(380)

 

(359)

Minus: Accounts payable to unrelated parties

 

(732)

 

(729)

 

(678)

 

(762)

 

(717)

Minus: Accounts payable to related parties

 

(95)

 

(132)

 

(135)

 

(134)

 

(119)

Minus: Provisions and other current liabilities (1)

 

(3,309)

 

(3,775)

 

(3,940)

 

(2,720)

 

(2,592)

Minus: Income tax payable

 

(196)

 

(269)

 

(212)

 

(200)

 

(180)

Invested capital

 

22,379

 

22,212

 

22,899

 

24,473

 

23,952

Average invested capital as of December 31, 2020

 

23,183

 

  

 

  

 

  

 

  

Operating income

 

2,365

 

  

 

  

 

  

 

  

Income tax expense (2)

 

(629)

 

  

 

  

 

  

 

  

NOPAT

 

1,736

 

  

 

  

 

  

 

  

ROIC (excluding Impairment Loss and the Effect from IFRS 16)

 

7.5%

  

 

  

 

  

 

  

(1)

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.

(2)

Adjusted for noncontrolling partnership interests.

(3)

Including adjustments for acquisitions and divestitures made within the reporting period with a purchase price above a €50 M threshold.

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FRESENIUS MEDICAL CARE AG & Co. KGaA

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 by (used in) operating activities is applied to assess whether a business can internally 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 (which we define as 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, including cash flows that may be restricted for other uses. This indicator shows the percentage of revenue available for acquisitions and investments, dividends to shareholders, reducing debt financing or for repurchasing shares.

For a reconciliation of cash flow performance indicators for the six months ended June 30, 2021 and 2020 which 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, see “III. Results of operations, financial position and net assets - Financial position - Sources of Liquidity.’’

Net leverage ratio (Non-IFRS Measure)

The net leverage ratio is a performance indicator used for capital management. To determine the net leverage ratio, debt and lease liabilities less cash and cash equivalents (net debt) is compared to adjusted EBITDA (earnings before interest, taxes, depreciation and amortization) (adjusted for acquisitions and divestitures made during the last twelve months with a purchase price above a €50 M threshold as defined in the Amended 2012 Credit Agreement, non-cash charges and impairment loss). 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 reasonable proportion of debt. Adjusted EBITDA, a non-IFRS Measure, was also the basis for determining compliance with certain other covenants contained in our Amended 2012 Credit Agreement (including a maximum permitted consolidated leverage ratio, which could limit our ability to incur additional indebtedness) and is also relevant in determining compliance with the leverage ratio threshold under the new €2 billion syndicated multicurrency sustainability-linked revolving and swingline credit facilities agreement that we entered into on July 1, 2021 (“Syndicated Credit Facility”) (see note 11 of the notes to the consolidated financial statements (unaudited) included in this report), which could limit asset disposals.You should not consider adjusted 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 adjusted 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.

For a reconciliation of adjusted EBITDA and net leverage ratio as of June 30, 2021 and December 31, 2020, see “III. Results of operations, financial position and net assets - Financial position - Sources of Liquidity.’’

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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 consistent with the manner in which management internally disaggregates financial information to assist in making operating decisions and evaluating management performance.

In accordance with the update to our Company strategy to leverage our core strategic competencies in order to achieve our goal of providing health care for chronically and critically ill patients across the renal care continuum (“Strategy 2025”), which encompasses new renal care models, value-based care models, chronic kidney disease and transplantation as well as future innovations, we have adjusted the presentation of consolidated and operating segment data to reflect the integration of Dialysis and Care Coordination in our business model. Therefore, we do not present Dialysis and Care Coordination metrics separately. As such, Care Coordination information previously presented separately for the North America Segment and the Asia-Pacific Segment is now included within the corresponding Health Care metric. This presentation also more closely aligns our external financial reporting with the manner in which management reviews financial information to make operating decisions and evaluate performance of our business.

Results of operations

Segment data (including Corporate)

in € M

    

For the three months ended

    

For the six months ended

June 30,

June 30,

    

2021

    

2020

    

2021

    

2020

Total revenue

 

  

  

  

  

North America Segment

 

2,953

3,240

5,852

6,426

EMEA Segment

 

693

687

1,362

1,366

Asia-Pacific Segment

 

486

450

957

893

Latin America Segment

 

171

170

330

338

Corporate

 

17

10

29

22

Total

 

4,320

4,557

8,530

9,045

Operating income

 

  

  

  

  

North America Segment

 

398

609

796

1,073

EMEA Segment

 

73

78

153

179

Asia-Pacific Segment

 

84

63

170

140

Latin America Segment

 

3

11

9

18

Corporate

 

(134)

(105)

(230)

(199)

Total

 

424

656

898

1,211

Interest income

 

14

11

29

20

Interest expense

 

(83)

(103)

(174)

(216)

Income tax expense

 

(75)

(137)

(169)

(237)

Net income

 

280

427

584

778

Net income attributable to noncontrolling interests

 

(61)

(76)

(116)

(144)

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

 

219

351

468

634

Revenue and operating income generated in countries outside the eurozone are subject to currency fluctuations. The table below summarizes the development of the euro against the U.S. dollar as well as the revenue and the operating income, as a percentage of the consolidated results, generated in U.S. dollars for the three- and six-month periods ended June 30, 2021 and 2020:

Currency development and portion of total revenue and operating income

    

For the three months ended

For the six months ended

June 30,

June 30,

    

2021

    

2020

    

2021

    

2020

Currency development of euro against the U.S. dollar

 

negative impact

positive impact

negative impact

positive impact

Percentage of revenue in U.S. dollars

 

68%

71%

69%

71%

Percentage of operating income generated in U.S. dollars

 

94%

93%

89%

89%

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Three months ended June 30, 2021 compared to three months ended June 30, 2020

Consolidated financials

Performance indicators for the consolidated financial statements

Change in %

For the three months ended

Currency

June 30,

As

translation

Constant

2021

2020

reported

effects

Currency(1)

    

    

    

    

    

Revenue in € M

4,320

 

4,557

 

(5%)

(7%)

2%

Health care services

3,400

 

3,614

 

(6%)

(8%)

2%

Health care products

920

 

943

 

(2%)

(4%)

2%

Number of dialysis treatments

13,208,732

 

13,337,449

 

(1%)

Same Market Treatment Growth (2)

(1.4%)

2.9%

Gross profit in € M

1,284

 

1,414

(9%)

(6%)

(3%)

Gross profit as a % of revenue

29.7%

31.0%

Selling, general and administrative costs in € M

830

 

711

17%

7%

24%

Selling, general and administrative costs as a % of revenue

19.2%

15.6%

Operating income in € M

424

 

656

(35%)

(5%)

(30%)

Operating income margin

9.8%

14.4%

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

219

 

351

 

(38%)

(5%)

(33%)

Basic earnings per share in €

0.75

 

1.20

 

(38%)

(5%)

(33%)

(1)

For further information on Constant Exchange Rates, see “II. Discussion of measures – Non–IFRS measures" above.

(2)

Same market treatment growth represents growth in treatments, adjusted for certain reconciling items including (but not limited to) treatments from acquisitions, closed or sold clinics and differences in dialysis days (“Same Market Treatment Growth”).

Health care services revenue decreased by 6% as compared to the three months ended June 30, 2020 (+2% at Constant Exchange Rates) driven by a negative impact from foreign currency translation (-8%), partially offset by contributions from acquisitions (+1%) and an increase in organic growth (+1%) despite impacts from COVID-19, including excess mortality rates among patients due to COVID-19, (“COVID-19-Related Impacts”) in certain of our operating segments, which are further described in the discussions of our segments below, and lower reimbursement for calcimimetics.

Dialysis treatments decreased by 1% as a result of a reduction in same market treatments (-1%) and the effect of closed or sold clinics (-1%), partially offset by contributions from acquisitions (+1%). The decreases in treatments and Same Market Treatment Growth were significantly affected by COVID-19-Related Impacts.

At June 30, 2021, we owned, operated or managed 4,125 dialysis clinics compared to 4,036 dialysis clinics at June 30, 2020. During the three months ended June 30, 2021, we acquired 3 dialysis clinics, opened 23 dialysis clinics and combined or closed 11 clinics. The number of patients treated in dialysis clinics that we own, operate or manage decreased by 1% to 345,646 at June 30, 2021 (June 30, 2020: 347,683). The decrease in patients was driven by COVID-19-Related Impacts.

Health care product revenue decreased by 2% (+2% at Constant Exchange Rates) driven by a negative impact from foreign currency translation and lower sales of products for acute care treatments, partially offset by higher sales of in-center disposables (Asia-Pacific Segment and EMEA Segment), machines for chronic treatment, renal pharmaceuticals, acute cardiopulmonary products and home hemodialysis products.

Gross profit decreased by 9% (-3% at Constant Exchange Rates) primarily driven by a negative impact from foreign currency translation, unfavorable effects from COVID-19-Related Impacts (in particular, an absence of U.S. federal relief funding under the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) in 2021), increased costs for supplies and higher personnel expense (all regions), partially offset by a higher reimbursement rate driven by an increased number of patients with Medicare Advantage coverage and other payor mix effects as well as increased treatment volumes (including growth from acquisitions) as normalized for COVID-19.

Selling, general and administrative (“SG&A”) expense increased by 17% (+24% at Constant Exchange Rates) primarily driven by unfavorable effects from COVID-19 Impacts across all regions, an unfavorable impact from provisions recorded in 2021 for value-added tax positions related to prior years (Corporate) and various smaller impacts, partially offset by a positive impact from foreign currency translation and lower share-based compensation expense across all regions.

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Income from equity method investees increased by 474% to €22 M from €4 M. The increase was primarily driven by a prior year impairment for a license held by Vifor Fresenius Medical Care Renal Pharma Ltd. (“VFMCRP”) based on an unfavorable clinical trial.

Operating income decreased by 35% (-30% at Constant Exchange Rates) largely driven by the increase in SG&A expenses coupled with a decrease in gross profit, as discussed above, as well as a negative impact from foreign currency translation.

Net interest expense decreased by 25% to €69 M from €92 M primarily due to a positive impact from foreign currency translation, a positive impact from refinancing activities (including the issuance of bonds at lower interest rates), a lower debt level, lower variable interest rates and lower interest rates on lease liabilities.

Income tax expense decreased to €75 M from €137 M. The effective tax rate decreased to 21.2% from 24.3% for the same period of 2020 largely driven by impacts related to changes in tax risk estimates, an increase of tax-free income attributable to noncontrolling interests and a prior year impairment for a license held by VFMCRP based on an unfavorable clinical trial, partially offset by the effect of a tax-free gain related to divestitures of centers in the comparative prior year period.

Net income attributable to noncontrolling interests decreased by 19% (-12% at Constant Exchange Rates) to €61 M from €76 M due to lower earnings in entities in which we have less than 100% ownership and a positive impact from foreign currency translation.

Net income attributable to shareholders of FMC-AG & Co. KGaA decreased by 38% (-33% at Constant Exchange Rates) to €219 M from €351 M as a result of the combined effects of the items discussed above as well as a negative impact from foreign currency translation. COVID-19 resulted in a negative impact to net income attributable to shareholders of FMC-AG & Co. KGaA in the amount of €74 M for the three months ended June 30, 2021 as compared to a positive impact of €31 M for the three months ended June 30, 2020, which was restated from €42 M during 2020 to include the look-back impact of excess mortality, primarily due to a significant decrease in government relief and advanced payments in the countries in which we operate (primarily in the U.S.) as compared to the three months ended June 30, 2020.

Basic earnings per share decreased by 38% (-33% at Constant Exchange Rates) primarily due to the decrease in net income attributable to shareholders of FMC-AG & Co. KGaA described above coupled with a negative impact from foreign currency translation. The average weighted number of shares outstanding for the period remained relatively stable at 292.9 M on June 30, 2021 as compared to the prior year period (June 30, 2020: 292.7 M).

We employed 123,538 people (full-time equivalents) as of June 30, 2021 (June 30, 2020: 124,736). This 1% decrease primarily results from the reduction of the number of temporary employees in the North America Segment that were hired to manage the COVID-19 pandemic as well as the result of a very difficult labor market for employees in the health care sector of the U.S. due to COVID-19.

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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

Performance indicators for the North America Segment

Change in %

 

For the three months ended

Currency

 

June 30,

As

translation

Constant

 

2021

2020

reported

effects

Currency (1)

 

    

    

    

  

    

  

    

  

 

Revenue in € M

 

2,953

 

3,240

 

(9%)

(9%)

0%

Health care services

 

2,695

 

2,951

 

(9%)

(9%)

0%

Health care products

 

258

 

289

 

(11%)

(9%)

(2%)

Number of dialysis treatments

 

8,079,555

 

8,207,398

 

(2%)

  

Same Market Treatment Growth

 

(2.4)%

2.1%

  

Operating income in € M

 

398

609

(35%)

(6%)

(29%)

Operating income margin

13.5%

18.8%

  

 

 

  

(1)

For further information on Constant Exchange Rates, see “II. Discussion of measures – Non–IFRS measures" above.

Revenue

Health care services revenue decreased by 9% (remained stable at Constant Exchange Rates) mainly due to a negative impact from foreign currency translation (-9%) and a decrease in organic growth as a result of COVID-19-Related Impacts and lower reimbursement for calcimimetics (-1%), partially offset by contributions from acquisitions (+1%).

Dialysis treatments decreased by 2% largely due to a reduction in same market treatments (-2%). At June 30, 2021, 210,621 patients, a decrease of 1% (June 30, 2020: 212,149), were treated in the 2,662 dialysis clinics (June 30, 2020: 2,614) that we own or operate in the North America Segment. The decreases in treatments, Same Market Treatment Growth and patients were significantly affected by COVID-19-Related Impacts.

Health care product revenue decreased by 11% (-2% at Constant Exchange Rates) driven by a negative impact from foreign currency translation and lower sales of products for acute care treatments, partially offset by higher sales of renal pharmaceuticals and home hemodialysis products.

Operating income

Operating income decreased by 35% (-29% at Constant Exchange Rates) primarily related to unfavorable effects from COVID-19-Related Impacts (in particular, an absence of U.S. federal relief funding under the CARES Act in 2021), a negative impact from foreign currency translation, increased costs for supplies, higher personnel expense, an unfavorable impact from calcimimetics, the absence of income attributable to a consent agreement on certain pharmaceuticals in the second quarter of 2021 and higher bad debt expense, partially offset by a higher reimbursement rate driven by an increased number of patients with Medicare Advantage coverage and other payor mix effects, and increased treatment volumes (including growth from acquisitions) as normalized for COVID-19.

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EMEA Segment

Performance indicators for the EMEA Segment

Change in %

For the three months ended

Currency

June 30,

As

translation

Constant

2021

2020

reported

effects

Currency(1)

    

    

    

    

    

Revenue in € M

 

693

 

687

 

1%

(1%)

2%

Health care services

 

341

 

341

 

0%

(2%)

2%

Health care products

 

352

 

346

 

1%

(2%)

3%

Number of dialysis treatments

 

2,461,772

 

2,544,891

 

(3%)

Same Market Treatment Growth

 

(3.8%)

3.3%

Operating income in € M

 

73

78

(5%)

0%

(5%)

Operating income margin

10.6%

11.3%

  

 

  

 

  

(1)

For further information on Constant Exchange Rates, see “II. Discussion of measures – Non–IFRS measures" above.

Revenue

Health care service revenue remained stable (+2% at Constant Exchange Rates) as a negative impact from foreign currency translation (-2%) and the effect of closed or sold clinics (-1%) were offset by contributions from acquisitions (+3%). Including the effects from COVID-19-Related Impacts, organic growth remained stable as compared to the three months ended June 30, 2020.

Dialysis treatments decreased by 3% mainly due to a reduction in same market treatments (-4%) and the effect of closed or sold clinics (-1%), partially offset by contributions from acquisitions (+2%). As of June 30, 2021, 65,401 patients, a decrease of 3% (June 30, 2020: 67,220), were treated at the 815 dialysis clinics (June 30, 2020: 797) that we own, operate or manage in the EMEA Segment. The decreases in treatments, Same Market Treatment Growth and patients were significantly affected by COVID-19-Related Impacts.

Health care product revenue increased by 1% (+3% at Constant Exchange Rates) primarily due to higher sales of acute cardiopulmonary products, renal pharmaceuticals, machines for chronic treatment, in-center disposables and home hemodialysis products, partially offset by lower sales of products for acute care treatment and a negative impact from foreign currency translation.

Operating income

Operating income decreased by 5% (-5% at Constant Exchange Rates) primarily due to unfavorable foreign currency transaction effects, unfavorable manufacturing cost development, and higher IT and bad debt expense, partially offset by the absence of a prior year impairment for a license held by VFMCRP based on an unfavorable clinical trial.

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Asia-Pacific Segment

Performance indicators for the Asia-Pacific Segment

Change in %

For the three months ended

Currency

June 30,

As

translation

Constant

2021

2020

reported

effects

Currency(1)

    

    

    

    

    

Revenue in € M

 

486

 

450

 

8%

(4%)

12%

Health care services

 

227

 

196

 

16%

(6%)

22%

Health care products

 

259

 

254

 

2%

(1%)

3%

Number of dialysis treatments

 

1,188,789

 

1,128,926

 

5%

Same Market Treatment Growth

 

5.8%

7.2%

Operating income in € M

 

84

63

33%

(5%)

38%

Operating income margin

17.3%

14.1%

  

 

  

 

  

(1)

For further information on Constant Exchange Rates, see “II. Discussion of measures – Non–IFRS measures" above.

Revenue

Health care services revenue increased by 16% (+22% at Constant Exchange Rates) largely as a result of an increase in organic growth, including a recovery in elective procedures, (+19%), contributions from acquisitions (+3%), partially offset by a negative impact from foreign currency translation (-6%).

Dialysis treatments increased by 5% mainly due to growth in same market treatments (+6%) and contributions from acquisitions (+1%), partially offset by the effect of closed or sold clinics (-2%). As of June 30, 2021, 33,491 patients, an increase of 5% (June 30, 2020: 31,893) were treated at the 404 dialysis clinics (June 30, 2020: 380) that we own, operate or manage in the Asia-Pacific Segment.

Health care product revenue increased by 2% (+3% at Constant Exchange Rates) mainly due to higher sales of in-center disposables, machines for chronic treatment and peritoneal dialysis products, partially offset by a negative impact from foreign currency translation and lower sales of products for acute care treatments.

Operating income

Operating income increased by 33% (+38% at Constant Exchange Rates) primarily due to favorable business growth and favorable effects from a recovery in elective procedures, partially offset by unfavorable foreign currency transaction effects.

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Latin America Segment

Performance indicators for the Latin America Segment

Change in %

For the three months ended

Currency

June 30,

As

translation

Constant

2021

2020

reported

effects

Currency(1)

    

    

    

    

    

Revenue in € M

 

171

 

170

 

1%

(16%)

17%

Health care services

 

123

 

119

 

3%

(19%)

22%

Health care products

 

48

 

51

 

(5%)

(10%)

5%

Number of dialysis treatments

 

1,478,616

 

1,456,234

 

2%

Same Market Treatment Growth

 

3.4%

3.6%

Operating income in € M

 

3

11

(76%)

6%

(82%)

Operating income margin

1.5%

6.4%

  

 

  

 

  

(1)

For further information on Constant Exchange Rates, see “II. Discussion of measures – Non–IFRS measures" above.

Revenue

Health care service revenue increased by 3% (+22% at Constant Exchange Rates) primarily as a result of an increase in organic growth (+21%) and contributions from acquisitions (+3%), partially offset by a negative impact from foreign currency translation (-19%) and the effect of closed or sold clinics (-2%).

Dialysis treatments increased by 2% mainly due to growth in same market treatments (+3%) and contributions from acquisitions (+2%), partially offset by the effect of closed or sold clinics (-3%). As of June 30, 2021, 36,133 patients, a decrease of 1% (June 30, 2020: 36,421), were treated at the 244 dialysis clinics (June 30, 2020: 245) that we own, operate or manage in the Latin America Segment. The number of treatments, as well as the related Same Market Treatment Growth, and patients was also affected by COVID-19-Related Impacts.

Health care product revenue decreased by 5% (+5% at Constant Exchange Rates) primarily due to a negative impact from foreign currency translation and lower sales of in-center disposables.

Operating income

Operating income decreased by 76% (-82% at Constant Exchange Rates) primarily due to increased costs for supplies, higher personnel expense and increased bad debt expense, partially offset by favorable foreign currency transaction effects.

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Six months ended June 30, 2021 compared to six months ended June 30, 2020

Consolidated financials

Key indicators for the consolidated financial statements

Change in %

 

For the six months ended

Currency

 

June 30,

translation

Constant

 

2021

2020

As reported

effects

Currency(1)

 

    

    

    

 

    

 

    

Revenue in € M

 

8,530

 

9,045

 

(6%)

(8%)

2%

Health care services

6,726

 

7,209

 

(7%)

(8%)

1%

Health care products

1,804

 

1,836

 

(2%)

(5%)

3%

Number of dialysis treatments

 

26,212,741

 

26,528,323

 

(1%)

Same Market Treatment Growth

 

(1.4%)

3.3%

Gross profit in € M

 

2,491

2,804

(11%)

(6%)

(5%)

Gross profit as a % of revenue

 

29.2%

31.0%

Selling general and administrative costs in € M

 

1,542

1,521

1%

7%

8%

Selling, general and administrative costs as a % of revenue

 

18.1%

16.8%

Operating income in € M

 

898

1,211

(26%)

(6%)

(20%)

Operating income margin

 

10.5%

13.4%

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

 

468

 

634

 

(26%)

(5%)

(21%)

Basic earnings per share in €

 

1.60

 

2.15

 

(26%)

(6%)

(20%)

(1)

For further information on Constant Exchange Rates, see “II. Discussion of measures – Non–IFRS measures" above.

Health care services revenue decreased by 7% compared to the six months ended June 30, 2020 (+1% at Constant Exchange Rates) driven by a negative impact from foreign currency translation (-8%) and the absence of a prior year partial reversal of a 2019 revenue recognition adjustment for accounts receivable in legal dispute (-1%), partially offset by contributions from acquisitions (+1%) and an increase in organic growth (+1%) despite COVID-19-Related Impacts in certain of our operating segments, which are further described in the discussions of our segments below, and lower reimbursement for calcimimetics.

Dialysis treatments decreased by 1% as a result of a reduction in same market treatments (-1%) and the effect of closed or sold clinics (-1%), partially offset by contributions from acquisitions (+1%) .The decreases in treatments and Same Market Treatment Growth were significantly affected by COVID-19-Related Impacts.

Health care product revenue decreased by 2% (+3% at Constant Exchange Rates) driven by a negative impact from foreign currency translation and lower sales of products for acute care treatments, partially offset by higher sales of  machines for chronic treatment, in-center disposables, home hemodialysis products and renal pharmaceuticals.

Gross profit decreased by 11% (-5% at Constant Exchange Rates) primarily driven by a negative impact from foreign currency translation, COVID-19-Related Impacts (in particular, an absence of U.S. federal relief funding under the CARES Act in 2021) and higher personnel expense and increased costs for supplies across all regions. Additionally, we were impacted by unfavorable manufacturing cost development (North America Segment, EMEA Segment and Latin America Segment). These impacts were partially offset by a higher reimbursement rate driven by an increased number of patients with Medicare Advantage coverage and other payor mix effects as well as increased treatment volumes (including growth from acquisitions) as normalized for COVID-19, both within in the North America Segment.

Selling, general and administrative (“SG&A”) expense increased by 1% (+8% at Constant Exchange Rates) primarily driven by unfavorable effects from COVID-19 Impacts (all regions), unfavorable impacts from gains on the sale of vascular and cardiovascular clinics in the prior year (North America Segment) and various smaller impacts such as, but not limited to, an unfavorable impact from provisions recorded in 2021 for value-added tax positions related to prior years (Corporate) and higher personnel expense (all regions). These impacts were partially offset by a positive impact from foreign currency translation (all regions).

Research and development expenses increased by 4% to €101 M from €96 M. The period over period increase, as a percentage of revenue, was 0.1 percentage points, largely driven by in-center and home program development as well as activities in the field of regenerative medicine and research and development activities at NxStage Medical, Inc., our subsidiary, partially offset by a positive impact from foreign currency translation and increased capitalization of development costs in 2021.

Income from equity method investees increased by 106% to €50 M from €24 M. The increase was primarily driven by a prior year impairment for a license held by VFMCRP based on an unfavorable clinical trial.

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Operating income decreased by 26% (-20% at Constant Exchange Rates) largely driven by the decrease in gross profit as well as a negative impact from foreign currency translation, coupled with the increase in SG&A expenses, as discussed above.

Net interest expense decreased by 26% to €145 M from €196 M primarily due to a positive impact from foreign currency translation, a lower debt level, lower variable interest rates, lower interest rates on lease liabilities and refinancing activities (including the issuance of bonds at lower interest rates).

Income tax expense decreased by 29% to €169 M from €237 M. The effective tax rate decreased to 22.5% from 23.4% for the same period of 2020 largely driven by impacts related to changes in tax risk estimates, an increase of tax-free income attributable to noncontrolling interests and a prior year impairment for a license held by VFMCRP based on an unfavorable clinical trial, partially offset by the effect of a tax-free gain related to divestitures of centers in the comparative prior year period.

Net income attributable to noncontrolling interests decreased by 19% (-11% at Constant Exchange Rates) to €116 M from €144 M due to lower earnings in entities in which we have less than 100% ownership and a positive impact from foreign currency translation.

Net income attributable to shareholders of FMC-AG & Co. KGaA decreased by 26% (-21% at Constant Exchange Rates) to €468 M from €634 M as a result of the combined effects of the items discussed above as well as a negative impact from foreign currency translation. COVID-19 resulted in a negative impact to net income attributable to shareholders of FMC-AG & Co. KGaA in the amount of €154 M for the six months ended June 30, 2021 as compared to €10 M for the first six months ended June 30, 2020, which was restated from a positive €2 M impact during 2020 to include the look-back impact of excess mortality, primarily due to a significant decrease in government relief and advanced payments in the countries in which we operate (primarily in the U.S.) as compared to the six months ended June 30, 2020.

Basic earnings per share decreased by 26% (-20% at Constant Exchange Rates) primarily due to the decrease in net income attributable to shareholders of FMC-AG & Co. KGaA described above coupled with a negative impact from foreign currency translation, partially offset by a decrease in the average weighted number of shares outstanding for the period. The average weighted number of shares outstanding for the period decreased to approximately 292.9 M on June 30, 2021 (June 30, 2020: 295.3 M), primarily as a result of our share buy-back program which concluded on April 1, 2020, partially offset by the exercise of stock options.

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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

Performance indicators for the North America Segment

Change in %

 

For the six months ended

Currency

 

June 30,

translation

Constant

 

2021

2020

As reported

effects

Currency(1)

 

    

    

    

 

    

 

    

Revenue in € M

 

5,852

 

6,426

 

(9%)

(9%)

0%

Health care services

 

5,338

 

5,859

 

(9%)

(9%)

0%

Health care products

 

514

 

567

 

(9%)

(8%)

(1%)

Number of dialysis treatments

 

16,006,110

 

16,303,730

(2%)

  

Same Market Treatment Growth

 

(2.7%)

2.6%

  

Operating income in € M

 

796

1,073

(26%)

(7%)

(19%)

Operating income margin

 

13.6%

16.7%

  

 

  

(1)

For further information on Constant Exchange Rates, see “II. Discussion of measures – Non–IFRS measures" above.

Revenue

Health care services revenue decreased by 9% (remained stable at Constant Exchange Rates) mainly due to a negative impact from foreign currency translation (-9%) and a decrease in organic growth as a result of COVID-19-Related Impacts and lower reimbursement for calcimimetics (-1%), partially offset by contributions from acquisitions (+1%).

Dialysis treatments decreased by 2% largely due to a reduction in same market treatments (-3%), partially offset by contributions from acquisitions (+1%). The decreases in treatments and Same Market Treatment Growth were significantly affected by COVID-19-Related Impacts.

Health care product revenue decreased by 9% (-1% at Constant Exchange Rates) driven by a negative impact from foreign currency translation as well as lower sales of products for acute care treatments and in-center disposables, partially offset by higher sales of machines for chronic treatment, renal pharmaceuticals and peritoneal dialysis products.

Operating income

Operating income decreased by 26% (-19% at Constant Exchange Rates) primarily related to unfavorable effects from COVID-19-Related Impacts (in particular, an absence of U.S. federal relief funding under the CARES Act in 2021), a negative impact from foreign currency translation, higher personnel expense, unfavorable impacts from gains on the sale of vascular and cardiovascular clinics in the prior year, increased costs for supplies, a negative impact from a prior year reversal of a revenue recognition adjustment for accounts receivable in legal dispute and an unfavorable impact from calcimimetics, partially offset by a higher reimbursement rate driven by an increased number of patients with Medicare Advantage coverage and other payor mix effects, increased treatment volumes (including growth from acquisitions) as normalized for COVID-19 and higher reimbursement from our value-based care payor programs.

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EMEA Segment

Performance indicators for the EMEA Segment

Change in %

 

For the six months ended

Currency

 

June 30,

translation

Constant

 

2021

2020

As reported

effects

Currency(1)

 

    

    

    

 

    

 

    

Revenue in € M

 

1,362

 

1,366

 

0%

(2%)

2%

Health care services

 

674

 

682

 

(1%)

(2%)

1%

Health care products

 

688

 

684

 

1%

(1%)

2%

Number of dialysis treatments

 

4,903,686

 

5,056,261

(3%)

  

  

Same Market Treatment Growth

 

(3.3%)

2.8%

  

  

  

Operating income in € M

 

153

179

(14%)

0%

(14%)

Operating income margin

 

11.2%

13.1%

  

  

 

  

(1)

For further information on Constant Exchange Rates, see “II. Discussion of measures – Non–IFRS measures" above.

Revenue

Health care service revenue decreased by 1% (+1% at Constant Exchange Rates) largely as a result of a negative impact resulting from foreign currency translation (-2%), a decrease in dialysis days (-1%) and the effect of closed or sold clinics (-1%), partially offset by contributions from acquisitions (+3%). Including the effects from COVID-19-Related Impacts, organic growth remained stable as compared to the six months ended June 30, 2020.

Dialysis treatments decreased by 3% mainly due to a reduction in same market treatments (-3%), the effect of closed or sold clinics (-1%) and a decrease in dialysis days (-1%), partially offset by contributions from acquisitions (+2%). The decreases in treatments and Same Market Treatment Growth were significantly affected by COVID-19-Related Impacts.

Health care product revenue increased by 1% (+2% at Constant Exchange Rates) primarily due to higher sales of machines for chronic treatment, home hemodialysis products, acute cardiopulmonary products and renal pharmaceuticals, partially offset by lower sales of in-center disposables, a negative impact from foreign currency translation and lower sales of products for acute care treatments.

Operating income

Operating income decreased by 14% (-14% at Constant Exchange Rates) mainly due to unfavorable effects from COVID-19-Related Impacts, unfavorable foreign currency transaction effects, a revaluation gain of an investment in the prior year which did not repeat in 2021, higher IT expense and an unfavorable country and product mix within our product business, partially offset by the absence of a prior year impairment for a license held by VFMCRP based on an unfavorable clinical trial.

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FRESENIUS MEDICAL CARE AG & Co. KGaA

Asia-Pacific Segment

Performance indicators for the Asia-Pacific Segment

Change in %

 

For the six months ended

Currency

 

June 30,

translation

Constant

 

2021

2020

As reported

effects

Currency(1)

 

    

    

    

 

    

 

Revenue in € M

 

957

 

893

 

7%

(4%)

11%

Health care services

 

455

 

414

 

10%

(5%)

15%

Health care products

 

502

 

479

 

5%

(2%)

7%

Number of dialysis treatments

 

2,357,958

 

2,286,601

 

3%

  

  

Same Market Treatment Growth

 

6.6%

8.1%

  

  

Operating income in € M

 

170

140

21%

(4%)

25%

Operating income margin

 

17.7%

15.7%

  

 

  

 

  

(1)

For further information on Constant Exchange Rates, see “II. Discussion of measures – Non–IFRS measures" above.

Revenue

Health care services revenue increased by 10% (+15% at Constant Exchange Rates) largely as a result of an increase in organic growth, including a recovery in elective procedures, (+15%) and contributions from acquisitions (+2%), partially offset by a negative impact from foreign currency translation (-5%) and the effect of closed or sold clinics (-2%).

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

Health care product revenue increased by 5% (+7% at Constant Exchange Rates) mainly due to higher sales of machines for chronic treatment and in-center disposables, partially offset by lower sales of products for acute care treatments and a negative impact from foreign currency translation.

Operating income

Operating income increased by 21% (+25% at Constant Exchange Rates) primarily due to favorable business growth, favorable effects from a recovery in elective procedures and favorable manufacturing cost development, partially offset by the prior year effect of a gain from the deconsolidation of clinics and a negative impact from foreign currency translation.

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Latin America Segment

Performance indicators for the Latin America Segment

Change in %

 

For the six months ended 

Currency

 

June 30,

translation

Constant

 

2021

2020

As reported

effects

Currency(1)

 

    

    

    

    

    

 

Revenue in € M

 

330

 

338

 

(2%)

(19%)

17%

Health care services

 

238

 

240

 

(1%)

(21%)

20%

Health care products

 

92

 

98

 

(6%)

(15%)

9%

Number of dialysis treatments

 

2,944,987

 

2,881,731

 

2%

  

  

Same Market Treatment Growth

 

2.9%

4.2%

  

  

  

Operating income in € M

 

9

18

(48%)

1%

(49%)

Operating income margin

2.8%

5.3%

  

 

  

  

(1)

For further information on Constant Exchange Rates, see “II. Discussion of measures – Non–IFRS measures" above.

Revenue

Health care service revenue decreased by 1% (+20% at Constant Exchange Rates) as a result of a negative impact from foreign currency translation (-21%), a decrease in dialysis days (-1%) and the effect of closed or sold clinics (-1%), partially offset by an increase in organic growth (+18%) and contributions from acquisitions (+4%).

Dialysis treatments increased by 2% mainly due to growth in same market treatments (+3%) and contributions from acquisitions (+2%), partially offset by the effect of closed or sold clinics (-2%) and a decrease in dialysis days (-1%). The number of treatments, as well as the related Same Market Treatment Growth, was also affected by COVID-19-Related Impacts.

Health care product revenue decreased by 6% (+9% at Constant Exchange Rates) due to a negative impact from foreign currency translation, partially offset by higher sales of products for acute care treatments and in-center disposables.

Operating income

Operating income decreased by 48% (-49% at Constant Exchange Rates) primarily due to higher personnel expense, increased costs for supplies and higher bad debt expense, partially offset by favorable foreign currency transaction effects.

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FRESENIUS MEDICAL CARE AG & Co. KGaA

Financial position

Sources of liquidity

Our primary sources of liquidity are typically cash provided by operating activities, cash provided by short-term debt, proceeds from the issuance of long-term debt and divestitures. We require this capital primarily to finance working capital needs, fund acquisitions, operate clinics, 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).

As of June 30, 2021, our available borrowing capacity under unutilized credit facilities amounted to approximately €1.8 billion. The Amended 2012 Credit Agreement accounted for approximately €1.4 billion in unutilized available borrowing capacity. On July 1, 2021, we entered into a €2 billion Syndicated Credit Facility which replaced the Amended 2012 Credit Agreement (see note 11 of the notes to the consolidated financial statements (unaudited) included in this report), which increased our available borrowing capacity under unutilized credit facilities to €2.4 billion.

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. The following table shows the reconciliation of adjusted EBITDA and net leverage ratio as of June 30, 2021 and December 31, 2020.

Reconciliation of adjusted EBITDA and net leverage ratio to the most directly comparable IFRS financial measure

in € M, except for net leverage ratio

    

June 30, 

    

December 31,

2021

2020

Debt and lease liabilities (1)

 

13,116

 

12,380

Minus: Cash and cash equivalents

 

(1,408)

 

(1,082)

Net debt

 

11,708

 

11,298

Net income (2)

 

1,243

 

1,435

Income tax expense (2)

 

432

 

501

Interest income (2)

 

(51)

 

(42)

Interest expense (2)

 

368

 

410

Depreciation and amortization (2)

 

1,556

 

1,587

Adjustments(2), (3)

 

256

 

249

Adjusted EBITDA

 

3,804

 

4,140

Net leverage ratio

 

3.1

 

2.7

(1)

Debt includes the following balance sheet line items: short-term debt, current portion of long-term debt and long-term debt, less current portion.

(2)

Last twelve months.

(3)

Acquisitions and divestitures made for the last twelve months with a purchase price above a €50 M threshold as was defined in the Amended 2012 Credit Agreement (2021: €4 M), non-cash charges, primarily related to pension expense (2021: €50 M; 2020: €50 M) and impairment loss (2021: €202 M; 2020: €199 M).

At June 30, 2021, we had cash and cash equivalents of €1,408 M (December 31, 2020: €1,082 M).

Free cash flow (Net cash provided by (used in) operating activities, after capital expenditures, before acquisitions and investments) is a Non-IFRS Measure and is reconciled to net cash provided by (used in) operating activities, the most directly comparable IFRS measure, see “II. Discussion of measures – Non–IFRS measures – Net cash provided by (used in) operating activities in % of revenue” and “ – Free cash flow in % of revenue (Non-IFRS Measure)” above.

The following table shows the cash flow performance indicators for the six months ended June 30, 2021 and 2020 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:

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Cash flow measures

in € M, except where otherwise specified

For the six months ended 

June 30,

    

2021

    

2020

Revenue

 

8,530

 

9,045

Net cash provided by (used in) operating activities

 

1,129

 

2,903

Capital expenditures

 

(394)

 

(500)

Proceeds from sale of property, plant and equipment

 

14

 

4

Capital expenditures, net

 

(380)

 

(496)

Free cash flow

 

749

2,407

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

 

13.2%

32.1%

Free cash flow in % of revenue

 

8.8%

26.6%

Net cash provided by (used in) operating activities

In the first six months of 2021, net cash provided by operating activities was €1,129 M, compared to €2,903 M in the first six months of 2020. Net cash provided by operating activities in percent of revenue decreased to 13% for the first six months of 2021 as compared to 32% for 2020. Net 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 decrease in net cash provided by operating activities was driven by payments received in the second quarter of 2020 under the Medicare Accelerated and Advance Payment Program (as well as the recoupment of these advanced payments beginning in the second quarter of 2021 in the amount of $192 M (€159 M)) and the timing of certain other expense payments in 2021.

The profitability of our business depends significantly on reimbursement rates for our services. Approximately 79% 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, 2021, approximately 28% 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 position 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 net cash provided by operating activities, issuances under our commercial paper program (see note 5 of the notes to the consolidated financial statements (unaudited) included in this report) as well as from the use of our Accounts Receivable Facility and our existing and future credit agreements. In addition, to finance acquisitions or meet other needs, we expect to successfully complete long-term financing arrangements, such as the issuance of bonds.

Net cash provided by (used in) operating activities depends on the collection of accounts receivable. Commercial customers and government institutions 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 enforcing and collecting accounts receivable under the legal systems of, and due to the economic conditions in, some countries. Accounts receivable balances, net of expected credit losses, represented Days Sales Outstanding (“DSO”) of 58 days at June 30, 2021 (December 31, 2020: 50 days).

DSO by segment is calculated by dividing the respective segment’s accounts and other receivables from unrelated parties 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 revenues are adjusted for amounts related to acquisitions and divestitures made within the reporting period with a purchase price above a €50 M threshold, consistent with the respective adjustments in the determination of adjusted EBITDA (see "II. Discussion of measures - Non-IFRS measures - Net leverage ratio (Non-IFRS Measure)" above.

The development of DSO by reporting segment is shown in the table below:

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Development of days sales outstanding

in days

    

June 30,

    

December 31,

    

    

2021

    

2020

    

Increase/decrease primarily driven by:

North America Segment

 

37

 

26

 

CMS’s recoupment of advanced payments received in 2020 under the Medicare Accelerated and Advance Payment Program and periodic delays in payment of public health care organizations

EMEA Segment

 

87

 

90

 

Improvement of payment collections in the region

Asia-Pacific Segment

 

105

 

110

 

Improvement of payment collections in the region

Latin America Segment

 

135

 

134

 

Periodic delays in payment of public health care organizations in certain countries

FMC-AG & Co. KGaA average days sales outstanding

 

58

 

50

 

  

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.

For information regarding litigation exposure as well as ongoing and future tax audits, see note 8 of the notes to the consolidated financial statements (unaudited) included in this report.

Net cash provided by (used in) investing activities

Net cash used in investing activities in the first six months of 2021 was €473 M as compared to net cash used in investing activities of €593 M in the comparable period of 2020. The following table shows our capital expenditures for property, plant and equipment and capitalized development costs, net of proceeds from sales of property, plant and equipment as well as acquisitions, investments and purchases of intangible assets for the first six months of 2021 and 2020:

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

in € M

Acquisitions, investments,

purchases of intangible assets

and investments in debt

Capital expenditures, net

securities

For the six months ended June 30,

    

2021

    

2020

    

2021

    

2020

North America Segment

 

200

 

267

 

145

 

47

thereof investments in debt securities

 

 

 

56

 

29

EMEA Segment

 

49

 

56

 

19

 

17

Asia-Pacific Segment

 

18

 

49

 

 

13

Latin America Segment

 

19

 

13

 

7

 

20

Corporate

 

94

 

111

 

20

 

10

Total

 

380

 

496

 

191

 

107

The majority of our capital expenditures in the first six months of 2021 was used for maintaining existing clinics and centers, equipping new clinics and centers, maintaining and expanding production facilities, capitalization of machines provided to our customers and capitalization of certain development costs. Capital expenditures accounted for approximately 4% of total revenue in the first six months of 2021 as compared to approximately 5% of total revenue during the same period in 2020.

Investments in the first six months of 2021 were primarily comprised of purchases of debt securities. In the first six months of 2021, we received €98 M from divestitures. These divestitures were mainly related to the divestment of debt securities. Acquisitions in the first six months of 2021 relate primarily to the purchase of dialysis clinics.

Investments in the first six months of 2020 were primarily comprised of purchases of debt securities and equity investments. In the first six months of 2020, we received €11 M from divestitures. These divestitures were mainly related to the divestment of debt securities. Acquisitions in the first six months of 2020 relate primarily to the purchase of dialysis clinics.

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Net cash provided by (used in) financing activities

In the first six months of 2021, net cash used in financing activities was €378 M as compared to net cash used in financing activities of €1,402 M in the first six months of 2020.

In the first six months of 2021, cash was mainly used in the repayment of long-term debt (including the repayment at maturity of bonds in an aggregate principal amount of $650 M (€473 M as of the date of issuance) and €300 M as well as the early repayment of the USD term loan 2017 / 2022 in the amount of $1,050 M (€860 M as of the date of repayment) and EUR term loan 2017 / 2022 in the amount of €245 M, both under the Amended 2012 Credit Agreement), payments of dividends, payments of short-term debt from unrelated parties, and the repayment of lease liabilities (including lease liabilities from related parties), partially offset by proceeds from short-term debt (including borrowings under our commercial paper program) and proceeds from long-term debt (including proceeds from the issuance of bonds in an aggregate principal amount of $1,500 M (€1,227 M)). See note 6 of the notes to the consolidated financial statements (unaudited) included in this report.

In the first six months of 2020, cash was mainly used in the repayment of long-term debt (including the repayment of Convertible Bonds at maturity and the early repayment of the EUR term loan 2017 / 2020 under the Amended 2012 Credit Agreement) and short-term debt (including short-term debt from related parties), repayments of the Accounts Receivable Facility, shares repurchased as part of a share buy-back program, the repayment of lease liabilities as well as distributions to noncontrolling interests, partially offset by proceeds from long-term debt (including proceeds from the issuance of bonds in an aggregate principal amount of €1,250 M) and short-term debt (including short-term debt from related parties).

On May 26, 2021, we paid a dividend with respect to 2020 of €1.34 per share (for 2019 paid in 2020 €1.20 per share). The total dividend payment was €392 M as compared to €351 M in the prior year. Due to a delay in the date of our Annual General Meeting in the prior year, the dividend payment in 2020 was made during the third quarter of 2020.

Balance sheet structure

Total assets as of June 30, 2021 increased by 4% to €33.0 billion as compared to €31.7 billion at December 31, 2020. In addition to a 3% positive impact resulting from foreign currency translation, total assets increased by 1% to €32.1 billion from €31.7 billion primarily due to increased trade accounts and other receivables from unrelated parties related to timing of payments, an increase in cash and cash equivalents and an increase in goodwill related to translation adjustments, partially offset by a decrease in prepaid expenses and other current assets.

Current assets as a percent of total assets remained consistent period over period at 24% for June 30, 2021 and December 31, 2020, respectively. The equity ratio, the ratio of our equity divided by total liabilities and shareholders’ equity, remained consistent period over period at 39% at both June 30, 2021 and December 31, 2020, primarily driven by an increase in equity from currency translation and net income attributable to shareholders of FMC-AG & Co. KGaA, offset by an increase in short-term debt. ROIC decreased to 5.4% at June 30, 2021 as compared to 5.8% at December 31, 2020. Excluding the Impairment Loss as well as excluding both the Impairment Loss and the Effect from IFRS 16, ROIC was 5.9% and 6.6%, respectively, at June 30, 2021 (December 31, 2020: 6.6% and 7.5%, respectively). For further information on ROIC, see “II. Discussion of measures – Non–IFRS measures – Return on invested capital (ROIC) (Non-IFRS Measure)” above.

Report on post-balance sheet date events

Refer to note 11 in the notes to the consolidated financial statements (unaudited) included in this report.

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Recently issued accounting standards

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

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Financial Statements

Consolidated statements of income

(unaudited)

Consolidated statements of income

in € thousands ("THOUS"), except per share data

For the three months ended

For the six months ended

June 30,

June 30,

    

Note

    

2021

    

2020

    

2021

    

2020

Revenue:

Health care services

 

2a

3,400,221

 

3,613,869

 

6,725,680

 

7,208,532

Health care products

 

2a

919,949

 

943,476

 

1,804,615

 

1,836,609

 

4,320,170

 

4,557,345

 

8,530,295

 

9,045,141

Costs of revenue:

 

 

 

  

 

  

Health care services

 

2,578,669

 

2,701,823

 

5,147,051

 

5,409,472

Health care products

 

457,508

 

441,668

 

892,594

 

831,260

3,036,177

 

3,143,491

 

6,039,645

 

6,240,732

Gross profit

 

1,283,993

 

1,413,854

 

2,490,650

 

2,804,409

Operating (income) expenses:

 

 

 

  

 

  

Selling, general and administrative

 

830,177

 

711,329

 

1,541,692

 

1,521,246

Research and development

 

2b

52,017

 

50,506

 

100,662

 

96,423

Income from equity method investees

 

10

(22,422)

 

(3,905)

 

(50,178)

 

(24,314)

Operating income

 

424,221

 

655,924

 

898,474

 

1,211,054

Other (income) expense:

 

 

 

  

 

  

Interest income

 

(13,965)

 

(11,187)

 

(29,221)

 

(19,938)

Interest expense

 

83,174

 

103,127

 

174,502

 

216,097

Income before income taxes

 

355,012

 

563,984

 

753,193

 

1,014,895

Income tax expense

 

75,294

 

137,068

 

169,141

 

237,610

Net income

 

279,718

 

426,916

 

584,052

 

777,285

Net income attributable to noncontrolling interests

 

61,141

 

75,944

 

116,529

 

143,594

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

 

218,577

 

350,972

 

467,523

 

633,691

Basic earnings per share

 

2c

0.75

 

1.20

 

1.60

 

2.15

Diluted earnings per share

 

2c

0.75

 

1.20

 

1.60

 

2.14

See accompanying notes to unaudited consolidated financial statements.

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Consolidated statements of comprehensive income

(unaudited)

Consolidated statements of comprehensive income

in € THOUS

For the three months ended

For the six months ended

June 30,

June 30,

    

2021

    

2020

    

2021

    

2020

Net income

279,718

426,916

    

584,052

    

777,285

Other comprehensive income (loss):

Components that will not be reclassified to profit or loss:

Equity method investees - share of OCI

(41,822)

51,304

(49,254)

51,304

FVOCI equity investments

19,437

18,829

25,293

18,829

Actuarial gain (loss) on defined benefit pension plans

(4,528)

5,200

49,774

5,200

Income tax (expense) benefit related to components of other comprehensive income not reclassified

(5,004)

(4,712)

(21,960)

(4,712)

(31,917)

70,621

3,853

70,621

Components that may be reclassified subsequently to profit or loss:

Gain (loss) related to foreign currency translation

(141,609)

(278,277)

 

404,187

 

(172,599)

FVOCI debt securities

2,857

31,405

(7,068)

31,405

Gain (loss) related to cash flow hedges

587

(809)

 

(1,179)

 

6,618

Cost of hedging

(219)

1,352

(135)

213

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

(586)

(5,425)

 

1,532

 

(7,303)

(138,970)

(251,754)

397,337

(141,666)

Other comprehensive income (loss), net of tax

(170,887)

(181,133)

 

401,190

 

(71,045)

Total comprehensive income

108,831

245,783

 

985,242

 

706,240

Comprehensive income attributable to noncontrolling interests

47,030

54,524

 

151,011

 

144,618

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

61,801

191,259

 

834,231

 

561,622

See accompanying notes to unaudited consolidated financial statements.

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FRESENIUS MEDICAL CARE AG & Co. KGaA

Consolidated balance sheets

(unaudited)

Consolidated balance sheets

in € THOUS, except share data

    

Note

    

June 30, 2021

    

December 31, 2020

Assets

Cash and cash equivalents

 

 

1,407,958

 

1,081,539

Trade accounts and other receivables from unrelated parties

 

 

3,419,510

 

3,153,045

Accounts receivable from related parties

 

3

 

106,939

 

91,438

Inventories

 

4

 

2,052,942

 

1,895,310

Other current assets

 

827,332

 

1,053,978

Total current assets

 

7,814,681

 

7,275,310

Property, plant and equipment

 

4,111,013

 

4,056,864

Right-of-use assets

 

 

4,209,047

 

4,129,888

Intangible assets

 

1,395,025

 

1,381,009

Goodwill

 

13,495,513

 

12,958,728

Deferred taxes

 

359,472

 

351,152

Investment in equity method investees

 

10

 

708,560

 

761,113

Other non-current assets

 

893,896

 

774,972

Total non-current assets

 

25,172,526

 

24,413,726

Total assets

 

32,987,207

 

31,689,036

Liabilities

 

 

Accounts payable to unrelated parties

 

684,981

 

731,993

Accounts payable to related parties

 

3

 

101,867

 

95,401

Current provisions and other current liabilities

 

3,850,794

 

3,517,076

Short-term debt from unrelated parties

 

5

 

1,321,871

 

62,950

Short-term debt from related parties

 

5

 

63,160

 

16,320

Current portion of long-term debt

 

6

 

634,404

 

1,008,359

Current portion of long-term lease liabilities from unrelated parties

 

 

606,291

 

588,492

Current portion of long-term lease liabilities from related parties

 

3

 

20,771

 

20,664

Income tax payable

 

140,489

 

118,389

Total current liabilities

 

7,424,628

 

6,159,644

Long-term debt, less current portion

 

6

 

6,499,005

 

6,800,101

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

 

 

3,861,264

 

3,763,775

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

 

3

 

108,759

 

119,356

Non-current provisions and other non-current liabilities

 

709,859

 

931,590

Pension liabilities

 

693,193

 

718,502

Income tax payable

 

77,572

 

78,872

Deferred taxes

 

800,492

 

785,886

Total non-current liabilities

 

12,750,144

 

13,198,082

Total liabilities

 

20,174,772

 

19,357,726

Shareholders' equity:

 

 

Ordinary shares, no par value, €1.00 nominal value, 362,370,124 shares authorized, 292,979,484 issued and outstanding as of June 30, 2021 and 362,370,124 shares authorized, 292,876,570 issued and outstanding as of December 31, 2020

 

292,979

 

292,877

Additional paid-in capital

 

2,886,965

 

2,872,630

Retained earnings

 

10,290,640

 

10,254,913

Accumulated other comprehensive income (loss)

 

(1,838,632)

 

(2,205,340)

Total FMC-AG & Co. KGaA shareholders' equity

 

11,631,952

 

11,215,080

Noncontrolling interests

 

1,180,483

 

1,116,230

Total equity

 

12,812,435

 

12,331,310

Total liabilities and equity

 

32,987,207

 

31,689,036

See accompanying notes to unaudited consolidated financial statements

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FRESENIUS MEDICAL CARE AG & Co. KGaA

Consolidated statements of cash flows

(unaudited)

Consolidated statements of cash flows

in € THOUS

For the six months ended

June 30, 

    

Note

    

2021

    

2020

Operating activities

Net income

584,052

777,285

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

 

Depreciation, amortization and impairment loss

 

10

783,735

810,967

Change in deferred taxes, net

 

(36,814)

43,830

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

 

(3,632)

(34,042)

Income from equity method investees

 

10

(50,178)

(24,314)

Interest expense, net

 

145,281

196,159

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

 

Trade accounts and other receivables from unrelated parties

 

(195,580)

(81,218)

Inventories

 

(115,701)

(201,896)

Other current and non-current assets

 

177,808

47,948

Accounts receivable from related parties

 

(12,975)

25,729

Accounts payable to related parties

 

3,941

17,663

Accounts payable to unrelated parties, provisions and other current and non-current liabilities

 

(78,558)

1,391,949

Income tax payable

 

223,041

120,380

Received dividends from investments in equity method investees

56,414

87,120

Paid interest

 

(171,384)

(204,885)

Received interest

 

29,221

19,938

Paid income taxes

 

(209,901)

(89,295)

Net cash provided by (used in) operating activities

 

1,128,770

2,903,318

Investing activities

 

Purchases of property, plant and equipment and capitalized development costs

 

(393,658)

(500,168)

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

 

(128,677)

(78,640)

Investments in debt securities

(62,317)

(28,614)

Proceeds from sale of property, plant and equipment

 

13,484

3,543

Proceeds from divestitures

 

1,851

(1,432)

Proceeds from sale of debt securities

96,139

12,387

Net cash provided by (used in) investing activities

 

(473,178)

(592,924)

Financing activities

 

Proceeds from short-term debt from unrelated parties

 

1,621,066

190,277

Repayments of short-term debt from unrelated parties

 

(365,178)

(467,046)

Proceeds from short-term debt from related parties

 

49,446

498,811

Repayments of short-term debt from related parties

 

(2,606)

(517,600)

Proceeds from long-term debt

 

1,230,106

1,264,223

Repayments of long-term debt

 

(2,042,787)

(1,060,896)

Repayments of lease liabilities from unrelated parties

 

(336,961)

(347,552)

Repayments of lease liabilities from related parties

 

(10,307)

(9,939)

Increase (decrease) of accounts receivable facility

 

(387,460)

Proceeds from exercise of stock options

 

5,228

9,379

Purchase of treasury stock

 

(365,988)

Dividends paid

 

(392,455)

Distributions to noncontrolling interests

 

(159,281)

(221,514)

Contributions from noncontrolling interests

 

25,410

13,005

Net cash provided by (used in) financing activities

 

(378,319)

(1,402,300)

Effect of exchange rate changes on cash and cash equivalents

 

49,146

(26,384)

Cash and cash equivalents:

 

Net increase (decrease) in cash and cash equivalents

 

326,419

881,710

Cash and cash equivalents at beginning of period

 

1,081,539

1,007,723

Cash and cash equivalents at end of period

 

1,407,958

1,889,433

See accompanying notes to unaudited consolidated financial statements.

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FRESENIUS MEDICAL CARE AG & Co. KGaA

Consolidated statements of shareholders´ equity

For the six months ended June 30, 2021 and 2020 (unaudited)

Consolidated statements of shareholders' equity

in € THOUS, except share data

    

Ordinary shares

Treasury stock

    

Accumulated  other comprehensive income

Total FMC-AG

Additional

Foreign

Fair

 & Co. KGaA

Number of

No par

Number of

paid in

Retained

currency 

Cash flow 

value

shareholders' 

Noncontrolling

   

Note

   

shares

   

value

   

shares

   

Amount

   

capital

   

earnings 

   

translation

   

hedges

   

Pensions

   

changes

   

 equity

   

 interests

   

Total equity

Balance at December 31, 2019

304,436,876

304,437

(6,107,629)

(370,502)

3,607,662

9,454,861

(664,987)

(10,460)

(363,098)

11,957,913

1,269,324

13,227,237

Proceeds from exercise of options and related tax effects

171,114

171

10,171

10,342

10,342

Purchase of treasury stock

(5,687,473)

(365,988)

(365,988)

(365,988)

Purchase/ sale of noncontrolling interests

 

(27,657)

(27,657)

(82,859)

(110,516)

Contributions from/ to noncontrolling interests

(134,058)

(134,058)

Put option liabilities

9

(10,635)

(10,635)

(10,635)

Net Income

 

633,691

633,691

143,594

777,285

Other comprehensive income (loss) related to:

 

Foreign currency translation

 

(173,465)

(54)

(207)

103

(173,623)

1,024

(172,599)

Cash flow hedges, net of related tax effects

 

4,873

4,873

4,873

Pensions, net of related tax effects

2,537

2,537

2,537

Fair value changes

94,144

94,144

94,144

Comprehensive income

 

561,622

144,618

706,240

Balance at June 30, 2020

 

304,607,990

304,608

(11,795,102)

(736,490)

3,590,176

10,077,917

(838,452)

(5,641)

(360,768)

94,247

12,125,597

1,197,025

13,322,622

Balance at December 31, 2020

 

292,876,570

292,877

2,872,630

10,254,913

(1,936,713)

(7,706)

(346,282)

85,361

11,215,080

1,116,230

12,331,310

Proceeds from exercise of options and related tax effects

 

102,914

102

5,140

5,242

5,242

Dividends paid

(392,455)

(392,455)

(392,455)

Purchase/ sale of noncontrolling interests

9,195

9,195

32,679

41,874

Contributions from/ to noncontrolling interests

 

(119,437)

(119,437)

Put option liabilities

9

(39,341)

(39,341)

(39,341)

Net Income

 

467,523

467,523

116,529

584,052

Other comprehensive income (loss) related to:

 

Foreign currency translation

 

374,289

(254)

(4,679)

349

369,705

34,482

404,187

Cash flow hedges, net of related tax effects

 

(907)

(907)

(907)

Pensions, net of related tax effects

35,533

35,533

35,533

Fair value changes

(37,623)

(37,623)

(37,623)

Comprehensive income

 

834,231

151,011

985,242

Balance at June 30, 2021

 

292,979,484

292,979

2,886,965

10,290,640

(1,562,424)

(8,867)

(315,428)

48,087

11,631,952

1,180,483

12,812,435

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 leading provider of products and services for individuals with renal diseases, based on publicly reported revenue and number of patients treated. The Company provides dialysis care and related services to persons who suffer from End-Stage Kidney Disease (“ESKD”), as well as other health care services. The Company also develops, manufactures and distributes a wide variety of health care products. The Company’s health care products include hemodialysis machines, peritoneal dialysis cyclers, dialyzers, peritoneal dialysis solutions, hemodialysis concentrates, solutions and granulates, bloodlines, renal pharmaceuticals, systems for water treatment, 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’s other health care services include value and risk-based arrangements, pharmacy services, vascular, cardiovascular and endovascular specialty services as well as ambulatory surgery center services, physician nephrology and cardiology services and ambulant treatment services.

In these unaudited notes, “FMC-AG & Co. KGaA,” “Company” or the “Group” 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 10.

Basis of presentation

The consolidated financial statements and other financial information included in the Company’s quarterly reports furnished under cover of Form 6-K and its Annual Report on Form 20-F are prepared solely in accordance with International Financial Reporting Standards (“IFRS”) as issued by the International Accounting Standards Board (“IASB”), using the euro as the Company's reporting and functional currency.

The quarterly financial report is prepared in accordance with International Accounting Standard ("IAS") 34, Interim Financial Reporting, and contains condensed financial statements, in that it does not include all of the notes that would be required in a complete set of financial statements, but rather selected explanatory notes. However, the primary financial statements are presented in the format consistent with the consolidated financial statements as presented in the Company’s Annual Report on Form 20-F for the year ended December 31, 2020 (the “2020 Form 20-F”) in accordance with IAS 1, Presentation of Financial Statements.

The consolidated financial statements at June 30, 2021 and for the three- and six-months ended June 30, 2021 and 2020 contained in this report are unaudited and should be read in conjunction with the consolidated financial statements contained in the Company's 2020 Form 20-F. The preparation of consolidated financial statements in conformity with IFRS requires management to make 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 revenues and expenses 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.

The Company applies IAS 29, Financial Reporting in Hyperinflationary Economies, in its Argentine and Lebanese subsidiaries due to inflation in these countries. The table below details the specific inputs used to calculate the loss on net monetary position on a country-specific basis for the six months ended June 30, 2021.

Inputs for the calculation of losses on net monetary positions

    

Argentina

    

Lebanon

 

Date of IAS 29 initial application

July 1, 2018

December 31, 2020

Consumer price index

Índice de precios al consumidor

Central Administration of Statistics

Index at June 30, 2021

483.6

415.0

Calendar year increase

25

%  

46

%

Loss on net monetary position in € THOUS

13,968

890

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FRESENIUS MEDICAL CARE AG & Co. KGaA

Notes to consolidated financial statements

(unaudited)

(in THOUS, except share and per share data)

In the consolidated statements of income, “Selling, general and administrative” expenses related to the amortization of acquired technology and other costs in the amount of €22,156 and €42,369 for the three- and six-month periods ended June 30, 2020, respectively, have been reclassified to “Costs of Revenue” to conform to the current year’s presentation.

In the consolidated statements of income, “(Gain) loss related to divestitures of Care Coordination activities” in the amount of €4,592 and €28,924 for the three- and six-month periods ended June 30, 2020, respectively, which were previously presented separately, have been included within “Selling, general and administrative” expenses to conform to the current year’s presentation.

The results of operations for the three and six months ended June 30, 2021 are not necessarily indicative of the results of operations for the year ending December 31, 2021.

At July 30, 2021, the Management Board authorized the issuance of the Company’s unaudited consolidated financial statements.

New accounting pronouncements

Recently implemented accounting pronouncements

The Company has prepared its consolidated financial statements at and for the six months ended June 30, 2021 in conformity with IFRS that must be applied for the interim periods starting on or after January 1, 2021. In the six months ended June 30, 2021, there were no recently implemented accounting pronouncements that had a material effect on the Company’s consolidated financial statements.

Recent accounting pronouncements not yet adopted

The IASB issued the following new standards which are 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. On June 25, 2020, the IASB issued amendments to IFRS 17, which among others, defer the effective date to fiscal years beginning on or after January 1, 2023. 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.

Amendments to IAS 1, Classification of Liabilities as Current and Non-current

In January 2020, the IASB issued Amendments to IAS 1, Classification of Liabilities as Current and Non-current. The amendments clarify under which circumstances debt and other liabilities with an uncertain settlement date should be classified as current or non-current. Among others, the amendments state that liabilities shall be classified depending on rights that exist at the end of the reporting period and define under which conditions liabilities might be settled by cash, other economic resources or equity.

On July 15, 2020, the IASB deferred the effective date by one year to provide companies with more time to implement any classification changes resulting from the amendments. The Amendments to IAS 1 are now effective for annual reporting periods beginning on or after January 1, 2023. Earlier adoption is permitted. The Company is currently evaluating the impact of the amendments to IAS 1 on the consolidated financial statements.

In the Company’s view, no other pronouncements issued by the IASB are expected to have a material impact on the 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)

2.    Notes to the consolidated statements of income

a)    Revenue

The Company has recognized the following revenue in the consolidated statements of income for the three and six months ended June 30, 2021 and 2020:

Revenue

in € THOUS

For the three months ended

June 30, 

2021

2020

Revenue from

Revenue from

 

contracts with

 

Other 

 

contracts with

 

Other

    

customers

    

revenue

    

Total

    

customers

    

revenue

    

Total

Health care services

3,305,679

94,542

3,400,221

3,534,969

78,900

3,613,869

Health care products

 

890,792

 

29,157

919,949

 

914,986

28,490

943,476

Total

 

4,196,471

 

123,699

4,320,170

 

4,449,955

107,390

4,557,345

For the six months ended

June 30, 

2021

2020

Revenue from

Revenue from

contracts with

Other

contracts with

Other

    

customers

    

revenue

    

Total

    

customers

    

revenue

    

Total

Health care services

 

6,538,815

186,865

6,725,680

 

7,050,541

 

157,991

7,208,532

Health care products

 

1,740,412

 

64,203

1,804,615

 

1,785,348

51,261

1,836,609

Total

 

8,279,227

 

251,068

8,530,295

 

8,835,889

209,252

9,045,141

b)    Research and development expenses

Research and development expenses of €100,662 for the six months ended June 30, 2021 (for the six months ended June 30, 2020: €96,423) included research and non-capitalizable development costs as well as depreciation and amortization expenses related to capitalized development costs of €2,583 (for the six months ended June 30, 2020: €2,531).

c)    Earnings per share

The following table contains reconciliations of the numerators and denominators of the basic and diluted earnings per share computations for the three and six months ended June 30, 2021 and 2020:

Reconciliation of basic and diluted earnings per share

in € THOUS, except share and per share data

For the three months ended

For the six months ended

June 30, 

June 30, 

    

2021

    

2020

    

2021

    

2020

Numerator:

 

  

 

  

 

  

 

  

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

 

218,577

 

350,972

 

467,523

 

633,691

Denominators:

 

 

 

 

Weighted average number of shares outstanding

 

292,913,910

 

292,733,283

 

292,896,096

 

295,287,813

Potentially dilutive shares

 

148,888

 

240,359

 

135,666

 

221,971

Basic earnings per share

 

0.75

 

1.20

 

1.60

 

2.15

Diluted earnings per share

 

0.75

 

1.20

 

1.60

 

2.14

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FRESENIUS MEDICAL CARE AG & Co. KGaA

Notes to consolidated financial statements

(unaudited)

(in THOUS, except share and per share data)

d)    Impacts of severe acute respiratory syndrome coronavirus 2 (“COVID-19”)

The Company provides life-sustaining dialysis treatments and other critical healthcare services and products to patients. Its patients need regular and frequent dialysis treatments, or else they face significant health consequences that would result in either hospitalization or death. To be able to continue care for its patients in light of COVID-19, the Company determined that it needed to implement a number of measures, both operational and financial, to maintain an adequate workforce, to protect its patients and employees through expanded personal protective equipment protocols and to develop surge capacity for patients suspected or confirmed to have COVID-19. Additionally, the Company experienced a loss of revenue due to the pandemic in certain parts of its business, offset by increased demand for its services and products in other parts. Various governments in regions in which the Company operates have provided economic assistance programs to address the consequences of the pandemic on companies and support healthcare providers and patients.

The Company received government relief in various regions in which it operates in the amount of €17,930 and €186,856 for the six months ended June 30, 2021 and June 30, 2020, respectively. In addition to the costs incurred which are eligible for government funding in various countries, the Company has been affected by impacts that COVID-19 had on the global economy and financial markets as well as effects related to lockdowns.

The remaining amount of U.S. government relief funding received under the Coronavirus Aid, Relief, and Economic Security Act of 2020 (“CARES Act”) recorded in deferred income was $7,465 (€6,282) and $22,473 (€18,314) at June 30, 2021 and December 31, 2020, respectively. In 2020, the Company also recorded a contract liability for advance payments received under the CMS Accelerated and Advance Payment program within current provisions and other current liabilities and non-current provisions and other non-current liabilities. Contract liabilities related to the CMS Accelerated and Advance Payment program were $854,273 (€718,843) and $1,046,025 (€852,437) as of June 30, 2021 and December 31, 2020, respectively.

3.    Related party transactions

Fresenius SE is the Company’s largest shareholder and owns 32.2% of the Company’s outstanding shares at June 30, 2021. The Else Kröner-Fresenius-Stiftung is the sole shareholder of Fresenius Management SE, the general partner of Fresenius SE, and has sole power to elect the supervisory board of Fresenius Management SE. 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. The Company’s 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 “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 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 also provides administrative services to one of its equity method investees.

The Company sells products to Fresenius SE Companies and purchases products from 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.

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., an equity method investee of which the Company owns 45%. The Company has entered into exclusive supply agreements to purchase certain pharmaceuticals from, as well as certain exclusive distribution agreements with, Vifor Fresenius Medical Care Renal Pharma Ltd.

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FRESENIUS MEDICAL CARE AG & Co. KGaA

Notes to consolidated financial statements

(unaudited)

(in THOUS, except share and per share data)

Under the Centers for Medicare and Medicaid Services’ (“CMS”) Comprehensive End-Stage Renal Disease (“ESRD”) Care Model, the Company and participating physicians formed entities known as ESRD Seamless Care Organizations (“ESCOs”) as part of a payment and care delivery model that seeks to deliver better health outcomes for Medicare ESKD patients while lowering CMS’s costs. The Company entered into participation/service agreements with these ESCOs, which are accounted for as equity method investees.

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

  

For the six months ended

  

  

June 30, 2021

June 30, 2020

  

June 30, 2021

  

December 31, 2020

    

Sales of

  

Purchases of

  

Sales of

  

Purchases of

  

  

  

  

goods and

goods and

goods and

  

goods and

  

Accounts

  

Accounts

  

Accounts

  

Accounts

    

services

  

services

    

services

  

services

  

receivable

  

payable

  

receivable

  

payable

Service agreements (1)

 

  

 

  

 

  

 

  

 

  

 

  

 

  

 

  

Fresenius SE

 

60

 

17,334

 

155

 

13,958

 

53

 

3,874

 

251

 

3,655

Fresenius SE affiliates

 

2,164

 

48,110

 

2,021

 

53,703

 

864

 

12,610

 

824

 

7,944

Equity method investees

 

12,611

 

 

2,778

 

 

87,175

 

 

74,935

 

Total

 

14,835

 

65,444

 

4,954

 

67,661

 

88,092

 

16,484

 

76,010

 

11,599

Products

 

 

 

 

 

 

 

 

Fresenius SE affiliates

24,535

13,769

21,918

20,139

11,529

3,414

10,330

5,732

Equity method investees

 

 

219,861

 

 

243,148

 

 

60,572

 

 

57,207

Total

 

24,535

 

233,630

 

21,918

 

263,287

 

11,529

 

63,986

 

10,330

 

62,939

(1) In addition to the above shown accounts payable, accrued expenses for service agreements with related parties amounted to €6,885 and €5,368 at June 30, 2021 and December 31, 2020, 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 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 leases have maturities up to the end of 2029.

Below is a summary resulting from the above described lease agreements with related parties.

Lease agreements with related parties

in € THOUS

For the six months ended June 30, 2021

For the six months ended June 30, 2020

June 30, 2021

  

December 31, 2020

Interest

Lease

Interest

Lease

Right-of-use

  

Lease

Right-of-use

  

Lease

  

Depreciation

  

expense

  

expense (1)

  

Depreciation

  

expense

  

expense (1)

  

asset

liability

asset

liability

Fresenius SE

3,958

335

608

3,995

375

398

54,110

54,767

58,073

58,610

Fresenius SE affiliates

6,561

567

38

6,644

657

175

73,464

74,763

80,188

81,410

Total

10,519

902

646

10,639

1,032

573

127,574

129,530

138,261

140,020

(1) Short-term leases and expenses relating to variable lease payments as well as low value leases 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, 2021 and December 31, 2020, the Company had accounts receivable from Fresenius SE related to short-term financing in the amount of €5,795 and €1,037, 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 on August 20, 2021 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

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FRESENIUS MEDICAL CARE AG & Co. KGaA

Notes to consolidated financial statements

(unaudited)

(in THOUS, except share and per share data)

the General Partner. The loan repayment has been extended periodically and is currently due on November 23, 2021 with an interest rate of 1.025%.

At June 30, 2021, the Company borrowed from Fresenius SE €60,160 on an unsecured basis at an interest rate of 0.825%. At December 31, 2020, the Company borrowed from Fresenius SE in the amount of €13,320 on an unsecured basis at an interest rate of 0.825%. For further information on this loan agreement, see note 5.

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 aggregate amount reimbursed to the General Partner was €19,668 and €17,299 for its management services during the six months ended June 30, 2021 and 2020, respectively. As of June 30, 2021 and December 31, 2020, the Company had accounts receivable from the General Partner in the amount of €1,523 and €4,061, respectively. As of June 30, 2021 and December 31, 2020, the Company had accounts payable to the General Partner in the amount of €21,397 and €20,863, respectively.

4.   Inventories

At June 30, 2021 and December 31, 2020, inventories consisted of the following:

Inventories

in € THOUS

    

June 30, 

    

December 31, 

 

2021

 

2020

Finished goods

 

1,255,015

1,088,311

Health care supplies

 

442,822

473,164

Raw materials and purchased components

 

235,768

232,422

Work in process

 

119,337

101,413

Inventories

 

2,052,942

1,895,310

5.    Short-term debt

At June 30, 2021 and December 31, 2020, short-term debt consisted of the following:

Short-term debt

in € THOUS

    

June 30, 

    

December 31, 

 

2021

 

2020

Commercial paper program

 

775,238

19,995

Borrowings under lines of credit

 

546,097

42,442

Other

 

536

513

Short-term debt from unrelated parties

 

1,321,871

62,950

Short-term debt from related parties (see note 3 c)

 

63,160

16,320

Short-term debt

 

1,385,031

79,270

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, 2021 and December 31, 2020, cash and borrowings under lines of credit in the amount of €821,285 and €998,044, respectively, 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, 2021, the outstanding commercial paper amounted to €775,000 (December 31, 2020: €20,000).

Short-term debt from related parties

The Company and one of its subsidiaries are parties to an unsecured loan agreement, as borrowers, with Fresenius SE, as lender, under which the Company and one of its subsidiaries may request and receive one or more short-term advances up to an aggregate amount of €600,000 until maturity on July 31, 2022. For further information on short-term debt from related parties, see note 3 c).

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FRESENIUS MEDICAL CARE AG & Co. KGaA

Notes to consolidated financial statements

(unaudited)

(in THOUS, except share and per share data)

6.    Long-term debt

As of June 30, 2021 and December 31, 2020, long-term debt consisted of the following:

Long-term debt

in € THOUS

June 30, 

    

December 31, 

    

2021

    

2020

Amended 2012 Credit Agreement

 

1,162,342

Bonds

 

6,898,800

6,408,118

Accounts Receivable Facility

 

Other

 

234,609

238,000

Long-term debt

 

7,133,409

7,808,460

Less current portion

 

(634,404)

(1,008,359)

Long-term debt, less current portion

 

6,499,005

6,800,101

The bonds issued by Fresenius Medical Care US Finance, Inc. in the amount of $650,000 (€472,889 as of the date of issuance on February 3, 2011) were redeemed at maturity on February 15, 2021. Additionally, the bonds issued by Fresenius Medical Care Finance VII S.A. on February 3, 2011 in the amount of €300,000 were redeemed at maturity on February 15, 2021.

On May 18, 2021, the Company issued bonds in two tranches with an aggregate principal amount of $1,500,000 (€1,227,295 as of the date of issuance):

bonds of $850,000 (€695,467 as of the date of issuance) with a maturity of 5 years and 7 months and a coupon rate of 1.875%, and
bonds of $650,000 (€531,828 as of the date of issuance) with a maturity of 10 years and 7 months and a coupon rate of 3.000%.

The proceeds have been used for general corporate purposes, including the refinancing of outstanding indebtedness.

Amended 2012 Credit Agreement

The following table shows the available and outstanding amounts under the Amended 2012 Credit Agreement at June 30, 2021 and December 31, 2020:

Amended 2012 Credit Agreement - maximum amount available and balance outstanding

in THOUS

 

Maximum amount available

 

Balance outstanding

June 30, 2021

June 30, 2021 (1)

    

    

    

    

Revolving credit USD 2017 / 2022 (2)

$

900,000

757,321

$

Revolving credit EUR 2017 / 2022 (2)

600,000

600,000

USD term loan 2017 / 2022 (3)

$

$

EUR term loan 2017 / 2022 (3)

1,357,321

 

Maximum amount available

 

Balance outstanding

    

December 31, 2020

    

December 31, 2020 (1)

    

    

Revolving credit USD 2017 / 2022

$

900,000

733,436

$

Revolving credit EUR 2017 / 2022

600,000

600,000

USD term loan 2017 / 2022

$

1,110,000

904,572

$

1,110,000

904,572

EUR term loan 2017 / 2022

259,000

259,000

259,000

259,000

2,497,008

1,163,572

(1) Amounts shown are excluding debt issuance costs.
(2) For information on the replacement of the revolving credit facilities in the Amended 2012 Credit Agreement, see note 11.
(3) USD term loan 2017 / 2022 in the amount of $1,050,000 (€860,444 as of the date of repayment) and EUR term loan 2017 / 2022 in the amount of €245,000 originally due on July 31, 2022 were repaid on May 20, 2021.

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FRESENIUS MEDICAL CARE AG & Co. KGaA

Notes to consolidated financial statements

(unaudited)

(in THOUS, except share and per share data)

Accounts Receivable Facility

The following table shows the available and outstanding amounts under the Accounts Receivable Facility at June 30, 2021 and December 31, 2020:

Accounts Receivable Facility - maximum amount available and balance outstanding

in THOUS

 

Maximum amount available

 

Balance outstanding

    

June 30, 2021 (1)

    

June 30, 2021 (2),(3)

    

Accounts Receivable Facility

$

900,000

757,321

$

 

Maximum amount available

 

Balance outstanding

    

December 31, 2020 (1)

    

December 31, 2020 (2)

    

Accounts Receivable Facility

$

900,000

733,437

$

(1) Subject to availability of sufficient accounts receivable meeting funding criteria.
(2) Amounts shown are excluding debt issuance costs.
(3) Included in “Current portion of long-term debt” in the consolidated balance sheet as of June 30, 2021.

The Company also had letters of credit outstanding under the Accounts Receivable Facility in the amount of $12,532 and $12,522 (€10,546 and €10,205) at June 30, 2021 and December 31, 2020, respectively. These letters of credit are not included above as part of the balance outstanding at June 30, 2021 and December 31, 2020; however, the letters reduce available borrowings under the Accounts Receivable Facility.

7.    Capital management

As of June 30, 2021 and December 31, 2020 total equity in percent of total assets was 38.8% and 38.9%, respectively, and debt and lease liabilities in percent of total assets was 39.8% and 39.1%, respectively.

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

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.

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

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 (“SEC”) and the United States Department of Justice (“DOJ”) about these investigations. The DOJ and the SEC also conducted their own investigations, in which the Company cooperated.

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FRESENIUS MEDICAL CARE AG & Co. KGaA

Notes to consolidated financial statements

(unaudited)

(in THOUS, except share and per share data)

In the course of this dialogue, the Company identified and reported to the DOJ and the SEC, and took remedial actions with respect to, conduct that resulted in the DOJ and the SEC 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.

On March 29, 2019, the Company entered into a non-prosecution agreement (“NPA”) with the DOJ and a separate agreement with the SEC intended to resolve fully and finally the U.S. government allegations against the Company arising from the investigations. Both agreements included terms starting August 2, 2019. The DOJ NPA is scheduled to terminate on August 2, 2022 and the dismissal of the SEC Order is scheduled to occur on November 30, 2022. The Company paid a combined total in penalties and disgorgement of approximately $231,715 (€205,854) to the DOJ and the SEC in connection with these agreements. The entire amount paid to the DOJ and the SEC was reserved for in charges that the Company recorded in 2017 and 2018 and announced in 2018. As part of the resolution, the Company agreed to certain self-reporting obligations and to retain an independent compliance monitor. Due to COVID-19 pandemic restrictions, the monitorship program faced certain delays, but the Company is working to have all its obligations under the resolution with the DOJ and SEC completed in 2022.

In 2015, the Company self-reported to the German prosecutor conduct with a potential nexus to Germany and continues to cooperate with government authorities in Germany in their review of the conduct that prompted the Company's and United States government investigations.

Since 2012, the Company has made and continues to make further significant investments in its compliance and financial controls and in its compliance, legal and financial organizations. The Company's remedial actions included separation from those employees responsible for the above-mentioned conduct. The Company is dealing with post-FCPA review matters on various levels. The Company continues to be fully committed to compliance with the FCPA and other applicable anti-bribery laws.

On October 30, 2020, Mexico’s primary social security and health care agency filed a civil complaint in the United States District Court for the District of Massachusetts (Boston) asserting claims for common law fraud against the Company and FMCH. 2020 Civ. 11927-IT (E. D. Mass.). The allegations of the complaint rely on the Company’s resolution under the FCPA. After both FMCH and the Company moved to dismiss the complaint, the plaintiff moved on June 23, 2021 to dismiss the complaint voluntarily without prejudice. The court granted plaintiff’s motion the same day.

FMCH's insurers agreed to the settlement in 2017 of personal injury litigation related to FMCH's Granuflo® and Naturalyte® acid concentrate products and funded $220,000 (€179,284) of the settlement fund under a reciprocal reservation of rights. FMCH accrued a net expense of $60,000 (€48,896) in connection with the settlement, including legal fees and other anticipated costs. Following the settlement, FMCH's insurers in the AIG group initiated litigation against FMCH seeking to be indemnified by FMCH for their $220,000 (€179,284) outlay and FMCH initiated litigation against the AIG group to recover defense and indemnification costs FMCH had borne. National Union Fire Insurance v. Fresenius Medical Care, 2016 Index No. 653108 (Supreme Court of New York for New York County).

Discovery in the litigation is complete. The AIG group abandoned certain of its coverage claims and submitted expert reports on damages asserting that, if AIG prevails on all its remaining claims, it should recover $60,000 (€48,896). FMCH contests all of AIG’s claims and submitted expert reports supporting rights to recover $108,000 (€88,012) from AIG, in addition to the $220,000 (€179,284) already funded. A trial date has not been set in the matter.

In August 2014, FMCH received a subpoena from the United States Attorney’s Office (“USAO”) 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. On August 27, 2020, after the USAO declined to pursue the matter by intervening, the United States District Court for Maryland unsealed a 2014 relator’s qui tam complaint that gave rise to the investigation. United States ex rel. Martin Flanagan v. Fresenius Medical Care Holdings, Inc., 2014 Civ. 00665 (D. Maryland). The relator has served the complaint and litigation is proceeding. In response to FMCH’s motion to dismiss the unsealed complaint, the relator filed an amended complaint on February 5, 2021 making broad allegations about financial relationships between FMCH and nephrologists.

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. With discovery concluded, the State has specified that its demands for relief relate to $7,700 (€6,275) in overpayments on approximately twenty thousand “claims” submitted by Liberty. 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 has been postponed because of COVID-19-related administrative issues and has been rescheduled for January 2022.

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FRESENIUS MEDICAL CARE AG & Co. KGaA

Notes to consolidated financial statements

(unaudited)

(in THOUS, except share and per share data)

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 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. 06646 (E.D.N.Y. November 12, 2014). The court unsealed the complaint, allowing the relator to proceed on its own. On January 27, 2021, the Magistrate Judge recommended dismissal of the complaint with prejudice and without leave to amend. The relator is appealing the Magistrate Judge’s recommendation.

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, of 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. The Brooklyn USAO has indicated that its investigation is nationwide in scope and is focused on whether certain access procedures performed at Azura facilities were medically unnecessary and whether certain physician assistants employed by Azura exceeded their permissible scope of practice. Allegations against AAC arising in districts in Connecticut, Florida and Rhode Island relating to utilization and invoicing were settled in 2015.

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. (“Shiel”), which FMCH acquired in October 2013. In the course of 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.

In 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 subpoenas, and the subsequent investigation in which FMCH cooperated, were apparently predicated on but were not limited to a complaint filed on November 6, 2015 by two former employees. United States ex rel. Keasler et al. v. Fresenius Medical Care Rx, LLC, 03:15-Civ-01183 (M.D. Tenn. 2015). On July 9, 2021, the United States declined to intervene in the matter. On July 13, 2021, the Court allowed the relators’ complaint to be unsealed. The relators may elect to serve the complaint.

On March 12, 2018, Vifor Fresenius Medical Care Renal Pharma Ltd. and Vifor Fresenius Medical Care Renal Pharma France S.A.S. (collectively, “VFMCRP”) (see note 3), 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-MN, “first complaint”). The patent infringement action is in response to Lupin and Teva’s filings of Abbreviated New Drug Applications ("ANDA") with the U.S. Food and Drug Administration ("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 (specifically, up to July 29, 2020 for Lupin’s ANDA; and August 6, 2020 for Teva’s ANDA. 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. The case was settled among the parties, thus terminating the court action on August 4, 2020. On May 26, 2020, VFMCRP filed a further complaint for patent infringement against Lupin in the U.S. District Court for the District of Delaware (Case No. 1:20-cv-00697-MN) in response to Lupin’s ANDA for a generic version of Velphoro® and on the basis of a newly listed patent in the Orange Book. On July 6, 2020, VFMCRP filed an additional complaint for patent infringement against Lupin and Teva in the U.S. District Court for the District of Delaware (Case No. 1:20-cv-00911-MN, “second complaint”) in response to the companies’ ANDA for generic versions of Velphoro® and on the basis of two newly listed patents in the Orange Book.

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FRESENIUS MEDICAL CARE AG & Co. KGaA

Notes to consolidated financial statements

(unaudited)

(in THOUS, except share and per share data)

All cases involving Lupin as defendant were settled among the parties, thus terminating the corresponding court actions on December 18, 2020. In relation to the remaining pending cases and the defendant Teva, trial took place for the first complaint between January 19 and 22, 2021. Another patent newly listed in the Orange Book was added to the second complaint on June 23, 2021. Trial is scheduled for the second complaint for June 2022.

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. On July 8, 2020, the U.S. government filed its answer (and confirmed their position). The parties will proceed to discovery. The court has not yet set a date for trial in this matter. 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 risk of this litigation.

On August 21, 2020, FMCH was served with a subpoena from the United States Attorney for the District of Massachusetts requesting information and documents related to urgent care centers that FMCH owned, operated, or controlled as part of its ChoiceOne and Medspring urgent care operations prior to its divestiture of and exit from that line of business in 2018. The subpoena appears to be related to an ongoing investigation of alleged upcoding in the urgent care industry, which has resulted in certain published settlements under the federal False Claims Act. FMCH is cooperating in the investigation.

On March 25, 2021, FMCH received a grand jury subpoena issued from the United States District Court for the Northern District of Texas (Dallas). The subpoena seeks documents comprising communications between employees of FMCH and DaVita and partially overlaps in content the 2018 Denver subpoena. The Dallas subpoena is part of a separate investigation by the Anti-Trust Division of the Department of Justice into possible employee “no poaching” and similar agreements to refrain from competition and is related to the indictment in United States v. Surgical Care Affiliates, 3:2021-Cr-0011 (N.D. Tex.) and United States v. DaVita, Inc. et al., 1:21-cr00229 (D.Col.). The unnamed co-conspirators described in the Surgical Care Affiliates and DaVita indictments do not include FMCH, the Company, or any of their employees. FMCH is cooperating in the investigation.

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.

The Company, like other health care 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 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 completed remediation efforts with respect to one pending FDA warning letter and is awaiting confirmation as to whether the letter is now closed. 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.

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FRESENIUS MEDICAL CARE AG & Co. KGaA

Notes to consolidated financial statements

(unaudited)

(in THOUS, except share and per share data)

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.

Physicians, hospitals and other participants in the health care 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. 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.

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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FRESENIUS MEDICAL CARE AG & Co. KGaA

Notes to consolidated financial statements

(unaudited)

(in THOUS, except share and per share data)

9.    Financial instruments

The following tables show the carrying amounts and fair values of the Company’s financial instruments at June 30, 2021 and December 31, 2020:

Carrying amount and fair value of financial instruments

in € THOUS

June 30, 2021

 

Carrying amount

 

Fair value

Amortized

Not

    

 cost

    

FVPL

    

FVOCI

    

 classified

    

Total

    

Level 1

    

Level 2

    

Level 3

Cash and cash equivalents

 

843,791

564,167

1,407,958

564,020

147

Trade accounts and other receivables from unrelated parties

 

3,343,721

75,789

3,419,510

Accounts receivable from related parties

 

106,939

106,939

Derivatives - cash flow hedging instruments

 

389

389

389

Derivatives - not designated as hedging instruments

 

24,590

24,590

24,590

Equity investments

 

162,641

97,597

260,238

42,282

58,641

159,315

Debt securities

 

76,645

305,518

382,163

377,120

5,043

Other financial assets

 

127,979

121,218

249,197

Other current and non-current assets

 

127,979

263,876

403,115

121,607

916,577

Financial assets

 

4,422,430

828,043

403,115

197,396

5,850,984

Accounts payable to unrelated parties

 

684,981

684,981

Accounts payable to related parties

 

101,867

101,867

Short-term debt

 

1,385,031

1,385,031

Long-term debt

 

7,133,409

7,133,409

7,173,798

234,609

Lease liabilities

 

4,597,085

4,597,085

Derivatives - cash flow hedging instruments

 

3,567

3,567

3,567

Derivatives - not designated as hedging instruments

 

10,944

10,944

10,944

Variable payments outstanding for acquisitions

 

61,200

61,200

61,200

Put option liabilities

 

948,931

948,931

948,931

Other financial liabilities

 

1,604,210

1,604,210

Other current and non-current liabilities

 

1,604,210

72,144

952,498

2,628,852

Financial liabilities

 

10,909,498

72,144

5,549,583

16,531,225

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FRESENIUS MEDICAL CARE AG & Co. KGaA

Notes to consolidated financial statements

(unaudited)

(in THOUS, except share and per share data)

Carrying amount and fair value of financial instruments

in € THOUS

December 31, 2020

 

Carrying amount

 

Fair value

Amortized

Not

    

cost

    

FVPL

    

FVOCI

    

classified

    

Total

    

Level 1

    

Level 2

    

Level 3

Cash and cash equivalents

 

781,029

300,510

1,081,539

300,367

143

Trade accounts and other receivables from unrelated parties

 

3,080,770

72,275

3,153,045

Accounts receivable from related parties

 

91,438

91,438

Derivatives - cash flow hedging instruments

 

1,130

1,130

1,130

Derivatives - not designated as hedging instruments

 

5,367

5,367

5,367

Equity investments

 

191,739

56,911

248,650

11,911

48,221

188,518

Debt securities

 

103,387

297,954

401,341

396,392

4,949

Other financial assets

 

195,926

108,830

304,756

Other current and non-current assets

 

195,926

300,493

354,865

109,960

961,244

Financial assets

 

4,149,163

601,003

354,865

182,235

5,287,266

Accounts payable to unrelated parties

 

731,993

731,993

Accounts payable to related parties

 

95,401

95,401

Short-term debt

 

79,270

79,270

Long-term debt

 

7,808,460

7,808,460

6,764,681

1,404,640

Lease liabilities

4,492,287

4,492,287

Derivatives - cash flow hedging instruments

 

1,667

1,667

1,667

Derivatives - not designated as hedging instruments

 

39,281

39,281

39,281

Variable payments outstanding for acquisitions

 

66,359

66,359

66,359

Put option liabilities

 

882,422

882,422

882,422

Other financial liabilities

 

1,537,783

1,537,783

Other current and non-current liabilities

 

1,537,783

105,640

884,089

2,527,512

Financial liabilities

 

10,252,907

105,640

5,376,376

15,734,923

Derivative and non-derivative financial instruments are categorized in the following three-tier fair value hierarchy that reflects the significance of the inputs in making the measurements. Level 1 inputs are quoted prices for similar instruments in active markets. Level 2 is defined as using valuation models (i.e. mark-to-model) with input factors that are inputs other than quoted prices in active markets that are directly or indirectly observable. Level 3 is defined as using valuation models (i.e. mark-to-model) with input factors that are 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 financial instruments, if the carrying amount is a reasonable estimate of fair value due to the relatively short period of maturity of these instruments. This includes cash and cash equivalents measured at amortized costs, trade accounts and other receivables from unrelated parties, accounts receivable from related parties, other financial assets as well as accounts payable to unrelated parties, accounts payable to related parties, short-term debt and other financial liabilities. Transfers between levels of the fair value hierarchy have not occurred as of June 30, 2021 and December 31, 2020. The Company accounts for transfers at the end of the reporting period.

Derivative financial instruments

In order to manage the risk of currency exchange rate 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 purposes. The Company does not use financial instruments for trading purposes.

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FRESENIUS MEDICAL CARE AG & Co. KGaA

Notes to consolidated financial statements

(unaudited)

(in THOUS, except share and per share data)

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 from unrelated parties, 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 fair value through profit or loss (“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. From time to time the Company engages external valuation firms to determine the fair value of Level 3 equity investments. The external valuation uses a discounted cash flow model, which includes significant unobservable inputs such as investment specific forecasted financial statements, weighted average cost of capital, that reflects current market assessments as well as a terminal growth rate.

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 fair value through other comprehensive income (“FVOCI”). The smaller part of debt securities does 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 initially recognized at its fair value. 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.

Put option liabilities are recognized at the present value of the exercise price of the option. The exercise price of the option is generally based on 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 options. The external valuation estimates the fair values using a combination of discounted cash flows and a multiple of earnings and/or revenue. The put option liabilities 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 these put options can also fluctuate, and the discounted cash flows as well as the implicit multiple of earnings and/or revenue at which these obligations may ultimately be settled could vary significantly from the Company’s current estimates depending upon market conditions. For the purpose of analyzing the impact of changes in unobservable inputs on the fair value measurement of put option liabilities, the Company assumes an increase on earnings of 10% compared to the actual estimation as of the balance sheet date. The corresponding increase in fair value of €65,941 is then compared to the total liabilities and the shareholder’s equity of the Company. This analysis shows that an increase of 10% in the relevant earnings would have an effect of less than 1% on the total liabilities and less than 1% on the shareholder’s equity of the Company.

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FRESENIUS MEDICAL CARE AG & Co. KGaA

Notes to consolidated financial statements

(unaudited)

(in THOUS, except share and per share data)

Following is a roll forward of Level 3 financial instruments at June 30, 2021 and December 31, 2020:

Reconciliation from beginning to ending balance of level 3 financial instruments

in € THOUS

 

2021

 

2020

    

Variable

    

    

Variable

    

payments

payments

outstanding

outstanding

Equity

for

Put option

Equity

for

Put option

    

investments

    

acquisitions

    

liabilities

    

investments

    

acquisitions

    

liabilities

Beginning balance at January 1,

 

188,518

66,359

882,422

183,054

89,677

934,425

Increase

 

4,255

44,266

17,253

51,388

Decrease

 

(5,621)

(17,727)

(35,764)

(99,877)

Gain / loss recognized in profit or loss(1)

 

(34,845)

(4,322)

22,489

(1,996)

Gain / loss recognized in equity

 

12,803

73,993

Foreign currency translation and other changes

 

5,642

529

27,167

(17,025)

(2,811)

(77,507)

Ending balance at June 30, and December 31,

 

159,315

61,200

948,931

188,518

66,359

882,422

(1) Includes realized and unrealized gains / losses.

10.    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 ESKD 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 and operating income. The Company does not include income taxes as it believes taxes are 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 as well as certain legal costs, 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. Products transferred to the segments are transferred 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. The Company’s global research and development as well as its Global Medical Office, which seeks to standardize medical treatments and clinical processes within the Company, are also centrally managed. These corporate activities (“Corporate”) do not fulfill the definition of a segment according to IFRS 8, Operating Segments. 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.

Information pertaining to the Company’s segment and Corporate activities for the three and six months ended June 30, 2021 and 2020 is set forth below:

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FRESENIUS MEDICAL CARE AG & Co. KGaA

Notes to consolidated financial statements

(unaudited)

(in THOUS, except share and per share data)

Segment and corporate(1) information

in € THOUS

North

    

    

Asia-

    

Latin

    

    

    

 

America

 

EMEA

 

Pacific

 

America

 

Total

    

Segment

    

Segment

    

Segment

    

Segment

    

Segment

    

Corporate

    

Total

Three months ended June 30, 2021

 

  

 

  

  

 

  

 

  

 

  

 

  

Revenue from health care services

 

2,600,500

341,449

226,817

123,223

3,291,989

13,690

3,305,679

Revenue from health care products

 

253,908

339,817

245,413

47,025

886,163

4,629

890,792

Revenue from contracts with customers

 

2,854,408

681,266

472,230

170,248

4,178,152

18,319

4,196,471

Other revenue external customers

 

98,285

11,440

13,292

682

123,699

123,699

Revenue external customers

 

2,952,693

692,706

485,522

170,930

4,301,851

18,319

4,320,170

Inter-segment revenue

 

10,691

111

10,802

(10,802)

Revenue

 

2,963,384

692,706

485,633

170,930

4,312,653

7,517

4,320,170

Operating income

 

397,593

73,370

84,218

2,595

557,776

(133,555)

424,221

Interest

 

(69,209)

Income before income taxes

355,012

Depreciation and amortization

 

(239,895)

(48,032)

(25,834)

(9,426)

(323,187)

(63,673)

(386,860)

Impairment loss

(2,619)

(2,619)

(6,054)

(8,673)

Income (loss) from equity method investees

25,222

(3,143)

134

209

22,422

22,422

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

 

229,301

54,810

22,184

12,586

318,881

71,433

390,314

Three months ended June 30, 2020

 

Revenue from health care services

 

2,872,423

340,591

195,880

119,460

3,528,354

6,615

3,534,969

Revenue from health care products

 

283,501

338,772

239,471

49,142

910,886

4,100

914,986

Revenue from contracts with customers

 

3,155,924

679,363

435,351

168,602

4,439,240

10,715

4,449,955

Other revenue external customers

 

83,865

7,713

14,861

951

107,390

107,390

Revenue external customers

 

3,239,789

687,076

450,212

169,553

4,546,630

10,715

4,557,345

Inter-segment revenue

 

6,848

1,264

24

69

8,205

(8,205)

Revenue

 

3,246,637

688,340

450,236

169,622

4,554,835

2,510

4,557,345

Operating income

 

609,414

77,622

63,311

10,921

761,268

(105,344)

655,924

Interest

 

(91,940)

Income before income taxes

 

563,984

Depreciation and amortization

(257,538)

(48,776)

(27,028)

(8,534)

(341,876)

(62,997)

(404,873)

Impairment loss

395

(5,769)

(5,374)

(34)

(5,408)

Income (loss) from equity method investees

29,464

(22,893)

(2,385)

(102)

4,084

(179)

3,905

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

 

246,740

74,403

26,983

13,532

361,658

148,439

510,097

Six months ended June 30, 2021

 

Revenue from health care services

5,151,466

673,910

454,630

237,902

6,517,908

20,907

6,538,815

Revenue from health care products

505,712

658,828

476,161

90,810

1,731,511

8,901

1,740,412

Revenue from contracts with customers

 

5,657,178

 

1,332,738

 

930,791

 

328,712

 

8,249,419

 

29,808

 

8,279,227

Other revenue external customers

 

194,344

 

29,574

 

25,917

 

1,233

 

251,068

 

 

251,068

Revenue external customers

 

5,851,522

 

1,362,312

 

956,708

 

329,945

 

8,500,487

 

29,808

 

8,530,295

Inter-segment revenue

 

21,866

 

 

167

 

 

22,033

 

(22,033)

 

Revenue

 

5,873,388

 

1,362,312

 

956,875

 

329,945

 

8,522,520

 

7,775

 

8,530,295

Operating income

 

796,097

 

153,260

 

169,514

 

9,235

 

1,128,106

 

(229,632)

 

898,474

Interest

 

 

(145,281)

Income before income taxes

 

 

753,193

Depreciation and amortization

 

(479,677)

 

(98,377)

 

(51,496)

 

(18,367)

 

(647,917)

 

(126,849)

 

(774,766)

Impairment loss

(2,915)

(2,915)

(6,054)

(8,969)

Income (loss) from equity method investees

 

52,613

 

(3,548)

 

859

 

254

 

50,178

 

 

50,178

Total assets

 

22,292,916

 

3,906,540

 

2,837,678

 

768,237

 

29,805,371

 

3,181,836

 

32,987,207

thereof investments in equity method investees

 

409,287

 

175,673

 

99,762

 

23,838

 

708,560

 

 

708,560

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

 

449,835

 

103,386

 

42,974

 

25,330

 

621,525

 

129,058

 

750,583

Six months ended June 30, 2020

 

Revenue from health care services

5,701,369

681,698

413,719

240,049

7,036,835

13,706

7,050,541

Revenue from health care products

556,832

670,159

453,568

95,815

1,776,374

8,974

1,785,348

Revenue from contracts with customers

 

6,258,201

 

1,351,857

 

867,287

 

335,864

 

8,813,209

 

22,680

 

8,835,889

Other revenue external customers

 

167,811

 

13,965

 

25,819

 

1,657

 

209,252

 

 

209,252

Revenue external customers

 

6,426,012

 

1,365,822

 

893,106

 

337,521

 

9,022,461

 

22,680

 

9,045,141

Inter-segment revenue

 

14,023

 

2,577

 

28

 

190

 

16,818

 

(16,818)

 

Revenue

 

6,440,035

 

1,368,399

 

893,134

 

337,711

 

9,039,279

 

5,862

 

9,045,141

Operating income

 

1,072,825

 

178,676

 

140,120

 

17,778

 

1,409,399

 

(198,345)

 

1,211,054

Interest

 

 

 

 

 

 

 

(196,159)

Income before income taxes

 

 

 

 

 

 

 

1,014,895

Depreciation and amortization

 

(514,167)

 

(94,751)

 

(52,987)

 

(17,246)

 

(679,151)

 

(125,396)

 

(804,547)

Impairment loss

(604)

 

(5,783)

 

 

 

(6,387)

 

(34)

(6,421)

Income (loss) from equity method investees

 

50,514

 

(24,555)

 

(1,435)

 

(31)

 

24,493

 

(179)

 

24,314

Total assets

 

22,912,147

 

3,891,296

 

2,767,942

 

902,360

 

30,473,745

 

3,716,108

 

34,189,853

thereof investments in equity method investees

 

376,697

 

183,193

 

100,120

 

26,015

 

686,025

 

 

686,025

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

 

606,606

 

119,576

 

72,273

 

30,699

 

829,154

 

224,224

 

1,053,378

(1) Includes inter - segment consolidation adjustments.

56

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FRESENIUS MEDICAL CARE AG & Co. KGaA

Notes to consolidated financial statements

(unaudited)

(in THOUS, except share and per share data)

11.    Events occurring after the balance sheet date

On July 1, 2021, the Company entered into a new €2,000,000 sustainability-linked syndicated revolving credit facility with a group of 34 core relationship banks (“Syndicated Credit Facility”). The Syndicated Credit Facility replaces the existing $900,000 and €600,000 revolving credit facilities, initially signed in 2012 and amended periodically, and has a term of five years plus two one-year extension options. It can be drawn in different currencies and will be used as a back-up line for general corporate purposes. Additionally, a sustainability component has been embedded in the credit facility. Based on this structure, the margin may rise or fall depending on the company's sustainability performance.

No other significant activities have taken place subsequent to the balance sheet date June 30, 2021 that have a material impact on the key figures and earnings presented. Currently, there are no significant changes in the Company’s structure, management, legal form or personnel.

57

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Quantitative and qualitative disclosures about market risk

The information in note 23 of the notes to the consolidated financial statements included in the Company's Annual Report on Form 20-F for the year ended December 31, 2020, is incorporated by this reference.

58

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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 (“the 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 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, described in note 8 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.

In 2015, the Company self-reported to the German prosecutor conduct with a potential nexus to Germany and continues to cooperate with government authorities in Germany in their review of the conduct that prompted the Company's and United States government investigations.

Since 2012, the Company has made and continues to make further significant investments in its compliance and financial controls and in its compliance, legal and financial organizations. The Company's remedial actions included separation from those employees responsible for the above-mentioned conduct. The Company is dealing with post-FCPA review matters on various levels. The Company continues to be fully committed to compliance with the FCPA and other applicable anti-bribery laws.

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OTHER INFORMATION

Legal proceedings

The information in note 8 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 Bad Homburg v.d. Höhe, Germany (as a virtual meeting) on May 20, 2021. Shareholder representation at the AGM was as follows:

At the time of voting 238,704,406 shares with the same amount of votes were represented. This corresponds to 81.50% of the registered capital.

The seven 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

Item 1

Resolution on the approval of the annual financial statements of Fresenius Medical Care AG & Co. KGaA for fiscal year 2020

99.86%

0.14%

Item 2

Resolution on the allocation of distributable profit

99.27%

0.73%

Item 3

Resolution on the approval of the actions of the General Partner for fiscal year 2020

99.69%

0.31%

Item 4

Resolution on the approval of the actions of the Supervisory Board for fiscal year 2020

95.64%

4.36%

Item 5

Election of the auditor and consolidated group auditor for fiscal year 2021 as well as the auditor for the potential review of interim financial information

91.47%

8.53%

Item 6a

Elections to the Supervisory Board - Dr. Dieter Schenk

76.85%

23.15%

Item 6b

Elections to the Supervisory Board and to the Joint Committee - Mr. Rolf A. Classon

91.34%

8.66%

Item 6c

Elections to the Supervisory Board - Mr. Gregory Sorensen, MD

92.69%

7.31%

Item 6d

Elections to the Supervisory Board and to the Joint Committee - Dr. Dorothea Wenzel

99.17%

0.83%

Item 6e

Elections to the Supervisory Board - Ms. Pascale Witz

97.52%

2.48%

Item 6f

Elections to the Supervisory Board - Professor Dr. Gregor Zünd

99.48%

0.52%

Item 7

Resolution on the authorization to purchase and use treasury shares pursuant to section 71 (1) no. 8 AktG and on the exclusion of subscription rights

95.44%

4.56%

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Table of Contents

Authorization to Purchase and Use Treasury Shares

The authorization to purchase and use treasury shares (Item 7 above) was granted for five years and will expire on May 19, 2026.

The Company is authorized to purchase treasury shares up to a maximum amount of 10% of the share capital existing on May 20, 2021. The shares acquired, together with other treasury shares held by the Company or attributable to the Company pursuant to sections 71a et seqq. of the German Stock Corporation Act, must at no time exceed 10% of the share capital. The authorization may not be used for the purpose of trading in treasury shares.

The Company may acquire shares by way of a purchase via the stock exchange, by means of a public tender offer by the Company addressed to all its shareholders or an invitation to all shareholders to submit offers for sale. The share price paid by the Company for purchases on the stock exchange (not including incidental acquisition costs) may not exceed or be less than the market price for the Company’s shares (determined by the opening auction in the Xetra trading system on the relevant stock exchange trading day) by more than 10%. In the case of an acquisition by way of a public tender offer or a public invitation to submit offers for sale, the purchase price offered or the limit values of the purchase price range per share (excluding incidental acquisition expenses) may not exceed or fall below the average trading price of shares of the Company in the Xetra trading system (or a comparable successor system) by more than 10% on the three exchange trading days preceding the date of the publication of the offer or public invitation to submit an offer for sale, subject to possible adjustment, based on the relevant average price on the three exchange trading days prior to the publication of any such adjustment, if significant changes from the relevant price occur after the publication of a tender offer or public invitation to submit an offer for sale.

At June 30, 2021, the Company did not hold any treasury shares.

Introduction of the role of Lead Independent Director

In connection with the AGM, the Supervisory Board of the Company announced the introduction of the role of a Lead Independent Director in order to strengthen its corporate governance and emphasize the importance the Supervisory Board attaches to independence when performing its duties.

The role of the Lead Independent Director shall be to ensure that the interests of all shareholders are given adequate consideration in the dealings, negotiations, discussions and decisions of the Supervisory Board. At least four (4) of the Supervisory Board’s six (6) members shall be independent in the meaning of the German Corporate Governance Code, as previously resolved by the Supervisory Board. While the majority of the members of the Supervisory Board of the Company are (and will remain) independent in this meaning, the Supervisory Board, by introducing the role of a Lead Independent Director, intends to further strengthen the independence of the Supervisory Board for the shareholders. Following the AGM, the members of the Supervisory Board confirmed the appointment of Dr. Dorothea Wenzel, a member of the Supervisory Board since 2019, as Lead Independent Director.

Further information on the rights and responsibilities of the Lead Independent Director is available on our website at https://www.freseniusmedicalcare.com/en/about-us/supervisory-board/.

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Exhibits

Exhibit No.

10.1

Indenture (including the Guarantee set forth therein) dated as of May, 18, 2021 by and among Fresenius Medical Care US Finance III, Inc. as issuer, the Company and Fresenius Medical Care Holdings, Inc., as Guarantors, and U.S. Bank National Association, as Trustee, related to the 1.875% Notes due 2026 of Fresenius Medical Care US Finance III, Inc. (filed herewith).

10.2

Indenture (including the Guarantee set forth therein) dated as of May 18, 2021 by and among Fresenius Medical Care US Finance III, Inc. as issuer, the Company and Fresenius Medical Care Holdings, Inc., as Guarantors, and U.S. Bank National Association, as Trustee, related to the 3.000% Notes due 2031 of Fresenius Medical Care US Finance III, Inc. (filed herewith).

10.3

Sustainability-Linked Revolving Credit Facility Agreement dated 1 July, 2021 between the Company and Fresenius Medical Care Holdings, Inc. as borrowers and guarantors, and the financial institutions party thereto in their respective capacities as Coordinators, Bookrunners, Arrangers, Original Lenders (including their respective Original Lending Affiliates), Sustainability Agent, Agent and Swingline Agent (filed herewith).

10.4

First Amendment to the Fourth Amended and Restated Loan Note dated July 2, 2021 (filed herewith).

10.5

Letter Agreement dated as of July 1, 2021 in relation to Seventh Amended and Restated Transfer and Administration Agreement dated as of November 24, 2014 by and among NMC Funding Corporation, as Transferor, National Medical Care, Inc., as initial collection agent, Liberty Street Funding LLC, and other conduit investors party thereto, the financial institutions party thereto, The Bank of Tokyo-Mitsubishi UFJ, Ltd., New York Branch, Barclays Bank PLC, Credit Agricole Corporate and Investment Bank, New York, PNC Bank, National Association, Royal Bank of Canada, as administrative agents, and The Bank of Nova Scotia, as an administrative agent and as agent (filed herewith).

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, 2021June 30, 2021from FMC-AG & Co. KGaA’s Report on Form 6-K for the month of July 2021, 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.

62

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, 2021

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/ HELEN GIZA

Name:

Helen Giza

Title:

Chief Financial Officer and member of the Management Board of the General Partner

63

Exhibit 10.1

FRESENIUS MEDICAL CARE US FINANCE III, INC.

as Issuer

U.S. BANK NATIONAL ASSOCIATION

as Trustee

FRESENIUS MEDICAL CARE AG & Co. KGaA

and

FRESENIUS MEDICAL CARE HOLDINGS, INC.

as Guarantors

INDENTURE

DATED AS OF MAY 18, 2021

with respect to the issuance of

$850,000,000 1.875% NOTES DUE 2026


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

16

SECTION 2.8

Replacement Notes

20

SECTION 2.9

Outstanding Notes

21

SECTION 2.10

Treasury Notes

21

SECTION 2.11

Temporary Notes

22

SECTION 2.12

Cancellation

22

SECTION 2.13

Defaulted Interest

22

SECTION 2.14

CUSIP Numbers

23

SECTION 2.15

Deposit of Moneys

23

SECTION 2.16

Certain Matters Relating to Global Notes

23

SECTION 2.17

Record Date

23

ARTICLE III

REDEMPTION

SECTION 3.1

Optional Redemption

24

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

27

SECTION 3.8

Special Tax Redemption

27

SECTION 3.9

Early Redemption at the Option of the Issuer for Reasons of Minimal Outstanding Principal Amounts

28

-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

29

SECTION 4.4

Negative Pledge of the Company

29

SECTION 4.5

Ownership of the Issuer

30

SECTION 4.6

Existence

30

SECTION 4.7

Maintenance of Properties

31

SECTION 4.8

Payment of Taxes and Other Claims

31

SECTION 4.9

Maintenance of Insurance

31

SECTION 4.10

Reports

31

SECTION 4.11

Change of Control

33

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

36

SECTION 5.2

Successor Entity Substituted

36

SECTION 5.3

Substitution of the Issuer

37

ARTICLE VI

DEFAULT AND REMEDIES

SECTION 6.1

Events of Default

37

SECTION 6.2

Acceleration

39

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

40

SECTION 6.7

Waiver of Past Defaults

40

SECTION 6.8

Control by Majority

40

SECTION 6.9

Limitation on Suits

40

SECTION 6.10

Rights of Holders To Receive Payment

41

SECTION 6.11

Collection Suit by Trustee

41

SECTION 6.12

Trustee May File Proofs of Claim

41

SECTION 6.13

Priorities

42

SECTION 6.14

Restoration of Rights and Remedies

42

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

43

SECTION 7.2

Rights of Trustee

44

SECTION 7.3

Individual Rights of Trustee

45

SECTION 7.4

Trustee’s Disclaimer

46

SECTION 7.5

Notice of Default

46

SECTION 7.6

Compensation and Indemnity

46

SECTION 7.7

Replacement of Trustee

47

SECTION 7.8

Successor Trustee by Merger, Etc

48

SECTION 7.9

Eligibility; Disqualification

49

ARTICLE VIII

SATISFACTION AND DISCHARGE OF INDENTURE

SECTION 8.1

Option To Effect Legal Defeasance or Covenant Defeasance

49

SECTION 8.2

Legal Defeasance and Discharge

49

SECTION 8.3

Covenant Defeasance

50

SECTION 8.4

Conditions to Legal or Covenant Defeasance

50

SECTION 8.5

Satisfaction and Discharge of Indenture

51

SECTION 8.6

Survival of Certain Obligations

51

SECTION 8.7

Acknowledgment of Discharge by Trustee

52

SECTION 8.8

Application of Trust Moneys

52

SECTION 8.9

Repayment to the Issuer; Unclaimed Money

52

SECTION 8.10

Reinstatement

53

ARTICLE IX

AMENDMENTS, SUPPLEMENTS AND WAIVERS

SECTION 9.1

Without Consent of Holders of Notes

53

SECTION 9.2

With Consent of Holders of Notes

54

SECTION 9.3

Notice of Amendment, Supplement or Waiver

55

SECTION 9.4

Revocation and Effect of Consents

55

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

56

SECTION 10.2

Guarantors May Consolidate, Etc., on Certain Terms

57

SECTION 10.3

Release of Guarantors

58

-iii-


Page

ARTICLE XI

MISCELLANEOUS

SECTION 11.1

Notices

58

SECTION 11.2

Certificate and Opinion as to Conditions Precedent

60

SECTION 11.3

Statements Required in Certificate or Opinion

61

SECTION 11.4

Rules by Trustee, Paying Agent, Registrar

61

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

63

SECTION 11.11

Severability

63

SECTION 11.12

Table of Contents, Headings, Etc

63

SECTION 11.13

Currency Indemnity

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 May 18, 2021, 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, in its capacity as trustee (the “Trustee”).

The Issuer has duly authorized the creation and issuance of its 1.875% Notes due 2026. The Notes consist of (i) $850,000,000 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 1.1Definitions. 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 1.875% Notes due 2026.

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, any co-Registrar or the Calculation Agent, and each of their permitted successors and assigns.

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 relevant Corporate Trust Office of the Trustee is closed for business.

-2-


"Calculation Agent" shall have the meaning set forth in Section 3.1(a).

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 the 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 § 34 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

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purposes of surrender for registration or transfer or exchange or for presentation for payment or repurchase 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 CityPlace I, 185 Asylum Street, 27th floor, Hartford, Connecticut 06103, United States of America, 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, amortization and impairment losses 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.

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

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.

FMCH” means Fresenius Medical Care Holdings, Inc.

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.

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.

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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, 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 May 18, 2021.

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).

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 December 1, 2026.

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 May 12, 2021 relating to the Initial Notes.

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

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

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

Permitted 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),

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(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 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 BB-, 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 or Paragraph 10 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.

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, in the case of the Issuer or FMCH or any Subsidiary, the chief executive officer, president, chief financial officer, senior vice president–Global Treasury and Corporate 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;

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

(3)one or more Subsidiaries of such Person.

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

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

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

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

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

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.

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

SECTION 1.2Rules 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 2.1Form 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.

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Each reference in this Indenture to the performance of duties set forth in clauses (1) and (2) above by the Trustee includes performance of such duties by the Paying Agent.

Notes offered and sold in their initial distribution in reliance on Regulation S shall be initially issued as one or more global notes, in registered, global form without interest coupons, substantially in the form of Exhibit A hereto, with 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 2.2Execution 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.

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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 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 $850,000,000 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 and other identifying numbers, 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 $1,000 in excess thereof.

SECTION 2.3Registrar 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

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may act as Paying Agent or Registrar to the extent permitted under applicable laws or regulations.

The Issuer shall notify the Trustee and the Trustee shall notify the Holders of the name and address of any Agent not a party to this Indenture. The Issuer shall enter into an appropriate agency agreement with any Agent not a party to this Indenture. 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, Paying Agent, and Calculation Agent. In acting under this Indenture and in connection with the Notes, the Paying Agent, the Registrar and the Calculation Agent 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 2.4Paying 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 2.5List 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 2.6Book-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

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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.

(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 $1,000 in excess thereof. Whenever all of a Global Note is exchanged for one or more Definitive Notes, it shall be surrendered by the Holder thereof to the Registrar for cancellation. Whenever a part of a Global Note is exchanged for one 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”.

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

(a)If a holder of a beneficial interest in the Rule 144A Global Note wishes at any time to exchange its interest in such Rule 144A Global Note for an interest in the Regulation S Global Note, or to transfer its interest in such Rule 144A Global Note to a Person who wishes to take delivery thereof in the form of an interest in such Regulation S Global Note, such holder may, subject to the rules and procedures of the DTC, to the extent applicable, and to the requirements set forth in this Section 2.7(a), exchange or cause the exchange or transfer or cause the transfer of such interest for an equivalent beneficial interest in such Regulation S Global Note. Such exchange or transfer shall only be made upon receipt by the Paying Agent, as transfer agent, at its Corporate Trust Office of (1) written instructions given in accordance with the procedures of the DTC, to the extent applicable, from or on behalf of a holder of a beneficial interest in the Rule 144A Global Note directing the Paying Agent, as transfer agent, to credit or cause to be credited a beneficial interest in the Regulation S Global Note in an amount equal to the beneficial interest in the Rule 144A Global Note to be exchanged or transferred, (2) a written order given in accordance with the procedures of the DTC, to the extent applicable, containing information regarding the account to be credited with such increase and the name of such account, and (3) a certificate in the form of Exhibit 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

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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 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

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the Trustee such satisfactory evidence, which may include an opinion of independent counsel licensed to practice law in the State of New York, as may be reasonably required by the Issuer and the Trustee, that neither such legend nor the restrictions on transfer set forth therein are required to ensure that transfers of such Note will not violate the registration requirements of the Securities Act, and the Issuer and the Trustee consent to such removal. Upon provision of such satisfactory evidence, the Trustee, at the written direction of the Issuer, shall authenticate and deliver in exchange for such Note another Note or Notes having an equal aggregate principal amount that does not bear such legend. If such a legend required for a Note has been removed from a Note as provided above, no other Note issued in exchange for all or any part of such Note shall bear such legend, unless the Issuer has reasonable cause to believe that such other Note is a “restricted security” within the meaning of Rule 144 and instructs the Trustee to cause a legend to appear thereon.

(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

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EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN CLAUSE (A) ABOVE. NO REPRESENTATION CAN BE MADE AS TO THE AVAILABILITY OF THE EXEMPTION PROVIDED BY RULE 144 FOR RESALE OF THE SECURITY EVIDENCED HEREBY.”

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

Neither the Trustee nor 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 in respect of the Notes shall be given only to or upon the order of, and all payments to be made to the Holders in respect of the Notes shall be made to, 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

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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.

(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)No service charge will be made for any registration or exchange of the Notes, but the Issuer and/or the Trustee may require payment of a sum sufficient to pay all transfer taxes or other similar governmental charges payable 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 2.8Replacement 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

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of them may suffer if a Note is replaced, including, without limitation, any tax or other governmental charge that may be imposed with relation thereto and any other reasonable expenses (including the fees and expenses of the Trustee, the Registrar, and any Agent and their respective counsels). The Issuer and /or the Trustee may charge such Holder for its reasonable out of-pocket expenses in replacing a Note, including reasonable fees and expenses of counsel. Every replacement Note is an additional obligation of the Issuer. The provisions of this Section 2.8 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement of mutilated, destroyed, lost, stolen or taken Notes.

SECTION 2.9Outstanding 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 2.10Treasury 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.

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SECTION 2.11Temporary 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.

SECTION 2.12Cancellation. 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 2.13Defaulted 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 11:30 a.m. New York City time on the proposed Default Interest Payment Date with respect to defaulted interest to be paid on the Note; provided, further, however, and to the extent any such funds are received by the Trustee or the Paying Agent from the Issuer after 11:30 am, New York City time, on the due date, the Trustee shall use commercially reasonable efforts to make payment on the date of receipt but if payment cannot be made, such funds will be deemed deposited within one Business Day of receipt thereof and the Trustee shall proceed to make payment on such date from those funds. 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.

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SECTION 2.14CUSIP 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 2.15Deposit of Moneys. Prior to 11:30 a.m. New York City time on each interest payment date and Maturity Date, the Issuer shall have deposited with the Trustee or its designated Paying Agent (which shall be the Paying Agent or its successor unless otherwise notified to the Issuer by the Trustee) in immediately available funds money sufficient to make cash payments, if any, due on such interest payment date or Maturity Date, as the case may be, on all Notes then outstanding; provided, however, to the extent any such funds are received by the Trustee or the Paying Agent from the Issuer after 11:30 a.m., New York City time, on the due date, the Trustee shall use commercially reasonable efforts to make payment on the date of receipt but if payment cannot be made, such funds will be deemed deposited within one Business Day of receipt thereof and the Trustee shall proceed to make payment on such date from those funds. 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 2.16Certain 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 2.17Record 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.

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ARTICLE III

REDEMPTION

SECTION 3.1Optional Redemption. Prior to November 1, 2026 (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 (but excluding) the redemption date, plus the excess of:

(a)as determined by the Calculation Agent (which shall initially be the Trustee, in such capacity the "Calculation Agent"), 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 20 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 (but excluding) the date of redemption.

SECTION 3.2Notices 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 3.3Selection 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, the notice of redemption relating to that Note will state the portion of the principal amount thereof to be redeemed. A new Note in principal amount equal to the unredeemed portion thereof will be issued and delivered to the Trustee, or in the case of Definitive Notes, issued in the name of the Holder thereof upon cancellation of the original Note.

SECTION 3.4Notice of Redemption. At least 10 days (30 days in the case of a redemption for reason of minimal outstanding principal amount pursuant to Section 3.9 of this Indenture and paragraph 10 of the Notes) but not more than 60 days before a Redemption

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Date or a Tax Redemption Date, as applicable, the Issuer shall, so long as the Notes are in global form, deliver a redemption notice to DTC and, in the case of Definitive Notes, in addition to such delivery, 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 deliver to the Trustee (in advance) an Officers’ Certificate (upon which the Trustee may conclusively rely) 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;

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(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 the conditions precedent to the right of the Issuer so to redeem have occurred and (b) an opinion of independent legal counsel of recognized standing qualified under the laws of the relevant jurisdiction and reasonably acceptable to the Trustee 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 3.5Effect 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 3.6Deposit of Redemption Price. Prior to 11:30 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. To the extent any such funds are received by the Trustee or its designated Paying Agent from the Issuer after 11:30 a.m., New York City time, on the due date, the Trustee shall use commercially reasonable efforts to make payment on the date of receipt but if payment cannot be made, such funds will be deemed deposited within one Business Day of receipt thereof and the Trustee shall proceed to make payment on such date from those funds. 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

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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 3.7Notes 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 canceled; provided, however, that each such Definitive Note shall be in a principal amount at maturity of $150,000 or integral multiples of $1,000 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 $1,000 in excess thereof.

SECTION 3.8Special 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 (but excluding) 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)any change in or amendment to the laws 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 or regulations (including by virtue of a holding, judgment or order by a court of competent jurisdiction);

which change or amendment to such laws, 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 no such notice of redemption shall be given earlier than 90 days prior to the earliest date on which the Issuer would be obliged to pay such Additional Amounts were a payment in respect of the Notes then due.

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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.

SECTION 3.9Early Redemption at the Option of the Issuer for Reasons of Minimal Outstanding Principal Amount. If 80% or more in principal amount of the Notes then outstanding have been redeemed or purchased by the Issuer, the Company or any Subsidiary of the Company, the Issuer may, on not less than 30 nor more than 60 days' notice to the Holders redeem, at its option, the remaining Notes, in whole but not in part, at a price equal to 100% of the principal amount thereof, plus accrued and unpaid interest (if any) to (but excluding) the date of redemption.

ARTICLE IV

COVENANTS

SECTION 4.1Payment 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 11:30 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. To the extent any such funds are received by the Trustee or the Paying Agent from the Issuer after 11:30 a.m., New York City time, on the due date, the Trustee shall use commercially reasonable efforts to make payment on the date of receipt but if payment cannot be made, such funds will be deemed deposited within one Business Day of receipt thereof and the Trustee shall proceed to make payment on such date from those funds.

(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 4.2Maintenance 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

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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 4.3Negative 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 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 4.4Negative 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.

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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, (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 4.5Ownership of the Issuer. The Company will continue to directly or indirectly maintain 100% ownership of the Capital Stock of the Issuer or any permitted successor of the Issuer; provided, that any permitted successor of the Company 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 4.6Existence. 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.

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SECTION 4.7Maintenance 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 4.8Payment 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.

SECTION 4.9Maintenance 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 4.10Reports. 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 120 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,

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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 website pursuant to Rule 12g3-2(b) under the Exchange Act, or any successor rule;

provided, that in lieu of providing any such document or information, the Company may notify the Trustee in accordance with this Indenture that such document or information has been filed with or furnished to the SEC and/or posted on the Company’s website, which notice shall include a URL reference to the location of the document or information on the website of the SEC (www.sec.gov) and/or the website 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.

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SECTION 4.11Change 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 $1,000; and

(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.

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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 $1,000 in excess thereof.

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

SECTION 4.12Additional 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 (in each case as adjudicated by a court of competent jurisdiction in a final, non-appealable judgment) 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.

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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 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 this 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 4.13Compliance 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,

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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 5.1Limitation 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 by a supplemental indenture in a form satisfactory to the Trustee, all of the obligations of the Issuer or the Guarantor, as the case may be, under this Indenture;

(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 5.2Successor 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 this 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

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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 5.3Substitution 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 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 6.1Events 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 any of the Notes, including any Additional Amounts in respect thereof, when due; or

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(2)failure for 15 days 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 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,

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(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). A default under clause (4) of this Section 6.1 will not constitute an Event of Default under this Indenture unless the Trustee, subject to the limitations set forth in Section 7.2(a), or holders of 25% in principal amount of the outstanding Notes shall have notified the Issuer of such default.

SECTION 6.2Acceleration. 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.

SECTION 6.3Other 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 6.4The 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 6.5Rights 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.

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SECTION 6.6Delay 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 6.7Waiver 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 have been paid and/or reimbursed to the Trustee and/or the Agents, as applicable, (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.

SECTION 6.8Control 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 liabilities, losses and expenses caused by taking or not taking such action in accordance with Section 7.6.

SECTION 6.9Limitation 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;

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(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 6.10Rights 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 6.11Collection 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, the Agents, their respective agents and counsel, and any other amounts due the Trustee and/or the Agents under Section 7.6.

SECTION 6.12Trustee 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 and/or the Agents, their respective agents and counsel and any other amount due to the Trustee and/or the Agents under Section 7.6) 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 and/or the Agents, their respective agents and counsel, and any other amounts due the Trustee and/or the Agents under Section 7.6. To the extent that the payment of any such compensation, expenses, disbursements and advances of the Trustee and/or the Agents, their respective agents and

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counsel, and any other amounts due the Trustee and/or the Agents 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 6.13Priorities. 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 all 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 6.14Restoration of Rights and Remedies. If the Trustee or any Holder of any Note has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Issuer, the Trustee and the Holders of Notes shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders of Notes shall continue as though no such proceeding had been instituted.

SECTION 6.15Undertaking 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 in its capacity 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 6.16Notices 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

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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 7.1Duties 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, provided that upon the occurrence and continuation of an Event of Default, 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 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, in each case as adjudicated by a court of competent jurisdiction in a final, non-appealable judgment, except that:

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

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

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(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 7.2Rights of Trustee. Subject to Section 7.1:

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

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(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 or negligence, in each case as adjudicated by a court of competent jurisdiction in a final, non-appealable judgment.

(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, including, without limitation, in its capacity as an Agent, 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.

(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 7.3Individual 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

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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 7.4Trustee’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 7.5Notice 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 7.6Compensation and Indemnity. The Issuer shall pay to the Trustee and each Agent from time to time such compensation as the Issuer and the Trustee or such 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 or willful misconduct, in each case, as adjudicated by a court of competent jurisdiction in a final, non-appealable judgment. Such expenses shall include the reasonable compensation, disbursements and expenses of the Trustee’s and Agents’ accountants, experts and counsel and any taxes or other expenses incurred by a trust created pursuant to Section 8.4 hereof.

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

The Issuer shall indemnify each of the Trustee, any predecessor Trustee and each Agent (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 each case as adjudicated by a court of competent jurisdiction in a final, non-appealable judgment) 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

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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, in each case as adjudicated by a court of competent jurisdiction in a final, non-appealable judgment. 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.

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 7.7Replacement 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 Trus

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tee 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 in its capacity 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 90 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 at the sole costs and expense of the Issuer 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 Issuer shall pay to any replaced or removed Trustee all amounts owed under Section 7.6 upon such replacement or removal.

SECTION 7.8Successor 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

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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 7.9Eligibility; 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 8.1Option 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 8.2Legal 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 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.

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SECTION 8.3Covenant 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 8.4Conditions 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 be defeased 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 beneficial owners 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 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;

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(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 8.5Satisfaction 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 8.6Survival 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 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.

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SECTION 8.7Acknowledgment 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 8.8Application 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 8.9Repayment 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 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). Such notice shall be mailed to Holders by first-class mail, postage prepaid, at their respective addresses as they appear on the registration books of the Registrar; provided that, so long as the Notes are in global form and are held in entirety on behalf of a clearing system, or any of its participants, such notice may be given by the delivery thereof to the clearing system, and its participants, for communication by them to the entitled accountholders. Any such notice shall be deemed to have been given to the accountholders on the

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third day after the day on which the said notice was given to the clearing system, and its participants.

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 8.10Reinstatement. 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 9.1Without Consent of Holders of Notes. Notwithstanding Section 9.2 hereof, the Issuer and the Trustee together may amend or supplement this Indenture or the Notes without the consent of any Holder of a Note to:

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

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

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

(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;

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

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

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

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

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

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

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

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

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(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 9.3Notice of Amendment, Supplement or Waiver. After an amendment, supplement or waiver under Section 9.1 or 9.2 hereto becomes effective, the Issuer shall deliver 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 9.4Revocation 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.

SECTION 9.5Notation 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 9.6Trustee 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, obligations, duties, protections, benefits or immunities under this Indenture. The Trustee shall be entitled to receive indemnity and/or security satisfactory to it, an Opinion of Counsel and an Officers’ Certificate each stating that the

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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. The Trustee shall be fully protected in relying upon such Opinion of Counsel and Officer’s Certificate. 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 10.1Note 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 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

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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.

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 10.2Guarantors 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,

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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 10.3Release of Guarantors. Subject to the limitations set forth in Sections 5.1 and 5.2 hereof, 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.

ARTICLE XI

MISCELLANEOUS

SECTION 11.1Notices. 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: +49-6172-68 32 76

Attention: Christian Wagner

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if to the Issuer:

Fresenius Medical Care US Finance III, Inc.

920 Winter Street

Waltham, Massachusetts 02451-1457

United States of America

Facsimile: +1 (781) 699-9632

Attn: Karen A. Gledhill, Esq.

if to FMCH:

920 Winter Street

Waltham, Massachusetts 02451-1457

United States of America

Facsimile: +1 (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: +49-6172-608-5534

Attention: Dr. Peter Hennke

if to the Trustee:

U.S. Bank National Association

CityPlace I, 185 Asylum Street

27th floor

Hartford, Connecticut 06103

United States of America

Attention: Glen Fougere

Telecopier: +1-860-241-6897

Telephone: +1-860-241-6815

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

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

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

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

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

Any certificate of a Responsible Officer of the Issuer may be based, insofar as it relates to legal matters, upon an Opinion of Counsel, unless such Responsible Officer knows, or in the exercise of reasonable care should know, that such Opinion of Counsel with respect to the

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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 11.3Statements 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 11.4Rules by Trustee, Paying Agent, Registrar. The Trustee, Paying Agent or Registrar may make reasonable rules for its functions.

SECTION 11.5Legal 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 11.6Governing 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 11.7Submission 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

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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 the Company irrevocably consents to be served with notice and service of process by delivery or by registered mail with return receipt requested addressed to FMCH at 920 Winter Street, Waltham, Massachusetts 02451-1457 (which service of process by registered mail shall be effective 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.

SECTION 11.8No 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 11.9Successors. 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.

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SECTION 11.10Counterpart 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. This Indenture may be executed by manual, facsimile and pdf or other forms of electronic imaging (including, without limitation, DocuSign or AdobeSign).

SECTION 11.11Severability. 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 11.12Table 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 11.13Currency Indemnity. The U.S. dollar (or any of its successor currencies) is the sole currency of account and payment for all sums payable by the Issuer under this Indenture. Any amount received or recovered in a currency other than the U.S. dollar in respect of the Notes (whether as a result of, or of the enforcement of, a judgment or order of a court of any jurisdiction, in the winding-up or dissolution of the Issuer, any Guarantor, any Subsidiary or otherwise) by the Holder in respect of any sum expressed to be due to it from the Issuer will constitute a discharge of the Issuer only to the extent of the U.S. dollar amount which the recipient is able to purchase with the amount so received or recovered in that other currency on the date of that receipt or recovery (or, if it is not possible to make that purchase on that date, on the first date on which it is possible to do so). If that U.S. dollar amount is less than the U.S. dollar amount expressed to be due to the recipient under any Note, the Issuer will indemnify the recipient against any loss sustained by it as a result. In any event the Issuer will indemnify the recipient against the cost of making any such purchase.

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

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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 represented by
FRESENIUS MEDICAL CARE MANAGEMENT AG, its general partner

By:

/s/ Helen Giza

Name:

Helen Giza

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

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U.S. BANK NATIONAL ASSOCIATION,
in its capacity as Trustee

By:

/s/ Kathy L. Mitchcll

Name:

Kathy L. Mitchcll

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.

1.875% Note due 2026

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 Cede & Co. or its registered assigns upon surrender hereof the principal sum indicated on Schedule A hereof, on December 1, 2026.

Interest Payment Dates: June 1 and December 1, commencing December 1, 2021 (long first coupon)

Record Dates: May 15 and November 15 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, in its capacity as Trustee

By:

Name:

Title:

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FRESENIUS MEDICAL CARE US FINANCE III, INC.

1.875% Note due 2026

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 1.875% per annum on the principal amount then outstanding, and be payable semi-annually in cash in arrears on each June 1 and December 1, or if any such day is not a Business Day, on the next succeeding Business Day, commencing December 1, 2021 (long first coupon), 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 making a payment on behalf of the Issuer or a Guarantor is so required to withhold or deduct any amount for or on account of Taxes from any payment made under or with respect to the Notes or any Note Guarantee, the Issuer or such Guarantor, as the case may be, will be required to pay such amount (such amount the “Additional Amounts”) as may be necessary so that the net amount (including Additional Amounts) received by each holder after such withholding or deduction (including any withholding or deduction on such Additional Amounts) will not be less than the amount such holder would have received if such Taxes had not been withheld or deducted; provided, however, that no Additional Amounts will be payable with respect to payments made to any holder to the extent such Taxes are imposed by reason of (i) such holder or beneficial owner being considered to be or to have been

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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 holder or 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 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

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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 mail notice thereof by first-class mail to each Holder’s registered address; provided that, so long as the Notes are in global form and are held in entirety on behalf of a clearing system, or any of its participants, such notice may be given by the delivery thereof to the clearing system, and its participants, for communication by them to the entitled accountholders. 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 May 18, 2021 (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 each a “Guarantor”) and U.S. Bank National Association (the “Trustee”), in its capacity as Trustee. This Note is one of a duly authorized issue of Notes (as defined in the Indenture) of the Issuer designated as its 1.875% Notes due 2026. 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.

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.

A-7


8.Optional Redemption. Prior to November 1, 2026 (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 (but excluding) 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 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 20 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 (but excluding) 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 100% of the principal amount of this Note, plus accrued and unpaid interest (if any) to (but excluding) 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)any change in or amendment to the laws or regulations of any Relevant Taxing Jurisdiction; or

A-8


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

which change or amendment to such laws, 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 no such notice of redemption shall be given earlier than 90 days prior to the earliest date on which the Issuer would be obliged to pay such Additional Amounts were a payment in respect of the Notes then due.

10.Minimum Outstanding Aggregate Principal Amount Redemption. If 80% or more in principal amount of the Notes then outstanding have been redeemed or purchased by the Issuer, the Company or any Subsidiary of the Company, the Issuer may, on not less than 30 nor more than 60 days' notice to the Holders redeem, at its option, the remaining Notes, in whole but not in part, at a price equal to 100% of the principal amount thereof, plus accrued and unpaid interest (if any) to (but excluding) the date of redemption.

11.Notice of Redemption. At least 10 days (30 days in the case of a redemption pursuant to Section 3.9 of the Indenture and paragraph 10 of the Notes) but not more than 60 days before a Redemption Date or a Tax Redemption Date, as applicable, the Issuer shall mail a redemption 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; provided that, so long as the Notes are in global form and are held in entirety on behalf of a clearing system, or any of its participants, a redemption notice may be given by the delivery of such notice to the clearing system, and its participants, for communication by them to the entitled accountholders. Any such notice shall be deemed to have been given to the accountholders on the third day after the day on which the said notice was given to the clearing system, and its participants. 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 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.

12.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

A-9


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.

13.Denominations; Form. The Global Notes are in registered global form, without coupons, in denominations of $150,000 and integral multiples of $1,000 in excess thereof.

14.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.

15.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.

16.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.

17.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.

18.Restrictive Covenants. The Indenture imposes certain covenants that, among other things, limit the ability of the Issuer, the Guarantors and their Subsidiaries to incur or permit to subsist 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.

19.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.

20.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

A-10


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.

21.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.

22.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.

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

24.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.

25.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.

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

A-11


SCHEDULE A

SCHEDULE OF PRINCIPAL AMOUNT

The initial principal amount at maturity of this Note shall be $[•]. 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-12


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:

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-13


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, as Trustee

CityPlace I, 185 Asylum Street, 27th Floor

Hartford, CT 06103

United States of America

Attention:Global Corporate Trust

Glen Fougere

RE:

1.875% Notes due 2026
(the “Notes”) of Fresenius Medical Care US Finance III, Inc.

Reference is hereby made to the Indenture dated as of May 18, 2021 (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, in its capacity 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 $1,000 in excess thereof) principal amount of Notes beneficially held through interests in the Rule 144A Global Note (CUSIP No. 35805BAC2) 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. U3149FAC3) 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 $1,000 in excess thereof of the Rule 144A Global Note will remain outstanding.

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

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

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, as Trustee

CityPlace I, 185 Asylum Street, 27th Floor

Hartford, CT 06103

United States of America

Attention:Global Corporate Trust

Glen Fougere

RE:1.875% Notes due 2026 (the “Notes”) of Fresenius Medical Care US Finance III, Inc.

Reference is hereby made to the Indenture dated as of May 18, 2021 (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, in its capacity 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 $1,000 in excess thereof) principal amount of Notes beneficially held through interests in the Regulation S Global Note (CUSIP No. U3149FAC3) 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. 35805BAC2) 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 $1,000 in excess thereof of the Regulation S Global Note will remain outstanding.

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

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


Exhibit 10.2

FRESENIUS MEDICAL CARE US FINANCE III, INC.

as Issuer

U.S. BANK NATIONAL ASSOCIATION

as Trustee

FRESENIUS MEDICAL CARE AG & Co. KGaA

and

FRESENIUS MEDICAL CARE HOLDINGS, INC.

as Guarantors

INDENTURE

DATED AS OF MAY 18, 2021

with respect to the issuance of

$650,000,000 3.000% NOTES DUE 2031


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

16

SECTION 2.8

Replacement Notes

20

SECTION 2.9

Outstanding Notes

21

SECTION 2.10

Treasury Notes

21

SECTION 2.11

Temporary Notes

22

SECTION 2.12

Cancellation

22

SECTION 2.13

Defaulted Interest

22

SECTION 2.14

CUSIP Numbers

23

SECTION 2.15

Deposit of Moneys

23

SECTION 2.16

Certain Matters Relating to Global Notes

23

SECTION 2.17

Record Date

23

ARTICLE III

REDEMPTION

SECTION 3.1

Optional Redemption

24

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

27

SECTION 3.8

Special Tax Redemption

27

SECTION 3.9

Early Redemption at the Option of the Issuer for Reasons of Minimal Outstanding Principal Amounts

28

-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

29

SECTION 4.4

Negative Pledge of the Company

29

SECTION 4.5

Ownership of the Issuer

30

SECTION 4.6

Existence

30

SECTION 4.7

Maintenance of Properties

31

SECTION 4.8

Payment of Taxes and Other Claims

31

SECTION 4.9

Maintenance of Insurance

31

SECTION 4.10

Reports

31

SECTION 4.11

Change of Control

33

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

36

SECTION 5.2

Successor Entity Substituted

36

SECTION 5.3

Substitution of the Issuer

37

ARTICLE VI

DEFAULT AND REMEDIES

SECTION 6.1

Events of Default

37

SECTION 6.2

Acceleration

39

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

40

SECTION 6.7

Waiver of Past Defaults

40

SECTION 6.8

Control by Majority

40

SECTION 6.9

Limitation on Suits

40

SECTION 6.10

Rights of Holders To Receive Payment

41

SECTION 6.11

Collection Suit by Trustee

41

SECTION 6.12

Trustee May File Proofs of Claim

41

SECTION 6.13

Priorities

42

SECTION 6.14

Restoration of Rights and Remedies

42

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

43

SECTION 7.2

Rights of Trustee

44

SECTION 7.3

Individual Rights of Trustee

45

SECTION 7.4

Trustee’s Disclaimer

46

SECTION 7.5

Notice of Default

46

SECTION 7.6

Compensation and Indemnity

46

SECTION 7.7

Replacement of Trustee

47

SECTION 7.8

Successor Trustee by Merger, Etc

48

SECTION 7.9

Eligibility; Disqualification

49

ARTICLE VIII

SATISFACTION AND DISCHARGE OF INDENTURE

SECTION 8.1

Option To Effect Legal Defeasance or Covenant Defeasance

49

SECTION 8.2

Legal Defeasance and Discharge

49

SECTION 8.3

Covenant Defeasance

50

SECTION 8.4

Conditions to Legal or Covenant Defeasance

50

SECTION 8.5

Satisfaction and Discharge of Indenture

51

SECTION 8.6

Survival of Certain Obligations

51

SECTION 8.7

Acknowledgment of Discharge by Trustee

52

SECTION 8.8

Application of Trust Moneys

52

SECTION 8.9

Repayment to the Issuer; Unclaimed Money

52

SECTION 8.10

Reinstatement

53

ARTICLE IX

AMENDMENTS, SUPPLEMENTS AND WAIVERS

SECTION 9.1

Without Consent of Holders of Notes

53

SECTION 9.2

With Consent of Holders of Notes

54

SECTION 9.3

Notice of Amendment, Supplement or Waiver

55

SECTION 9.4

Revocation and Effect of Consents

55

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

56

SECTION 10.2

Guarantors May Consolidate, Etc., on Certain Terms

57

SECTION 10.3

Release of Guarantors

58

-iii-


Page

ARTICLE XI

MISCELLANEOUS

SECTION 11.1

Notices

58

SECTION 11.2

Certificate and Opinion as to Conditions Precedent

60

SECTION 11.3

Statements Required in Certificate or Opinion

61

SECTION 11.4

Rules by Trustee, Paying Agent, Registrar

61

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

63

SECTION 11.11

Severability

63

SECTION 11.12

Table of Contents, Headings, Etc

63

SECTION 11.13

Currency Indemnity

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 May 18, 2021, 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, in its capacity as trustee (the “Trustee”).

The Issuer has duly authorized the creation and issuance of its 3.000% Notes due 2031. The Notes consist of (i) $650,000,000 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 1.1Definitions. 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 3.000% Notes due 2031.

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, any co-Registrar or the Calculation Agent, and each of their permitted successors and assigns.

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 relevant Corporate Trust Office of the Trustee is closed for business.

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"Calculation Agent" shall have the meaning set forth in Section 3.1(a).

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 the 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 § 34 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

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purposes of surrender for registration or transfer or exchange or for presentation for payment or repurchase 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 CityPlace I, 185 Asylum Street, 27th floor, Hartford, Connecticut 06103, United States of America, 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, amortization and impairment losses 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.

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

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.

FMCH” means Fresenius Medical Care Holdings, Inc.

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.

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.

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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, 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 May 18, 2021.

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).

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 December 1, 2031.

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 May 12, 2021 relating to the Initial Notes.

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

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

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

Permitted 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),

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(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 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 BB-, 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 or Paragraph 10 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.

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, in the case of the Issuer or FMCH or any Subsidiary, the chief executive officer, president, chief financial officer, senior vice president–Global Treasury and Corporate 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;

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

(3)one or more Subsidiaries of such Person.

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

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

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

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

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

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.

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

SECTION 1.2Rules 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 2.1Form 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.

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Each reference in this Indenture to the performance of duties set forth in clauses (1) and (2) above by the Trustee includes performance of such duties by the Paying Agent.

Notes offered and sold in their initial distribution in reliance on Regulation S shall be initially issued as one or more global notes, in registered, global form without interest coupons, substantially in the form of Exhibit A hereto, with 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 2.2Execution 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.

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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 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 $650,000,000 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 and other identifying numbers, 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 $1,000 in excess thereof.

SECTION 2.3Registrar 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

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may act as Paying Agent or Registrar to the extent permitted under applicable laws or regulations.

The Issuer shall notify the Trustee and the Trustee shall notify the Holders of the name and address of any Agent not a party to this Indenture. The Issuer shall enter into an appropriate agency agreement with any Agent not a party to this Indenture. 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, Paying Agent, and Calculation Agent. In acting under this Indenture and in connection with the Notes, the Paying Agent, the Registrar and the Calculation Agent 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 2.4Paying 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 2.5List 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 2.6Book-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

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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.

(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 $1,000 in excess thereof. Whenever all of a Global Note is exchanged for one or more Definitive Notes, it shall be surrendered by the Holder thereof to the Registrar for cancellation. Whenever a part of a Global Note is exchanged for one 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”.

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

(a)If a holder of a beneficial interest in the Rule 144A Global Note wishes at any time to exchange its interest in such Rule 144A Global Note for an interest in the Regulation S Global Note, or to transfer its interest in such Rule 144A Global Note to a Person who wishes to take delivery thereof in the form of an interest in such Regulation S Global Note, such holder may, subject to the rules and procedures of the DTC, to the extent applicable, and to the requirements set forth in this Section 2.7(a), exchange or cause the exchange or transfer or cause the transfer of such interest for an equivalent beneficial interest in such Regulation S Global Note. Such exchange or transfer shall only be made upon receipt by the Paying Agent, as transfer agent, at its Corporate Trust Office of (1) written instructions given in accordance with the procedures of the DTC, to the extent applicable, from or on behalf of a holder of a beneficial interest in the Rule 144A Global Note directing the Paying Agent, as transfer agent, to credit or cause to be credited a beneficial interest in the Regulation S Global Note in an amount equal to the beneficial interest in the Rule 144A Global Note to be exchanged or transferred, (2) a written order given in accordance with the procedures of the DTC, to the extent applicable, containing information regarding the account to be credited with such increase and the name of such account, and (3) a certificate in the form of Exhibit 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

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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 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

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the Trustee such satisfactory evidence, which may include an opinion of independent counsel licensed to practice law in the State of New York, as may be reasonably required by the Issuer and the Trustee, that neither such legend nor the restrictions on transfer set forth therein are required to ensure that transfers of such Note will not violate the registration requirements of the Securities Act, and the Issuer and the Trustee consent to such removal. Upon provision of such satisfactory evidence, the Trustee, at the written direction of the Issuer, shall authenticate and deliver in exchange for such Note another Note or Notes having an equal aggregate principal amount that does not bear such legend. If such a legend required for a Note has been removed from a Note as provided above, no other Note issued in exchange for all or any part of such Note shall bear such legend, unless the Issuer has reasonable cause to believe that such other Note is a “restricted security” within the meaning of Rule 144 and instructs the Trustee to cause a legend to appear thereon.

(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

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EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN CLAUSE (A) ABOVE. NO REPRESENTATION CAN BE MADE AS TO THE AVAILABILITY OF THE EXEMPTION PROVIDED BY RULE 144 FOR RESALE OF THE SECURITY EVIDENCED HEREBY.”

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

Neither the Trustee nor 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 in respect of the Notes shall be given only to or upon the order of, and all payments to be made to the Holders in respect of the Notes shall be made to, 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

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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.

(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)No service charge will be made for any registration or exchange of the Notes, but the Issuer and/or the Trustee may require payment of a sum sufficient to pay all transfer taxes or other similar governmental charges payable 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 2.8Replacement 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

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of them may suffer if a Note is replaced, including, without limitation, any tax or other governmental charge that may be imposed with relation thereto and any other reasonable expenses (including the fees and expenses of the Trustee, the Registrar, and any Agent and their respective counsels). The Issuer and /or the Trustee may charge such Holder for its reasonable out of-pocket expenses in replacing a Note, including reasonable fees and expenses of counsel. Every replacement Note is an additional obligation of the Issuer. The provisions of this Section 2.8 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement of mutilated, destroyed, lost, stolen or taken Notes.

SECTION 2.9Outstanding 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 2.10Treasury 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.

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SECTION 2.11Temporary 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.

SECTION 2.12Cancellation. 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 2.13Defaulted 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 11:30 a.m. New York City time on the proposed Default Interest Payment Date with respect to defaulted interest to be paid on the Note; provided, further, however, and to the extent any such funds are received by the Trustee or the Paying Agent from the Issuer after 11:30 am, New York City time, on the due date, the Trustee shall use commercially reasonable efforts to make payment on the date of receipt but if payment cannot be made, such funds will be deemed deposited within one Business Day of receipt thereof and the Trustee shall proceed to make payment on such date from those funds. 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.

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SECTION 2.14CUSIP 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 2.15Deposit of Moneys. Prior to 11:30 a.m. New York City time on each interest payment date and Maturity Date, the Issuer shall have deposited with the Trustee or its designated Paying Agent (which shall be the Paying Agent or its successor unless otherwise notified to the Issuer by the Trustee) in immediately available funds money sufficient to make cash payments, if any, due on such interest payment date or Maturity Date, as the case may be, on all Notes then outstanding; provided, however, to the extent any such funds are received by the Trustee or the Paying Agent from the Issuer after 11:30 a.m., New York City time, on the due date, the Trustee shall use commercially reasonable efforts to make payment on the date of receipt but if payment cannot be made, such funds will be deemed deposited within one Business Day of receipt thereof and the Trustee shall proceed to make payment on such date from those funds. 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 2.16Certain 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 2.17Record 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.

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ARTICLE III

REDEMPTION

SECTION 3.1Optional Redemption. Prior to September 1, 2031 (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 (but excluding) the redemption date, plus the excess of:

(a)as determined by the Calculation Agent (which shall initially be the Trustee, in such capacity the "Calculation Agent"), 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 25 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 (but excluding) the date of redemption.

SECTION 3.2Notices 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 3.3Selection 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, the notice of redemption relating to that Note will state the portion of the principal amount thereof to be redeemed. A new Note in principal amount equal to the unredeemed portion thereof will be issued and delivered to the Trustee, or in the case of Definitive Notes, issued in the name of the Holder thereof upon cancellation of the original Note.

SECTION 3.4Notice of Redemption. At least 10 days (30 days in the case of a redemption for reason of minimal outstanding principal amount pursuant to Section 3.9 of this Indenture and paragraph 10 of the Notes) but not more than 60 days before a Redemption

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Date or a Tax Redemption Date, as applicable, the Issuer shall, so long as the Notes are in global form, deliver a redemption notice to DTC and, in the case of Definitive Notes, in addition to such delivery, 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 deliver to the Trustee (in advance) an Officers’ Certificate (upon which the Trustee may conclusively rely) 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;

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(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 the conditions precedent to the right of the Issuer so to redeem have occurred and (b) an opinion of independent legal counsel of recognized standing qualified under the laws of the relevant jurisdiction and reasonably acceptable to the Trustee 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 3.5Effect 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 3.6Deposit of Redemption Price. Prior to 11:30 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. To the extent any such funds are received by the Trustee or its designated Paying Agent from the Issuer after 11:30 a.m., New York City time, on the due date, the Trustee shall use commercially reasonable efforts to make payment on the date of receipt but if payment cannot be made, such funds will be deemed deposited within one Business Day of receipt thereof and the Trustee shall proceed to make payment on such date from those funds. 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

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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 3.7Notes 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 canceled; provided, however, that each such Definitive Note shall be in a principal amount at maturity of $150,000 or integral multiples of $1,000 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 $1,000 in excess thereof.

SECTION 3.8Special 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 (but excluding) 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)any change in or amendment to the laws 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 or regulations (including by virtue of a holding, judgment or order by a court of competent jurisdiction);

which change or amendment to such laws, 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 no such notice of redemption shall be given earlier than 90 days prior to the earliest date on which the Issuer would be obliged to pay such Additional Amounts were a payment in respect of the Notes then due.

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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.

SECTION 3.9Early Redemption at the Option of the Issuer for Reasons of Minimal Outstanding Principal Amount. If 80% or more in principal amount of the Notes then outstanding have been redeemed or purchased by the Issuer, the Company or any Subsidiary of the Company, the Issuer may, on not less than 30 nor more than 60 days' notice to the Holders redeem, at its option, the remaining Notes, in whole but not in part, at a price equal to 100% of the principal amount thereof, plus accrued and unpaid interest (if any) to (but excluding) the date of redemption.

ARTICLE IV

COVENANTS

SECTION 4.1Payment 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 11:30 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. To the extent any such funds are received by the Trustee or the Paying Agent from the Issuer after 11:30 a.m., New York City time, on the due date, the Trustee shall use commercially reasonable efforts to make payment on the date of receipt but if payment cannot be made, such funds will be deemed deposited within one Business Day of receipt thereof and the Trustee shall proceed to make payment on such date from those funds.

(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 4.2Maintenance 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

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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 4.3Negative 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 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 4.4Negative 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.

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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, (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 4.5Ownership of the Issuer. The Company will continue to directly or indirectly maintain 100% ownership of the Capital Stock of the Issuer or any permitted successor of the Issuer; provided, that any permitted successor of the Company 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 4.6Existence. 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.

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SECTION 4.7Maintenance 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 4.8Payment 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.

SECTION 4.9Maintenance 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 4.10Reports. 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 120 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,

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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 website pursuant to Rule 12g3-2(b) under the Exchange Act, or any successor rule;

provided, that in lieu of providing any such document or information, the Company may notify the Trustee in accordance with this Indenture that such document or information has been filed with or furnished to the SEC and/or posted on the Company’s website, which notice shall include a URL reference to the location of the document or information on the website of the SEC (www.sec.gov) and/or the website 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.

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SECTION 4.11Change 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 $1,000; and

(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.

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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 $1,000 in excess thereof.

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

SECTION 4.12Additional 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 (in each case as adjudicated by a court of competent jurisdiction in a final, non-appealable judgment) 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.

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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 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 this 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 4.13Compliance 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,

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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 5.1Limitation 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 by a supplemental indenture in a form satisfactory to the Trustee, all of the obligations of the Issuer or the Guarantor, as the case may be, under this Indenture;

(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 5.2Successor 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 this 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

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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 5.3Substitution 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 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 6.1Events 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 any of the Notes, including any Additional Amounts in respect thereof, when due; or

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(2)failure for 15 days 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 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,

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(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). A default under clause (4) of this Section 6.1 will not constitute an Event of Default under this Indenture unless the Trustee, subject to the limitations set forth in Section 7.2(a), or holders of 25% in principal amount of the outstanding Notes shall have notified the Issuer of such default.

SECTION 6.2Acceleration. 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.

SECTION 6.3Other 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 6.4The 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 6.5Rights 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.

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SECTION 6.6Delay 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 6.7Waiver 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 have been paid and/or reimbursed to the Trustee and/or the Agents, as applicable, (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.

SECTION 6.8Control 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 liabilities, losses and expenses caused by taking or not taking such action in accordance with Section 7.6.

SECTION 6.9Limitation 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;

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(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 6.10Rights 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 6.11Collection 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, the Agents, their respective agents and counsel, and any other amounts due the Trustee and/or the Agents under Section 7.6.

SECTION 6.12Trustee 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 and/or the Agents, their respective agents and counsel and any other amount due to the Trustee and/or the Agents under Section 7.6) 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 and/or the Agents, their respective agents and counsel, and any other amounts due the Trustee and/or the Agents under Section 7.6. To the extent that the payment of any such compensation, expenses, disbursements and advances of the Trustee and/or the Agents, their respective agents and

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counsel, and any other amounts due the Trustee and/or the Agents 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 6.13Priorities. 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 all 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 6.14Restoration of Rights and Remedies. If the Trustee or any Holder of any Note has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Issuer, the Trustee and the Holders of Notes shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders of Notes shall continue as though no such proceeding had been instituted.

SECTION 6.15Undertaking 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 in its capacity 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 6.16Notices 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

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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 7.1Duties 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, provided that upon the occurrence and continuation of an Event of Default, 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 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, in each case as adjudicated by a court of competent jurisdiction in a final, non-appealable judgment, except that:

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

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

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(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 7.2Rights of Trustee. Subject to Section 7.1:

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

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(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 or negligence, in each case as adjudicated by a court of competent jurisdiction in a final, non-appealable judgment.

(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, including, without limitation, in its capacity as an Agent, 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.

(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 7.3Individual 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

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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 7.4Trustee’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 7.5Notice 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 7.6Compensation and Indemnity. The Issuer shall pay to the Trustee and each Agent from time to time such compensation as the Issuer and the Trustee or such 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 or willful misconduct, in each case, as adjudicated by a court of competent jurisdiction in a final, non-appealable judgment. Such expenses shall include the reasonable compensation, disbursements and expenses of the Trustee’s and Agents’ accountants, experts and counsel and any taxes or other expenses incurred by a trust created pursuant to Section 8.4 hereof.

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

The Issuer shall indemnify each of the Trustee, any predecessor Trustee and each Agent (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 each case as adjudicated by a court of competent jurisdiction in a final, non-appealable judgment) 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

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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, in each case as adjudicated by a court of competent jurisdiction in a final, non-appealable judgment. 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.

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 7.7Replacement 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 Trus

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tee 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 in its capacity 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 90 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 at the sole costs and expense of the Issuer 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 Issuer shall pay to any replaced or removed Trustee all amounts owed under Section 7.6 upon such replacement or removal.

SECTION 7.8Successor 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

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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 7.9Eligibility; 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 8.1Option 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 8.2Legal 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 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.

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SECTION 8.3Covenant 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 8.4Conditions 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 be defeased 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 beneficial owners 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 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;

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(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 8.5Satisfaction 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 8.6Survival 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 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.

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SECTION 8.7Acknowledgment 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 8.8Application 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 8.9Repayment 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 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). Such notice shall be mailed to Holders by first-class mail, postage prepaid, at their respective addresses as they appear on the registration books of the Registrar; provided that, so long as the Notes are in global form and are held in entirety on behalf of a clearing system, or any of its participants, such notice may be given by the delivery thereof to the clearing system, and its participants, for communication by them to the entitled accountholders. Any such notice shall be deemed to have been given to the accountholders on the

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third day after the day on which the said notice was given to the clearing system, and its participants.

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 8.10Reinstatement. 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 9.1Without Consent of Holders of Notes. Notwithstanding Section 9.2 hereof, the Issuer and the Trustee together may amend or supplement this Indenture or the Notes without the consent of any Holder of a Note to:

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

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

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

(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;

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

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

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

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

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

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

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

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

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(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 9.3Notice of Amendment, Supplement or Waiver. After an amendment, supplement or waiver under Section 9.1 or 9.2 hereto becomes effective, the Issuer shall deliver 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 9.4Revocation 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.

SECTION 9.5Notation 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 9.6Trustee 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, obligations, duties, protections, benefits or immunities under this Indenture. The Trustee shall be entitled to receive indemnity and/or security satisfactory to it, an Opinion of Counsel and an Officers’ Certificate each stating that the

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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. The Trustee shall be fully protected in relying upon such Opinion of Counsel and Officer’s Certificate. 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 10.1Note 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 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

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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.

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 10.2Guarantors 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,

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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 10.3Release 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.

ARTICLE XI

MISCELLANEOUS

SECTION 11.1Notices. 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: +49-6172-68 32 76

Attention: Christian Wagner

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if to the Issuer:

Fresenius Medical Care US Finance III, Inc.

920 Winter Street

Waltham, Massachusetts 02451-1457

United States of America

Facsimile: +1 (781) 699-9632

Attn: Karen A. Gledhill, Esq.

if to FMCH:

920 Winter Street

Waltham, Massachusetts 02451-1457

United States of America

Facsimile: +1 (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: +49-6172-608-5534

Attention: Dr. Peter Hennke

if to the Trustee:

U.S. Bank National Association

CityPlace I, 185 Asylum Street

27th floor

Hartford, Connecticut 06103

United States of America

Attention: Glen Fougere

Telecopier: +1-860-241-6897

Telephone: +1-860-241-6815

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

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

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

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

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

Any certificate of a Responsible Officer of the Issuer may be based, insofar as it relates to legal matters, upon an Opinion of Counsel, unless such Responsible Officer knows, or in the exercise of reasonable care should know, that such Opinion of Counsel with respect to the

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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 11.3Statements 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 11.4Rules by Trustee, Paying Agent, Registrar. The Trustee, Paying Agent or Registrar may make reasonable rules for its functions.

SECTION 11.5Legal 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 11.6Governing 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 11.7Submission 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

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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 the Company irrevocably consents to be served with notice and service of process by delivery or by registered mail with return receipt requested addressed to FMCH at 920 Winter Street, Waltham, Massachusetts 02451-1457 (which service of process by registered mail shall be effective 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.

SECTION 11.8No 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 11.9Successors. 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.

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SECTION 11.10Counterpart 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. This Indenture may be executed by manual, facsimile and pdf or other forms of electronic imaging (including, without limitation, DocuSign or AdobeSign).

SECTION 11.11Severability. 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 11.12Table 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 11.13Currency Indemnity. The U.S. dollar (or any of its successor currencies) is the sole currency of account and payment for all sums payable by the Issuer under this Indenture. Any amount received or recovered in a currency other than the U.S. dollar in respect of the Notes (whether as a result of, or of the enforcement of, a judgment or order of a court of any jurisdiction, in the winding-up or dissolution of the Issuer, any Guarantor, any Subsidiary or otherwise) by the Holder in respect of any sum expressed to be due to it from the Issuer will constitute a discharge of the Issuer only to the extent of the U.S. dollar amount which the recipient is able to purchase with the amount so received or recovered in that other currency on the date of that receipt or recovery (or, if it is not possible to make that purchase on that date, on the first date on which it is possible to do so). If that U.S. dollar amount is less than the U.S. dollar amount expressed to be due to the recipient under any Note, the Issuer will indemnify the recipient against any loss sustained by it as a result. In any event the Issuer will indemnify the recipient against the cost of making any such purchase.

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

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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 represented by
FRESENIUS MEDICAL CARE MANAGEMENT AG, its general partner

By:

/s/ Helen Giza

Name:

Helen Giza

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

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U.S. BANK NATIONAL ASSOCIATION,
in its capacity as Trustee

By:

/s/ Kathy L. Mitchcll

Name:

Kathy L. Mitchcll

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.

A-2


FRESENIUS MEDICAL CARE US FINANCE III, INC.

3.000% Note due 2031

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 Cede & Co. or its registered assigns upon surrender hereof the principal sum indicated on Schedule A hereof, on December 1, 2031.

Interest Payment Dates: June 1 and December 1, commencing December 1, 2021 (long first coupon)

Record Dates: May 15 and November 15 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, in its capacity as Trustee

By:

Name:

Title:

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FRESENIUS MEDICAL CARE US FINANCE III, INC.

3.000% Note due 2031

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 3.000% per annum on the principal amount then outstanding, and be payable semi-annually in cash in arrears on each June 1 and December 1, or if any such day is not a Business Day, on the next succeeding Business Day, commencing December 1, 2021 (long first coupon), 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 making a payment on behalf of the Issuer or a Guarantor is so required to withhold or deduct any amount for or on account of Taxes from any payment made under or with respect to the Notes or any Note Guarantee, the Issuer or such Guarantor, as the case may be, will be required to pay such amount (such amount the “Additional Amounts”) as may be necessary so that the net amount (including Additional Amounts) received by each holder after such withholding or deduction (including any withholding or deduction on such Additional Amounts) will not be less than the amount such holder would have received if such Taxes had not been withheld or deducted; provided, however, that no Additional Amounts will be payable with respect to payments made to any holder to the extent such Taxes are imposed by reason of (i) such holder or beneficial owner being considered to be or to have been

A-5


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 holder or 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 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

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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 mail notice thereof by first-class mail to each Holder’s registered address; provided that, so long as the Notes are in global form and are held in entirety on behalf of a clearing system, or any of its participants, such notice may be given by the delivery thereof to the clearing system, and its participants, for communication by them to the entitled accountholders. 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 May 18, 2021 (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 each a “Guarantor”) and U.S. Bank National Association (the “Trustee”), in its capacity as Trustee. This Note is one of a duly authorized issue of Notes (as defined in the Indenture) of the Issuer designated as its 3.000% Notes due 2031. 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.

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.

A-7


8.Optional Redemption. Prior to September 1, 2031 (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 (but excluding) 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 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 25 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 (but excluding) 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 100% of the principal amount of this Note, plus accrued and unpaid interest (if any) to (but excluding) 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)any change in or amendment to the laws or regulations of any Relevant Taxing Jurisdiction; or

A-8


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

which change or amendment to such laws, 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 no such notice of redemption shall be given earlier than 90 days prior to the earliest date on which the Issuer would be obliged to pay such Additional Amounts were a payment in respect of the Notes then due.

10.Minimum Outstanding Aggregate Principal Amount Redemption. If 80% or more in principal amount of the Notes then outstanding have been redeemed or purchased by the Issuer, the Company or any Subsidiary of the Company, the Issuer may, on not less than 30 nor more than 60 days' notice to the Holders redeem, at its option, the remaining Notes, in whole but not in part, at a price equal to 100% of the principal amount thereof, plus accrued and unpaid interest (if any) to (but excluding) the date of redemption.

11.Notice of Redemption. At least 10 days (30 days in the case of a redemption pursuant to Section 3.9 of the Indenture and paragraph 10 of the Notes) but not more than 60 days before a Redemption Date or a Tax Redemption Date, as applicable, the Issuer shall mail a redemption 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; provided that, so long as the Notes are in global form and are held in entirety on behalf of a clearing system, or any of its participants, a redemption notice may be given by the delivery of such notice to the clearing system, and its participants, for communication by them to the entitled accountholders. Any such notice shall be deemed to have been given to the accountholders on the third day after the day on which the said notice was given to the clearing system, and its participants. 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 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.

12.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

A-9


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.

13.Denominations; Form. The Global Notes are in registered global form, without coupons, in denominations of $150,000 and integral multiples of $1,000 in excess thereof.

14.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.

15.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.

16.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.

17.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.

18.Restrictive Covenants. The Indenture imposes certain covenants that, among other things, limit the ability of the Issuer, the Guarantors and their Subsidiaries to incur or permit to subsist 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.

19.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.

20.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

A-10


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.

21.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.

22.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.

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

24.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.

25.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.

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

A-11


SCHEDULE A

SCHEDULE OF PRINCIPAL AMOUNT

The initial principal amount at maturity of this Note shall be $[•]. 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-12


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:

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-13


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, as Trustee
CityPlace I, 185 Asylum Street, 27th Floor

Hartford, CT 06103

United States of America

Attention:Global Corporate Trust

Glen Fougere

RE:

3.000% Notes due 2031
(the “Notes”) of Fresenius Medical Care US Finance III, Inc.

Reference is hereby made to the Indenture dated as of May 18, 2021 (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, in its capacity 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 $1,000 in excess thereof) principal amount of Notes beneficially held through interests in the Rule 144A Global Note (CUSIP No. 35805BAE8) 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. U3149FAD1) 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 $1,000 in excess thereof of the Rule 144A Global Note will remain outstanding.

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

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

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, as Trustee
CityPlace I, 185 Asylum Street, 27th Floor

Hartford, CT 06103

United States of America

Attention:Global Corporate Trust

Glen Fougere

RE:3.000% Notes due 2031 (the “Notes”) of Fresenius Medical Care US Finance III, Inc.

Reference is hereby made to the Indenture dated as of May 18, 2021 (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, in its capacity 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 $1,000 in excess thereof) principal amount of Notes beneficially held through interests in the Regulation S Global Note (CUSIP No. U3149FAD1) 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. 35805BAE8) 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 $1,000 in excess thereof of the Regulation S Global Note will remain outstanding.

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

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


Exhibit 10.3

Execution Version

SUSTAINABILITY-LINKED
REVOLVING CREDIT FACILITY
AGREEMENT

    

GRAPHIC

dated                                                        2021

Noerr Partnerschaftsgesellschaft mbB Rechtsanwälte Steuerberater Wirtschaftsprüfer

Börsenstraße 1

60313 Frankfurt am Main

Germany

www.noerr.com

for

Alicante

Berlin

Bratislava

Brussels

FRESENIUS MEDICAL CARE AG & CO. KGAA

Bucharest

Budapest

Dresden

Düsseldorf

FRESENIUS MEDICAL CARE HOLDINGS, INC.

Frankfurt/M.

Hamburg

London

Moscow

arranged by

Munich

New York

Prague

Warsaw

BANK OF AMERICA, N.A., LONDON BRANCH and BANK OF AMERICA EUROPE DAC

CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK

DEUTSCHE BANK AG

WELLS FARGO SECURITIES, LLC

with

BANK OF AMERICA EUROPE DAC

acting as Agent

CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK

acting as Sustainability Agent

and

BANK OF AMERICA N.A.

Noerr Partnerschaftsgesellschaft mbB has its registered office in Munich, Germany, and is entered in the partnership register of the Local Court in Munich, Germany (Amtsgericht Muenchen) under no. PR 512.

acting as Swingline Agent

For further information, please refer to noerr.com. For information on data protection at Noerr, please refer to noerr.com/data-protection.

Page 1/193


TABLE OF CONTENTS

1.

DEFINITIONS AND INTERPRETATION

7

2.

THE REVOLVING FACILITY

30

3.

EXTENSION OPTION

36

4.

PURPOSE

42

5.

CONDITIONS OF UTILISATION

43

6.

UTILISATION REVOLVING FACILITY LOANS

45

7.

UTILISATION SWINGLINE LOANS

46

8.

SWINGLINE LOANS

48

9.

OPTIONAL CURRENCIES

51

10.

REPAYMENT

53

11.

PREPAYMENT AND CANCELLATION

54

12.

INTEREST

60

13.

INTEREST PERIODS REVOLVING FACILITY LOANS

65

14.

CHANGES TO THE CALCULATION OF INTEREST

65

15.

FEES

68

16.

TAX GROSS-UP AND INDEMNITIES

70

17.

INCREASED COSTS

79

18.

OTHER INDEMNITIES

82

19.

MITIGATION BY THE LENDERS

83

20.

COSTS AND EXPENSES

84

21.

GUARANTEE AND INDEMNITY

85

22.

REPRESENTATIONS

89

23.

INFORMATION UNDERTAKINGS

94

24.

GENERAL UNDERTAKINGS

97

25.

EVENTS OF DEFAULT

104

26.

CHANGES TO THE LENDERS

109

27.

CHANGES TO THE OBLIGORS

115

28.

ROLE OF THE AGENT, SWINGLINE AGENT AND THE ARRANGER

117

29.

CONDUCT OF BUSINESS BY THE FINANCE PARTIES

128

30.

SHARING AMONG THE FINANCE PARTIES

128

31.

PAYMENT MECHANICS

130

Page 2/193


32.

SET-OFF

134

33.

NOTICES

134

34.

CALCULATIONS AND CERTIFICATES

136

35.

PARTIAL INVALIDITY

137

36.

REMEDIES AND WAIVERS

137

37.

AMENDMENTS AND WAIVERS

137

38.

CONFIDENTIAL INFORMATION

145

39.

CONFIDENTIALITY OF FUNDING RATES

149

40.

LENDING AFFILIATES

150

41.

GOVERNING LAW

159

42.

ENFORCEMENT

159

43.

CONCLUSION OF THIS AGREEMENT (VERTRAGSSCHLUSS)

160

44.

DECLARATION IN RELATION TO GERMAN ANTI-MONEY LAUNDERING ACT

160

SCHEDULE 1

THE ORIGINAL PARTIES

161

PART I

THE ORIGINAL LENDERS

161

PART II

THE ORIGINAL SWINGLINE LENDERS

163

SCHEDULE 2

CONDITIONS PRECEDENT

165

PART I

CONDITIONS PRECEDENT TO INITIAL UTILISATION

165

PART II

CONDITIONS PRECEDENT REQUIRED TO BE DELIVERED BY AN ADDITIONAL BORROWER

167

SCHEDULE 3

REQUESTS

168

PART I

UTILISATION REQUEST REVOLVING FACILITY LOANS

168

PART II

UTILISATION REQUEST SWINGLINE LOANS

170

SCHEDULE 4

FORM OF TRANSFER CERTIFICATE

171

SCHEDULE 5

FORM OF EXTENSION REQUEST

174

SCHEDULE 6

FORM OF INCREASE REQUEST

175

SCHEDULE 7

FORM OF ACCESSION LETTER

176

SCHEDULE 8

FORM OF RESIGNATION LETTER

177

SCHEDULE 9

TIMETABLES

178

SCHEDULE 10

FORM OF INCREASE CONFIRMATION

180

SCHEDULE 11

ORIGINAL LENDING AFFILIATES

183

SCHEDULE 12

FORM OF NEW LENDING AFFILIATE APPOINTMENT NOTICE

184

SCHEDULE 13

FORM OF LENDING AFFILIATE LOAN NOTICE

187

SCHEDULE 14

FORM OF LENDING AFFILIATE RESIGNATION NOTICE

188

Page 3/193


SCHEDULE 15

FORM OF PROCESS AGENT APPOINTMENT LETTER

189

SCHEDULE 16

FORM OF ACCESSION CONFIRMATION

191

Page 4/193


THIS AGREEMENT is dated ____________________ 2021 and made between:

(1)

FRESENIUS MEDICAL CARE AG & CO. KGAA, a partnership limited by shares (Kommandit­gesellschaft auf Aktien – KGaA) organised under the laws of Germany, being registered in the commercial register kept at the local court (Amtsgericht) of Hof an der Saale under registration number HRB 4019 as company (the "Company") and as original borrower (the "Original Borrower 1") and as guarantor (the "Guarantor 1");

(2)

FRESENIUS MEDICAL CARE HOLDINGS, INC., a New York corporation as original borrower ("FMCH" or the "Original Borrower 2" together with the Original Borrower 1, the "Original Borrowers") and as guarantor (the "Guarantor 2" and together with the Guarantor 1, the "Guarantors");

(3)

BANK OF AMERICA, N.A., LONDON BRANCH and BANK OF AMERICA EUROPE DAC, CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK, DEUTSCHE BANK AG and WELLS FARGO SECURITIES, LLC as bookrunners and coordinators (whether acting individually or together the "Coordinator");

(4)

BANK OF AMERICA, N.A., LONDON BRANCH and BANK OF AMERICA EUROPE DAC, CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK, DEUTSCHE BANK AG, WELLS FARGO SECURITIES, LLC, SCOTIABANK (IRELAND) DESIGNATED ACTIVITY COMPANY, BNP PARIBAS S.A. NIEDERLASSUNG DEUTSCHLAND, CITIBANK, N.A., LONDON BRANCH, COMMERZBANK AKTIENGESELLSCHAFT, GOLDMAN SACHS BANK USA, ING BANK, A BRANCH OF ING-DIBA AG, J.P. MORGAN AG, MIZUHO BANK, LTD., SOCIÉTÉ GÉNÉRALE S.A. FRANKFURT BRANCH, TRUIST SECURITIES, INC. and UNICREDIT BANK AG, NEW YORK BRANCH as mandated lead arrangers (whether acting individually or together, the "Mandated Lead Arranger");

(5)

BANCO SANTANDER, S.A., BANK OF CHINA LIMITED ZWEIGNIEDERLASSUNG FRANKFURT AM MAIN FRANKFURT BRANCH, BARCLAYS BANK IRELAND PLC, BANCO BILBAO VIZCAYA ARGENTARIA, S.A., NIEDERLASSUNG DEUTSCHLAND, THE BANK OF NEW YORK MELLON, CREDIT SUISSE (DEUTSCHLAND) AKTIENGESELLSCHAFT, DZ BANK AG DEUTSCHE ZENTRAL-GENOSSENSCHAFTSBANK, FRANKFURT AM MAIN, FIFTH THIRD BANK, NATIONAL ASSOCIATION, LANDESBANK HESSEN-THÜRINGEN GIROZENTRALE, HSBC SECURITIES (USA) INC., LANDESBANK BADEN-WÜRTTEMBERG, MUFG BANK (EUROPE) N.V. GERMANY BRANCH, PNC CAPITAL MARKETS LLC, RAIFFEISEN BANK INTERNATIONAL AG, RBC CAPITAL MARKETS, SKANDINAVISKA ENSKILDA BANKEN AB (PUBL) FRANKFURT BRANCH, SUMITOMO MITSUI BANKING CORPORATION, TD SECURITIES (USA) LLC and U.S. BANK NATIONAL ASSOCIATION as lead arrangers (whether acting individually or together, the "Lead Arranger", and together with the Coordinator and the Mandated Lead Arranger, the "Arranger");

(6)

THE FINANCIAL INSTITUTIONS listed in Part I and Part II of Schedule 1 (The Original Parties) as lenders (the "Original Lenders");

(7)

THE FINANCIAL INSTITUTIONS listed in Schedule 11 (Original Lending Affiliates) as original lending affiliates;

(8)

CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK as sustainability coordinator (the "Sustainability Agent");

Page 5/193


(9)

BANK OF AMERICA EUROPE DAC as agent of the other Finance Parties (the "Agent"); and

(10)

BANK OF AMERICA, N.A. as swingline agent of the other Finance Parties (the "Swingline Agent").

IT IS AGREED as follows:

Page 6/193


SECTION 1

INTERPRETATION

1.

DEFINITIONS AND INTERPRETATION

1.1

Definitions

In this Agreement:

"Acceptable Bank" means a bank or financial institution which has a rating for its long-term unsecured and non credit-enhanced debt obligations of BBB or higher by S&P or Fitch or Baa2 or higher by Moody's or a comparable rating from an internationally recognised credit rating agency.

"Accession Confirmation" means a confirmation substantially in the form set out in Schedule 16 (Form of Accession Confirmation).

"Accession Letter" means a document substantially in the form set out in Schedule 7 (Form of Accession Letter).

"Additional Borrower" means a company which becomes an Additional Borrower in accordance with Clause 27 (Changes to the Obligors).

"Adjusted EBITDA" means, in respect of any Relevant Period, EBITDA as reported by the Company for that Relevant Period adjusted by

(a)

including the operating profit before interest, tax, depreciation and amortisation (calculated on the same basis as EBITDA) of a member of the Group (or attributable to a business or assets) acquired for a purchase price exceeding EUR 50,000,000 during the Relevant Period for that part of the Relevant Period prior to its becoming a member of the Group or (as the case may be) prior to the acquisition of the business or assets; and

(b)

excluding the operating profit before interest, tax, depreciation and amortisation (calculated on the same basis as EBITDA) attributable to any member of the Group (or to any business or assets) disposed of for a selling price exceeding EUR 50,000,000 during the Relevant Period for that part of the Relevant Period;

(c)

non-cash charges and impairment loss; and

(d)

taking into account special items, if any, as reported in the annual and interim reports of the Company for the financial years or other periods included in the presentation of the Leverage Ratio.

"Affiliate" means, in relation to any person, a Subsidiary of that person or a Holding Company of that person or any other Subsidiary of that Holding Company.

"Agent's Spot Rate of Exchange" means:

Page 7/193


(a)

the exchange rate obtained by the Agent from Bloomberg; or

(b)

any other publicly available spot rate of exchange selected by the Agent (acting reasonably),

for the purchase of the relevant currency with the Base Currency in the European Union foreign exchange market at or about 11:00 a.m. on a particular day.

"Annual KPI Targets" has the meaning given to that term in Clause 12.5 (KPI switch).

"Anti-Corruption Laws" means the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010, and other similar applicable anti-corruption legislation in other jurisdictions where a member of the Group has operations.

"Anti-Money Laundering Laws" means applicable financial recordkeeping and reporting requirements of the money laundering statutes of all applicable jurisdictions, the money laundering statutes themselves and the rules and regulations thereunder administered or enforced by any governmental agency.

"A/R Facility" means the Second Amended and Restated Recei­vables Purchase Agreement originally dated 17 January 2013 between National Medical Care, Inc. and NMC Funding Corporation (as amended and/or restated from time to time) and the related Seventh Amended and Restated Transfer and Administration Agreement originally dated 24 November 2014 by and among NMC Funding Corporation, as transferor, NMC Medical Care, Inc., as initial collection agent, Liberty Street Funding LLC, and other conduit investors party thereto, the financial institutions party thereto, the banks parties thereto as administrative agents and The Bank of Nova Scotia as agent (as amended and/or restated from time to time).

"Authorisation" means an authorisation, consent, approval, resolution, licence, exemption, filing or registration.

"Availability Period" means the period from and including the date of this Agreement to and including the Termination Date.

"Available Commitment" means (but without limiting Clause 7.5 (Relationship with the Revolving Facility)) a Lender's Revolving Facility Commitment minus:

(a)

the Base Currency Amount of its participation in any outstanding Revolving Facility Loans; and

(b)

in relation to any proposed Utilisation, the Base Currency Amount of its participation in any Revolving Facility Loans that are due to be made or before the proposed Utilisation Date,

other than that Lender's participation in any Loans that are due to be repaid or prepaid on or before the proposed Utilisation Date.

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"Available Revolving Facility" means, in relation to the Revolving Facility, the aggregate for the time being of each Lender's Available Commitment.

"Available Swingline Commitment" of a Swingline Lender means (but without limiting Clause 7.5 (Relationship with the Revolving Facility)) that Lender's Swingline Commitment minus:

(a)

the amount of its participation in any outstanding Swingline Loans; and

(b)

in relation to any proposed Utilisation under the Swingline Facility, the amount of its participation in any Swingline Loans that are due to be made under the Swingline Facility on or before the proposed Utilisation Date,

other than that Lender's participation in any Swingline Loans that are due to be repaid or prepaid on or before the proposed Utilisation Date.

"Available Swingline Facility" means the aggregate for the time being of each Swingline Lender's Available Swingline Commitment.

"Base Currency" means EUR.

"Base Currency Amount" means, in relation to a Loan, the amount specified in the Utilisation Request delivered by a Borrower for that Loan (or, if the amount requested is not denominated in the Base Currency, that amount converted into the Base Currency at the Agent's Spot Rate of Exchange on the date which is three Business Days before the Utilisation Date or, if later, on the date the Agent receives the Utilisation Request) as adjusted to reflect any repayment or prepayment of a Loan.

"Beneficial Ownership Certification" means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation.

"Beneficial Ownership Regulation" means 31 C.F.R. § 1010.230.

"Borrower" means an Original Borrower or an Additional Borrower unless it has ceased to be a Borrower in accordance with Clause 27 (Changes to the Obligors).

"Break Costs" means the amount (if any) by which:

(a)

the interest (excluding the Margin and the utilisation fee according to Clause 15.2 (Utilisation fee)) which a Lender should have received for the period from the date of receipt of all or any part of its participation in a Loan or Unpaid Sum to the last day of the current Interest Period in respect of that Loan or Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period;

exceeds:

(b)

the amount which that Lender would be able to obtain by placing an amount equal to the principal amount or Unpaid Sum received by it on deposit with a leading bank for a period starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period.

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"Business Day" means a day (other than a Saturday or Sunday) on which banks are open for general business in Frankfurt am Main, London, Luxembourg and New York and:

(a)

(in relation to any date for payment or purchase of euro) any TARGET Day; or

(b)

(in relation to any date for payment or purchase of a currency other than euro) the principal financial centre of the country of that currency.

"Code" means the US Internal Revenue Code of 1986, as amended.

"Commitment" means a Revolving Facility Commitment or a Swingline Commitment.

"Confidential Information" means all information relating to the Company, any Obligor, the Group, the Finance Documents or a Facility of which a Finance Party becomes aware in its capacity as, or for the purpose of becoming, a Finance Party or which is received by a Finance Party in relation to, or for the purpose of becoming a Finance Party under, the Finance Documents or a Facility from either:

(a)

any member of the Group or any of its advisers; or

(b)

another Finance Party, if the information was obtained by that Finance Party directly or indirectly from any member of the Group or any of its advisers,

in whatever form, and includes information given orally and any document, electronic file or any other way of representing or recording information which contains or is derived or copied from such information but excludes:

(i)

information that:

(A)

is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of Clause 38 (Confidential Information); or

(B)

is identified in writing at the time of delivery as non-confidential by any member of the Group or any of its advisers; or

(C)

is known by that Finance Party before the date the information is disclosed to it in accordance with paragraphs (a) or (b) above or is lawfully obtained by that Finance Party after that date, from a source which is, as far as that Finance Party is aware, unconnected with the Group and which, in either case, as far as that Finance Party is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality; and

(ii)

any Funding Rate.

"Confidentiality Undertaking" means a confidentiality undertaking substantially in a recommended form of the LMA or in any other form agreed between the Company and the Agent.

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"Credit Rating" means a corporate long-term credit rating solicited by the Company and awarded by Moody’s, S&P and/or Fitch to the Company.

"Default" means an Event of Default or any event or circumstance specified in Clause 25 (Events of Default) which would (with the expiry of a grace period, the giving of notice, the making of any determination under the Finance Documents or any combination of any of the foregoing) be an Event of Default.

"Defaulting Lender" means any Lender:

(a)

which has failed to make its participation in a Loan available (or has notified the Agent or the relevant Borrower (which has notified the Agent) that it will not make its participation in a Loan available) by the Utilisation Date of that Loan in accordance with Clause 6.4 (Lenders participation);

(b)

which has otherwise rescinded or repudiated a Finance Document; or

(c)

with respect to which an Insolvency Event has occurred and is continuing,

unless, in the case of paragraph (a) above:

(i)

its failure to pay is caused by:

(A)

administrative or technical error; or

(B)

a Disruption Event; and

(ii)

payment is made within five (5) Business Days of its due date; or

(iii)

the Lender is disputing in good faith whether it is contractually obliged to make the payment in question.

"Disruption Event" means either or both of:

(a)

a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Facility (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties; or

(b)

the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a Party preventing that, or any other Party:

(i)

from performing its payment obligations under the Finance Documents; or

(ii)

from communicating with other Parties in accordance with the terms of the Finance Documents,

Page 11/193


and which (in either such case) is not caused by, and is beyond the control of, the Party whose operations are disrupted.

"Eligible Institution" means any Lender or other bank, financial institution, trust, fund or other entity selected by the Company and which, in each case, is not a member of the Group.

"ERISA" means the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder.

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

"ERISA Event" means:

(a)

a Reportable Event with respect to a Pension Plan;

(b)

a withdrawal by any Obligor or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA;

(c)

a complete or partial withdrawal by any Obligor or any ERISA Affiliate from a Multiemployer Plan;

(d)

the filing of a notice of intent to terminate, the treatment of a Plan amendment as a termination under Sections 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan;

(e)

an event or condition that would reasonably be expected to constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; or

(f)

the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any Obligor or any ERISA Affiliate.

"ESG" means any environmental, social and governance questions, topics and developments in relation to the Company.

"ESG Longstop Publishing Date" means the earlier of (i) the day falling 13 Months after the date on which the latest ESG Score has been published and (ii) 30 June of the relevant year.1


1

To be confirmed by Sustainalytics.

Page 12/193


"ESG Report" means the ESG risk rating report which contains the ESG Score of the Company which has been published by the ESG Score Provider.

"ESG Score" means for the time being the Sustainalytics Management Score assigned to the Company, which is calculated by the ESG Score Provider and is published in the most recently released ESG Report.

"ESG Score Provider" means for the time being Sustainalytics GmbH, with its registered office at Junghofstraße 22, 60311 Frankfurt am Main, Germany, and any successor thereof replacing such ESG Score provider in accordance with the terms of this Agreement.

"EURIBOR" means, in relation to any Loan in euro:

(a)

the applicable Screen Rate as of the Specified Time for euro and for a period equal in length to the Interest Period of that Loan; or

(b)

as otherwise determined pursuant to Clause 14.1 (Unavailability of Screen Rate),

and if, in either case, that rate is less than zero, EURIBOR shall be deemed to be zero.

"Event of Default" means any event or circumstance specified as such in Clause 25 (Events of Default).

"Excluded Quoted Tenor" means, in relation to the Screen Rate for dollar LIBOR, Quoted Tenors of one-week and two-month periods.

"Existing Facility Agreement" means the Credit Agreement entered into on 30 October 2012, amongst others, the Company, the Original Borrower 2, the other borrowers identified therein, the guarantors identified therein, the lenders which are a party thereto and Bank of America, N.A., as administrative agent, as amended and/or as amended and restated from time to time.

"Extending Lenders" has the meaning given to that term in paragraph (f)(i) of Clause 3.3 (Extension prior to the Third Anniversary).

"Extension Request" means a request for the extension of the Termination Date in respect of the Facility pursuant to Clause 3 (Extension Option), substantially in the form set out in Schedule 5 (Form of Extension Request).

"Facility" means the Revolving Facility or the Swingline Facility.

"Facility Office" means the office or offices notified by a Lender to the Agent in writing on or before the date it becomes a Lender (or, following that date, by not less than five (5) Business Days' written notice) as the office or offices through which it will perform its obligations under this Agreement.

"Fallback Interest Period" means one (1) Month.

"FATCA" means:

Page 13/193


(a)

sections 1471 to 1474 of the Code or any associated regulations;

(b)

any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to in paragraph (a) above; or

(c)

any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraphs (a) or (b) above with the IRS, the US government or any governmental or taxation authority in any other jurisdiction.

"FATCA Application Date" means:

(a)

in relation to a "withholdable payment" described in section 1473(1)(A)(i) of the Code (which relates to payments of interest and certain other payments from sources within the US), 1 July 2014; or

(b)

in relation to a "passthru payment" described in section 1471(d)(7) of the Code not falling within paragraph (a) above, the first date from which such payment may become subject to a deduction or withholding required by FATCA.

"FATCA Deduction" means a deduction or withholding from a payment under a Finance Document required by FATCA.

"FATCA Exempt Party" means a Party that is entitled to receive payments free from any FATCA Deduction.

"Federal Funds Rate" means in relation to any day, the rate per annum equal to:

(a)

the rate on overnight federal funds transactions calculated by the Federal Reserve Bank of New York as the federal funds effective rate as published on the Business Day next succeeding that day (or, if that day is not a New York Business Day, for the immediately preceding New York Business Day) by the Federal Reserve Bank of New York; or

(b)

if a rate is not so published for any day which is a New York Business Day, the average of the quotations for that day on overnight federal funds transactions received by the Swingline Agent from three depository institutions of recognised standing selected by the Swingline Agent,

and if, in either case, that rate is less than zero, the Federal Funds Rate shall be deemed to be zero.

"Fee Letter" means:

(a)

any letter or letters dated on or about the date of this Agreement between any Arranger, the Agent or the Swingline Agent on one side and the Company on the other side setting out, inter alia, any of the fees referred to in Clause 15 (Fees), including the Mandate Letter; and

Page 14/193


(b)

any agreement setting out fees payable to a Finance Party referred to in paragraph (g) of Clause 2.2 (Increase) of this Agreement or under any other Finance Document.

"Finance Document" means this Agreement, the Mandate Letter, any Fee Letter, any Accession Letter, any Resignation Letter, any Utilisation Request, any Extension Request, any Increase Request and any other document designated as such by the Agent and the Company.

"Finance Party" means the Agent, the Arranger, the Swingline Agent, the Sustainability Agent or any Lender.

"Finance Subsidiary" means a Subsi­diary of the Company whose sole purpose is to raise financing for the Group and to provide financial services to members of the Group.

"Financial Indebtedness" means any indebtedness for or in respect of:

(a)

monies borrowed and debit balances at banks or other financial institutions;

(b)

amounts raised pursuant to the issue of any bond, note, debenture or other similar debt instrument (including, for the avoidance of doubt, any certificate of indebtedness (Schuldschein));

(c)

the amount of any liability in respect of any Lease;

(d)

receivables sold (other than on a non-recourse basis);

(e)

any derivative transaction protecting against or benefiting from fluctuations in any rate or price entered into in connection with Financial Indebtedness other than, for the avoidance of doubt, derivative transactions where the relevant person has no indebtedness or financial obligation other than an initial transaction premium or fee payable in the ordinary course of business (and, except for non-payment of an amount, only the net liability calculated on the basis of the then mark to market value of the derivative transaction will be taken into regard to calculate its amount);

(f)

the amount of any liability (for the avoidance of doubt, as determined under IFRS) in respect of any counter-indemnity obligation in respect of any guarantee, indemnity, bond, letter of credit or any other instrument issued by a bank or financial institution in respect of an underlying liability which would fall within one of the other paragraphs of this definition;

(g)

the amount raised under any other trans­action of a type not referred to in any other paragraph of this definition (including any forward sale or purchase or sale and sale back) to the extent classified as borrowings under IFRS; and

(h)

(without double-counting) the amount of any liability (for the avoidance of doubt, as determined under IFRS) in respect of any guarantee, indemnity or similar assurance against financial loss of any person in respect of any item referred to in paragraphs (a) to (g) above.

Page 15/193


"First Anniversary" means the first anniversary of the date of this Agreement.

"First Anniversary Extending Lender" has the meaning given to that term in paragraph (e)(i) of Clause 3.1 (Extension Prior to the First Anniversary).

"First Anniversary Non-Extending Lender" has the meaning given to that term in paragraph (e)(ii) of Clause 3.1 (Extension Prior to the First Anniversary).

"First Anniversary Extension Request" has the meaning given to that term in paragraph (a) of Clause 3.1 (Extension Prior to the First Anniversary).

"First Extension Date" means the date falling one year after the Initial Termination Date.

"Fitch" means Fitch Ratings, Inc. and its subsidiaries and successors.

"Funding Rate" means any individual rate notified by a Lender to the Agent pursuant to paragraph (a)(ii) of Clause 14.3 (Cost of funds).

"GAAP" means generally accepted accounting principles applicable in the jurisdiction of incorporation of the relevant Obligor, including IFRS.

"German Relevant Person" means a member of the Group (together with any director, officer, employee or agent thereof) incorporated, established or resident in Germany (Inländer within the meaning of section 2 paragraph 15 of the German Foreign Trade Law (AWG) (Außenwirtschaftsgesetz)).

"Group" means the Company and its consolidated Subsidiaries.

"Historic Screen Rate" means, in relation to any Loan, the most recent applicable Screen Rate for the currency of that Loan and for a period equal in length to the Interest Period of that Loan and which is as of a day which is no more than five (5) days before the Quotation Day.

"Holding Company" means, in relation to a person, any other person in respect of which it is a Subsidiary.

"IFRS" means international accounting standards within the meaning of the IAS Regulation 1606/2002 to the extent applicable to the relevant financial statements.

"Investment Grade Rating" means a corporate long-term credit ratings by Moody’s of at least Baa3, S&P of at least BBB- and/or Fitch of at least BBB- (or, in each case, any of its successors).

"Impaired Agent" means the Agent at any time when:

(a)

it has failed to make (or has notified a Party that it will not make) a payment required to be made by it under the Finance Documents by the due date for payment;

(b)

the Agent otherwise rescinds or repudiates a Finance Document;

(c)

(if the Agent is also a Lender) it is a Defaulting Lender under paragraph (a) or (b) of the definition of "Defaulting Lender"; or

Page 16/193


(d)

an Insolvency Event has occurred and is continuing with respect to the Agent;

unless, in the case of paragraph (a) above:

(i)

its failure to pay is caused by:

(A)

administrative or technical error; or

(B)

a Disruption Event; and

payment is made within five (5) Business Days of its due date; or

(ii)

the Agent is disputing in good faith whether it is contractually obliged to make the payment in question.

"Increase Confirmation" means a confirmation substantially in the form set out in Schedule 12 (Form of Increase Confirmation).

"Increase Lender" has the meaning given to that term in Clause 2.2 (Increase).

"Increase Request" means a request substantially in the form set out in Schedule 6 (Form of Increase Request).

"Initial Termination Date" means the date falling five (5) years after the date of this Agreement.

"Insolvency Event" in relation to an entity means that the entity:

(a)

is dissolved (other than pursuant to a consolidation, amalgamation or merger);

(b)

becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due;

(c)

makes a general assignment, arrangement or composition with or for the benefit of its creditors;

(d)

institutes or has instituted against it, by a regulator, supervisor or any similar official with primary insolvency, rehabilitative or regulatory jurisdiction over it in the jurisdiction of its incorporation or organisation or the jurisdiction of its head or home office, a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors' rights, or a petition is presented for its winding-up or liquidation by it or such regulator, supervisor or similar official;

(e)

has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors' rights, or a petition is presented for its winding-up or liquidation, and, in the case of any such proceeding or petition instituted or presented against it, such proceeding or petition is instituted or presented by a person or entity not described in paragraph (d) above and:

Page 17/193


(i)

results in a judgment of insolvency or bankruptcy or the entry of an order for relief or the making of an order for its winding-up or liquidation; or

(ii)

is not dismissed, discharged, stayed or restrained in each case within thirty (30) days of the institution or presentation thereof;

(f)

has instituted against it measures according to sections 46 (other than section 46 para­graph 1 sentence 2 no. 1 and 3), 46b or 46g of the German Banking Act (Kreditwesen­gesetz), section 77 of the German Recovery and Resolution Act (Sanierungs- und Abwick­lungs­­gesetz) or the SRM Regulation;

(g)

has a resolution passed for its winding-up, official management or liquidation (other than pursuant to a consolidation, amalgamation or merger);

(h)

seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, examiner, custodian or other similar official for it or for all or substantially all its assets (other than, for so long as it is required by law or regulation not to be publicly disclosed, any such appointment which is to be made, or is made, by a person or entity described in paragraph (d) above);

(i)

has a secured party take possession of all or substantially all its assets or has a distress, execution, attachment, sequestration or other legal process levied, enforced or sued on or against all or substantially all its assets and such secured party maintains possession, or any such process is not dismissed, discharged, stayed or restrained, in each case within 30 days thereafter;

(j)

causes or is subject to any event with respect to it which, under the applicable laws of any jurisdiction, has an analogous effect to any of the events specified in paragraphs (a) to (i) above; or

(k)

takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence, in any of the foregoing acts.

"Interest Period" means, in relation to a Revolving Facility Loan, each period determined in accordance with Clause 13 (Interest Periods Revolving Facility Loans) and, in relation to an Unpaid Sum, each period determined in accordance with Clause 12.6 (Default interest and lump sum damages).

"Interpolated Historic Screen Rate" means, in relation to any Loan, the rate (rounded to the same number of decimal places as the two relevant Screen Rates) which results from interpolating on a linear basis between:

(a)

the most recent applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the Interest Period of that Loan; and

(b)

the most recent applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Interest Period of that Loan,

Page 18/193


each for the currency of that Loan and each of which is as of a day which is no more than five (5) days before the Quotation Day.

"Interpolated Screen Rate" means, in relation to any Loan, the rate (rounded to the same number of decimal places as the two relevant Screen Rates) which results from interpolating on a linear basis between:

(a)

the applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the Interest Period of that Loan; and

(b)

the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Interest Period of that Loan,

each as of the Specified Time for the currency of that Loan.

"IRS" means the United States Internal Revenue Service.

"KPI Switch" has the meaning given to that term in Clause 12.5 (KPI switch).

"Lease" means a lease or any sale and leaseback agreement in each case as determined under IFRS;

"Legal Reservations" means the general principles, reservations and qualifications as to matters of law as set out in any legal opinion delivered pursuant to Clause 5 (Conditions of Utilisation) or Clause 27 (Changes to the Obligors).

"Lender" means:

(a)

any Original Lender; and

(b)

any bank, financial institution, trust, fund or other entity which is in each case licensed or otherwise permitted to perform and capable of performing revolving lending business in Germany and any other relevant jurisdiction of a Borrower and which has become a Party as a "Lender" in accordance with Clause 2.2 (Increase), Clause 2.3 (Increase option), Clause 3 (Extension of the Termination Date) or Clause 26 (Changes to the Lenders),

which in each case has not ceased to be a Party as such in accordance with the terms of this Agreement.

"Leverage Ratio" means, in respect of any Relevant Period, the ratio of Net Debt on the last day of that Relevant Period to Adjusted EBITDA in respect of that Relevant Period.

"LIBOR" means, in relation to any Loan:

(a)

the applicable Screen Rate as of the Specified Time for the currency of that Loan and for a period equal in length to the Interest Period of that Loan; or

(b)

as otherwise determined pursuant to Clause 14.1 (Unavailability of Screen Rate),

Page 19/193


and if, in either case, that rate is less than zero, LIBOR shall be deemed to be zero.

"LMA" means the Loan Market Association.

"Loan" means a Revolving Facility Loan or a Swingline Loan.

"Majority Lenders" means a Lender or Lenders whose Commitments (other than Swingline Commitments) aggregate more than 66 ⅔ per cent. of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated more than 66 ⅔ per cent. of the Total Commitments immediately prior to the reduction).

"Mandate Letter" means the mandate letter dated 28 May 2021 between the Company and the Coordinators.

"Margin" means the rate per annum determined in accordance with Clause 12.3 (Adjustment of Margin based on Credit Rating) and Clause 12.4 (Adjustment of Margin based on ESG Rating).

"Material Adverse Effect" means a material adverse effect on:

(a)

the business, assets or financial condition of the Group taken as a whole resulting in a material adverse effect on the ability of the Obligors taken as a whole to perform their payment obligations under the Finance Documents; or

(b)

subject to the Legal Reservations, the validity or enforceability of this Agreement or the rights or remedies of any Finance Party arising thereunder which is materially adverse to the interests of the Finance Parties (taken as a whole) under this Agreement and is, if capable of remedy, not remedied within twenty (20) Business Days of the earlier of (i) an Obligor becoming aware of the effect or (ii) the Agent giving notice of the effect.

"Material Event of Default" means any Event of Default referred to under Clauses 25.1 (Non-Payment), 25.4 (Cross acceleration), 25.5 (Insolvency), 25.6 (Insolvency proceedings) or 25.8 (Ownership of the Obligors).

"Month" means a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month, except that:

(a)

(subject to paragraph (c) below) if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day;

(b)

if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month; and

(c)

if an Interest Period begins on the last Business Day of a calendar month, that Interest Period shall end on the last Business Day in the calendar month in which that Interest Period is to end.

Page 20/193


The above rules will only apply to the last Month of any period.

"Moody’s" means Moody’s Investors Service, Inc. and its subsidiaries and successors.

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

"Non-Cooperative Jurisdiction" means a jurisdiction included on the European Union list of non-cooperative jurisdictions for tax purposes as published by the European Council in the Official Journal of the European Union and as amended from time to time.

"Net Debt" means, at any time, the aggregate amount of all obligations of members of the Group which qualify as Financial Indebtedness at that time deducting the aggregate amount of cash and cash equivalents as reported by the Company in its financial reports provided that no amount shall be included or excluded more than once.

"New Lender" has the meaning given to that term in Clause 26 (Changes to the Lenders).

"New York Business Day" means a day (other than a Saturday or Sunday) on which banks are open for general business in New York.

"Obligor" means a Borrower or a Guarantor.

"Optional Currency" means a currency (other than the Base Currency) which complies with the conditions set out in Clause 5.3 (Conditions relating to Optional Currencies).

"Original ESG Report" means the ESG Report dated 21 May 2021, a copy of which has been made available to the Agent before the date of this Agreement.

"Original Financial Statements" means:

(a)

in relation to the Company, its audited unconsolidated financial statements and its audited consolidated financial statements for the financial year ended 31 December 2020; and

(b)

in relation to the other Original Obligor, its audited consolidated financial statements for its financial year ended 31 December 2020.

"Original Obligor" means an Original Borrower or a Guarantor.

"Original Swingline Lender" means an Original Lender listed in Part II (The Original Swingline Lenders) of Schedule 1 (The Original Parties) in its capacity as a swingline lender.

"Participating Member State" means any member state of the European Union that has the euro as its lawful currency in accordance with legislation of the European Union relating to Economic and Monetary Union.

"Party" means a party to this Agreement.

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"PBGC" means the Pension Benefit Guaranty Corporation.

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

"Qualifying Lender" has the meaning given to it in Clause 16 (Tax gross-up and indemnities).

"Quotation Day" means, in relation to any period for which an interest rate is to be determined:

(a)

(if the currency is euro) two TARGET Days before the first day of that period; or

(b)

(for any other currency), two Business Days before the first day of that period,

(unless market practice differs in the Relevant Market for that currency, in which case the Quotation Day for that currency will be determined by the Agent in accordance with market practice in the Relevant Market (and if quotations would normally be given on more than one day, the Quotation Day will be the last of those days)).

"Quoted Tenor" means, in relation to the Screen Rate for LIBOR applicable to Loans in a currency, any period for which that Screen Rate is customarily displayed on the relevant page or screen of an information service.

"Related Fund" in relation to a fund (the "first fund"), means a fund which is managed or advised by the same investment manager or investment adviser as the first fund or, if it is managed by a different investment manager or investment adviser, a fund whose investment manager or investment adviser is an Affiliate of the investment manager or investment adviser of the first fund.

"Relevant Market" means, in relation to euro, the European interbank market and, in relation to any other currency, the London interbank market.

"Relevant Period" means each period of twelve Months ending on or about the last day of the financial year and each period of twelve Months ending or about the last day of each financial quarter.

"Repeated Representations" means each of the representations set out in Clauses 22.1 (Status), 22.2 (Binding obligations), 22.3 (Non-conflict with other obligations), 22.4 (Power and authority), 22.9 (No event of default), 22.12 (Pari passu ranking), 22.13 (ERISA compliance) and 22.14 (Margin regulations, Investment Company Act).

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

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"Representative" means any delegate, agent, manager, administrator, nominee, attorney, trustee or custodian.

"Resignation Letter" means a letter substantially in the form set out in Schedule 7 (Form of Resignation Letter).

"Restricted Lender" means each Lender that:

(a)

qualifies as a resident party domiciled in the Federal Republic of Germany (Inländer) in accordance with the meaning of section 2 paragraph 15 of the Germany Foreign Trade Act (Außenwirtschaftsgesetz);

(b)

qualifies as a resident party domiciled in a member state of the European Union in accordance with the Council Regulation (EC) No 2271/96 of 22 November 1996; or

(c)

otherwise notifies the Agent that it is a "Restricted Lender" for the purposes of Clause 22.15 (Anti-Corruption, Anti-Money Laundering Laws and Sanctions) and Clause 24.11 (Anti-Corruption, Anti-Money Laundering Laws and Sanctions).

"Revolving Facility" means the revolving loan facility made available under this Agreement as described in Clause 2 (The Revolving Facility).

"Revolving Facility Commitment" means:

(a)

in relation to an Original Lender, the amount in the Base Currency set opposite its name under the heading "Revolving Facility Commitment" in Part I (The Original Lenders) of Schedule 1 (The Original Parties) and the amount of any other Revolving Facility Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase), Clause 2.3 (Increase option) or Clause 3 (Exten­sion of the Termination Date); and

(b)

in relation to any other Lender, the amount in the Base Currency of any Revolving Facility Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase), Clause 2.3 (Increase option) or Clause 3 (Exten­sion of the Termination Date),

to the extent not cancelled, reduced or transferred by it under this Agreement.

"Revolving Facility Loan" means a loan made or to be made under the Revolving Facility or the principal amount outstanding for the time being of that loan.

"Rollover Loan" means one or more Loans:

(a)

made or to be made on the same day that a maturing Loan is due to be repaid;

(b)

the aggregate amount of which is equal to or less than the amount of the maturing Loan;

(c)

in the same currency as the maturing Loan (unless it arose as a result of the operation of Clause 9.2 (Unavailability of a currency)); and

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(d)

made or to be made to the same Borrower for the purpose of refinancing that maturing Loan.

"Sanctions" means sanctions or trade embargoes administered or enforced by any Sanctions Authority or any other published equivalent sanctions regulation.

"Sanctions Authority" means the U.S. Department of the Treasury’s Office of Foreign Assets Control ("OFAC"), the U.S. Department of State, the U.S. Department of Commerce, the United Nations Security Council ("UNSC"), the European Union ("EU") or any of its Member States, or Her Majesty’s Treasury ("HMT").

"Sanctioned Country" means any country or territory that is the subject or the target of Sanctions (including currently, but not limited to Cuba, Iran, North Korea, the Crimea region and Syria).

"Sanction Target" means any person that is:

(a)

the subject or the target of any Sanctions or is listed on a Sanctions list published by any Sanctions Authority; or

(b)

owned 50% or more by or otherwise controlled by, or acting on behalf of one or more persons referenced in paragraph (a) above; or

(c)

located, organized or resident in a Sanctioned Country.

"Screen Rate" means:

(a)

in relation to EURIBOR, the euro interbank offered rate administered by the European Money Markets Institute (or any other person which takes over the administration of that rate) for the relevant period displayed (before any correction, recalculation or republication by the administrator) on page EURIBOR01 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate); and

(b)

in relation to LIBOR, the London interbank offered rate administered by ICE Benchmark Administration Limited (or any other person which takes over the administration of that rate) for the relevant currency and period displayed (before any correction, recalculation or republication by the administrator) on pages LIBOR01 or LIBOR02 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate), or

in each case, on the appropriate page of such other information service which publishes that rate from time to time in place of Thomson Reuters. If such page or service ceases to be available, the Agent may specify another page or service displaying the relevant rate after consultation with the Company.

"SEC" means the United States Securities and Exchange Commission.

"Second Anniversary" means the second anniversary of the date of this Agreement.

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"Second Anniversary Extending Lenders" has the meaning given to that term in paragraph (f)(i) of Clause 3.2 (Extension Prior to the Second Anniversary).

"Second Anniversary Extension Request" has the meaning given to that term in paragraph (a) of Clause 3.2 (Extension Prior to the Second Anniversary)

"Second Anniversary Limited Extending Lenders" has the meaning given to that term in paragraph (e)(ii)(A) of Clause 3.2 (Extension Prior to the Second Anniversary).

"Second Anniversary Non-Extending Lenders" has the meaning given to that term in paragraph (f)(ii) of Clause 3.2 (Extension Prior to the Second Anniversary).

"Second Extension Date" has the meaning given to that term in paragraph (e)(i) of Clause 3.2 (Extension Prior to the Second Anniversary).

"Security" means a mortgage, land charge, charge, pledge, lien, assignment or transfer for security purposes, retention of title arrangement or other security interest having an in rem effect (dingliche Wirkung).

"Separate Loan" has the meaning given to that term in Clause 10.1 (Repayment of Revolving Facility Loans).

"S&P" means S&P Global Ratings and its subsidiaries and successors.

"Specified Time" means a day or time determined in accordance with Schedule 9 (Timetables).

"SRM Regulation" means Regulation (EU) No 806/2014 of the European Parliament and of the Council of 15 July 2014 establishing uniform rules and a uniform procedure for the resolution of credit institutions and certain investment firms in the framework of a Single Resolution Mechanism and a Single Resolution Fund and amending Regulation (EU) No 1093/2010.

"Subsidiary" means a subsidiary within the meaning of sections 15 - 17 Stock Corporation Act (Aktiengesetz).2

"Sustainability Certificate" has the meaning given to that term in Clause 12.5 (KPI switch).

"Swingline Borrower" means FMCH and any other Borrower subject in the latter case to the consent of all the Swingline Lenders.

"Swingline Commitment" means:

(a)in relation to an Original Swingline Lender, the amount in dollars set opposite its name under the heading "Swingline Commitment" in Part II (The Original Swingline Lenders) of Schedule 1 (The Original Parties) and the amount of any other Swingline


2

Note: This includes indirect subsidiaries as per section 16 para. 4 of the German Stock Corporation Act.

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Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase), Clause 2.3 (Facility increase option) or Clause 3 (Extension of the Termination Date); and

(b)

in relation to any other Swingline Lender, the amount of any Swingline Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase), Clause 2.3 (Facility increase option) or Clause 3 (Extension of the Termina­tion Date),

to the extent not cancelled, reduced or transferred by it under this Agreement.

"Swingline Facility" means the dollar swingline loan facility made available to each Swingline Borrower under this Agreement as described in Clause 8 (Swingline Loans).

"Swingline Lender" means:

(a)

an Original Swingline Lender; or

(b)

any other person which has become a Party as a "Lender" in respect of a Swingline Commitment or a participation in a Swingline Loan in accordance with Clause 2.2 (Increase), Clause 2.3 (Facility increase option), Clause 3 (Extension of the Termination Date) or Clause 26 (Changes to the Lenders),

which in each case has not ceased to be a Party as such in accordance with the terms of this Agreement.

"Swingline Loan" means a loan made or to be made under the Swingline Facility or the principal amount outstanding for the time being of that loan.

"TARGET2" means the Trans-European Automated Real-time Gross Settlement Express Transfer payment system which utilises a single shared platform and which was launched on 19 November 2007.

"TARGET Day" means any day on which TARGET2 is open for the settlement of payments in euro.

"Tax" means any tax, levy, impost, duty or other charge or withholding of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same).

"Termination Date" means the Initial Termination Date, extended as applicable in accordance with Clause 3 (Extension Option).

"Third Anniversary" means the third anniversary of the date of this Agreement.

"Third Anniversary Extending Lenders" has the meaning given to that term in paragraph (f)(i) of Clause 3.3 (Extension Prior to the Third Anniversary).

"Third Anniversary Extension Request" has the meaning given to that term in paragraph (a) of Clause 3.3 (Extension Prior to the Third Anniversary).

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"Third Anniversary Limited Extending Lenders" has the meaning given to that term in paragraph (e)(ii)(A) of Clause 3.3 (Extension Prior to the Third Anniversary).

"Third Anniversary Non-Extending Lenders" has the meaning given to that term in paragraph (f)(ii) of Clause 3.3 (Extension Prior to the Third Anniversary).

"Total Commitments" means the aggregate of the Revolving Facility Commitments, being EUR 2,000,000,000 at the date of this Agreement.

"Total Swingline Commitments" means the aggregate of the Swingline Commitments, being USD 200,000,000 at the date of this Agreement.

"Transfer Certificate" means a certificate substantially in the form set out in Schedule 4 (Form of Transfer Certificate) or any other form agreed between the Agent and the Company.

"Transfer Date" means, in relation to an assignment and transfer by way of assumption of contract (Vertragsübernahme) pursuant to Clause 26.6 (Procedure for assignment and transfer by way of assumption of contract (Vertragsübernahme)), the later of:

(a)

the proposed Transfer Date specified in the Transfer Certificate; and

(b)

the date on which the Agent executes the Transfer Certificate.

"Unpaid Sum" means any sum due and payable but unpaid by an Obligor under the Finance Documents.

"US" means the United States of America.

"US Bankruptcy Code" means Title 11 of the United States Code.

"US Obligor" means an Obligor that is incorporated or organized under the laws of the US, any state thereof, or the District of Columbia.

"US Tax Obligor" means:

(a)

a Borrower which is resident for tax purposes in the US; or

(b)

an Obligor some or all of whose payments under the Finance Documents are from sources within the US for US federal income tax purposes.

"Utilisation" means a utilisation of a Facility.

"Utilisation Date" means the date of a Utilisation, being the date on which the relevant Loan is to be made.

"Utilisation Request" means in respect of a Loan:

(a)

under the Revolving Facility, a notice substantially in the form set out in Part I (Utilisation Request Revolving Facility Loans) of Schedule 3 (Requests); and

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(b)

under the Swingline Facility, a notice substantially in the form set out in Part II (Utilisation Request Swingline Loans) of Schedule 3 (Requests).

"VAT" means:

(a)

any tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112); and

(b)

any other tax of a similar nature, whether imposed in a member state of the European Union in substitution for, or levied in addition to, such tax referred to in paragraph (a) above, or imposed elsewhere.

1.2

Construction

(a)

Unless a contrary indication appears, any reference in this Agreement to:

(i)

the "Agent", the "Swingline Agent", the "Arranger", the "Coordinator", any "Finance Party", any "Lender", any "Obligor" or any "Party" shall be construed so as to include its successors in title, permitted assigns and permitted transferees to, or of, its rights and/or obligations under the Finance Documents;

(ii)

to either Bank of America, N.A., London Branch ("BANA") or Bank of America Europe DAC ("BofA Europe DAC") in their capacity as a Coordinator or Manda­ted Lead Arranger shall, to the extent the role relates to (i) any proposed borrower which is incorporated under the laws of and/or located in a state of the United States of America, be a reference to BANA and (ii) any other proposed borrower, be a reference to BofA Europe DAC;

(iii)

"assets" includes present and future properties, revenues and rights of every description;

(iv)

"director" includes any statutory legal representative(s) (organschaftlicher Vertreter) or any other responsible officer of a person pursuant to the laws of its jurisdiction of incorporation, including but not limited to, the chief executive officer, president, chief financial officer, a senior vice president, treasurer, assistant treasurer, managing director, management board member or director of a company or in relation to a person incorporated or established in Germany, a managing director (Geschäftsführer) or member of the mana­gement board (Vorstand) or statutory attorney (Prokurist);

(v)

a "Finance Document" or any other agreement or instrument is a reference to that Finance Document or other agreement or instrument as amended, novated, supplemented, extended or restated;

(vi)

a "group of Lenders" includes all the Lenders;

(vii)

"indebtedness" includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent;

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(viii)

an "Interest Period" includes each period determined under this Agreement by reference to which interest on a Swingline Loan is calculated;

(ix)

a "Lender" includes a Swingline Lender unless the context otherwise requires;

(x)

a "person" includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium, partnership or other entity (whether or not having separate legal personality);

(xi)

a "regulation" includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, intergovernmental or supranational body, agency, department or of any regulatory, self-regulatory or other authority or organisation;

(xii)

a provision of law is a reference to that provision as amended or re-enacted from time to time; and

(xiii)

unless a contrary indication appears, a time of day is a reference to London time.

(b)

The determination of the extent to which a rate is "for a period equal in length" to an Interest Period shall disregard any inconsistency arising from the last day of that Interest Period being determined pursuant to the terms of this Agreement.

(c)

Section, Clause and Schedule headings are for ease of reference only.

(d)

Unless a contrary indication appears, a term used in any other Finance Document or in any notice given under or in connection with any Finance Document has the same meaning in that Finance Document or notice as in this Agreement.

(e)

A Default and an Event of Default is "continuing" if it has not been remedied or waived.

(f)

Subject to Clause 37.3 (Other exceptions) but otherwise notwithstanding any term of any Finance Document, the consent of any person who is not a Party is not required to rescind or vary this Agreement at any time.

(g)

Nothing in this Agreement shall be construed so as to exclude the liability of any person for its own wilful misconduct (Vorsatz).

(h)

For the avoidance of doubt, a change in the outlook or being placed on credit watch does not qualify as a change to the Credit Rating under this Agreement.

1.3

Currency symbols and definitions

"", "EUR" and "euro" denote the single currency of the Participating Member States. "$", "USD" and "dollars" denote the lawful currency of the US.

1.4

Language

This Agreement is made in the English language. For the avoidance of doubt, except as expressly provided in Schedule 15, the English language version of this Agreement shall

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prevail over any translation of this Agreement. However, where a German translation of a word or phrase appears in the text of this Agreement, the German translation of such word or phrase shall prevail.

SECTION 2

THE FACILITY

2.

THE REVOLVING FACILITY

2.1

The Revolving Facility

Subject to the terms of this Agreement, the Lenders make available to the Borrowers a multicurrency revolving loan facility in an aggregate amount equal to the Total Commitments.

2.2

Increase

(a)

The Company may by giving prior notice to the Agent after the effective date of a cancellation of:

(i)

the Available Commitment of a Defaulting Lender in accordance with Clause 11.6 (Right of replacement or repayment and cancellation in relation to a Defaulting Lender); or

(ii)

the Commitment of a Lender in accordance with:

(A)

Clause 11.1 (Illegality);

(B)

Clause 11.2 (Change of Control); or

(C)

Paragraph (a) of Clause 11.5 (Right of replacement or repayment and cancellation in relation to a single Lender),

request that the Commitments relating to any Facility be increased (and the Commitments relating to that Facility shall be so increased) in an aggregate amount in the Base Currency (or, in the case of a Swingline Commitment, in dollars) of up to the amount of the Commitments relating to that Facility so cancelled as follows:

(i)

the increased Commitments will be assumed by one or more Eligible Institutions (each an "Increase Lender") each of which confirms in writing (whether in the relevant Increase Confirmation or otherwise) its willingness to assume and does assume all the obligations of a Lender corresponding to that part of the increased Commitments which it is to assume, as if it had been an Original Lender in respect of those Commitments;

(ii)

each of the Obligors and any Increase Lender shall assume obligations towards one another and/or acquire rights against one another as the Obligors and the Increase Lender would have assumed and/or acquired had the Increase Lender

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been an Original Lender in respect of that part of the increased Commitments which it is to assume;3

(iii)

each Increase Lender shall become a Party as a "Lender" and any Increase Lender and each of the other Finance Parties shall assume obligations towards one another and acquire rights against one another as that Increase Lender and those Finance Parties would have assumed and/or acquired had the Increase Lender been an Original Lender in respect of that part of the increased Commitments which it is to assume;

(iv)

the Commitments of the other Lenders shall continue in full force and effect; and

(v)

any increase in the Commitments relating to a Facility shall take effect on the date specified by the Company in the notice referred to above or any later date on which the Agent executes an otherwise duly completed Increase Confirmation delivered to it by the relevant Increase Lender.

(b)

The Agent shall, subject to paragraph (c) below, as soon as reasonably practicable after receipt by it of a duly completed Increase Confirmation appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Increase Confirmation.

(c)

The Agent shall only be obliged to execute an Increase Confirmation delivered to it by an Increase Lender once it is satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to the assumption of the increased Commitments by that Increase Lender.

(d)

Each Increase Lender, by executing the Increase Confirmation, confirms (for the avoidance of doubt) that the Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the increase becomes effective in accordance with this Agreement and that it is bound by that decision to the same extent as it would have been had it been an Original Lender.

(e)

The Borrowers shall promptly on presentation of reasonably detailed statements of account pay the Agent the amount of all costs and expenses (including legal fees) reasonably incurred by it in connection with any increase in Commitments under this Clause 2.2.

(f)

The Increase Lender shall, on the date upon which the increase takes effect, pay to the Agent (for its own account) a fee in an amount equal to the fee which would be payable


3

Any guarantees provided under this Agreement may not in all jurisdictions continue to guarantee the increased Commitment or be for the benefit of the Increase Lender. It is the responsibility of the Increase Lender to ascertain whether any other documents or other formalities are required to confirm the guarantees in any jurisdiction and/or for it to benefit from such guarantees and, if so, to arrange for execution of those documents and completion of those formalities.

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under Clause 26.4 (Assignment or assignment and transfer by assumption of contract (Vertragsübernahme)) if the increase was a transfer pursuant to Clause 26.6 (Procedure for assignment and transfer by assumption of contract (Vertragsüber­nahme)) and if the Increase Lender was a New Lender.

(g)

The Borrowers may pay to the Increase Lender a fee in the amount and at the times agreed between the Company and the Increase Lender in a letter between the Company and the Increase Lender setting out that fee. A reference in this Agreement to a Fee Letter shall include any letter referred to in this paragraph (g).

(h)

Neither the Agent nor any Lender shall have any obligation to find an Increase Lender and in no event shall any Lender whose Commitment is replaced by an Increase Lender be required to pay or surrender any of the fees received by such Lender pursuant to the Finance Documents.

(i)

Clause 26.5 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this Clause 2.2 in relation to an Increase Lender as if references in that Clause to:

(i)

an "Existing Lender" were references to all the Lenders immediately prior to the relevant increase;

(ii)

the "New Lender" were references to that "Increase Lender"; and

(iii)

a "re-assignment" and "re-assignment and re-transfer by assumption of contract (Vertragsübernahme)" were references to respectively an "assignment" and "assignment and transfer by assumption of contract (Vertragsübernahme)".

2.3

Increase Option

(a)

The Company may, by delivering to the Agent a duly completed Increase Request, request an increase of the Total Commitments (a "Commitment Increase") provided that:

(i)

not more than five (5) Increase Requests may be submitted over the lifetime of this Agreement;

(ii)

no Increase Request may be delivered if as a result of the amount of the increase requested therein (the "Requested Increase Amount") the total amount of all Commitment Increases effected in accordance with this Clause 2.3 would at any time exceed EUR 500,000,000;

(iii)

a Requested Increase Amount amounts to at least EUR 50,000,000; and

(iv)

no Commitment of a Lender shall be increased without the prior written consent of that Lender and each Lender is free (in its absolute discretion) to agree or not to agree to an Increase Request.

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(b)

The Company shall, at the same time as delivering an Increase Request, confirm to the Agent that:

(i)

all Repeated Representations are true and correct in all material respects by reference to the facts and circumstances then subsisting; and

(ii)

no Default has occurred which is continuing on the date of the Increase Request or would result from the proposed Increase Request.

(c)

Upon receipt of a duly completed Increase Request, the Agent shall promptly notify the existing Lenders and any Eligible Institution (in each case as requested by the Company in the Increase Request) (together the "Relevant Lenders") thereof by forwarding to them a copy of the Increase Request together with the amounts which would, if all of the Relevant Lenders agreed to the Increase Request, be allocated to them pursuant to paragraphs (e) and (f) below.

(d)

Each Relevant Lender shall notify the Agent by no later than on the 15th (fifteenth) Business Day thereafter whether or not it is willing to increase its Commitment (or in case of any Eligible Institution, assume a new Commitment) as requested in the Increase Request and indicate if and to what extent it is willing to increase its (or assume a) Commitment further in the case of paragraph (g) below. If a Relevant Lender fails so to notify the Agent, such Relevant Lender shall be deemed to have notified the Agent that it is not so willing.

(e)

If, following delivery of an Increase Request by the Company to the Agent pursuant to paragraph (a) above, all the Relevant Lenders (i) are Lenders under this Agreement and (ii) notify the Agent within the period set out in paragraph (d) above that they are willing to increase their Commitments pursuant to paragraph (d) above, the Agent shall promptly notify the Company and all the Lenders accordingly, whereupon the Commitments of the Relevant Lenders shall be increased with binding effect for all Parties with effect from the Business Day immediately following the date of such notification by the Agent, in each case by an amount corresponding to the pro rata portion of the Requested Increase Amount which is equal to the share of each Relevant Lender's Commitment in the Total Commitments prior to the increase taking effect.

(f)

If, following delivery of an Increase Request by the Company to the Agent pursuant to paragraph (a) above, all Relevant Lenders notify the Agent within the period set out in paragraph (d) above that they are willing to increase their (or assume) Commitments pursuant to paragraph (c) above, but not all of them are Lenders under this Agreement, the Agent shall promptly notify the Borrowers, the Relevant Lenders and the Lenders accordingly, whereupon:

(i)

in relation to any Relevant Lender which is not a Lender under this Agreement but which is willing to assume a Commitment as notified to the Agent pursuant to paragraph (d) above, the Company may request such Relevant Lender to accede to this Agreement as a Lender, thereby assuming such new Commitment (each such Lender hereinafter referred to as an Acceding Lender), provided that:

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(A)

any such agreement by an Acceding Lender to assume the Commitment shall be in each Acceding Lender's absolute discretion; and

(B)

the Agent shall, in relation to an Acceding Lender only upon satisfaction of the requirements set forth in paragraph (h) below, promptly notify the Lenders thereof.

(ii)

in relation to any Relevant Lender which is a Lender under this Agreement the Commitments of such Relevant Lenders which are willing to increase their respective Commitments as notified to the Agent pursuant to paragraph (d) above shall be increased in each case by an amount as notified to the Agent pursuant to paragraph (d) above,

whereupon the Agent shall promptly notify the Company, the Relevant Lenders and all the Lenders accordingly once all requirements set forth in paragraphs (f) and (h) are satisfied, whereupon the Commitments of the Relevant Lenders shall be increased or assumed with binding effect for all Parties with effect from the Business Day immediately following the date of such notification by the Agent.

(g)

If, following delivery of an Increase Request by the Company to the Agent pursuant to paragraph (a) above, not all the Relevant Lenders notify the Agent that they are willing to increase their respective (or assume the) Commitments pursuant to paragraph (d) above, the Agent shall promptly notify the Borrowers, the Relevant Lenders and the Lenders accordingly, whereupon the Company may request all or certain Relevant Lenders to further increase (or assume a) Commitment in order to address any shortfall due to certain Relevant Lenders not willing to increase (or assume) a Commitment as requested (for the avoidance of doubt, (i) only up to the Requested Increase Amount, and (ii) whereby each such Relevant Lender is free (in its absolute discretion) to agree or not to agree). The Company and each Relevant Lender agreeing to such further increase or assumption shall notify the Agent accordingly, whereupon:

(i)

the Commitments of such Relevant Lenders which are not willing to increase their respective Commitments (if any) shall not be increased; and

(ii)

in relation to any Relevant Lender which is not a Lender under this Agreement but which is willing to assume a Commitment as notified to the Agent pursuant to paragraph (d) above, the Company may request such Relevant Lender to accede to this Agreement as a Lender, thereby assuming such new Commitment (each such Lender hereinafter referred to as an "Acceding Lender"), provided that:

(A)

any such agreement by a Relevant Lender to assume the Commitment shall be in each Relevant Lender's absolute discretion; and

(B)

the Agent shall, in relation to an Acceding Lender only upon satisfaction of the requirements set forth in paragraph (h) below, promptly notify the Lenders thereof.

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(iii)

in relation to any Relevant Lender which is a Lender under this Agreement the Commitments of such Relevant Lenders which are willing to increase their respective Commitments as notified to the Agent pursuant to paragraph (d) above shall be increased in each case by an amount as notified to the Agent pursuant to paragraph (d) above,

whereupon the Agent shall promptly notify the Company, the Relevant Lenders and all the Lenders accordingly once all requirements set forth in this paragraph (g) are satisfied, whereupon the Commitments of the Relevant Lenders shall be increased or assumed with binding effect for all Parties with effect from the Business Day immediately following the date of such notification by the Agent.

(h)

If an Acceding Lender agrees to assume a Commitment, it shall deliver to the Agent a duly completed Accession Confirmation, signed by the Acceding Lender and countersigned for approval by the Company, specifying as new Commitment the amount allocated to the Acceding Lender. The accession of an Acceding Lender may be effected only by the delivery to the Agent, and acceptance by the Agent, of such Accession Confirmation and the performance by the Agent of all necessary "know your customer" or similar checks under all applicable laws and regulations in relation to the Acceding Lender, the completion of which the Agent shall promptly notify to the Company and the Acceding Lender. Upon such completion the Agent will accept any Accession Confirmation which on its face appears to be in order.

(i)

By the assumption of a Commitment in accordance with this Clause 2.3, the Acceding Lender shall become a Party as a "Lender" and assume all the obligations and acquire all rights of a Lender corresponding to that part of the increased Commitments which it is to assume, as if it had been an Original Lender.

(j)

Each of the other Parties and any Acceding Lender shall assume obligations towards one another and/or acquire rights against one another (in relation the Commitment which the Acceding Lender is to assume) as each such other Party and the Acceding Lender would have assumed and/or acquired had the Acceding Lender been an Original Lender and had the increased Commitment been original Commitments.

(k)

The Commitments of the other Lenders and the existing Commitments of a Relevant Lender shall continue in full force and effect.

(l)

With respect to any Loan, any increase or assumption of a Commitment pursuant to this Clause 2.3 shall be only taken into account for all purposes of this Agreement (including for the purposes of the operation of Clause 6.4 (Lenders' participation)) if the Utilisation Request is delivered on or after the Business Day on which such increase or assumption takes effect in accordance with the provisions of this Clause 2.3.

(m)

Clause 26.4 (Assignment or assignment and transfer by assumption of contract (Vertragsübernahme)) shall apply mutatis mutandis in this Clause 2.3 in relation to an Acceding Lender as if references in that Clause to the New Lender were references to that Acceding Lender.

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(n)

Clause 26.5 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this Clause 2.3 in relation to an Acceding Lender as if references in that Clause to:

(i)

an "Existing Lender" were references to all the "Lenders" immediately prior to the relevant increase; and

(ii)

the "New Lender" were references to that "Acceding Lender".

2.4

Finance Parties' rights and obligations

(a)

The obligations of each Finance Party under the Finance Documents are several and do not constitute a joint obligation (Ausschluss der gesamtschuldnerischen Haftung). Failure by a Finance Party to perform its obligations under the Finance Documents does not affect the obligations of any other Party under the Finance Documents. No Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents.

(b)

(The rights of each Finance Party under or in connection with the Finance Documents are separate and independent rights and do not constitute a joint creditorship (Ausschluss der Gesamtgläubigerschaft) and any debt arising under the Finance Documents to a Finance Party from an Obligor is, except as otherwise set out in this Agreement or any other Finance Document, a separate and independent debt (Ausschluss der gesamtschuldnerischen Haftung) in respect of which a Finance Party shall be entitled to enforce its rights in accordance with paragraph (c) below. The rights of each Finance Party include any debt owing to that Finance Party under the Finance Documents and, for the avoidance of doubt, any part of a Loan or any other amount owed by an Obligor which relates to a Finance Party's participation in a Facility or its role under a Finance Document (including any such amount payable to the Agent on its behalf) is a debt owing to that Finance Party by that Obligor.

(c)

A Finance Party may, except as specifically provided in the Finance Documents, separately enforce its rights under or in connection with the Finance Documents.

3.

EXTENSION OPTION

3.1

Extension prior to the First Anniversary

(a)

The Company may request from all Lenders, by delivering to the Agent an Extension Request (the "First Anniversary Extension Request") not more than 60 days nor less than 45 days before the First Anniversary, that the Initial Termination Date be extended to the First Extension Date.

(b)

The Agent will promptly notify the Lenders following receipt of a First Anniversary Extension Request.

(c)

Each Lender notified under paragraph (b) above must notify the Agent by no later than the date falling fifteen (15) Business Days thereafter whether or not it is willing to extend the Initial Termination Date in respect of its Commitment. If a Lender fails to

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notify the Agent that Lender will be deemed to have notified the Agent that it is not so willing.

(d)

If each Lender notifies the Agent pursuant to paragraph (c) above that it is willing to extend the Initial Termination Date in respect of its Commitment in accordance with the First Anniversary Extension Request, the Agent shall promptly notify the Company and the Lenders accordingly whereupon the Initial Termination Date for all the Lenders shall be extended with binding effect for all Parties to the First Extension Date.

(e)

If not all of the Lenders notify the Agent pursuant to paragraph (c) above that they are willing to extend the Initial Termination Date in respect of their Commitments in accordance with the First Anniversary Extension Request, then the Agent shall promptly notify the Company and the Lenders accordingly whereupon (subject to Clause 3.2 (Extension prior to the Second Anniversary) and Clause 3.3 (Extension prior to the Third Anniversary)):

(i)

the Initial Termination Date in respect of the Commitment of each Lender that is willing to extend the Initial Termination Date in respect of its Commitment (a "First Anniversary Extending Lender") shall be extended in relation to such First Anniversary Extending Lender's Commitment to the First Extension Date for all purposes hereof and with binding effect for all Parties; and

(ii)

the Initial Termination Date in respect of the Commitment of each Lender that, pursuant to paragraph (c) above, has notified, or is deemed to have notified, the Agent that it is not willing to extend the Initial Termination Date in respect of its Commitment (a "First Anniversary Non-Extending Lender") shall not be extended pursuant to this Clause 3.1 (Extension prior to the First Anniversary).

(f)

In respect of the making of any Loan for which the last day of the relevant Interest Period is to fall after the Initial Termination Date but prior to the First Extension Date, unless, at the relevant time, all Lenders are First Anniversary Extending Lenders, a Borrower shall be deemed to have addressed the relevant Utilisation Request only to the First Anniversary Extending Lenders.

3.2

Extension prior to the Second Anniversary

(a)

Irrespective of whether the Company has delivered a First Anniversary Extension Request and, if delivered, irrespective of whether such First Anniversary Extension Request has resulted in the Initial Termination Date being extended to the First Extension Date in respect of the Commitment of any Lender, the Company may, by delivering to the Agent an Extension Request (the "Second Anniversary Extension Request"), request each Lender to extend:

(i)

(if the Company has not delivered a First Anniversary Extension Request) the Initial Termination Date to the First Extension Date;

(ii)

in the case of a First Anniversary Extending Lender (if any) the First Extension Date by a further period of one year; or

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(iii)

in the case of a First Anniversary Non-Extending Lender (if any), the Initial Termination Date by a period of one or two years,

such Extension Request to be delivered to the Agent not earlier than 60 days nor later than 45 days before the Second Anniversary.

(b)

The Agent will promptly notify the Lenders following receipt of a Second Anniversary Extension Request.

(c)

Each Lender shall notify the Agent by no later than the date falling fifteen (15) Business Days thereafter whether or not it is willing to extend the relevant Termination Date in respect of its Commitment as requested by the Borrowers. If a Lender fails to so notify the Agent such Lender shall be deemed to have notified the Agent that it is not so willing.

(d)

If the Company has not delivered a First Anniversary Extension Request and each Lender notifies the Agent pursuant to paragraph (c) above that it is willing to extend the Initial Termination Date in respect of its Commitment in accordance with the Second Anniversary Extension Request, the Agent shall promptly notify the Company and the Lenders accordingly whereupon the Initial Termination Date for all the Lenders shall be extended with binding effect for all Parties to the First Extension Date.

(e)

If, following a Second Anniversary Extension Request given by the Company pursuant to paragraph (a) above, all Lenders notify the Agent that they are willing to extend the relevant Termination Date pursuant to paragraph (c) above, the Agent shall promptly notify the Company and the Lenders accordingly, whereupon the Termination Date shall be extended with binding effect for all Parties:

(i)

in the case of each First Anniversary Extending Lender by a further year, to the date falling two years after the Initial Termination Date (the "Second Extension Date"); or

(ii)

in the case of each First Anniversary Non-Extending Lender:

(A)

where the Company has requested an extension of the Initial Termination Date by one year, to the First Extension Date (each such Lender a "Second Anniversary Limited Extending Lender"); and

(B)

where the Company has requested an extension of the Initial Termination Date by two years, to the Second Extension Date.

(f)

If, following any notice by the Agent pursuant to paragraph (b) above, not all of the Lenders are willing to extend the relevant Termination Date pursuant to paragraph (c) above, the Agent shall promptly notify the Company and the Lenders accordingly, whereupon (subject to the further operation of Clause 3.4 (General Provisions)):

(i)

the then applicable Termination Date in respect of the Commitment of each Lender willing to extend such Termination Date (the "Second Anniversary

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Extending Lenders") shall be extended with binding effect for all Parties in accordance with paragraph (e) above for all purposes hereof; and

(ii)

the then applicable Termination Date in respect of the Commitment of each Lender which has (or is deemed to have) notified the Agent pursuant to paragraph (c) above that it is not willing to extend such Termination Date (the "Second Anniversary Non-Extending Lenders") shall not be extended.

3.3

Extension prior to the Third Anniversary

(a)

Irrespective of whether the Company has delivered a First Anniversary Extension Request or a Second Anniversary Extension Request (for the avoidance of doubt, subject to paragraph (e) of Clause 3.4 (General Provisions) below) and, if delivered, irrespective of whether such First Anniversary Extension Request or a Second Anniversary Extension Request has resulted in the Initial Termination Date being extended to the First Extension Date in respect of the Commitment of any Lender, the Company may, by delivering to the Agent an Extension Request (the "Third Anniversary Extension Request"), request each Lender to extend:

(i)

(if the Company has neither delivered a First Anniversary Extension Request nor a Second Anniversary Extension Request) the Initial Termination Date to the First Extension Date;

(ii)

in the case of a First Anniversary Extending Lender or Second Anniversary Extending Lender (if any) the First Extension Date by a further period of one year; or

(iii)

in the case of a First Anniversary Non-Extending Lender or a Second Anniversary Non-Extending Lender, the Initial Termination Date by a period of one or two years,

such Extension Request to be delivered to the Agent not earlier than 60 days nor later than 45 days before the Third Anniversary.

(b)

The Agent will promptly notify the Lenders following receipt of a Third Anniversary Extension Request.

(c)

Each Lender shall notify the Agent by no later than the date falling fifteen (15) Business Days thereafter whether or not it is willing to extend the relevant Termination Date in respect of its Commitment as requested by the Borrowers. If a Lender fails to so notify the Agent such Lender shall be deemed to have notified the Agent that it is not so willing.

(d)

If the Company has neither delivered a First Anniversary Extension Request nor a Second Anniversary Extension Request and each Lender notifies the Agent pursuant to paragraph (c) above that it is willing to extend the Initial Termination Date in respect of its Commitment in accordance with the Third Anniversary Extension Request, the Agent shall promptly notify the Company and the Lenders accordingly whereupon the

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Initial Termination Date for all the Lenders shall be extended with binding effect for all Parties to the First Extension Date.

(e)

If, following a Third Anniversary Extension Request given by the Company pursuant to paragraph (a) above, all Lenders notify the Agent that they are willing to extend the relevant Termination Date pursuant to paragraph (c) above, the Agent shall promptly notify the Company and the Lenders accordingly, whereupon the Termination Date shall be extended with binding effect for all Parties:

(i)

in the case of each First Anniversary Extending Lender or a Second Anniversary Extending Lender by a further year, to the date falling two years after the Initial Termination Date (the "Second Extension Date"); and

(ii)

in the case of each First Anniversary Non-Extending Lender or a Second Anniversary Non-Extending Lender:

(A)

where the Company has requested an extension of the Initial Termination Date by one year, to the First Extension Date (each such Lender a "Third Anniversary Limited Extending Lender"); and

(B)

where the Company has requested an extension of the Initial Termination Date by two years, to the Second Extension Date.

(f)

If, following any notice by the Agent pursuant to paragraph (b) above, not all of the Lenders are willing to extend the relevant Termination Date pursuant to paragraph (c) above, the Agent shall promptly notify the Company and the Lenders accordingly, whereupon (subject to the further operation of Clause 3.4 (General Provisions)):

(i)

the then applicable Termination Date in respect of the Commitment of each Lender willing to extend such Termination Date (the "Third Anniversary Extending Lenders", and together with the First Anniversary Extending Lenders and the Second Anniversary Extending Lenders, the "Extending Lenders") shall be extended with binding effect for all Parties in accordance with paragraph (e) above for all purposes hereof; and

(ii)

the then applicable Termination Date in respect of the Commitment of each Lender which has (or is deemed to have) notified the Agent pursuant to paragraph (c) above that it is not willing to extend such Termination Date (the "Third Anniversary Non-Extending Lenders") shall not be extended.

3.4

General Provisions

(a)

Nothing herein shall oblige any Lender to agree to any extension of any Termination Date applicable to it and nothing herein shall oblige any Lender to agree to any assumption by it of any rights and obligations of any First Anniversary Non-Extending Lender, Second Anniversary Non-Extending Lender or Third Anniversary Non-Extending Lender.

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(b)

Subject to paragraph (c) below, the Commitment of each Lender that is not an Extending Lender shall be cancelled and reduced to zero on the Initial Termination Date and its participation in any Loans together with any sums owed to it shall be repaid in full (including any interest accrued thereon) on or prior to such date, at which point each such Lender shall cease to be a Lender for the purposes of the Finance Documents, and the Commitment of each Extending Lender that is neither a Second Anniversary Extending Lender nor a Third Anniversary Extending Lender shall be cancelled and reduced to zero on the First Extension Date and its participation in any Loans together with any sums owed to it shall be repaid in full (including any interest accrued thereon) on or prior to such date, at which point each such Lender shall cease to be a Lender for the purposes of the Finance Documents.

(c)

The Company may require each First Anniversary Non-Extending Lender, each Second Anniversary Non-Extending Lender and each Third Anniversary Non-Extending Lender (each a "Non-Extending Lender") at any time following the (deemed) refusal of such Non-Extending Lender (as the case may be) to assign and transfer at par by assumption of contract (Vertragsübernahme) its rights and obligations under this Agreement (or any part thereof), to:

(i)

in the case of a First Anniversary Non-Extending Lender, any First Anniversary Extending Lender (or any of its Affiliates);

(ii)

in the case of a Second Anniversary Non-Extending Lender, any Second Anniversary Extending Lender (or any of its Affiliates); and

(iii)

in the case of a Third Anniversary Non-Extending Lender, any Third Anniversary Extending Lender (or any of its Affiliates),

or, in each case, to any other bank or financial institution or to a trust, fund or other entity which is regularly engaged in or established for the purpose of making, purchasing or investing in loans, securities or other financial assets selected by the Company and which, in each case, is not a member of the Group (each a "New Extending Lender") that is willing to accept such assignment and transfer by assumption of contract in accordance with Clause 26 (Changes to the Lenders), and upon such assignment and transfer by assumption of contract the relevant New Extending Lender shall to the extent of such assignment and transfer become a First Anniversary Extending Lender or, after a Second Anniversary Extension Request has been given, a Second Anniversary Limited Extending Lender or a Second Anniversary Extending Lender, or, after a Third Anniversary Extension Request has been given, a Third Anniversary Limited Extending Lender or a Third Anniversary Extending Lender, as the New Extending Lender may have agreed with the Borrowers. The Non-Extending Lender, as the case may be, shall only be obliged to make an assignment and transfer of contract to a New Extending Lender if it has completed all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to such assignment and transfer of contract to such New Extending Lender.

(d)

The Termination Date may not be extended beyond the date falling seven years after the date of this Agreement.

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(e)

The Company may not submit more than two Extension Requests.

(f)

In respect of the making of any Loan for which the last day of the relevant Interest Period is to fall after the First Extension Date but prior to the Second Extension Date, unless, at the relevant time, all Lenders are Second Anniversary Extending Lenders or Third Anniversary Extending Lenders (other than Second Anniversary Limited Extending Lenders or Third Anniversary Limited Extending Lenders), a Borrower shall be deemed to have addressed the relevant Utilisation Request only to those Second Anniversary Extending Lenders and Third Anniversary Extending Lenders which are not Second Anniversary Limited Extending Lenders or Third Anniversary Limited Extending Lenders.

(g)

The Company shall, at the same time as delivering an Extension Request, confirm to the Agent that:

(i)

all Repeated Representations are true and correct in all material respects by reference to the facts and circumstances then subsisting; and

(ii)

no Default has occurred which is continuing on the date of the Extension Request or would result from the proposed Extension Request.

(h)

Any transfer of rights and obligations of a Non-Extending Lender pursuant to this Clause shall be subject to the following conditions:

(i)

the Company shall have no right to replace the Agent as agent; and

(ii)

neither the Agent nor any Non-Extending Lender shall have any obligation to the Company to find a New Extending Lender; and

(iii)

in no event shall any Non-Extending Lender be required to pay or surrender to the New Extending Lender any of the fees received by the Non-Extending Lender pursuant to the Finance Documents; and

(iv)

the Agent being satisfied that it has complied with all know your customer requirements in relation to the assumption of the relevant Commitments by that New Extending Lender. The Agent shall promptly notify the Company and the New Extending Lender upon being so satisfied.

4.

PURPOSE

4.1

Purpose

Each Borrower shall apply all amounts borrowed by it under the Revolving Facility towards general corporate purposes.

4.2

Monitoring

No Finance Party is bound to monitor or verify the application of any amount borrowed pursuant to this Agreement.

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5.

CONDITIONS OF UTILISATION

5.1

Initial conditions precedent

(a)

No Borrower may deliver a Utilisation Request unless the Agent has received all of the documents and other evidence listed in Part I of Schedule 2 (Conditions Precedent) in form and substance satisfactory to the Agent. The Agent shall promptly issue a partial conditions precedent satisfaction confirmation to the Company and the Lenders once the Agent has received all of the documents and other evidence (save for the evidence listed under item 3 lit. (f) of Part I of Schedule 2 (Conditions Precedent)) listed in Part I of Schedule 2 (Conditions Precedent) in form and substance satisfactory to the Agent. If the Agent has also received the evidence listed under item item 3 lit. (f) of Part I of Schedule 2 (Conditions Precedent) in form and substance satisfactory to it, on the date on which the cancellation notice, pursuant to which all commitments under the Existing Facility Agreement have been cancelled, takes effect, and provided that all loans utilised thereunder and any related sums (including interest, but excluding fees and similar ancillary charges) have been repaid (if any), the Agent shall notify the Company and the Lenders promptly upon being so satisfied.

(b)

Other than to the extent that the Majority Lenders notify the Agent in writing to the contrary before the Agent gives the notification described in paragraph (a) above, the Lenders authorise (but do not require) the Agent to give that notification. The Agent shall not be liable for any damages, costs or losses whatsoever as a result of giving any such notification.

5.2

Further conditions precedent

The Lenders will only be obliged to comply with Clause 6.4 (Lenders' participation) if on the date of the Utilisation Request and on the proposed Utilisation Date:

(a)

(i)

in the case of a Rollover Loan, no notice of acceleration has been given by the Agent under Clause 25.12 (Acceleration) and no Material Event of Default is continuing or would result from the proposed Loan; and

(ii)

in the case of any other Loan, no Default is continuing or would result from the proposed Revolving Facility Loan; and

(b)

the Repeated Representations made by each Obligor are true in all material respects, provided that for Rollover Loans the representation in Clause 22.9 (No event of default) shall only relate to Material Events of Default.

5.3

Conditions relating to Optional Currencies

(a)

A currency will constitute an Optional Currency in relation to a Loan if it is USD or it:

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(i)

is readily available in the amount required and freely convertible into the Base Currency in the wholesale market for that currency on the Quotation Day and the Utilisation Date for that Loan; and

(ii)

is or has been approved by the Agent (acting on the instructions of all the Lenders under the Revolving Facility) on or prior to receipt by the Agent of the relevant Utilisation Request for that Loan (which, for the avoidance of doubt, may require any amendments being necessary to implement the relevant provisions for those other currencies).

(b)

If the Agent has received a written request from a Borrower for a currency to be approved under paragraph (a)(ii) above, the Agent will confirm to that Borrower by the Specified Time (subject to the amendments required as set out in paragraph (a) (ii) above having been implemented):

(i)

whether or not the Lenders have granted their approval; and

(ii)

if approval has been granted, the minimum amount (and, if required, integral multiples) for any subsequent Utilisation in that currency.

5.4

Maximum number of Revolving Facility Loans

(a)

A Borrower may not deliver a Utilisation Request if as a result of the proposed Utilisation sixteen (16) or more Revolving Facility Loans would be outstanding.

(b)

Any Revolving Facility Loan made by a single Lender under Clause 9.2 (Unavailability of a currency) shall not be taken into account in this Clause 5.4.

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SECTION 3

UTILISATION

6.

UTILISATION REVOLVING FACILITY LOANS

6.1

Delivery of a Utilisation Request

A Borrower may utilise the Revolving Facility by delivery to the Agent of a duly completed Utilisation Request not later than the Specified Time.

6.2

Completion of a Utilisation Request

(a)

Each Utilisation Request is irrevocable and will not be regarded as having been duly completed unless:

(i)

the proposed Utilisation Date is a Business Day within the Availability Period;

(ii)

the currency and amount of the Utilisation comply with Clause 6.3 (Currency and amount); and

(iii)

the proposed Interest Period complies with Clause 13 (Interest Periods Revolving Facility Loans).

(b)

Only one Revolving Facility Loan may be requested in each Utilisation Request.

6.3

Currency and amount

(a)

The currency specified in a Utilisation Request must be the Base Currency or an Optional Currency.

(b)

The amount of the proposed Revolving Facility Loan must be:

(i)

if the currency selected is the Base Currency, a minimum amount of EUR 10,000,000 or, if less, the Available Revolving Facility; or

(ii)

if the currency selected is USD, a minimum amount of USD 10,000,000 or, if less, the Available Revolving Facility.

(iii)

if the currency selected is an Optional Currency other than USD, the minimum amount (and, if required, integral multiple) specified by the Agent pursuant to paragraph (b)(ii) of Clause 5.3 (Conditions relating to Optional Currencies) or, if less, the Available Revolving Facility; and

in any event such that its Base Currency Amount is less than or equal to the Available Revolving Facility.

6.4

Lenders' participation

(a)

If the conditions set out in this Agreement have been met, and subject to Clause 10.1 (Repayment of the Revolving Facility Loans), each Lender shall make its participation

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in each Revolving Facility Loan available by the Utilisation Date through its Facility Office.

(b)

The amount of each Lender's participation in each Revolving Facility Loan will be equal to the proportion borne by its Available Commitment to the Available Facility immediately prior to making the Revolving Facility Loan.

(c)

The Agent shall determine the Base Currency Amount of each Revolving Facility Loan which is to be made in an Optional Currency and shall notify each Lender of the amount, currency and the Base Currency Amount of each Revolving Facility Loan, the amount of its participation in that Revolving Facility Loan and, if different, the amount of that participation to be made available in accordance with Clause 31.1 (Payments to the Agent), in each case by the Specified Time.

6.5

Cancellation of Commitment

The Revolving Facility Commitments which, at that time, are unutilised (taking into account a utilisation of the Revolving Facility by way of Swingline Loan) shall be immediately cancelled at the end of the Availability Period.

7.

UTILISATION SWINGLINE LOANS

7.1

General

(a)

Clause 5.2 (Further conditions precedent) and Clause 5.3 (Conditions relating to Optional Currencies);

(b)

Clause 6 (Utilisation - Revolving Facility Loans);

(c)

Clause 9 (Optional Currencies);

(d)

Clause 12 (Interest) as it applies to the calculation of interest on a Loan but not default interest on an overdue amount;

(e)

Clause 13 (Interest Periods - Revolving Facility Loans); and

(f)

Clause 14 (Changes to the calculation of Interest),

do not apply to Swingline Loans. For the avoidance of doubt, all other clauses shall also apply to Swingline Loans.

7.2

Delivery of a Utilisation Request for Swingline Loans

(a)

A Swingline Borrower may utilise the Swingline Facility by delivery to the Swingline Agent of a duly completed Utilisation Request for a Swingline Loan not later than the Specified Time.

(b)

Each Utilisation Request for a Swingline Loan must be sent to the Swingline Agent to the address, fax number or, if relevant, electronic mail address or other such information notified by the Swingline Agent for this purpose with a copy to its address,

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fax number or, if relevant, electronic mail address or other such information referred to in Clause 33 (Notices).

7.3

Completion of a Utilisation Request for Swingline Loans

(a)

Each Utilisation Request for a Swingline Loan is irrevocable and will not be regarded as having been duly completed unless:

(i)

it identifies a Swingline Borrower;

(ii)

it specifies that it is for a Swingline Loan;

(iii)

the proposed Utilisation Date is a New York Business Day within the Availability Period (including, for the avoidance of doubt, the day on which the Utilisation Request is submitted provided that it is submitted not later than the Specified Time);

(iv)

the Swingline Loan is denominated in dollars;

(v)

the amount of the proposed Swingline Loan is not more than the Available Swingline Facility and is a minimum of USD 100,000 or, if less, the Available Swingline Facility; and

(vi)

the proposed Interest Period:

(A)

does not extend beyond the Termination Date;

(B)

is a period of not more than seven (7) New York Business Days; and

(C)

ends on a New York Business Day.

(b)

Only one Swingline Loan may be requested in each Utilisation Request.

7.4

Swingline Lenders' participation

(a)

If the conditions set out in this Agreement have been met, each Swingline Lender shall make its participation in each Swingline Loan available through its Facility Office.

(b)

The Swingline Lenders will only be obliged to comply with paragraph (a) above if on the date of the Utilisation Request and on the proposed Utilisation Date:

(i)

no Default is continuing or would result from the proposed Utilisation; and

(ii)

the Repeated Representations made by each Obligor are true in all material respects.

(c)

The amount of each Swingline Lender's participation in each Swingline Loan will be equal to the proportion borne by its Available Swingline Commitment to the Available Swingline Facility immediately prior to making the Swingline Loan, adjusted to take

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account of any limit applying under Clause 7.5 (Relationship with the Revolving Facility).

(d)

The Swingline Agent shall determine the Base Currency Amount of each Swingline Loan and notify each Swingline Lender and each corresponding Lender of the amount of each Swingline Loan and its participation in that Swingline Loan by the Specified Time.

7.5

Relationship with the Revolving Facility

(a)

This Clause 7.5 applies when a Swingline Loan is outstanding or is to be borrowed.

(b)

The Revolving Facility may be used by way of Swingline Loans. The Swingline Facility is not independent of the Revolving Facility.

(c)

Notwithstanding any other term of this Agreement a Lender is only obliged to participate in a Revolving Facility Loan or a Swingline Loan to the extent that the aggregate Base Currency Amount of its participation in Revolving Facility Loans and Swingline Loans and the participation of a Lender which is its Affiliate in Revolving Facility Loans and Swingline Loans does not exceed or would not have exceeded its Revolving Facility Commitment.

(d)

Where, but for the operation of paragraph (c) above, the aggregate of the Base Currency Amount of a Lender's participation in Revolving Facility Loans and Swingline Loans and the participation of a Lender which is its Affiliate in Revolving Facility Loans and Swingline Loans exceeds or would have exceeded its Revolving Facility Commitment, the excess will be apportioned among the other Lenders required under this Agreement to make available a participation in the relevant Loan pro rata according to their relevant Commitments. This calculation will be applied as often as necessary until participations in the Loan are apportioned among the relevant Lenders in a manner consistent with paragraph (c) above.

7.6

Cancellation of Swingline Commitment

The Swingline Commitments which, at that time, are unutilised shall be immediately cancelled at the end of the Availability Period.

8.

SWINGLINE LOANS

8.1

Swingline

Subject to the terms of this Agreement, the Swingline Lenders make available to the Swingline Borrowers a dollar swingline loan facility as a sublimit of the Revolving Facility in an aggregate amount equal to the Total Swingline Commitments. For the avoidance of doubt, the aggregate amount of the Swingline Loans outstanding at any one time shall not exceed the Total Swingline Commitments.

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8.2

Purpose

Each Swingline Borrower shall apply all amounts borrowed by it under the Swingline Facility towards general corporate purposes of the Group.

8.3

Repayment

Each Swingline Borrower which has drawn a Swingline Loan shall repay that Swingline Loan on the last day of its Interest Period.

8.4

Voluntary prepayment of Swingline Loans

(a)

The Swingline Borrower to which a Swingline Loan has been made may prepay the Swingline Loan in whole or in part at any time.

(b)

Unless a contrary indication appears in this Agreement, any part of the Swingline Facility which is prepaid or repaid may be re-borrowed in accordance with the terms of this Agreement.

8.5

Interest

(a)

The rate of interest on each Swingline Loan for any day during its Interest Period is the higher of:

(i)

the prime commercial lending rate in dollars announced by the Swingline Agent at the Specified Time and in force on that day provided that if the prime commercial lending rate is less than zero, the prime commercial lending rate shall be deemed to be zero); and

(ii)

0.5 per centage points per annum over the rate per annum determined by the Swingline Agent to be the Federal Funds Rate for that day.

(b)

The Swingline Agent shall promptly notify the Swingline Lenders and the relevant Swingline Borrower of the determination of the rate of interest under paragraph (a) above.

(c)

If any day during an Interest Period is not a New York Business Day, the rate of interest on a Swingline Loan on that day will be the rate applicable to the immediately preceding New York Business Day.

(d)

Each Swingline Borrower shall pay accrued interest on each Swingline Loan made to it on the last day of each Month falling after the relevant Interest Period.

8.6

Interest Period

(a)

Each Swingline Loan has one Interest Period only.

(b)

The Interest Period for a Swingline Loan must be selected in the relevant Utilisation Request.

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8.7

Swingline Agent

Notwithstanding any other term of this Agreement and without limiting the liability of any Obligor under the Finance Documents, each Lender shall (in proportion to its share of the Total Commitments or, if the Total Commitments are then zero, to its share of the Total Commitments immediately prior to their reduction to zero) pay to or indemnify the Swingline Agent, within five (5) Business Days of demand, for or against any cost, loss or liability (including, without limitation, for negligence or any other category of loss whatsoever) incurred by the Swingline Agent (other than by reason of the Swingline Agent's gross negligence or wilful misconduct) in acting as Swingline Agent for the Swingline Facility under the Finance Documents (unless the Swingline Agent has been reimbursed by an Obligor pursuant to a Finance Document).

8.8

Partial payments Swingline Facility

(a)

If the Swingline Agent receives a payment in respect of the Swingline Facility that is insufficient to discharge all the amounts then due and payable by an Obligor under the Finance Documents in respect of the Swingline Facility, the Swingline Agent shall apply that payment towards the obligations of that Obligor under the Finance Documents in respect of the Swingline Facility in the following order:

(i)

first, in or towards payment pro rata of any unpaid amount owing to the Swingline Agent under the Finance Documents incurred in respect of the Swingline Facility;

(ii)

secondly, in or towards payment pro rata of any accrued interest on a Swingline Loan due but unpaid under this Agreement;

(iii)

thirdly, in or towards payment pro rata of the principal of any Swingline Loan due but unpaid under this Agreement; and

(iv)

fourthly, in or towards payment pro rata of any other sum due but unpaid under the Finance Documents in respect of the Swingline Facility.

(b)

The Swingline Agent shall, if so directed by all the Swingline Lenders, vary the order set out in paragraphs (a)(ii) to (a)(iv) above.

(c)

Paragraphs (a) and (b) above will override any appropriation made by an Obligor and Clause 31.5 (Partial payments) does not apply to the Swingline Facility.

8.9

Loss sharing

(a)

If a Revolving Loan (including a Swingline Loan) or interest on a Revolving Loan (including a Swingline Loan) is not paid in full on its due date, the Agent (if requested to do so in writing by any affected Lender) shall calculate the amount (if any) which needs to be paid or received by each Lender with a Revolving Facility Commitment to place that Lender in the position it would have been in had each Lender (or its Affiliate) with a Revolving Facility Commitment participated in that Loan in the proportion borne by its Revolving Facility Commitment to the Total Commitments and, if the Total

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Commitments are then zero, the proportion borne by its Revolving Facility Commitment to the Total Commitments immediately prior to their reduction to zero.

(b)

The calculation of the Agent is designed solely to allocate the unpaid amount proportionally between the Lenders with a Revolving Facility Commitment according to their Revolving Facility Commitments and will not take into account any commitment fee or other amount payable under the Finance Documents.

(c)

The Agent will set a date (the "Loss Sharing Date") on which payments must be made under this Clause 8.9. The Agent shall give at least 3 Business Days' notice to each affected Lender of this date and the amount of the payment (if any) to be paid or received by it on this date.

(d)

On the Loss Sharing Date:

(i)

each affected Lender who has to make a payment shall pay to the Agent the relevant amount set out in the notice referred to in paragraph (c) above; and

(ii)

out of the amounts the Agent receives, the Agent shall pay to each affected Lender who is entitled to receive a payment the amount set out in that notice.

(e)

If the amount actually received by the Agent from the Lenders under paragraph (d) above is insufficient to pay the full amount required to be paid under that paragraph, the Agent shall distribute the amount it actually receives among the affected Lenders pro rata to the amounts they are entitled to receive under that paragraph.

(f)

If a Lender makes a payment to the Agent under this Clause 8.9 then, to the extent that that payment is distributed by the Agent under paragraphs (d) or (e) above, as between the relevant Obligor and that Lender an amount equal to the amount of that distributed payment will be treated as not having been paid by the relevant Obligor.

(g)

Any payment under this Clause 8.9 will not reduce the obligations in aggregate of any Obligor.

9.

OPTIONAL CURRENCIES

9.1

Selection of currency

A Borrower (or the Company on behalf of a Borrower) shall select the currency of a Revolving Facility Loan in a Utilisation Request.

9.2

Unavailability of a currency

If before the Specified Time on any Quotation Day:

(a)

a Lender notifies the Agent that the Optional Currency requested is not readily available to it in the amount required; or

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(b)

a Lender notifies the Agent that compliance with its obligation to participate in a Revolving Facility Loan in the proposed Optional Currency would contravene a law or regulation applicable to it,

the Agent will give notice to the relevant Borrower to that effect by the Specified Time on that day. In this event, any Lender that gives notice pursuant to this Clause 9.2 will be required to participate in the Revolving Facility Loan in the Base Currency (in an amount equal to that Lender's proportion of the Base Currency Amount or, in respect of a Rollover Loan, an amount equal to that Lender's proportion of the Base Currency Amount of the Rollover Loan that is due to be made) and its participation will be treated as a separate Revolving Facility Loan denominated in the Base Currency during that Interest Period.

9.3

Participation in a Revolving Facility Loan

Each Lender's participation in a Revolving Facility Loan will be determined in accordance with paragraph (b) of Clause 6.4 (Lenders' participation).

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SECTION 4

REPAYMENT, PREPAYMENT AND CANCELLATION

10.

REPAYMENT

10.1

Repayment of Revolving Facility Loans

(a)

Subject to paragraph (c) below, each Borrower which has drawn a Revolving Facility Loan shall repay that Revolving Facility Loan on the last day of its Interest Period and, in any case, not later than on the Termination Date.

(b)

Without prejudice to each Borrower's obligation under paragraph (a) above, if:

(i)

one or more Revolving Facility Loans are to be made available to a Borrower:

(A)

on the same day that a maturing Revolving Facility Loan is due to be repaid by that Borrower;

(B)

in the same currency as the maturing Revolving Facility Loan (unless it arose as a result of the operation of Clause 9.2 (Unavailability of a currency)); and

(C)

in whole or in part for the purpose of refinancing the maturing Revolving Facility Loan; and

(ii)

the proportion borne by each Lender's participation in the maturing Revolving Facility Loan to the amount of that maturing Revolving Facility Loan is the same as the proportion borne by that Lender's participation in the new Revolving Facility Loans to the aggregate amount of those new Revolving Facility Loans,

the aggregate amount of the new Revolving Facility Loans shall, unless the relevant Borrower or the Company notifies the Agent to the contrary in the relevant Utilisation Request, be treated as if applied in or towards repayment of the maturing Revolving Facility Loan so that:

(D)

if the amount of the maturing Revolving Facility Loan exceeds the aggregate amount of the new Revolving Facility Loans:

(I)

the relevant Borrower will only be required to make a payment under Clause 31.1 (Payments to the Agent) in an amount in the relevant currency equal to that excess; and

(II)

each Lender's participation in the new Revolving Facility Loans shall be treated as having been made available and applied by the Borrower in or towards repayment of that Lender's participation in the maturing Revolving Facility Loan and that Lender will not be required to make a payment under Clause 31.1 (Payments to the Agent) in respect of its participation in the new Revolving Facility Loans; and

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(E)

if the amount of the maturing Revolving Facility Loan is equal to or less than the aggregate amount of the new Revolving Facility Loans:

(I)the relevant Borrower will not be required to make a payment under Clause 31.1 (Payments to the Agent); and

(II)

each Lender will be required to make a payment under Clause 31.1 (Payments to the Agent) in respect of its participation in the new Revolving Facility Loans only to the extent that its participation in the new Revolving Facility Loans exceeds that Lender's participation in the maturing Revolving Facility Loan and the remainder of that Lender's participation in the new Revolving Facility Loans shall be treated as having been made available and applied by the Borrower in or towards repayment of that Lender's participation in the maturing Revolving Facility Loan.

(c)

At any time when a Lender becomes a Defaulting Lender, the maturity date of each of the participations of that Lender in the Loans then outstanding will be automatically extended to the Termination Date applicable to the Facility and will be treated as separate Loans under the relevant Facility (the "Separate Loans") denominated in the currency in which the relevant participations are outstanding.

(d)

A Borrower to whom a Separate Loan is outstanding may prepay that Loan by giving not less than three (3) Business Days' prior notice to the Agent. The Agent will forward a copy of a prepayment notice received in accordance with this paragraph (d) to the Defaulting Lender concerned as soon as practicable on receipt.

(e)

Interest in respect of a Separate Loan will accrue for successive Interest Periods selected by the Borrower by the time and date specified by the Agent (acting reasonably) and will be payable by that Borrower to the Agent (for the account of that Defaulting Lender) on the last day of each Interest Period of that Loan.

(f)

The terms of this Agreement relating to Loans generally shall continue to apply to Separate Loans other than to the extent inconsistent with paragraphs (c) to (e) above, in which case those paragraphs shall prevail in respect of any Separate Loan.

11.

PREPAYMENT AND CANCELLATION

11.1

Illegality

If, in any applicable jurisdiction, it becomes unlawful for any Lender to perform any of its obligations as contemplated by this Agreement or to fund or maintain its participation in any Loan or it becomes unlawful for any Affiliate of a Lender for that Lender to do so:

(a)

that Lender shall promptly notify the Agent upon becoming aware of that event;

(b)

upon the Agent notifying the Company, each Available Commitment of that Lender and the Available Swingline Commitment of that Swingline Lender will be immediately cancelled; and

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(c)

to the extent that the Lender's and Swingline Lender's participation has not been transferred pursuant to paragraph (d) of Clause 11.5 (Right of replacement or repayment and cancellation in relation to a single Lender), each Borrower shall repay that Lender's and Swingline Lender's participation in the Loans made to that Borrower on the last day of the Interest Period for each Loan occurring after the Agent has notified the Company or, if earlier, the date specified by the Lender in the notice delivered to the Agent (being no earlier than the last day of any applicable grace period permitted by law) and that Lender's and Swingline Lender's corresponding Commitment(s) shall be immediately cancelled in the amount of the participations repaid.

11.2

Change of control

(a)

Upon the occurrence of a Change of Control:

(i)

the Company shall promptly notify the Agent upon becoming aware of the occurrence of that Change of Control and specify the nature of that Change of Control and, if the Company wishes to enter into good-faith negotiations with the Lenders with a view to continuing the Facility following that Change of Control, the Company shall set out such a request in such notice;

(ii)

upon receipt by the Agent of any notification pursuant to paragraph (i) above, each Lender or Swingline Lender may, but shall not be obliged to, fund a Loan (except for a Rollover Loan);

(iii)

the Lenders shall, upon the request of the Company pursuant to paragraph (i) above, enter into good-faith negotiations with the Company for a negotiation period of up to thirty (30) days (or such longer period as agreed between the Company and the Agent (acting on the instructions of all the Lenders)) from the date of receipt by the Agent of the request by the Company pursuant to paragraph (i) above (the "Change of Control Negotiations Period"); and

(iv)

unless otherwise agreed by all the Lenders, each Lender may:

(A)

on the first Business Day following the end of the Change of Control Negotiations Period; or

(B)

if there are no negotiations under paragraph (iii) above, on the date falling no later than thirty (30) days after notification by the Company under paragraph (i) above,

notify the Agent that it elects to demand mandatory prepayment and cancellation of its participations in a Facility (the "Change of Control Prepayment Notice"), whereupon the Agent shall, by notification to the Company, cancel that Lender's and Swingline Lender's Commit­ments and declare that Lender's participa­tion in all outstanding Loans, together with accrued interest and all other amounts owed to that Lender and Swingline Lender under the Finance Documents, due and payable on the date falling ten (10) Business Days after the date on which the Agent notifies the Company

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about the election by a Lender to demand repayment as a result of the Change of Control (the "Notice Period").

(b)

The Facility shall continue as between the Obligors and those Lenders who do not deliver a Change of Control Prepayment Notice in accordance with paragraph (a)(iv) above.

(c)

The Company may replace any Lender which has given a Change of Control Prepayment Notice to the Agent in accordance with paragraph (a)(iv) in accordance with Clause 11.5 (Right of replacement or repayment and cancellation in relation to a single Lender) provided that the transfer must take place prior to the end of the Notice Period.

(d)

For the purpose of this Clause 11.2:

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

(i)

if and so long as the Company is organised as a partnership limited by shares (KGaA):

(A)

the general partner of the Company charged with the management of the Company ceases at any time to be Fresenius SE & Co. KGaA or a wholly-owned Subsidiary of Fresenius SE & Co. KGaA; or

(B)

Fresenius SE & Co. KGaA fails at any time to own and control more than 25% of the capital stock with ordinary voting power in the Company;

(ii)

if and so long as the Company is not organised as KGaA any event the result of which any person or group of persons ("Relevant Person(s)") acting in concert (as defined in section 30 (2) of the German Securities Acquisition and Takeover Act (Wert­papier­erwerbs- und Übernahme­gesetz)) or any person or group of persons acting on behalf of any such Relevant Person(s), other than in each case any Permitted Holder (as defined below), is or becomes the direct or indirect legal or beneficial entitlement (as defined in section 22 of the German Securities Trading Act (Wertpapierhandelsgesetz)) of, in the aggregate, more than 50 per cent. of the voting shares in the Company; and

(iii)

in the case of 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 Group to any person or group of persons that is not prohibited under Clause 24.5 (Disposals).

"Permitted Holder" means Fresenius SE & Co. KGaA and any of its wholly-owned Subsidiaries, as long as and to the extent Fresenius SE & Co. KGaA or the relevant direct or indirect subsidiaries is or are not acting in concert with, or on behalf of, a Relevant Person(s).

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11.3

Voluntary cancellation

The Company may, if it gives the Agent not less than three (3) Business Days' (or such shorter period as the Majority Lenders may agree) prior notice, cancel the whole or any part (being a minimum amount of EUR 10,000,000 or USD 10,000,000, as applicable) of an Available Revolving Facility. Any cancellation under this Clause 11.3 shall reduce the Commitments of the Lenders rateably under that Facility.

11.4

Voluntary prepayment of Revolving Facility Loans

The Borrower to which a Revolving Facility Loan has been made may, if it gives the Agent not less than three (3) Business Days' (or such shorter period as the Majority Lenders may agree) prior notice, prepay the whole or any part of a Revolving Facility Loan (but if in part, being an amount that reduces the Base Currency Amount of the Revolving Facility Loan by a minimum amount of EUR 10,000,000).

11.5

Right of replacement or repayment and cancellation in relation to a single Lender

(a)

If:

(i)

any sum payable to any Lender by an Obligor is required to be increased under paragraph (c) of Clause 16.2 (Tax gross-up); or

(ii)

any Lender claims indemnification from an Obligor under Clause 16.4 (Tax indemnity) or Clause 17.1 (Increased costs),

the Company may, whilst the circumstance giving rise to the requirement for that increase or indemnification continues, give the Agent notice of cancellation of the Commitment(s) of that Lender and of any Affiliate of that Lender which is a Swingline Lender and its intention to procure the repayment of that Lender's and any such Affiliate’s participation in the Loans or give the Agent notice of its intention to replace that Lender (together with any Affiliate of that Lender) in accordance with paragraph (d) below.

(b)

On receipt of a notice of cancellation referred to in paragraph (a) above, the Available Facility Commitment(s) of that Lender and the Available Swingline Commitment of any such Affiliate shall be immediately reduced to zero.

(c)

On the last day of each Interest Period which ends after the Company has given notice of cancellation under paragraph (a) above (or, if earlier, the date specified by the Company in that notice), each Borrower to which a Loan is outstanding shall repay that Lender's participation in that Loan and that Lenders corresponding Commitment(s) shall be immediately cancelled in the amount of the participations repaid.

(d)

If:

(i)

any of the circumstances set out in paragraph (a) above apply to a Lender; or

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(ii)

an Obligor becomes obliged to pay any amount in accordance with Clause 11.1 (Illegality) to any Lender,

the Company may, on five (5) Business Days' prior notice to the Agent and that Lender, replace that Lender (together with any Affiliate of that Lender) by requiring that Lender and that Affiliate to (and, to the extent permitted by law, that Lender and that Affiliate shall) assign and transfer by way of assumption of contract (Vertragsübernahme) pursuant to Clause 26 (Changes to the Lenders) all (and not part only) of its rights and obligations under this Agreement to an Eligible Institution which confirms its willingness to assume and does assume all the obligations of the transferring Lender an transferring Affiliate in accordance with Clause 26 (Changes to the Lenders) for a purchase price in cash payable at the time of the transfer in an amount equal to the outstanding principal amount of such Lender's and such Affiliate's participation in the outstanding Loans and all accrued interest (to the extent that the Agent has not given a notification under Clause 26.9 (Pro rata interest settlement)), Break Costs and other amounts payable in relation thereto under the Finance Documents.

(e)

The replacement of a Lender pursuant to paragraph (d) above shall be subject to the following conditions:

(i)

the Company shall have no right to replace the Agent;

(ii)

neither the Agent nor any Lender shall have any obligation to find a replacement Lender;

(iii)

in no event shall the Lender replaced under paragraph (d) above be required to pay or surrender any of the fees received by such Lender pursuant to the Finance Documents; and

(iv)

the Lender shall only be obliged to assign and transfer its rights and obligations pursuant to paragraph (d) above once it is satisfied that it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to that transfer.

(f)

A Lender shall perform the checks described in paragraph (e)(iv)above as soon as reasonably practicable following delivery of a notice referred to in paragraph (d) above and shall notify the Agent and the Company when it is satisfied that it has complied with those checks.

11.6

Right of cancellation in relation to a Defaulting Lender

(a)

Without prejudice to Clause 37.6 (Replacement of a Defaulting Lender), if any Lender becomes a Defaulting Lender, the Company may, at any time whilst the Lender continues to be a Defaulting Lender, give the Agent three (3) Business Days´ notice of cancellation of each Available Commitment of that Lender.

(b)

On the notice referred to in paragraph (a) above becoming effective, each Available Commitment of the Defaulting Lender shall immediately be reduced to zero.

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(c)

The Agent shall as soon as practicable after receipt of a notice referred to in paragraph (a) above, notify all the Lenders.

(d)

Notwithstanding any other provision in this Agreement, any Commitments cancelled under this Clause 11.6 may be reinstated in accordance with Clause 2.2 (Increase).

11.7

Restrictions

(a)

Any notice of cancellation or prepayment given by any Party under this Clause 11 shall be irrevocable and, unless a contrary indication appears in this Agreement, shall specify the date or dates upon which the relevant cancellation or prepayment is to be made and the amount of that cancellation or prepayment.

(b)

Any prepayment under this Agreement shall be made together with accrued interest on the amount prepaid and, subject to any Break Costs, without premium or penalty.

(c)

Unless a contrary indication appears in this Agreement, any part of a Facility which is prepaid or repaid may be reborrowed in accordance with the terms of this Agreement.

(d)

The Borrowers shall not repay or prepay all or any part of the Loans or cancel all or any part of the Commitments except at the times and in the manner expressly provided for in this Agreement.

(e)

Subject to Clause 2.2 (Increase), no amount of the Total Commitments or Total Swingline Commitments cancelled under this Agreement may be subsequently reinstated.

(f)

If the Agent receives a notice under this Clause 11 it shall promptly forward a copy of that notice to either the Company or the affected Lender, as appropriate.

11.8

Application of prepayments

Any prepayment of a Loan pursuant to Clause 11.4 (Voluntary prepayment of Revolving Facility Loans) shall be applied pro rata to each Lender's participation in that Loan.

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SECTION 5

COSTS OF UTILISATION

12.

INTEREST

12.1

Calculation of interest

The rate of interest on each Revolving Facility Loan for each Interest Period is the percentage rate per annum which is the aggregate of the applicable:

(a)

Margin; and

(b)

EURIBOR or, in relation to any Loan not in euro, LIBOR.

12.2

Payment of interest

The Borrower to which a Revolving Facility Loan has been made shall pay accrued interest on that Revolving Facility Loan on the last day of each Interest Period (and, if the Interest Period is longer than six Months, on the dates falling at six-monthly intervals after the first day of the Interest Period).

12.3

Adjustment of Margin based on Credit Rating

(a)

The Margin in relation to any Loan shall initially be 0.60 per cent. per annum.

(b)

The Margin will be adjusted by reference to the Credit Ratings awarded to the Company as set out in the table below:

Credit Ratings of the Company

Margin (in % p.a.)

Moody's

S&P/Fitch

(a)

A3 or higher

A- or higher

0.35

Baa1

BBB+

0.45

Baa2

BBB

0.55

Baa3

BBB-

0.65

Ba1 or below

BB+ or below

0.90

(c)

provided that:

(i)

any increase or decrease in the Margin shall take effect on the date falling five (5) Business Days after publication of a new Credit Rating for the Company, provided that in relation to an outstanding Loan, such increase or decrease shall only take effect from the first day of the Interest Period which starts on or after the date of such publication of a new Credit Rating;

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(ii)

the Company will inform the Agent of any change of a Credit Rating which is relevant for the calculation of the Margin under this Agreement;

(iii)

if and while (A) there is no Credit Rating available for the Company or (B) an Event of Default is continuing, the Margin shall be the highest percentage per annum set out above;

(iv)

if each Credit Rating available can be allocated to the same row set out in the table above or if there is only one Credit Rating available, the relevant Margin for that row shall apply;

(v)

in case of split Credit Ratings (i.e., the Credit Ratings cannot all be allocated to the same row set out in the table above) the Margin shall be determined on an arithmetic mean of the percentage rates per annum (rounded to four decimal places) set out for the Margin in the rows to which the two highest Credit Ratings can be allocated; and

(vi)

for Loans in USD the applicable Margin shall be increased by 0.15 per centage points.

12.4

Adjustment of Margin based on ESG Rating

(a)

As published in the Original ESG Report, the ESG Score assigned to the Company is 46.4. The applicable Margin (as adjusted and determined pursuant to Clause 12.3 (Adjustment of Margin based on Credit Rating) above) will be adjusted by reference to the ESG Score as set out in the table below:

ESG Score

Margin adjustment (in bps per annum)

> 53

- 3.0

> 50 but < 53

- 1.5

> 39 but < 50

+ 0

< 39

+ 3.0

provided that

(i)

any adjustment of the Margin in accordance with the table above shall take effect on the date (the "ESG reset date") falling five (5) Business Days after the Agent has received the most recent ESG Report from the Company (which, for the avoidance of doubt, will be provided to the Lenders by the Agent), provided that in relation to an outstanding Loan, such adjustment shall only take effect from the first day of the Interest Period which starts on or after the date of receipt of such ESG Report from the Company;

(ii)

no adjustment shall result in an aggregate increase or, as the case may be, aggregate decrease of the Margin by more than 3 bps;

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(iii)

an ESG reset date may not occur more than once in each calendar year;

(iv)

if the Company fails to provide the ESG Report to the Agent on the earlier of

(A)

within five (5) Business Days of receiving the ESG Report from the ESG Score Provider (the "ESG receipt date"); and

(B)

the ESG Longstop Publishing Date,

the Margin shall be increased by 3.0 bps per annum from the date which falls five (5) Business Days after the ESG receipt date, or as the case may be the ESG Longstop Date until the date which falls three (3) Business Days after the date on which the Agent has received such ESG Report from the Company (for the avoidance of doubt no such delayed or omitted delivery of the ESG Report by the Company shall constitute any Default and/or Event of Default under this Agreement); and

(v)

if the ESG Report Provider fails to calculate and assign an ESG Score and publish an ESG Report for reasons that are exclusively attributable to the Company, the Margin shall be increased by 3.0 bps per annum from the ESG Longstop Publishing Date until the date which falls three (3) Business Days after the date on which the Agent has received such ESG Report.

(b)

In the event:

(i)

the ESG Score Provider ceases to exist;

(ii)

the ESG Score Provider, for any reason which is not exclusively attributable to Company

(A)

does no longer publish an ESG Score with respect to the Company; or

(B)

fails to publish an ESG Score for any calendar year (provided that each ESG Score is made available no later than the ESG Longstop Publishing Date); or

(iii)

the ESG Score Provider adjusts in the reasonable opinion of Company

(A)

the valuation methodology; or

(B)

the general approach of the valuation of the industry in which the Group operates and its production methodologies

in such a way that the ESG Score is no longer comparable to the way the Original ESG Score has been determined as of the date of this Agreement; or

(iv)

the cost involved in maintaining the ESG Score through the ESG Score Provider become in the opinion of the Company unreasonable,

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the Company shall inform the Agent, the Sustainability Agent and the Lenders accor­dingly and then the Company and the Agent (acting on the instructions of the Majority Lenders) will (upon prior consultation of the Sustainability Agent) without undue delay enter into discussions to agree on the choice of an alternative party, independent of the Company, to calculate and award an equivalent ESG Score to be used for the purposes of the above calculation. Should the Company and the Agent (acting upon the instructions of the Majority Lenders) be unable to agree (upon prior consultation of the Sustainability Agent) on the choice of this alternative party after twenty (20) Business Days (starting from the day on which the Company and/or the Agent have received the notice to enter into discussions regarding the replacement of the ESG Score Provider), the Margin shall apply without any increase or decrease (and if this increase or decrease has already been applied at that time, it shall be discontinued upon expiry of this twenty (20) Business Days' Period).

(c)

The Agent (acting on the instructions of the Majority Lenders) shall be entitled to agree with the Company on behalf of the Finance Parties such amendments to this Agreement which are in its reasonable opinion appropriate to adopt the relevant provisions of this agreement to the reporting standards and rating codes applied by the new provider of the ESG Score.

(d)

During the period of negotiations referred to in paragraph (b) above, the applicable Margin shall be based on the ESG Score which was reported immediately prior to the occurrence of any of the events set out in paragraph (b) above.

12.5

KPI switch

(a)

Upon request of the Company, the Company and the Agent (acting on the instructions of the Majority Lenders) shall (upon prior consultation of the Sustainability Agent) enter into good faith negotiations with a view to replacing the Margin adjustment pursuant to Clause 12.4 (Adjustment of Margin based on ESG Rating) with a KPI-linked adjustment mechanism (the "KPI Switch") provided that

(i)

such request may only be made once during the lifetime of this Agreement and may only be made during the period starting from the date on which the Company has delivered its audited consolidated financial statements for the respective financial year pursuant to Clause 23.1 (Financial Statements) to the date falling five (5) Months after such delivery date;

(ii)

the KPIs and the relevant target scores shall be in line with the Companys general sustainability targets;

(iii)

annual KPI targets (the "Annual KPI Targets") in respect of each year until the Termination Date will be defined;

(iv)

any adjustments will take place on the basis of an annual sustainability certificate provided by the Company (the "Sustainability Certificate") and setting out the scores achieved against the relevant Annual KPI Targets based on its audited consolidated financial statements for the respective financial year

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pursuant to Clause 23.1 (Financial Statements) and/or sustainability report (with limited assurance by the Company's (sustainability) auditors);

(v)

the maximum increase and decrease of the Margin will remain unchanged compared to the Margin adjustment pursuant to Clause 12.4 (Adjustment of Margin based on ESG Rating);

(vi)

this Agreement will be amended by an additional information undertaking which will provide for the annual delivery of the Sustainability Certificate and the sustainability report (if applicable) by the Company to the Agent;

(vii)

until delivery of the first Sustainability Certificate, the Margin shall continue to be adjusted in accordance with Clause 12.4 (Adjustment of Margin based on ESG Rating); and

(viii)

no Event of Default has occurred and is continuing on the date of such request.

12.6

Default interest and lump sum damages

(a)

If an Obligor fails to pay any amount (other than interest) payable by it under a Finance Document on its due date, interest shall accrue on the overdue amount from the due date up to the date of actual payment (both before and after judgment) at a rate which, subject to paragraph (b) below, is one (1) percentage point per annum higher than the rate which would have been payable if the overdue amount had, during the period of non-payment, constituted a Loan in the currency of the overdue amount for successive Interest Periods, each of a duration selected by the Agent (acting reasonably). If an Obligor fails to pay interest payable by it under the Finance Documents on its due date, lump sum damages (pauschalierter Schadensersatz) shall accrue on the overdue amount from the due date up to the date of actual payment (both before and after judgment) at a rate which, subject to paragraph (b) below, is one (1) percentage point per annum higher than the rate which would have been payable if the overdue amount had, during the period of non-payment, constituted a Loan in the currency of the overdue amount for successive Interest Periods, each of a duration selected by the Agent (acting reasonably). In the case of lump sum damages, the relevant Obligor shall be free to prove that no damages have arisen or that damages have not arisen in the asserted amount and any Finance Party shall be entitled to prove that further damages have arisen. Any interest or lump sum accruing under this Clause 12.6 shall be immediately payable by the Obligor on demand by the Agent.

(b)

If any overdue amount consists of all or part of a Loan which became due on a day which was not the last day of an Interest Period relating to that Loan:

(i)

the first Interest Period for that overdue amount shall have a duration equal to the unexpired portion of the current Interest Period relating to that Loan; and

(ii)

the rate of interest applying to the overdue amount during that first Interest Period shall be one (1) percentage point per annum higher than the rate which would have applied if the overdue amount had not become due.

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12.7

Notification of rates of interest

(a)

The Agent shall promptly notify the Lenders and the relevant Borrower of the determination of a rate of interest under this Agreement.

(b)

The Agent shall promptly notify the relevant Borrower of each Funding Rate relating to a Loan.

13.

INTEREST PERIODS REVOLVING FACILITY LOANS

13.1

Selection of Interest Periods

(a)

A Borrower (or the Company on behalf of a Borrower) may select an Interest Period for a Revolving Facility Loan in the Utilisation Request for that Revolving Facility Loan.

(b)

Subject to this Clause 13, a Borrower (or the Company on behalf of a Borrower) may select an Interest Period of one (1), three (3) or six (6) Months or of any other period agreed between the relevant Borrower or the Company, the Agent and all the Lenders in relation to the relevant Loan.

(c)

An Interest Period for a Revolving Facility Loan shall not extend beyond the Termination Date.

(d)

A Revolving Facility Loan has one Interest Period only.

13.2

Non-Business Days

If an Interest Period would otherwise end on a day which is not a Business Day, that Interest Period will instead end on the next Business Day in that calendar month (if there is one) or the preceding Business Day (if there is not).

14.

CHANGES TO THE CALCULATION OF INTEREST

14.1

Unavailability of Screen Rate

(a)

Interpolated Screen Rate: If no Screen Rate is available for EURIBOR or, if applicable, LIBOR for the Interest Period of a Loan, the applicable EURIBOR or LIBOR shall be the Interpolated Screen Rate for a period equal in length to the Interest Period of that Loan.

(b)

Shortened Interest Period: If no Screen Rate is available for EURIBOR or, if applicable, LIBOR for:

(i)

the currency of a Loan; or

(ii)

the Interest Period of a Loan and it is not possible to calculate the Interpolated Screen Rate,

the Interest Period of that Loan shall (if it is longer than the applicable Fallback Interest Period) be shortened to the applicable Fallback Interest Period and the applicable

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EURIBOR or LIBOR for that shortened Interest Period shall be determined pursuant to the relevant definition.

(c)

Shortened Interest Period and Historic Screen Rate: If the Interest Period of a Loan is, after giving effect to paragraph (b) above, either the applicable Fallback Interest Period or shorter than the applicable Fallback Interest Period and, in either case, no Screen Rate is available for EURIBOR or, if applicable, LIBOR for:

(i)

the currency of that Loan; or

(ii)

the Interest Period of that Loan and it is not possible to calculate the Interpolated Screen Rate,

the applicable EURIBOR or LIBOR shall be the Historic Screen Rate for that Loan.

(d)

Shortened Interest Period and Interpolated Historic Screen Rate: If paragraph (c) above applies but no Historic Screen Rate is available for the Interest Period of the Loan, the applicable EURIBOR or LIBOR shall be the Interpolated Historic Screen Rate for a period equal in length to the Interest Period of that Loan.

(e)

Cost of funds: If paragraph (d) above applies but it is not possible to calculate the Interpolated Historic Screen Rate, the Interest Period of that Loan shall, if it has been shortened pursuant to paragraph (b) above, revert to its previous length and there shall be no EURIBOR or LIBOR for that Loan and Clause 14.3 (Cost of funds) shall apply to that Loan for that Interest Period.

14.2

Market disruption

If before close of business in London on the Quotation Day for the relevant Interest Periodthe Agent receives notifications from a Lender or Lenders (whose participations in a Loan exceed thirty-five (35) per cent. of that Loan) that the cost to it of funding its participation in that Loan from whatever source it may reasonably select would be in excess of EURIBOR or, if applicable, LIBOR then Clause 14.3 (Cost of funds) shall apply to that Loan for the relevant Interest Period.

14.3

Cost of funds

(a)

If this Clause 14.3 applies, the rate of interest on each Lender's share of the relevant Loan for the relevant Interest Period shall be the percentage rate per annum which is the sum of:

(i)

the Margin; and

(ii)

the weighted average of the rates notified to the Agent by each Lender  as soon as practicable and in any event within five (5) Business Days of the first day of that Interest Period (or, if earlier, on the date falling five (5) Business Days before the date on which interest is due to be paid in respect of that Interest Period), to be that which expresses as a percentage rate per annum the cost to the relevant Lender of funding its participation in that Loan from whatever

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source it may reasonably select provided that, for the avoidance of doubt, if that rate is less than zero it shall be deemed to be zero.

(b)

If this Clause 14.3 applies and the Agent or the Company so requires, the Agent and the Company shall enter into negotiations (for a period of not more than thirty (30) days) with a view to agreeing a substitute basis for determining the rate of interest.

(c)

Any alternative basis agreed pursuant to paragraph (b) above shall, with the prior consent of all the Lenders and the Company, be binding on all Parties.

(d)

If this Clause 14.3 applies pursuant to Clause 14.2 (Market disruption) and:

(i)

a Lender's Funding Rate is less than EURIBOR or LIBOR (as applicable); or

(ii)

a Lender does not supply a quotation by the time specified in paragraph (a)(ii) above,

the cost to that Lender of funding its participation in that Loan for that Interest Period shall be deemed, for the purposes of paragraph (a) above, to be EURIBOR or LIBOR (as applicable).

(e)

If this Clause 14.3 applies pursuant to Clause 14.1 (Unavailability of Screen Rate) but any Lender does not supply a quotation by the time specified in paragraph (a)(ii) above the rate of interest shall be calculated on the basis of the quotations of the remaining Lenders.

14.4

Notification to Company

If Clause 14.3 (Cost of funds) applies the Agent shall, as soon as is practicable, notify the Company.

14.5

Break Costs

(a)

Each Borrower shall, within five (5) Business Days of receipt of a reasonably detailed calculation of the relevant amount of any Break Costs from a Finance Party (provided that, for the avoidance of doubt, no Finance Party shall be obliged to disclose any confidential or sensitive information or to breach any applicable law or regulation for the purposes of such calculation), pay to that Finance Party its Break Costs attributable to all or any part of a Loan or Unpaid Sum being paid by that Borrower on a day other than the last day of an Interest Period for that Loan or Unpaid Sum.

(b)

Each Lender shall, as soon as reasonably practicable after a demand by the Agent, provide a certificate confirming the amount of its Break Costs for any Interest Period in which they accrue.

(c)

No Break Costs shall be payable in case of a prepayment of a Separate Loan in accordance with paragraph (d) of Clause 10.1 (Repayment of Revolving Facility Loans).

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15.

FEES

15.1

Commitment fee

(a)

The Company shall pay to the Agent (for the account of each Lender) a commitment fee in the Base Currency computed at the rate of 35 per cent. of the applicable Margin on the Available Commitment under the Revolving Facility (without double counting the Swingline Facility) of that Lender for the Availability Period.

(b)

The accrued commitment fee is payable on the last day of each successive period of three (3) Months which ends during the Availability Period, on the last day of the Availability Period and, if cancelled in full, on the cancelled amount of the relevant Lender's Commitment at the time the cancellation is effective in each case subject to the Company having received corresponding payment instructions from the Agent at least five (5) Business Days prior to such date or, if later, on the fifth (5th) Business Day following receipt by the relevant Borrower of corresponding payment instructions from the Agent.

(c)

No commitment fee is payable to the Agent (for the account of a Lender) on any Available Commitment of that Lender for any day on which that Lender is a Defaulting Lender.

15.2

Utilisation fee

(a)

The Company shall pay to the Agent (for the account of each Lender) a utilisation fee in the Base Currency on the daily aggregate Base Currency Amount of that Lenders participation in all Loans outstanding computed at the following rates:

(i)

0.10 per cent. per annum for each day on which the aggregate Base Currency Amount of the Revolving Facility Loans exceeds EUR 1.00 but less than or equal to 3313 per cent. of the Total Commitments;

(ii)

0.20 per cent. per annum for each day on which the aggregate Base Currency Amount of the Revolving Facility Loans exceeds 33 13 per cent. but is less than or equal to 6623 per cent of the Total Commitments;

(iii)

0.40 per cent. per annum for each day on which the aggregate Base Currency Amount of the Revolving Facility Loans exceeds 6623 per cent. of the Total Commitments.

(b)

The accrued utilisation fee shall be payable in arrears in the Base Currency (i) on the last day of each calendar quarter which ends during the Availability Period, (ii) on the Termination Date, and (iii), if the Facility is cancelled in full, at the time the cancellation is effective, in each case subject to the relevant Borrower having received corresponding payment instructions from the Agent at least five (5) Business Days prior to such date or, if later, on the fifth (5th) Business Day following receipt by the relevant Borrower of corresponding payment instructions from the Agent.

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15.3

Upfront fee

The Company shall pay to the Agent (for the account of each Lender) an upfront fee in the amount and at the times as agreed in a Fee Letter.

15.4

Agency fee

The Company shall pay to the Agent (for its own account) an agency fee in the amount and at the times agreed in a Fee Letter.

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SECTION 6

ADDITIONAL PAYMENT OBLIGATIONS

16.

TAX GROSS-UP AND INDEMNITIES4

16.1

Definitions

In this Agreement:

"German Borrower" means a Borrower resident for tax purposes in Germany.

"Protected Party" means a Finance Party which is or will be subject to any liability, or required to make any payment, for or on account of Tax in relation to a sum received or receivable (or any sum deemed for the purposes of Tax to be received or receivable) under a Finance Document.

"Qualifying Lender" means:

(a)

in respect of interest payable by a German Borrower, a Lender which is beneficially entitled to interest payable to that Lender in respect of an advance under a Finance Document and is:

(i)

lending through a Facility Office in Germany; or

(ii)

a Treaty Lender; or

(b)

in respect of interest payable by a US Borrower, a Lender which is a US Qualifying Lender; or

(c)

in respect of interest payable by any other Borrower, a Lender which is beneficially entitled to interest payable to that Lender in respect of an advance under a Finance Document and is:

(i)

lending through a Facility Office in the jurisdiction of incorporation of the relevant Borrower; or

(ii)

a Treaty Lender.

"Tax Credit" means a credit against, relief or remission for, or repayment of any Tax.

"Tax Deduction" means a deduction or withholding for or on account of Tax from a payment under a Finance Document, other than a FATCA Deduction.

"Tax Payment" means either the increase in a payment made by an Obligor to a Finance Party under Clause 16.2 (Tax gross-up) or a payment under Clause 16.4 (Tax indemnity).


4

Subject to ongoing review.

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"Treaty Lender" means:

(a)

in respect of interest payable by a German Borrower, a Lender which

(i)

is treated as a resident of a jurisdiction, having a double taxation agreement (a "Treaty") with Germany which makes provision for full exemption for tax imposed by Germany on interest, for the purposes of the relevant Treaty;

(ii)

does not carry on a business in Germany through a permanent establishment with which that Lender's participation in the Loan is effectively connected; and

(iii)

fulfils any other conditions which must be fulfilled under the relevant Treaty by residents of that Treaty State for such residents to obtain full exemption from taxation on interest imposed by Germany, subject to the completion of procedural formalities;

(b)

in respect of interest payable by any Borrower other than a German Borrower or a US Borrower, a Lender which

(i)

is treated as a resident of a jurisdiction, having a Treaty with the jurisdiction of incorporation of the relevant Borrower which makes provision for full exemption for tax imposed by the jurisdiction of incorporation of the relevant Borrower on interest, for the purposes of the relevant Treaty;

(ii)

does not carry on a business in the jurisdiction of incorporation of the relevant Borrower through a permanent establishment with which that Lender's participation in the Loan is effectively connected; and

(iii)

fulfils any other conditions which must be fulfilled under the Treaty by residents of that Treaty State for such residents to obtain full exemption from taxation on interest imposed by the jurisdiction of incorporation of the relevant Borrower, subject to the completion of procedural formalities.

"Treaty State" means in relation to a German Borrower, a jurisdiction having a Treaty with Germany, and in the case of any other Borrower other than a US Borrower, the jurisdiction of incorporation of the relevant Borrower which in each case makes provision for full exemption for tax imposed by Germany or the jurisdiction of incorporation of the relevant Borrower on interest.

"US Borrower" means a Borrower which is organized or incorporated in the United States, any state thereof, or the District of Columbia.

"US Qualifying Lender" means a Lender that is, in relation to interest payments made under this Agreement by or on behalf of a US Borrower, qualified for an exemption from U.S. federal withholding Tax and US federal backup withholding with respect to such payments.:

"US Withholding Tax Form" means whichever of the following is relevant (including in each case any successor form):

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(a)

IRS Form W-8BEN or W-8BEN-E;

(b)

IRS Form W-8IMY (with appropriate attachments);

(c)

IRS Form W-8ECI;

(d)

IRS Form W-8EXP;

(e)

IRS Form W-9;

(f)

in the case of a Lender relying on the "portfolio interest exemption," IRS Form W-8BEN or W-8BEN-E and a certificate to the effect that such Lender is not (1) a "bank" described in section 881(c)(3)(A) of the Code, (2) a "10 percent shareholder" of the relevant Obligor within the meaning of section 871(h)(3)(B) of the Code, or (3) a "controlled foreign corporation" described in section 881(c)(3)(C) of the Code; or

(g)

any other IRS Form by which a person may claim complete exemption from, or reduction in the rate of, withholding (including backup withholding) of US federal income tax on interest payments to that person, where the provision or delivery of such IRS Form would not materially prejudice the legal or commercial position of the person providing the form or result in undue burden to that person.

Unless a contrary indication appears, in this Clause 16 a reference to "determines" or "deter­mined" means a determination made in the absolute discretion of the person making the determination.

16.2

Tax gross-up

(a)

Each Obligor shall make all payments to be made by it without any Tax Deduction, unless a Tax Deduction is required by law.

(b)

The Company shall promptly upon becoming aware that an Obligor must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction) notify the Agent accordingly. Similarly, a Lender shall notify the Agent on becoming so aware in respect of a payment payable to that Lender. If the Agent receives such notification from a Lender it shall notify the Company and that Obligor.

(c)

If a Tax Deduction is required by law to be made by or on behalf of an Obligor, the amount of the payment due from that Obligor shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction (including, any deduction or withholding on such increased amount) had been required.

(d)

With respect to a Loan or Commitment extended to a Borrower that is not a US Borrower, a payment shall not be increased under paragraph (c) above by reason of a Tax Deduction on account of Tax imposed by the jurisdiction of incorporation of the relevant Borrower (other than the US) if on the date on which the payment falls due:

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(i)

the payment could have been made to the relevant Lender without a Tax Deduction if the Lender had been a Qualifying Lender, but on that date that Lender is not or has ceased to be a Qualifying Lender other than as a result of any change after the date it became a Lender under this Agreement in any law or Treaty; or

(ii)

the relevant Lender is a Treaty Lender and the Obligor making the payment is able to demonstrate that the payment could have been made to the Lender without the Tax Deduction had that Lender complied with its obligations under paragraph (j) below; or

(iii)

such Tax Deduction is imposed solely because this payment is made to a Lender incorporated, having its place of effective management, or acting through a Facility Office or office, as the case may be, located in a Non-Cooperative Jurisdiction.

(e)

With respect to a Loan or a Commitment extended to a US Borrower, a payment shall not be increased under paragraph (c) above by reason of a Tax Deduction on account of Tax imposed by the US if on the date on which the payment falls due the payment could have been made to the relevant Lender without such Tax Deduction if (i) the Lender had been a US Qualifying Lender, but on that date that Lender is not or has ceased to be a US Qualifying Lender other than as a result of any change after the date it became a Lender under this Agreement in (or in the interpretation, administration, or application of) any law or treaty or any published practice or published concession of any relevant taxing authority, except  to the extent that the relevant Lenders assignor or transferor (if any) was entitled at the time of assignment or transfer to receive an increased amount under paragraph (c) above with respect to such Tax Deduction, or (ii) the relevant Lender had not complied with its obligations under Clause 16.3 (US withholding tax forms)

(f)

If an Obligor is required to make a Tax Deduction, that Obligor shall make that Tax Deduction and any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required by law.

(g)

Within thirty (30) days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Obligor making that Tax Deduction shall deliver to the Agent for the Finance Party entitled to the payment evidence reasonably satisfactory to that Finance Party that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority.

(h)

As at the date of this Agreement, each Lender represents that it is not incorporated, having its place of effective management, or acting through a Facility Office or office, as the case may be, located in a Non-Cooperative Jurisdiction.

(i)

Each (New) Lender which becomes a Party to the Agreement after the date of this Agreement, shall indicate in the documentation or Increase Confirmation which it executes upon becoming a Party, whether it is incorporated, having its place of effective management, or acting through a Facility Office or office, as the case may be, located in a Non-Cooperative Jurisdiction.

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(j)

A Treaty Lender and each Obligor which makes a payment to which that Treaty Lender is entitled shall co-operate in completing any procedural formalities necessary for that Obligor to obtain authorisation to make that payment without a Tax Deduction.

16.3

US Withholding Tax forms

On or prior to the date on which a Lender becomes a Party to this Agreement with respect to a Loan or a Commitment extended to a US Borrower (and from time to time thereafter upon the reasonable request of the relevant Borrower or the Agent, as applicable, or on or before a change in facts that causes the contents of any previously delivered US Withholding Tax Form to become inaccurate), such Lender shall provide to the Agent, or the requesting US Borrower, as applicable, two copies of properly completed US Withholding Tax Forms establishing any exemption from, or reduced rate of US withholding tax that such Lender is legally entitled to claim.

16.4

Tax indemnity

(a)

The Company shall (within five (5) Business Days of demand by the Agent) pay to a Protected Party an amount equal to the loss, liability or cost which that Protected Party determines will be or has been (directly or indirectly) suffered for or on account of Tax (including but not limited to any Taxes that may be imposed as a consequence of the receipt of any amount due under this paragraph) by that Protected Party in respect of a Finance Document.

(b)

Paragraph (a) above shall not apply:

(i)

with respect to any Tax assessed on a Finance Party:

(A)

under the law of the jurisdiction in which that Finance Party is incorporated or, if different, the jurisdiction (or jurisdictions) in which that Finance Party is treated as resident or engaged in a trade of business for tax purposes; or

(B)

under the law of the jurisdiction in which that Finance Party's Facility Office is located in respect of amounts received or receivable in that jurisdiction,

if that Tax is imposed on or calculated by reference to the net income, profits or gains received or receivable (but not any sum deemed to be received or receivable) by that Finance Party; or

(ii)

to the extent a loss, liability or cost:

(A)

is compensated for by an increased payment under Clause 16.2 (Tax gross-up);

(B)

would have been compensated for by an increased payment under Clause 16.2 (Tax gross-up) but was not so compensated solely because

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one of the exclusions in paragraph (d) of Clause 16.2 (Tax gross-up) applied; or

(C)

relates to a FATCA Deduction required to be made by a Party.

(c)

A Protected Party making, or intending to make, a claim under paragraph (a) above shall promptly notify the Agent of the event which will give, or has given, rise to the claim, following which the Agent shall notify the Company.

(d)

A Protected Party shall, on receiving a payment from an Obligor under this Clause 16.4, notify the Agent.

16.5

Tax Credit

If an Obligor makes a Tax Payment and the relevant Finance Party determines that:

(a)

a Tax Credit is attributable to an increased payment of which that Tax Payment forms part, to that Tax Payment or to a Tax Deduction in consequence of which that Tax Payment was required; and

(b)

that Finance Party or another member of a tax group or similar consolidation scheme the Finance Party forms part of has obtained and utilised that Tax Credit,

the Finance Party shall pay an amount to the Obligor which that Finance Party determines will leave it, taking into account a Tax Credit of a tax group or similar consolidation scheme the Finance Party forms part of, (after that payment) in the same after-Tax position as it would have been in had the Tax Payment not been required to be made by the Obligor.

16.6

Lender status confirmation

Each Lender which is not an Original Lender shall indicate, in the documentation or Increase Confirmation which it executes on becoming a Party as a Lender, and for the benefit of the Agent and without liability to any Obligor, which of the following categories it falls in:

(a)

not a Qualifying Lender;

(b)

a Qualifying Lender (other than a Treaty Lender or a US Qualifying Lender);

(c)

a US Qualifying Lender; or

(d)

a Treaty Lender.

If such a Lender or Increase Lender fails to indicate its status in accordance with this Clause 16.6 then that Lender or Increase Lender shall be treated for the purposes of this Agreement (including by each Obligor) as if it is not a Qualifying Lender until such time as it notifies the Agent which category applies (and the Agent, upon receipt of such notification, shall inform the Company). For the avoidance of doubt, the documentation or Increase Confirmation which a Lender or an Increase Lender executes on becoming a Party as a Lender or an Increase Lender shall not be invalidated by any failure of a Lender to comply with this Clause 16.6.

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16.7

Stamp taxes

The Company shall pay and, within five (5) Business Days of demand, indemnify each Finance Party against any cost, loss or liability that Finance Party incurs in relation to all stamp duty, registration, documentary, excise, transfer and other similar Taxes payable in respect of any Finance Document. This Clause 16.7 shall not apply in respect of any stamp duty, registration, documentary, excise, transfer or other similar Taxes payable in respect of an assignment or transfer by a Finance Party of any of its rights or obligations under a Finance Document unless such assignment or transfer (i) is entered into at the request of an Obligor, or (ii) occurs following an Event of Default which is continuing.

16.8

VAT

(a)

All amounts expressed to be payable under a Finance Document by any Party to a Finance Party which (in whole or in part) constitute the consideration for any supply for VAT purposes are deemed to be exclusive of any VAT which is chargeable on that supply, and accordingly, subject to paragraph (b) below, if VAT is or becomes chargeable on any supply made by any Finance Party to any Party under a Finance Document and such Finance Party is required to account to the relevant tax authority for the VAT, that Party must pay to such Finance Party (in addition to and at the same time as paying any other consideration for such supply) an amount equal to the amount of the VAT (and such Finance Party must promptly provide an appropriate VAT invoice to that Party).

(b)

If VAT is or becomes chargeable on any supply made by any Finance Party (the "Supplier") to any other Finance Party (the "Recipient") under a Finance Document, and any Party other than the Recipient (the "Relevant Party") is required by the terms of any Finance Document to pay an amount equal to the consideration for that supply to the Supplier (rather than being required to reimburse or indemnify the Recipient in respect of that consideration):

(i)

(where the Supplier is the person required to account to the relevant tax authority for the VAT) the Relevant Party must also pay to the Supplier (at the same time as paying that amount) an additional amount equal to the amount of the VAT. The Recipient must (where this paragraph (i) applies) promptly pay to the Relevant Party an amount equal to any credit or repayment the Recipient receives from the relevant tax authority which the Recipient reasonably determines relates to the VAT chargeable on that supply; and

(ii)

(where the Recipient is the person required to account to the relevant tax authority for the VAT) the Relevant Party must promptly, following demand from the Recipient, pay to the Recipient an amount equal to the VAT chargeable on that supply but only to the extent that the Recipient reasonably determines that it is not entitled to credit or repayment from the relevant tax authority in respect of that VAT.

(c)

Where a Finance Document requires any Party to reimburse or indemnify a Finance Party for any cost or expense, that Party shall reimburse or indemnify (as the case may be) such Finance Party for the full amount of such cost or expense, including such part

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thereof as represents VAT, save to the extent that such Finance Party reasonably determines that it is entitled to credit or repayment in respect of such VAT from the relevant tax authority.

(d)

Any reference in this Clause 16.8 to any Party shall, at any time when such Party is treated as a member of a group for VAT purposes, include (where appropriate and unless the context otherwise requires) a reference to the person who is treated at that time as making the supply, or (as appropriate) receiving the supply, under the grouping rules (provided for in article 11 of Council Directive 2006/112/EC as amended (or as implemented by any relevant member state of the European Union) so that reference to a Party shall be construed as a reference to that Party or the relevant group or unity (or fiscal unity) of which that Party is a member for VAT purposes at the relevant time or the relevant representative member (or representative or head) of that group or unity at the relevant time (as the case may be).

(e)

In relation to any supply made by a Finance Party to any Party under a Finance Document, if reasonably requested by such Finance Party, that Party must promptly provide such Finance Party with details of that Party's VAT registration and such other information as is reasonably requested in connection with such Finance Party's VAT reporting requirements in relation to such supply.

16.9

FATCA information

(a)

Subject to paragraph (c) below, each Party shall, within ten (10) Business Days of a reasonable request by another Party:

(i)

confirm to that other Party whether it is:

(A)

a FATCA Exempt Party; or

(B)

not a FATCA Exempt Party;

(ii)

supply to that other Party such forms, documentation and other information relating to its status under FATCA as that other Party reasonably requests for the purposes of that other Party's compliance with FATCA; and

(iii)

supply to that other Party such forms, documentation and other information relating to its status as that other Party reasonably requests for the purposes of that other Party's compliance with any other applicable law or regulation implementing similar arrangements for the international exchange of tax or financial information between jurisdictions.

(b)

If a Party confirms to another Party pursuant to paragraph (a)(i) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not or has ceased to be a FATCA Exempt Party, that Party shall notify that other Party reasonably promptly.

(c)

Paragraph (a) above shall not oblige any Party to do anything, which would or might in its reasonable opinion constitute a breach of:

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(i)

any law or regulation;

(ii)

any fiduciary duty; or

(iii)

any duty of confidentiality.

(d)

If a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in accordance with paragraph (a)(i) or (a)(ii) above (including, for the avoidance of doubt, where paragraph (c) above applies), then such Party shall be treated for the purposes of the Finance Documents (and payments under them) as if it is not a FATCA Exempt Party until such time as the Party in question provides the requested confirmation, forms, documentation or other information.

(e)

If a Borrower is a US Tax Obligor or the Agent reasonably believes that its obligations under FATCA or any other applicable law or regulation require it, each Lender shall, within ten Business Days of:

(i)

where an Original Borrower is a US Tax Obligor and the relevant Lender is an Original Lender, the date of this Agreement;

(ii)

where a Borrower is a US Tax Obligor on a date on which any other Lender becomes a Party as a Lender, that date;

(iii)

the date a new US Tax Obligor accedes as a Borrower; or

(iv)

where a Borrower is not a US Tax Obligor, the date of a request from the Agent,

supply to the Agent:

(A)

a withholding certificate on Form W-8, Form W-9 or any other relevant form; or

(B)

any withholding statement or other document, authorisation or waiver as the Agent may require to certify or establish the status of such Lender under FATCA or that other law or regulation.

(f)

The Agent shall provide any withholding certificate, withholding statement, document, authorisation or waiver it receives from a Lender pursuant to paragraph (e) above to the relevant Borrower.

(g)

If any withholding certificate, withholding statement, document, authorisation or waiver provided to the Agent by a Lender pursuant to paragraph (e) above is or becomes materially inaccurate or incomplete, that Lender shall promptly update it and provide such updated withholding certificate, withholding statement, document, authorisation or waiver to the Agent unless it is unlawful for the Lender to do so (in which case the Lender shall promptly notify the Agent). The Agent shall provide any such updated withholding certificate, withholding statement, document, authori­sation or waiver to the relevant Borrower.

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(h)

The Agent may rely on any withholding certificate, withholding statement, document, authorisation or waiver it receives from a Lender pursuant to paragraph (e) or (g) above without further verification. The Agent shall not be liable for any action taken by it under or in connection with paragraphs (e), (f) or (g) above.

16.10

FATCA Deduction

(a)

Each Party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no Party shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction.

(b)

Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such FATCA Deduction), notify the Party to whom it is making the payment and, in addition, shall notify the Company and the Agent and the Agent shall notify the other Finance Parties.

17.

INCREASED COSTS

17.1

Increased Costs

(a)

Subject to Clause 17.3 (Exceptions) the Company shall, within five (5) Business Days of a demand by the Agent pay for the account of a Finance Party the amount of any Increased Costs incurred by that Finance Party or any of its Affiliates as a result of

(i)

the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation;

(ii)

Compliance with any law or regulation made after the date of this Agreement; or

(iii)

the implementation of application of, or compliance with, Basel III, CRD IV or the Dodd-Frank, or any law or regulation that implements or applies Basel III, CRD IV or the Dodd-Frank.

(b)

In this Agreement

"Basel III" means:

(i)

the agreements on capital requirements, a leverage ratio and liquidity standards contained in "Basel III: A global regulatory framework for more resilient banks and banking systems", "Basel III: International framework for liquidity risk mea­su­rement, standards and monitoring" and "Guidance for national autho­rities operating the countercyclical capital buffer" published by the Basel Committee on Banking Supervision in December 2010, each as amended, supplemented or restated as of the date of this Agreement;

(ii)

the rules for global systemically important banks contained in "Global systemically important banks: assessment methodology and the additional loss

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absorbency requirement Rules text" published by the Basel Committee on Banking Supervision in November 2011, as amended, supplemented or restated as of the date of this Agreement;

(iii)

any further guidance or standards published by the Basel Committee on Banking Supervision relating to "Basel III" before the date of this Agreement; and

(iv)

the capital requirements specified in (A) Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC and (B) Regulation (EU) No. 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No. 648/2012.

"CRD IV" means EU CRD IV and UK CRD IV.

"Dodd-Frank" means the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements, or directives thereunder or issued in connection therewith.

"EU CRD IV" means

(i)

Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms; and

(ii)

the capital requirements specified in (A) Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC and (B) Regulation (EU) No. 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No. 648/2012.

"Increased Costs" means:

(i)

a reduction in the rate of return from a Facility or on a Finance Party's (or its Affiliate's) overall capital;

(ii)

an additional or increased cost; or

(iii)

a reduction of any amount due and payable under any Finance Document,

which is incurred or suffered by a Finance Party or any of its Affiliates to the extent that it is attributable to that Finance Party having entered into its Commitment or funding or performing its obligations under any Finance Document.

"UK CRD IV" means

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(i)

Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012 as it forms part of domestic law of the United Kingdom by virtue of the European Union (Withdrawal) Act 2018 (the Withdrawal Act);

(ii)

the law of the United Kingdom or any part of it, which immediately before IP completion day (as defined in the European Union (Withdrawal Agreement) Act 2020) implemented Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC and its implementing measures; and

(i)

direct EU legislation (as defined in the Withdrawal Act), which immediately before IP completion day (as defined in the European Union (Withdrawal Agreement) Act 2020) implemented EU CRD IV as it forms part of domestic law of the United Kingdom by virtue of the Withdrawal Act.

17.2

Increased cost claims

(a)

A Finance Party intending to make a claim pursuant to Clause 17.1 (Increased costs) shall notify the Agent of the event giving rise to the claim, following which the Agent shall promptly notify the Borrowers.

(b)

Each Finance Party shall, as soon as practicable after a demand by the Agent, provide a certificate confirming the amount of its Increased Costs and provide the Borrowers with an reasonably detailed calculation of such amount and the event giving rise to the relevant Increased Costs, provided that no Finance Party shall be obliged to disclose any confidential or sensitive information or to breach any applicable law or regulation.

(c)

No Finance Party may claim Increased Costs which have arisen more than 120 days prior to the date the relevant notice by that Finance Party to the Agent has been served. The Company is under no obligation to pay such Increased Costs after the expiry of such 120 days' period.

17.3

Exceptions

(a)

Clause 17.1 (Increased costs) does not apply to the extent any Increased Cost is:

(i)

attributable to a Tax Deduction required by law to be made by an Obligor;

(ii)

attributable to a FATCA Deduction required to be made by a Party;

(iii)

compensated for by Clause 16.4 (Tax indemnity) (or would have been compensated for under Clause 16.4 (Tax indemnity) but was not so compensated solely because any of the exclusions in paragraph (b) of Clause 16.4 (Tax indemnity) applied);

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(iv)

attributable to the implementation or application of or compliance with the "International Convergence of Capital Measurement and Capital Standards, a Revised Framework" published by the Basel Committee on Banking Supervision in June 2004 in the form existing on the date of this Agreement (but excluding any amendment arising out of Basel III unless otherwise excluded under paragraph (v) below) ("Basel II") or any other law or regulation which imple­ments Basel II (whether such implementation, application or compliance is by a government, regulator, Finance Party or any of its Affiliates);

(v)

attributable to the implementation or application of or compliance with Basel III or CRD IV or any law or regulation that implements or applies Basel III or CRD IV (unless, for the avoidance of doubt, attributable to any change or amendment of Basel III, CRD IV or any law or regulation that implements or applies Basel III or CRD IV after the date of this Agreement); or

(vi)

attributable to the breach by the relevant Finance Party or its Affiliates of any law or regulation.

(b)

In this Clause 17.3, a reference to a "Tax Deduction" has the same meaning given to that term in Clause 16.1 (Definitions).

18.

OTHER INDEMNITIES

18.1

Currency indemnity

(a)

If any sum due from an Obligor under the Finance Documents (a "Sum"), or any order, judgment or award given or made in relation to a Sum, has to be converted from the currency (the "First Currency") in which that Sum is payable into another currency (the "Second Currency") for the purpose of:

(i)

making or filing a claim or proof against that Obligor;

(ii)

obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings,

that Obligor shall as an independent obligation, within five (5) Business Days of demand, indemnify each Finance Party to whom that Sum is due against any cost, loss or liability arising out of or as a result of the conversion including any discrepancy between (A) the rate of exchange used to convert that Sum from the First Currency into the Second Currency and (B) the rate or rates of exchange available to that person at the time of its receipt of that Sum.

(b)

Each Obligor waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency or currency unit other than that in which it is expressed to be payable.

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18.2

Other indemnities

The Company shall (or shall procure that an Obligor will), within five (5) Business Days of demand, indemnify each Finance Party against any cost, loss or liability incurred by that Finance Party as a result of:

(a)

the occurrence of any Event of Default;

(b)

a failure by an Obligor to pay any amount due under a Finance Document on its due date, including without limitation, any cost, loss or liability arising as a result of Clause 30 (Sharing among the Finance Parties);

(c)

funding, or making arrangements to fund, its participation in a Loan requested by a Borrower in a Utilisation Request but not made by reason of the operation of any one or more of the provisions of this Agreement (other than by reason of default or negligence by that Finance Party alone); or

(d)

a Loan (or part of a Loan) not being prepaid in accordance with a notice of prepayment given by a Borrower or the Company.

18.3

Indemnity to the Agent

The Company shall promptly indemnify the Agent against any cost, loss or liability incurred by the Agent (acting reasonably) as a result of:

(a)

investigating any event which it reasonably believes is a Default;

(b)

acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised; or

(c)

instructing lawyers, accountants, tax advisers, surveyors or other professional advisers or experts as permitted under this Agreement.

19.

MITIGATION BY THE LENDERS

19.1

Mitigation

(a)

Each Finance Party shall, in consultation with the Company, take all reasonable steps to mitigate any circumstances which arise and which would result in any amount becoming payable under or pursuant to, or cancelled pursuant to, any of Clause 11.1 (Illegality), Clause 16 (Tax gross-up and indemnities) or Clause 17 (Increased Costs) including (but not limited to) transferring its rights and obligations under the Finance Documents to another Affiliate or Facility Office.

(b)

Paragraph (a) above does not in any way limit the obligations of any Obligor under the Finance Documents.

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19.2

Limitation of liability

(a)

The Company shall promptly indemnify each Finance Party for all costs and expenses reasonably incurred by that Finance Party as a result of steps taken by it under Clause 19.1 (Mitigation).

(b)

A Finance Party is not obliged to take any steps under Clause 19.1 (Mitigation) if, in the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it.

20.

COSTS AND EXPENSES

20.1

Transaction expenses

The Company shall promptly on demand pay the Agent and the Arranger the amount of all costs and expenses (including pre-agreed legal fees, and subject to agreed budgets and caps) reasonably incurred by any of them in connection with the negotiation, preparation, printing, execution and syndication of:

(a)

this Agreement and any other documents referred to in this Agreement; and

(b)

any other Finance Documents executed after the date of this Agreement.

20.2

Amendment costs

If

(a)

an Obligor requests an amendment, waiver or consent; or

(b)

an amendment is required pursuant to Clause 31.10 (Change of currency) or Clause 37.7 (Replacement of Screen Rate),

the Company shall, within five (5) Business Days of demand, reimburse the Agent for the amount of all costs and expenses (including pre-agreed legal fees, and subject to agreed budgets and caps) reasonably incurred by the Agent in responding to, evaluating, negotiating or complying with that request or requirement.

20.3

Enforcement costs

The Company shall, within five (5) Business Days of demand, pay to each Finance Party the amount of all costs and expenses (including legal fees) incurred by that Finance Party in connection with the enforcement of, or the preservation of any rights under, any Finance Document.

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SECTION 7

GUARANTEE

21.

GUARANTEE AND INDEMNITY

21.1

Guarantee (Garantie) and indemnity (Ausfallhaftung)

Each Guarantor irrevocably and unconditionally jointly and severally (gesamtschuldnerisch):

(a)

guarantees (garantiert) by way of an independent payment obligation (selbständiges Zahlungsversprechen) to each Finance Party to pay to that Finance Party any amount of principal, interest, costs, expenses or other amount under or in connection with the Finance Documents that has not been fully and irrevocably paid by a Borrower; the payment shall be due (fällig) within five (5) Business Days of a written demand by a Finance Party (or the Agent on its behalf) stating the sum demanded from that Guarantor and that such sum is an amount of principal, interest, costs, expenses or other amount under or in connection with the Finance Documents that has not been fully and irrevocably paid by a Borrower; and

(b)

undertakes vis-à-vis each Finance Party to indemnify (schadlos halten) that Finance Party against any cost, loss or liability suffered by that Finance Party if any obligation of a Borrower under or in connection with any Finance Document or any obligation guaranteed by it is or becomes unenforceable, invalid or illegal. The amount of the cost, loss or liability shall be equal to the amount which that Finance Party would otherwise have been entitled to recover (Ersatz des positiven Interesses) and that claim shall be due (fällig) within five (5) Business Days of a written demand by that Finance Party (or the Agent on its behalf).

For the avoidance of doubt this guarantee and indemnity does not constitute a guarantee upon first demand (Garantie auf erstes Anfordern) and, in particular, receipt of such written demand shall not preclude any rights and/or defences the Guarantor may have with respect to any payment requested by a Finance Party (or the Agent on its behalf) under this guarantee and indemnity.

21.2

Continuing and independent guarantee and indemnity

This guarantee and indemnity is independent and separate from the obligations of any Borrower and is a continuing guarantee and indemnity which will extend to the ultimate balance of sums payable by any Borrower under the Finance Documents, regardless of any intermediate payment or discharge in whole or in part.

The guarantee and indemnity shall extend to any additional obligations of a Borrower resul­ting from any amendment, novation, supplement, extension, restatement or replace­ment of any Finance Documents, including without limitation any extension of or increase in any facility or the addition of a new facility under any Finance Document.

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21.3

Reinstatement

If any payment by an Obligor or any discharge given by a Finance Party (whether in respect of the obligations of any Obligor or any security for those obligations or otherwise) is avoided or reduced as a result of insolvency or any similar event:

(a)

the liability of each Obligor shall continue as if the payment, discharge, avoidance or reduction had not occurred; and

(b)

each Finance Party shall be entitled to recover the value or amount of that security or payment from each Obligor, as if the payment, discharge, avoidance or reduction had not occurred.

21.4

Excluded defences

(a)

The obligations of each Guarantor under this Clause 21 will not be affected by an act, omission, matter or thing which relates to the principal obligation (or purported obligation) of any Borrower and which would reduce, release or prejudice any of its obligations under this Clause 21, including any personal defences of any Borrower (Einreden des Hauptschuldners) or any right of revocation (Anfechtung) or set-off (Aufrech­nung) of any Borrower.

(b)

The obligations of each Guarantor under this Clause 21 are independent from any other security or guarantee which may have been or will be given to the Finance Parties. In particular, the obligations of each Guarantor under this Clause 21 will not be affected by any of the following:

(i)

the release of, or any time (Stundung), waiver or consent granted to, any other Obligor from or in respect of its obligations under or in connection with any Finance Document;

(ii)

the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor or any other person or any failure to realise the full value of any security;

(iii)

any incapacity or lack of power, authority or legal personality of or dissolution or a deterioration of the financial condition of any other Obligor; or

(iv)

any unenforceability, illegality or invalidity of any obligation of any other Obligor under any Finance Document.

(c)

For the avoidance of doubt nothing in this Clause 21 shall preclude any defences that any Guarantor (in its capacity as Guarantor only) may have against a Finance Party that the guarantee and indemnity does not constitute its legal, valid, binding or enforceable obligations.

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21.5

Immediate recourse

No Finance Party will be required to proceed against or enforce any other rights or security or claim payment from any person before claiming from that Guarantor under this Clause 21. This applies irrespective of any provision of a Finance Document to the contrary.

21.6

Appropriations

Until all amounts which may be or become payable by the Obligors under or in connection with the Finance Documents have been irrevocably paid in full, each Finance Party may:

(a)

refrain from applying or enforcing any other moneys, security or rights held or received by that Finance Party in respect of those amounts, or apply and enforce the same in such manner and order as it sees fit (whether against those amounts or otherwise) and no Guarantor shall be entitled to the benefit of the same; and

(b)

hold in an interest-bearing suspense account any moneys received from any Guarantor or on account of any Guarantor's liability under this Clause 21.

21.7

Deferral of Guarantors' rights

Until all amounts which may be or become payable by the Obligors under or in connection with the Finance Documents have been irrevocably paid in full and unless the Agent otherwise directs, no Guarantor will exercise any rights which it may have by reason of performance by it of its obligations under the Finance Documents or by reason of any amount being payable, or liability arising, under this Clause 21:

(a)

to be indemnified by an Obligor;

(b)

to claim any contribution from any other guarantor of any Obligor's obligations under the Finance Documents;

(c)

to exercise any right of set-off against any Obligor; and/or

(d)

to take the benefit (in whole or in part and whether by way of legal subrogation or otherwise) of any rights of the Finance Parties under the Finance Documents or of any other guarantee or security taken pursuant to, or in connection with, the Finance Documents by any Finance Party.

If a Guarantor receives any benefit, payment or distribution in relation to such rights it shall hold that benefit, payment or distribution to the extent necessary to enable all amounts which may be or become payable to the Finance Parties by the Obligors under or in connection with the Finance Documents to be repaid in full on trust for the Finance Parties and shall promptly pay or transfer the same to the Agent or as the Agent may direct for application in accordance with Clause 31 (Payment mechanics).

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21.8

Release of Guarantors' right of contribution

If any Guarantor (a "Retiring Guarantor") ceases to be a Guarantor in accordance with the terms of the Finance Documents for the purpose of any sale or other disposal of that Retiring Guarantor then on the date such Retiring Guarantor ceases to be a Guarantor:

(a)

that Retiring Guarantor is released by each other Guarantor from any liability (whether past, present or future and whether actual or contingent) to make a contribution to any other Guarantor arising by reason of the performance by any other Guarantor of its obligations under the Finance Documents; and

(b)

each other Guarantor waives any rights it may have by reason of the performance of its obligations under the Finance Documents to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Finance Parties under any Finance Document or of any other security taken pursuant to, or in connection with, any Finance Document where such rights or security are granted by or in relation to the assets of the Retiring Guarantor.

21.9

Additional security

This guarantee is in addition to and is not in any way prejudiced by any other guarantee or security now or subsequently held by any Finance Party.

21.10

US Guarantors Guarantee Limitations

Notwithstanding any term or provision of this Clause 21 or any other term in this Agreement or any Finance Document, the liability under this Clause of each Guarantor that is organized in the US, without the requirement of amendment or any other formality, will be limited to a maximum aggregate amount equal to the largest amount that would not render its liability hereunder subject to avoidance as a fraudulent transfer or conveyance under Section 548 of Title 11 of the US Bankruptcy Code or any applicable provision of comparable state law, in each case after giving effect to all other liabilities of such Guarantor, contingent or otherwise, that are relevant under the Fraudulent Transfer Laws and after giving effect as assets to the value (as determined under the applicable provisions of the Fraudulent Transfer Laws) of any rights to subrogation, reimbursement, indemnification or contribution of such Guarantor pursuant to applicable law or pursuant to the terms of any agreement.

For purposes of this Clause, "Fraudulent Transfer Law" shall mean any applicable US bankruptcy and State fraudulent transfer and conveyance statute and any related case law, and terms used in this Clause 21.10 are to be construed in accordance with the Fraudulent Transfer Laws.

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SECTION 8

REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT

22.

REPRESENTATIONS

Each Obligor makes the representations and warranties set out in this Clause 22 to each Finance Party on the date of this Agreement.

22.1

Status

It is duly established and validly existing under the law of its jurisdiction of incorporation and has the power and authority to own its assets and carry on its business as it is being conducted.

22.2

Binding obligations

The obligations expressed to be assumed by it in each Finance Document are, subject to the Legal Reservations, legal, valid, binding and enforceable obligations.

22.3

Non-conflict with other obligations

The entry into and performance by it of, and the transactions contemplated by, the Finance Documents do not and will not conflict with:

(a)

any law or regulation of its jurisdiction of incorporation applicable to it;

(b)

its constitutional documents; or

(c)

any agreement or instrument binding upon it or any of its assets,

in each case of (a) to (c) above, to the extent such conflict has or is reasonably likely to have a Material Adverse Effect.

22.4

Power and authority

It has the power to enter into, perform and deliver, and has taken all necessary action to authorise its entry into, performance and delivery of, the Finance Documents to which it is a party and the transactions contemplated by those Finance Documents.

22.5

Validity and admissibility in evidence

All Authorisations required:

(a)

to enable it lawfully to enter into, exercise its rights and comply with its obligations in the Finance Documents to which it is a party; and

(b)

to make the Finance Documents to which it is a party admissible in evidence in its jurisdiction of incorporation,

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have been (or, by the first Utilisation Date, will have been) obtained or effected and are in full force and effect (or, in each case, will be when required).

22.6

Governing law and enforcement

Subject to the Legal Reservations:

(a)

the choice of German law as the governing law of the Finance Documents will be recognised and enforced in its jurisdiction of incorporation; and

(b)

any judgment obtained in Germany in relation to a Finance Document will be recognised and enforced in its jurisdiction of incorporation.

22.7

Deduction of Tax

It is not required to make any Tax Deduction (as defined in Clause 16.1 (Definitions)) from any payment it may make under any Finance Document to a Lender which is a Qualifying Lender, subject, in case of a Lender which is a Qualifying Lender solely by reason of being a Treaty Lender, to the completion of the relevant procedural formalities.

22.8

No filing or stamp taxes

Under the law of its jurisdiction of incorporation it is not necessary that the Finance Documents be filed, recorded or enrolled with any court or other authority5 in that jurisdiction or that any stamp, registration, documentary, excise, transfer or similar tax be paid on or in relation to the Finance Documents or the transactions contemplated by the Finance Documents.

22.9

No event of default

No Event of Default is continuing or might reasonably be expected to result from the making of any Utilisation.

22.10

No misleading information

(a)

Any written factual information relating to the Group provided by the Company for the purposes of this Agreement was true and accurate in all material respects as at the date it was provided or as at the date (if any) at which it is stated.

(b)

Other than as disclosed to the Arranger prior to the date of this Agreement, nothing has occurred or been omitted from the information provided by the Company for the purposes of this Agreement and no information has been given or withheld that results in the information provided by the Company for the purposes of this Agreement being untrue or misleading in any material respect.


5

Note: Please note our shared understanding that this does not cover any potential DAC6 or similar reporting.

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22.11

Financial statements

(a)

The Company's Original Financial Statements were prepared in accordance with GAAP consistently applied except to the extent that the accompanying notes provide a descrip­tion of a different treatment.

(b)

The Company's Original Financial Statements fairly present the results of the financial position as at the date to which they relate and its results of operations during the relevant period.

(c)

There has been no material adverse change in the Group's business or financial condition since 31 December 2020.

22.12

Pari passu ranking

Its payment obligations under this Agreement rank at least pari passu with the claims of all its other unsecured and unsubordinated creditors, except for obligations mandatorily preferred by law.

22.13

ERISA compliance

(a)

Each Pension Plan is in compliance with the applicable provisions of ERISA, the Code and other federal or state laws, except where a failure to be in compliance would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Each Pension Plan that is intended to qualify under Section 401(a) of the Code has received a favourable determination or opinion letter from the IRS or an application for such a letter is currently pending before the IRS with respect thereto and, to the best knowledge of responsible officers of the Obligors, nothing has occurred that would prevent, or cause the loss of, such qualification. Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, the Obligors and each of its ERISA affiliates have made all required contributions to each Pension Plan subject to Section 412 of the Code, and no application for a funding waiver or an extension of any amortization period pursuant to Section 412 of the Code has been made with respect to such Pension Plan.

(b)

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

(c)

Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (A) no ERISA Event has occurred or is reasonably expected to occur with respect to an Obligor and its Subsidiaries; (B) no Pension Plan is in "at risk" status under Section 430(i)(4) of the Code or Section 303(i)(4) of ERISA; (C) neither an Obligor nor any of its ERISA affiliates has incurred, or reasonably expects to incur, any liability under Title IV of ERISA with respect to any Pension Plan (other than premiums due and not delinquent under Section 4007 of ERISA); (D) neither an Obligor

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nor any of its ERISA affiliates has incurred, or reasonably expects to incur, any liability (and no event has occurred that, with the giving of notice under Section 4219 of ERISA, would result in such liability) under Section 4201 of ERISA with respect to a Multiemployer Plan; and (E) neither an Obligor nor any of its ERISA affiliates has engaged in a transaction that would reasonably be expected to subject an Obligor and its Subsidiaries to Sections 4069 or 4212(c) of ERISA.

22.14

Margin regulations; Investment Company Act

(a)

The Obligors are not engaged principally, in the business of purchasing or carrying "margin stock" (within the meaning of Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying margin stock. Following the application of the proceeds of each Utilisation, not more than twenty-five percent (25%) of the value of the assets subject to the provisions of the negative pledge undertaking below or subject to any restriction contained in any agreement or instrument between a Borrower and any Lender or any Affiliate of any Lender relating to Financial Indebtedness will be margin stock.

(b)

None of the Obligors, any person controlling an Obligor, or any Subsidiary is or is required to be registered as an "investment company" under the Investment Company Act of 1940.

(c)

No proceeds of the Loans will be used directly or indirectly for any purpose that entails a violation of any regulation of the Federal Reserve Board including Regulations T, U and X.

22.15

Anti-Corruption Laws, Anti-Money Laundering Laws and Sanctions

(a)

Except to the extent disclosed in its reports filed with or furnished to the SEC, or any Governmental Authority succeeding to any of its principal functions, each member of Group has conducted its businesses in compliance in all material respects with Anti-Corruption Laws and Anti-Money Laundering Laws and have instituted and maintained policies and procedures reasonably designed to promote compliance with such Anti-Corruption Laws and Anti-Money Laundering Laws.

(b)

No Obligor, nor any of its respective subsidiaries, nor, to the best knowledge of the Obligors, any of their subsidiaries' directors, officers, employees, agents or controlled affiliates or other person acting on behalf, at the direction or in the interest of an Obligor or any of their respective Subsidiaries is a person that is a Sanction Target which is conducting any type of activity in breach of Sanctions or a target person under any Sanctions list.

(c)

Each Obligor has instituted and maintains policies and procedures designed to prevent Sanctions violations by such Obligor and its respective subsidiaries.

(d)

No Obligor has or intends to have any business operations or other dealings in breach of any Sanctions:

(i)

in any Sanctioned Country;

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(ii)

with any Specially Designated National ("SDN") on OFAC's SDN list or with a designated person targeted by asset freeze sanctions imposed by the UNSC, EU or HMT; or

(iii)

involving commodities or services of a Sanctioned Country origin or shipped to, through, or from a Sanctioned Country, or on Sanctioned Country owned or registered vessels or aircraft, or finance or subsidize any of the foregoing.

Any such business operations or other dealings shall not be funded under the Facility.

22.16

German Obligors and Restricted Lenders

(a)

The representations and warranties contained in Clause 22.15 (Anti-Corruption, Anti-Money Laundering Laws and Sanctions) are only given by, and/or (as applicable) shall only apply to, any German Relevant Person or any other member of the Group bound by any applicable statutory anti-boycott law or regulation insofar as the giving of and compliance with such representations and warranties do not result in a violation of or conflict with section 7 of the German Foreign Trade Regulation (Außenwirtschaftsverordnung) (in conjunction with section 4 paragraph 1 no. 3 foreign trade law (AWG) (Außenwirtschaftsgesetz)), any provision of Council Regulation (EC) 2271/1996 or any similar applicable anti-boycott law or regulation.

(b)

In relation to each Restricted Lender, the representations and warranties contained in Clause 22.15 (Anti-Corruption, Anti-Money Laundering Laws and Sanctions) shall only apply for the benefit of that Restricted Lender to the extent that the sanctions provisions would not result in (i) any violation of, conflict with or liability under EU Regulation (EC) 2271/96 or (ii) a violation or conflict with section 7 foreign trade rules (AWV) (Außenwirtschaftsverordnung) (in connection with section 4 paragraph 1 no. 3 foreign trade law (AWG) (Außenwirtschaftsgesetz)) or a similar anti-boycott statute applicable to the relevant Restricted Lender.

(c)

In connection with any amendment, waiver, determination or direction relating to any part of this Clause 22.16, each Restricted Lender must notify the Agent (each such notice, an "Exclusion Notice") if its Commitments shall be excluded in connection with any actual or potential amendment, waiver, determination or direction relating to any part of the representations and warranties contained in Clause 22.15 (Anti-Corruption, Anti-Money Laundering Laws and Sanctions) of which it does not have the benefit pursuant to paragraph (b) for the purpose of determining whether the consent of the Lenders has been obtained or whether the determination or direction by the Lenders has been made.

(d)

Absent an Exclusion Notice by a Restricted Lender the Agent is not permitted to exclude such Restricted Lender for the purpose of determining whether the consent of the Lenders has been obtained or whether the determination or direction by the Lenders has been made.

(e)

If a Restricted Lender has not sent an Exclusion Notice it must exercise its vote in connection with any amendment, waiver, determination or direction relating to any part of the representations and warranties contained in Clause 22.15 (Anti-Corruption,

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Anti-Money Laundering Laws and Sanctions) in accordance with the relevant anti-boycott regulations applicable to the relevant Restricted Lender.

22.17

No proceedings

(a)

No litigation, arbitration or administrative proceedings of or before any court, arbitral body or agency which are reasonably likely to be adversely determined and, if so adversely determined, are reasonably likely to have a Material Adverse Effect has or have (to the best of its knowledge and belief) been started against it or threatened in writing.

(b)

No judgment or order of a court, arbitral body or agency which might reasonably be expected to have a Material Adverse Effect has (to the best of its knowledge and belief) been made against it.

22.18

Beneficial Ownership Certification

As of the date of signing of this Agreement, to the best of the knowledge of the Borrowers, the information included in any Beneficial Ownership Certification provided to any Lender on or prior to such date in connection with this Agreement is true and correct in all respects.

22.19

Repetition

(a)

The Repeated Representations shall be made by the Company on its own behalf and on behalf of the other Obligors (under a power of attorney (Vollmacht) granted to it by the Obligors pursuant to paragraph (b) below) by reference to the facts and circumstances then existing on:

(i)

the date of each Utilisation Request, Extension Request and Increase Request; and

(ii)

in the case of an Additional Borrower, the day on which the company becomes (or it is proposed that the company becomes) an Additional Borrower.

(b)

Each Obligor (other than the Company) hereby empowers (bevollmächtigt) the Company to make the Repeated Representations on its behalf as its attorney (Stellvertreter). Each Obligor (other than the Company) hereby exempts the Company from the restrictions pursuant to section 181 of the German Civil Code (Bürgerliches Gesetzbuch) (or comparable provisions under applicable local law) for the purpose of making the Repeated Representations on its behalf as attorney (Stellvertreter).

23.

INFORMATION UNDERTAKINGS

The undertakings in this Clause 23 remain in force from the date of this Agreement for so long as any amount is outstanding under the Finance Documents or any Commitment is in force.

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23.1

Financial statements

The Company shall supply to the Agent (in electronic form for all the Lenders, if the Agent so requests):

(a)

as soon as the same become available, but in any event within 120 days after the end of the relevant financial year its audited consolidated financial statements for that financial year;

(b)

as soon as the same become available, but in any event within 180 days after the end of the relevant financial year, the audited consolidated financial statements of each Borrower (other than the Company); and

(c)

as soon as the same become available, but in any event within 90 days after the end of each of the first, second and third quarters of the relevant financial year of the Company the consolidated financial statements of the Group for that financial quarter (unless, in relation to the first and third quarter in each financial year only, the Company has, in compliance with applicable statutory law and the rules or regula­tions of the applicable stock exchange, chosen not to publish such financial statements).

23.2

Requirements as to financial statements

Each set of financial statements delivered by the Company pursuant to Clause 23.1 (Financial statements) shall be certified by a director of the relevant company as fairly presenting its financial condition as at the date as at which those financial statements were drawn up.

23.3

Information: miscellaneous

The Company shall supply to the Agent (in electronic form for all the Lenders, if the Agent so requests):

(a)

all documents dispatched by the Company to its shareholders (or any class of them) or its creditors generally at the same time as they are dispatched;

(b)

contemporaneously with the Companys public disclosure thereof, the details of any material litigation, arbitration or administrative proceedings which are reasonably likely to be adversely determined and if so adversely determined, are reasonably likely to have a Material Adverse Effect;

(c)

promptly, such further information regarding the financial condition, business and operations of any member of the Group as any Finance Party (through the Agent) may reasonably request and as required by applicable banking supervisory laws and regulation or Lenders compliance policies.

23.4

Notification of default

(a)

Each Obligor shall notify the Agent of any Default (and the steps, if any, being taken to remedy it) promptly upon becoming aware of its occurrence (unless that Obligor is aware that a notification has already been provided by another Obligor).

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(b)

Promptly upon a request by the Agent, the Company shall supply to the Agent a certificate signed by a director with sole power of representation (Einzelver­tretungsmacht) or by two directors who have joint power of representation (Gesamt­vertretungsmacht) or two senior officers on its behalf certifying that no Default is continuing (or if a Default is continuing, specifying the Default and the steps, if any, being taken to remedy it).

23.5

Direct electronic delivery by the Company or use of websites

The Company may satisfy its obligation under this Agreement to deliver any information in relation to a Finance Party by

(a)

delivering that information directly to that Finance Party in accordance with Clause 33.6 (Electronic communication); or

(b)

posting information on a Borrowers website or disclosing information through filing to the SEC.

23.6

"Know your customer" checks

(a)

If:

(i)

the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation made after the date of this Agreement;

(ii)

any change in the status of an Obligor (or of a Holding Company of an Obligor) after the date of this Agreement; or

(iii)

a proposed assignment or assignment and transfer by way of assumption of contract (Vertragsübernahme) by a Lender of any of its rights and obligations under this Agreement to a party that is not a Lender prior to such assignment or assignment and transfer by way of assumption of contract (Vertragsüber­nahme),

obliges the Agent or any Lender (or, in the case of paragraph (iii) above, any pros­pective new Lender) to comply with "know your customer" or similar identification procedures including, without limitation, the USA Patriot Act and the Beneficial Ownership Regulation in circumstances where the necessary information is not already available to it, each Obligor shall promptly upon the request of the Agent or any Lender supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent (for itself or on behalf of any Lender) or any Lender (for itself or, in the case of the event described in paragraph (iii) above, on behalf of any prospective new Lender) in order for the Agent, such Lender or, in the case of the event described in paragraph (iii) above, any prospective new Lender to carry out and be satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents.

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(b)

Promptly following any request therefor, the Obligors shall provide information and documentation reasonably requested by the Agent or any Lender for purposes of compliance with applicable know your customer requirements under the USA Patriot Act, the Beneficial Ownership Regulation or other applicable anti-money laundering laws.

(c)

Each Lender shall promptly upon the request of the Agent supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent (for itself) in order for the Agent to carry out and be satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents.

(d)

The Company shall, by not less than ten (10) Business Days' prior written notice to the Agent, notify the Agent (which shall promptly notify the Lenders) of its intention to request that one of its Subsidiaries becomes an Additional Borrower pursuant to Clause 27 (Changes to the Obligors).

(e)

Following the giving of any notice pursuant to paragraph (d) above, if the accession of such Additional Borrower obliges the Agent or any Lender to comply with "know your customer" or similar identification procedures in circumstances where the necessary information is not already available to it, the Company shall promptly upon the request of the Agent or any Lender supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent (for itself or on behalf of any Lender) or any Lender (for itself or on behalf of any prospective new Lender) in order for the Agent or such Lender or any prospective new Lender to carry out and be satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations pursuant to the accession of such Subsidiary to this Agreement as an Additional Borrower.

(f)

Each Lender subject to the USA Patriot Act hereby notifies each Obligor that, pursuant to the requirements of the USA Patriot Act, it may be required to obtain, verify and record information that identifies such Obligor, which information includes the name and address of such Obligor and other information that will allow such Lender to identify such Obligor in accordance with the USA Patriot Act.

24.

GENERAL UNDERTAKINGS

The undertakings in this Clause 24 remain in force from the date of this Agreement for so long as any amount is outstanding under the Finance Documents or any Commitment is in force.

24.1

Authorisations

Each Obligor shall promptly obtain comply with and maintain any approvals or licenses and make any necessary filings required under the laws of its jurisdiction of incorporation and any law of the place where a payment is made, in each case, as applicable to enable it to perform its obligations under the Finance Documents and to ensure the legality, validity,

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enforceability or admissibility in evidence in its jurisdiction of incorporation of the Finance Documents.

24.2

Compliance with laws

Each Obligor shall comply with all laws, in each case as applicable to such Obligor and if failure to do so would reasonably likely to have a Material Adverse Effect.

24.3

Negative pledge

(a)

No Obligor shall (and the Company shall ensure that no other member of the Group will) create or permit to subsist any Security securing Financial Indebtedness over any of its assets.

(b)

Paragraph (a) above does not apply to:

(i)

any Security existing as of the date of this Agreement;

(ii)

any Security arising by operation of law or which has to be provided by operation of law or by order of a competent court or authority;

(iii)

any Security arising under general terms or business conditions or in the ordinary course of trading;

(iv)

any Security over or affecting any asset acquired by any member of the Group if (A) the Security was not created in contemplation of the acquisition of that asset by the member of the Group, (B) the principal amount secured has not been increased in contemplation of, or since the acquisition of that asset by the member of the Group, and (C) the Security is removed or discharged within twelve (12) months of the date of acquisition of such asset;

(v)

any Security over or affecting any asset of any company which becomes a member of Group after the date of this Agreement if (A) the Security was not created in contemplation of the acquisition of that company, (B) the principal amount secured has not been increased in contemplation of, or since the acquisition of that company, and (C) the Security is removed or discharged within twelve (12) months of the date of acquisition of such asset;

(vi)

any retention of title, hire purchase or conditional sale arrangement or arrangements having similar effect in respect of goods supplied to any member of the Group in the ordinary course of trading;

(vii)

any cash cover or other Security to the extent customarily provided relating to any hedging, swap or derivatives transaction of non-speculative nature, surety, performance bond, insurance arrange­ment or guarantee facility;

(viii)

any Security created or subsisting to secure any obligations incurred in order to comply with the requirements of laws relating to worker's compensation, pensions, unem­ploy­ment insurance or other social security instruments or

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legislation, including section 8a of the German Altersteilzeitgesetz and/or sections 7b or 7e of the German Sozialgesetzbuch IV);

(ix)

any Security created over the shares of any joint venture entity owned by any member of the Group to secure any obligations of that member of the Group to the other owners of shares in such joint venture entity;

(x)

any Security over assets held in Clearstream, Euroclear or DTC or any other securities depository or any clearing house in favour of such securities depository or clearing house;

(xi)

any Security over assets securing Financial Indebtedness incurred by any member of the Group located in jurisdictions (A) in which it is legally or commercially not viable for the relevant member of the Group to participate in cash pooling arrangements with, or to be funded by, the Company or (B) where there are restrictions to the transfer or movement of funds from or to the Company;

(xii)

any customary Security in respect of any Lease;

(xiii)

any customary Security in respect of receivables financings, including in respect of the A/R Facility;

(xiv)

any Security in respect of cash management arrangements;

(xv)

any Security in respect of investments of captive insurance companies and their subsidiaries in connection with insurance arrangements subject to customary and prevailing market standards;

(xvi)

any mortgages, land charges or other customary Security over, or in connection with, real estate and related assets created or subsisting to secure the financing or refinancing of such real estate;

(xvii)

any Security with the consent of the Majority Lenders; or

(xviii)

any other Security in respect of any asset of any member of the Group which secures outstanding Financial Indebtedness of not more than fifteen (15) per cent. of the total Financial Indebtedness of the Group at the time it is incurred minus the aggregate principal amount of any unsecured Subsidiary Financial Indebtedness falling under paragraph (b)(xii) of Clause 24.4 (Subsidiary Financial Indebtedness) below outstanding at such time (each as calculated by reference to the most recent audited consolidated financial statements of the Group with Security which is or was previously permitted under this exception and provided based on that permission remaining permitted for the future even if the Financial Indebtedness is reduced afterwards) at any time.

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24.4

Restriction on Subsidiaries' Financial Indebtedness

(a)

The Company shall ensure that no member of the Group (other than an Obligor or a Finance Subsidiary) will incur or allow to remain outstanding any Financial Indebtedness (the "Subsidiary Financial Indebtedness")

(b)

Paragraph (a) above does not apply to Subsidiary Financial Indebtedness:

(i)

incurred under the Finance Documents;

(ii)

owed towards another member of the Group;

(iii)

incurred by any member of the Group located in jurisdictions (A) in which it is legally or commercially not viable for the relevant member of the Group to participate in cash pooling arrangements with, or to be funded by, the Company or (B) where there are restrictions to the transfer or movement of funds from or to the Company;

(iv)

incurred in respect of any Lease;

(v)

incurred in respect of any receivables financing trans­action on market terms (including the A/R Facility);

(vi)

arising (A) in the ordinary course of business under any cash management arrangements entered into by the Company or any of its Subsi­diaries (including cash management arrangements with Fresenius SE & Co. KGaA and any of its Subsidiaries and if with Fresenius SE & Co. KGaA and any of its Subsidiaries, the clearing account has to be with Fresenius SE & Co. KGaA or any of its Subsidiaries) or (B) under credit arrange­ments with Fresenius SE & Co. KGaA up to a nominal amount of EUR 600,000,000;

(vii)

arising under customer deposits and advance payments received from customers for goods purchased in the ordinary course of business;

(viii)

arising under any derivative transaction to hedge actual or projected interest, currency or other exposures arising in the ordinary course of business of a member of the Group and not for speculative purposes;

(ix)

incurred under any (directly or indirectly) publicly subsidised loans (Förderdar­lehen), loans made by public financial institutions (including, without limitation, the European Investment Bank) and customary export financings, up to an aggregate maximum amount of EUR 300,000,000 (or its equi­valent in any other currency);

(x)

incurred by any entity which becomes a member of the Group after the date of this Agreement, where (A) such Financial Indebtedness was incurred prior to the date on which such entity became a member of the Group, (B) the principal amount of such Financial Indebtedness has not been increased in contemplation of such entity becoming or since such entity became a member of the Group,

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and (C) such Financial Indebtedness is repaid or refinanced within twelve (12) months of the date such entity became a member of the Group;

(xi)

incurred with the consent of the Majority Lenders; or

(xii)

which is not otherwise permitted under the above paragraphs and does not (when aggregated with the amount of any other Financial Indebtedness of any member of the Group) exceed at the time it is incurred fifteen (15) per cent. of the total Financial Indebtedness of the Group (as calculated by reference to the most recent audited consolidated financial statements of the Group).

24.5

Disposals

(a)

No Obligor shall (and the Company shall ensure that no other member of the Group will) enter into a single transaction or a series of transactions (whether related or not) and whether voluntary or involuntary to sell, lease, transfer or otherwise dispose of any asset.

(b)

Paragraph (a) above does not apply to any sale, lease, transfer or other disposal:

(i)

made in the ordinary course of business of the disposing entity;

(ii)

of obsolete or redundant assets;

(iii)

in exchange for other assets comparable or superior as to type, value and quality (other than an exchange of a non-cash asset for cash);

(iv)

disposals to another member of the Group;

(v)

disposals in connection with a receivables financing transaction (including the A/R Facility);

(vi)

of cash for purposes not otherwise prohi­bited by this Agreement;

(vii)

pursuant to and/or in connection with the funding of deferred compensation (Entgeltumwandlung), long term accounts (Arbeitszeit- bzw. Langzeitkonten), part time retirement (Altersteilzeit) and related obligations;

(viii)

pursuant to and/or in connection with the funding of special purpose vehicles or trusts assuming the obligation to fulfil pension obligations of any member of the Group (commonly referred to as contractual trust arrangements) and/or pursuant to or in connection with pension fund arrangements, provided that the aggregate book value of assets disposed in reliance on this paragraph may not at any time exceed EUR 1,000,000,000 (or its equivalent in any other curren­cy/ies;

(ix)

required by law or any governmental authority or agency;

(x)

with the consent of the Majority Lenders;

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(xi)

not falling within paragraphs (i) to (x) above, where the aggregate book value of the assets disposed in reliance on this paragraph does not exceed thirty-five (35) per cent. of the total consolidated assets of the Group (as calculated by reference to the most recent audited consolidated financial statements of the Company available for the financial year immediately preceding the consum­mation of the relevant disposal with disposals which are or were previously permitted under this exception and consummated based on that permission remaining permitted for the future even if the total assets reduce afterwards) over the lifetime of this Agreement; or

(xii)

not falling within paragraphs (i) to (xi) above, where the Company demonstrates that:

(A)

the Leverage Ratio of the Group as reported by the Company for the last full financial quarter of the Company immediately preceding the consummation of the relevant disposal, would on a pro forma basis taking into account such disposal not exceed 4.45 to 1; or

(B)

the two best Credit Ratings awarded to the Company are at least equi­valent to an Investment Grade Rating for sixty (60) days after the disposal is consummated.

24.6

No change of business

The Company shall procure that no substantial change is made to the general nature of the business of the Group taken as a whole from that carried on at the date of this Agreement, provided that any change of the general nature of the business of the Group taken as a whole resulting from a disposal, that is not prohibited under this Agreement, shall not be deemed a relevant change of business under this Clause 24.6.

24.7

Merger

No Obligor shall enter into any merger other than any merger where the surviving entity is or becomes an Obligor as a result of such merger, provided that if the Company enters into a merger, the Company must be the surviving entity.

24.8

Intercompany agreements (Unternehmensverträge)

No Obligor shall (and the Company shall ensure that no other member of the Group will) enter into any intercompany agreements (Unternehmensverträge) within the meaning of sections 291, 292 German Stock Corporation Act (Aktiengesetz) other than with other members of the Group or with any Subsidiary, joint ventu­res or minority shareholdings of any member of the Group.

24.9

ERISA

Except to the extent the failure to do so would not reasonably be expected to have a Material Adverse Effect, each member of the Group shall comply with all requirements applicable to it and its property under ERISA.

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24.10

Margin regulations

The Obligors will not engage principally in the business of purchasing or carrying "margin stock" (within the meaning of Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying margin stock. Following the application of the proceeds of each Utilisation, the Obligor will cause not more than twenty-five percent (25%) of the value of the assets subject to the provisions of negative pledge undertaking above or subject to any restriction contained in any agreement or instrument between a Borrower and any Lender or any Affiliate of any Lender relating to Financial Indebtedness to be margin stock.

24.11

Anti-Corruption Laws, Anti-Money Laundering Laws and Sanctions

(a)

No Obligor shall (and the Company shall ensure that no other member of Group will) directly or indirectly use the proceeds of the Facility for any purpose which, at the time of such use, would be in breach of any applicable Anti-Corruption Laws or Anti-Money-Laundering Laws.

(b)

Each Obligor shall ensure compliance with applicable Anti-Corruption Laws and Anti-Money Laundering Laws by maintaining policies and procedures reasonably designed to promote and achieve compliance with such laws.

(c)

No Obligor will directly or, to the best of their knowledge after due and careful enquiry, indirectly use the proceeds of the Facility, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person:

(i)

to fund or facilitate any activities of or business with any person that, at the time of such funding or facilitation, is a Sanction Target;

(ii)

to fund or facilitate any activities of or business in any Sanctioned Country; or

(iii)

in any other manner that will result in a violation by any person (including any person participating in the Facility, whether as lender, arranger, agent, coordinator or otherwise) of Sanctions.

24.12

German Obligors and Restricted Lenders

(a)

The undertakings contained in Clause 24.11 (Anti-Corruption, Anti-Money Laundering Laws and Sanctions) above are only made by, and/or (as applicable) shall only apply to, any German Relevant Person or any other member of the Group bound by any applicable statutory anti-boycott law or regulation insofar as the giving of and compliance with such representations and warranties do not result in a violation of or conflict with section 7 of the German Foreign Trade Regulation (Außenwirtschaftsverordnung) (in conjunction with section 4 paragraph 1 no. 3 foreign trade law (AWG) (Außenwirtschaftsgesetz)), any provision of Council Regulation (EC) 2271/1996 or any similar applicable anti-boycott law or regulation.

(b)

In relation to each Restricted Lender, the undertakings contained in Clause 24.11 (Anti-Corruption, Anti-Money Laundering Laws and Sanctions) shall only apply for the benefit of that Restricted Lender to the extent that the sanctions provisions would not

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result in (i) any violation of, conflict with or liability under EU Regulation (EC) 2271/96 or (ii) a violation or conflict with section 7 foreign trade rules (AWV) (Außenwirtschaftsverordnung) (in connection with section 4 paragraph 1 no. 3 foreign trade law (AWG) (Außenwirtschaftsgesetz)) or a similar anti-boycott statute applicable to the relevant Restricted Lender.

(c)

In connection with any amendment, waiver, determination or direction relating to any part of this Clause 24.12, each Restricted Lender must notify the Agent (each such notice, an "Exclusion Notice") if its Commitments shall be excluded in connection with any actual or potential amendment, waiver, determination or direction relating to any part of the undertakings contained in Clause 24.11 (Anti-Corruption, Anti-Money Laundering Laws and Sanctions) of which it does not have the benefit pursuant to paragraph (b) for the purpose of determining whether the consent of the Lenders has been obtained or whether the determination or direction by the Lenders has been made.

(d)

Absent an Exclusion Notice by a Restricted Lender the Agent is not permitted to exclude such Restricted Lender for the purpose of determining whether the consent of the Lenders has been obtained or whether the determination or direction by the Lenders has been made.

(e)

If a Restricted Lender has not sent an Exclusion Notice it must exercise its vote in connection with any amendment, waiver, determination or direction relating to any part of the undertakings contained in Clause 24.11 (Anti-Corruption, Anti-Money Laundering Laws and Sanctions) in accordance with the relevant anti-boycott regulations applicable to the relevant Restricted Lender.

25.

EVENTS OF DEFAULT

Each of the events or circumstances set out in Clause 25 is an Event of Default (save for Clause 25.12 (Acceleration)).

25.1

Non-payment

An Obligor does not pay on the due date any amount payable pursuant to a Finance Document unless:

(a)

its failure to pay is caused by administrative or technical error; and

(b)

payment is made within five (5) Business Days of such Obligor having received a notice of the non-receipt issued by the Agent.

25.2

Other obligations

(a)

An Obligor does not comply with any provision of the Finance Documents (other than those referred to in Clause 25.1 (Non-payment) and paragraphs (a) (iv) and (v) of Clause 12.4 (Adjustment of Margin based on ESG Rating).

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(b)

No Event of Default under paragraph (a) above will occur if the failure to comply is capable of remedy and is remedied within twenty (20) Business Days of the earlier of (A) the Agent giving notice to the Company and (B) the Company becoming aware of the failure to comply.

25.3

Misrepresentation

Any representation or statement made or deemed to be made by or on behalf of an Obligor in any Finance Document is or proves to have been incorrect or misleading in any material respect when made or deemed to be made by reference to the facts and circumstances then subsisting unless the underlying circumstances (if capable of remedy) are remedied within twenty (20) Business Days of the earlier of (A) the Agent giving notice to the relevant Obligor and (B) the relevant Obligor becoming aware of such statement having been incorrect or misleading in a material respect.

25.4

Cross acceleration

(a)

Any Financial Indebtedness of any Obligor or Finance Subsidiary is not paid when due nor within any applicable grace period.

(b)

Any Financial Indebtedness of any Obligor or Finance Subsidiary is declared to be or otherwise becomes due and payable prior to its specified maturity as a result of an event of default (however described).

(c)

No Event of Default will occur under this Clause 25.4 if the aggregate amount of Financial Indebtedness falling within paragraphs (a) and (b) above is less than EUR 250,000,000 (or its equivalent in any other currencies) at any time.

25.5

Insolvency

(a)

An Obligor:

(i)

is unable to pay its debts as they fall due;

(ii)

suspends making payments on any of its debts; or

(iii)

by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors (excluding any Finance Party in its capacity as such) with a view to rescheduling any of its indebtedness.

(b)

An Obligor incorporated in Germany is unable to pay its debts as they fall due (zahlungsunfähig) within the meaning of section 17 of the German Insolvency Code (Insolvenzordnung) or is overindebted within the meaning of section 19 of the German Insolvency Code (Insolvenzordnung) or, with respect to any other Obligor, the value of the assets of any member of the Group is less than its liabilities (taking into account contingent and prospective liabilities).

(c)

A moratorium has been declared in respect of any indebtedness of any Obligor.

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25.6

Insolvency proceedings

(a)

Any corporate action, legal proceedings or other procedure or step is taken in relation to:

(i)

the suspension of payments, a moratorium of any indebtedness, winding-up, dissolution, administration or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of any Obligor ;

(ii)

a composition, compromise, assignment or arrangement with the creditors of any Obligor;

(iii)

the appointment of a liquidator, receiver, administrative receiver, admi­nistrator, compulsory manager or other similar officer in respect of any Obligor or any of its assets; or

(iv)

with respect to any US Obligor, the commencement of a proceeding, or filing of any petition seeking relief, under the US Bankruptcy Code,

or any analogous procedure or step is taken in any jurisdiction.

(b)

Paragraph (a) above does not apply to:

(i)

any procedure (other than a procedure filed or applied for by any Obligor) with a view to the appointment of an administrator (including an insolvency administrator) which is discharged, stayed or dismissed with­in sixty (60) days of commencement;

(ii)

any frivolous or vexatious proceeding that is without merit;

(iii)

any (solvent) merger or demerger within the Group (provided that where the Company is involved, the Company shall remain the surviving entity); and

(iv)

compositions and arrangements with any creditor of the Group, including compo­sitions and arrangements sought or made on the basis of the German Act on Issue of Debt Securities (Gesetz über Schuldverschreibungen aus Gesamtemissionen).

25.7

Creditors' process

Any expropriation, attachment, sequestration, distress or execution that affects any asset or assets of an Obligor having an aggregate value of EUR 200,000,000 and is not discharged within twenty (20) Business Days.

25.8

Ownership of the Obligors

An Obligor (other than the Company) is not or ceases to be a wholly-owned Subsidiary of the Company.

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25.9

Unlawfulness

It is or becomes unlawful for an Obligor to perform any of its obligations under the Finance Documents where this adversely affects the interest of the Lenders and (if capable of remedy) the situation is not remedied within twenty (20) Business Days of written notice from the Agent.

25.10

Repudiation

An Obligor repudiates a Finance Document or evidences an intention to repudiate a Finance Document.

25.11

ERISA

An ERISA Event occurs with respect to a Pension Plan that has resulted or would reasonably expected to result in liability of the Borrowers under Title IV of ERISA to such Pension Plan in an aggregate amount in excess of EUR 250,000,000, or (ii) the Borrowers or any ERISA affiliate fails to pay when due, after the expiration of any applicable grace period, any instalment payment with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount in excess of EUR 250,000,000.

25.12

Acceleration

(a)

On and at any time after the occurrence of an Event of Default which is continuing the Agent may, and shall if so directed by the Majority Lenders, by notice to the Company:

(i)

cancel each Available Commitment of each Lender and of each Affiliate of any Lender which is a Swingline Lender whereupon each such Available Commitment shall immediately be cancelled and each Facility shall immediately cease to be available for further utilisation;

(ii)

declare that all or part of the Loans, together with accrued interest, and all other amounts accrued or outstanding under the Finance Documents be immediately due and payable, whereupon they shall become immediately due and payable; and/or

(iii)

(c)declare that all or part of the Loans be payable on demand, whereupon they shall immediately become payable on demand by the Agent on the instructions of the Majority Lenders.

(b)

Upon the occurrence of an Event of Default which is continuing under Clause 25.6 (Insolvency Proceedings) with respect to any Obligor organized in the US, the obligations of each Lender to make Loans shall automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and other amounts in relation thereto shall automatically become due and payable, without further act of the Agent or any Lender.

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25.13

Conclusive Events of Default

The Events of Default set out in this Clause 25 (Events of Default) are conclusive and the first paragraph of section 490 German Civil Code (Bürgerliches Gesetzbuch) shall not apply it being understood that this shall in no way restrict the scope of any of the Events of Default set out in this Clause 25 (Events of Default).

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SECTION 9

CHANGES TO PARTIES

26.

CHANGES TO THE LENDERS

26.1

Assignments and transfers by the Lenders

(a)

Subject to this Clause 26 (except paragraph (b) below), a Lender (the "Existing Lender") may:

(i)

assign any of its rights; or

(ii)

assign and transfer by assumption of contract (Vertragsübernahme) any of its rights and obligations,

(each a "Transfer") to:

(A)

another bank, financial institution, trust or fund which is in each case licensed or otherwise permitted to perform and capable of performing revolving lending business in Germany and any other relevant jurisdiction of a Borrower; and

(B)

when an Event of Default set out in Clauses 25.1 (Non-payment), 25.5 (Insolvency) or 25.6 (Insolvency proceedings) has occurred and is continuing, to any person,

in each case, other than a member of the Group (the "New Lender").

(b)

Each relevant Existing Lender shall as soon as reasonably practical notify the Company prior to the consummation of a Transfer provided that if such notification has not been given this does not invalidate a Transfer, and the Agent is under no responsibility to verify whether or not such notification has been made.

26.2

Company consent

(a)

The consent of the Company is required for a Transfer by an Existing Lender, unless the Transfer is:

(i)

to another Lender or an Affiliate of any Lender; or

(ii)

made at a time when an Event of Default is continuing.

(b)

The Company will be deemed to have given its consent ten (10) Business Days after the Existing Lender has requested it unless consent is expressly refused by the Company within that time.

26.3

Other conditions of assignment or assignment and transfer by assumption of contract (Vertragsübernahme)

(a)

An assignment will only be effective on:

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(i)

receipt by the Agent of written confirmation from the New Lender (in form and substance satisfactory to the Agent) that the New Lender will assume the same obligations to the other Finance Parties as it would have been under if it had been an Original Lender; and

(ii)

performance by the Agent of all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to such assignment to a New Lender, the completion of which the Agent shall promptly notify to the Existing Lender and the New Lender.

(b)

An assignment and transfer by assumption of contract (Vertragsübernahme) will only be effective if the procedure set out in Clause 26.6 (Procedure for assignment and transfer by assumption of contract (Vertragsübernahme)) is complied with.

(c)

If:

(i)

a Lender assigns or assigns and transfers by assumption of contract (Vertragsübernahme) any of its rights or obligations under the Finance Documents or changes its Facility Office; and

(ii)

as a result of circumstances existing at the date the assignment, assignment and transfer by assumption of contract (Vertragsübernahme) or change occurs, an Obligor would be obliged to make a payment to the New Lender or Lender acting through its new Facility Office under Clause 16 (Tax gross-up and indemnities) or Clause 17 (Increased Costs),

then the New Lender or Lender acting through its new Facility Office is only entitled to receive payment under those Clauses to the same extent as the Existing Lender or Lender acting through its previous Facility Office would have been if the assignment, assignment and transfer by assumption of contract (Vertragsübernahme) or change had not occurred.

(d)

Each New Lender, by executing the relevant Transfer Certificate, confirms, for the avoidance of doubt, that the Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the assignment or assignment and transfer by assumption of contract (Vertragsübernahme) becomes effective in accordance with this Agreement and that it is bound by that decision to the same extent as the Existing Lender would have been had it remained a Lender.

(e)

An assignment or an assignment and transfer by assumption of contract (Vertragsübernahme) of part of an Existing Lender's participation must be in a minimum amount of EUR 10,000,000 or, if less, its Commitment, unless it is made at a time when an Event of Default is continuing.

(f)

Notwithstanding any other term of this Agreement, each Lender shall ensure that at all times its Revolving Facility Commitment is not less than:

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(i)

its Swingline Commitment; or

(ii)

if it does not have a Swingline Commitment, the Swingline Commitment of a Lender which is its Affiliate.

26.4

Assignment or assignment and transfer by assumption of contract (Vertragsübernahme)

The New Lender shall, on the date upon which an assignment or assignment and transfer by assumption of contract (Vertragsübernahme) takes effect, pay to the Agent (for its own account) a fee of EUR 3,000.

26.5

Limitation of responsibility of Existing Lenders

(a)

Unless expressly agreed to the contrary, an Existing Lender makes no representation or warranty and assumes no responsibility to a New Lender for:

(i)

the legality, validity, effectiveness, adequacy or enforceability of the Finance Documents or any other documents;

(ii)

the financial condition of any Obligor;

(iii)

the performance and observance by any Obligor of its obligations under the Finance Documents or any other documents; or

(iv)

the accuracy of any statements (whether written or oral) made in or in connection with any Finance Document or any other document,

and any representations or warranties implied by law are excluded.

(b)

Each New Lender confirms to the Existing Lender and the other Finance Parties that it:

(i)

has made (and shall continue to make) its own independent investigation and assessment of the financial condition and affairs of each Obligor and its related entities in connection with its participation in this Agreement and has not relied exclusively on any information provided to it by the Existing Lender in connection with any Finance Document; and

(ii)

will continue to make its own independent appraisal of the creditworthiness of each Obligor and its related entities whilst any amount is or may be outstanding under the Finance Documents or any Commitment is in force.

(c)

Nothing in any Finance Document obliges an Existing Lender to:

(i)

accept a re-assignment or a re-assignment and re-transfer by assumption of contract (Vertragsübernahme) from a New Lender of any of the rights and obligations assigned or assigned and transferred by assumption of contract (Vertragsübernahme) under this Clause 26; or

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(ii)

support any losses directly or indirectly incurred by the New Lender by reason of the non-performance by any Obligor of its obligations under the Finance Documents or otherwise.

26.6

Procedure for assignment and transfer by assumption of contract (Vertragsübernahme)

(a)Subject to the conditions set out in Clause 26.2 (Company consent) and Clause 26.3 (Other conditions of assignment or assignment and transfer by assumption of contract (Vertragsübernahme)) an assignment and transfer by assumption of contract (Vertragsübernahme) is effected in accordance with paragraph (c) below when the Agent executes an otherwise duly completed Transfer Certificate delivered to it by the Existing Lender and the New Lender. The Agent shall, subject to paragraph (b) below, as soon as reasonably practicable after receipt by it of a duly completed Transfer Certificate appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Transfer Certificate.

(b)

The Agent shall only be obliged to execute a Transfer Certificate delivered to it by the Existing Lender and the New Lender once it is satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to the transfer to such New Lender.

(c)

Subject to Clause 26.9 (Pro rata interest settlement), on the Transfer Date:

(i)

to the extent that in the Transfer Certificate the Existing Lender seeks to assign and transfer by assumption of contract (Vertragsübernahme) its rights and obligations under the Finance Documents each of the Obligors and the Existing Lender shall be released from further obligations towards one another under the Finance Documents and their respective rights against one another under the Finance Documents shall be lost (being the "Terminated Rights and Obligations");

(ii)

each of the Obligors and the New Lender shall assume obligations towards one another and/or acquire rights against one another which differ from the Terminated Rights and Obligations only insofar as that Obligor and the New Lender have assumed and/or acquired the same in place of that Obligor and the Existing Lender;

(iii)

the Agent, the Arranger, the New Lender and the other Lenders shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had the New Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of the assignment and transfer by assumption of contract (Vertragsübernahme) and to that extent the Agent, the Arranger and the Existing Lender shall each be released from further obligations to each other under the Finance Documents; and

(iv)

the New Lender shall become a Party as a "Lender".

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26.7

Copy of Transfer Certificate or Increase Confirmation to Company

The Agent shall, as soon as reasonably practicable after it has executed a Transfer Certificate or Increase Confirmation, send to the Company a copy of that Transfer Certificate or Increase Confirmation.

26.8

Security over Lenders' rights

(a)

In addition to the other rights provided to Lenders under this Clause 26, each Lender may without consulting with or obtaining consent from any Obligor, at any time assign, charge, pledge or otherwise create Security in or over (whether by way of collateral or otherwise) all or any of its rights under any Finance Document to secure obligations of that Lender to a federal reserve or central bank (including, for the avoidance of doubt, the European Central Bank) including, without limitation, any assignment of rights to a special purpose vehicle where Security over securities issued by such special purpose vehicle is to be created in favour of a federal reserve or central bank (including, for the avoidance of doubt, the European Central Bank), except that no such assignment, charge, pledge or Security shall:

(i)

release a Lender from any of its obligations under the Finance Documents or substitute the beneficiary of the relevant assignment, charge, pledge or Security for the Lender as a party to any of the Finance Documents; or

(ii)

require any payments to be made by an Obligor other than or in excess of, or grant to any person any more extensive rights than, those required to be made or granted to the relevant Lender under the Finance Documents.

(b)

The limitations on assignments or transfers by a Lender set out in any Finance Document, in particular in Clause 26.1 (Assignments and transfers by the Lenders), 26.2(Company consent), Clause 26.3 (Other conditions of assignment or assignment and transfer by assumption of contract (Vertragsübernahme)) and Clause 26.4 (Assignment or assignment and transfer by assumption of contract (Vertragsübernahme)), and the provisions set out in Clause 38 (Confidential Information) shall not apply to the creation of Security pursuant to paragraph (a) above.

(c)

The limitations and provisions referred to in paragraph (b) above shall further not apply to any assignment or transfer of rights under the Finance Documents made by a federal reserve or central bank (including, for the avoidance of doubt, the European Central Bank) to a third party in connection with the enforcement (Verwertung) of Security created pursuant to paragraph (a) above.

(d)

Any Lender may disclose such Confidential Information as that Lender is required to disclose to a federal reserve or central bank (including, for the avoidance of doubt, the European Central Bank) to (or through) whom it creates Security pursuant to paragraph (a) above, and any federal reserve or central bank (including, for the avoidance of doubt, the European Central Bank) may disclose such Confidential Information to a third party to whom it assigns or transfers (or may potentially assign

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or transfer) rights under the Finance Documents in connection with the enforcement of such Security.

26.9

Pro rata interest settlement

(a)

If the Agent has notified the Lenders that it is able to distribute interest payments on a "pro rata basis" to Existing Lenders and New Lenders then (in respect of any assignment or assignment and transfer by assumption of contract (Vertragsüber­nahme) pursuant to Clause 26.6 (Procedure for assignment and transfer by assumption of contract (Vertragsübernahme)) the Transfer Date of which, in each case, is after the date of such notification and is not on the last day of an Interest Period):

(i)

any interest or fees in respect of the relevant participation which are expressed to accrue by reference to the lapse of time shall continue to accrue in favour of the Existing Lender up to but excluding the Transfer Date ("Accrued Amounts") and shall become due and payable to the Existing Lender (without further interest accruing on them) on the last day of the current Interest Period (or, if the Interest Period is longer than six Months, on the next of the dates which falls at six Monthly intervals after the first day of that Interest Period); and

(ii)

the rights assigned or assigned and transferred by assumption of contract (Vertragsübernahme) by the Existing Lender will not include the right to the Accrued Amounts, so that, for the avoidance of doubt:

(A)

when the Accrued Amounts become payable, those Accrued Amounts will be payable to the Existing Lender; and

(B)

the amount payable to the New Lender on that date will be the amount which would, but for the application of this Clause 26.9, have been payable to it on that date, but after deduction of the Accrued Amounts.

(b)

In this Clause 26.9 references to "Interest Period" shall be construed to include a reference to any other period for accrual of fees.

(c)

An Existing Lender which retains the right to the Accrued Amounts pursuant to this Clause 26.9 but which does not have a Commitment shall be deemed not to be a Lender for the purposes of ascertaining whether the agreement of any specified group of Lenders has been obtained to approve any request for a consent, waiver, amendment or other vote of Lenders under the Finance Documents.

26.10

Sub-participation

Sub-participations (with or without transfer of voting rights and including CLOs) shall be subject to the same restrictions (as set out in this Clause 26 (Changes to the Lenders)) as assignments or assignments and transfers by assumption of contract (Vertragsübernahme), unless it is ensured that the exercise of any voting rights by the Lender of record is not subject to and will not be exercised on the basis of any consultation with the sub-participant.

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26.11

Register

The Agent, acting solely for this purpose as non-fiduciary agent for the Borrowers, shall maintain at one of its offices a register in paper or electronic form for the recordation of the names and addresses of the Lenders, and the principal and stated interest amount owing to each Lender, pursuant to the terms hereof from time to time (the “Register”).  Any transfer or assignment pursuant to Clause 26 (Changes to the Lenders) shall be effective only upon recordation of such transfer in the Register, and the Borrowers may treat each person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary.  The right to the principal of, and interest on, the loan facility may be transferred or assigned only if such transfer or assignment is recorded in the Register. The Register shall be available for inspection by the Company and any Lender, at any reasonable time upon reasonable prior notice.

27.

CHANGES TO THE OBLIGORS

27.1

Assignments and transfers by Obligors

No Obligor may assign any of its rights or transfer any of its rights or obligations under the Finance Documents.

27.2

Additional Borrowers

(a)

Subject to compliance with the provisions of paragraphs (d) and (e) of Clause 23.6 ("Know your customer" checks), the Company may request that any of its wholly-owned Subsidiaries become an Additional Borrower (Vertragsbeitritt). That Subsidiary shall become an Additional Borrower if:

(i)

(unless it is incorporated or established (as the case may be) in the US or Germany) all the Lenders approve the addition of that Subsidiary;

(ii)

the Company delivers to the Agent a duly completed and executed Accession Letter;

(iii)

the Company confirms that no Default is continuing or would occur as a result of that Subsidiary becoming an Additional Borrower; and

(iv)

the Agent has received all of the documents and other evidence listed in Part II (Condition precedent required to be delivered by an Additional Borrower) of Schedule 2 (Conditions Precedent) in relation to that Additional Borrower, each in form and substance satisfactory to the Agent.

(b)

The Agent shall notify the Company and the Lenders promptly upon being satisfied that it has received (in form and substance satisfactory to it) all the documents and other evidence listed in Part II (Condition precedent required to be delivered by an Additional Borrower) of Schedule 2 (Conditions Precedent).

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(c)

Other than to the extent that the Majority Lenders notify the Agent in writing to the contrary before the Agent gives the notification described in paragraph (b) above, the Lenders authorise (but do not require) the Agent to give that notification. The Agent shall not be liable for any damages, costs or losses whatsoever as a result of giving any such notification.

27.3

Resignation of a Borrower

(a)

The Company may request that a Borrower (other than the Company) ceases to be a Borrower by delivering to the Agent a Resignation Letter.

(b)

The Agent shall accept a Resignation Letter and notify the Company and the Lenders of its acceptance if:

(i)

no Default is continuing or would result from the acceptance of the Resignation Letter (and the Company has confirmed this is the case); and

(ii)

the Borrower is under no actual or contingent obligations as a Borrower under any Finance Documents,

whereupon that company shall cease to be a Borrower and shall have no further rights or obligations under the Finance Documents.

27.4

Repetition of Representations

Delivery of an Accession Letter constitutes confirmation by the relevant Subsidiary that the Repeated Representations are true and correct in relation to it as at the date of delivery as if made by reference to the facts and circumstances then existing.

27.5

Resignation of a Guarantor

(a)

The Company may request that a Guarantor (other than the Company) ceases to be a Guarantor by delivering to the Agent a Resignation Letter.

(b)

The Agent shall accept a Resignation Letter and notify the Company and the Lenders of its acceptance if:

(i)

no Default is continuing or would result from the acceptance of the Resignation Letter (and the Company has confirmed this is the case); and

(ii)

all the Lenders have consented to the Company's request.

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SECTION 10

THE FINANCE PARTIES

28.

ROLE OF THE AGENT, SWINGLINE AGENT AND THE ARRANGER

28.1

Appointment of the Agent and Swingline Agent

(a)

Each of the Arrangers and the Lenders appoints the Agent and the Swingline Agent to act as its agent and attorney (Stellvertreter) under and in connection with the Finance Documents.

(b)

Each of the Arrangers and the Lenders authorises the Agent and the Swingline Agent to perform the duties, obligations and responsibilities and to exercise the rights, powers, authorities and discretions specifically given to the Agent and the Swingline Agent under or in connection with the Finance Documents together with any other incidental rights, powers, authorities and discretions.

(c)

Each of the Arrangers and the Lenders hereby exempts the Agent and the Swingline Agent from the restrictions pursuant to section 181 German Civil Code (Bürgerliches Gesetzbuch) and similar restrictions applicable to it pursuant to any other applicable law, in each case to the extent legally possible to such Finance Party. A Finance Party which cannot grant such exemption shall notify the Agent and the Swingline Agent accordingly.

28.2

Instructions

(a)

The Agent and the Swingline Agent shall:

(i)

unless a contrary indication appears in a Finance Document, exercise or refrain from exercising any right, power, authority or discretion vested in it as Agent or as Swingline Agent in accordance with any instructions given to it by:

(A)

all Lenders if the relevant Finance Document stipulates the matter is an all Lender decision; and

(B)

in all other cases, the Majority Lenders; and

(ii)

not be liable for any act (or omission) if it acts (or refrains from acting) in accordance with paragraph (i) above.

(b)

The Agent and the Swingline Agent shall be entitled to request instructions, or clarification of any instruction, from the Majority Lenders (or, if the relevant Finance Document stipulates the matter is a decision for any other Lender or group of Lenders, from that Lender or group of Lenders) as to whether, and in what manner, it should exercise or refrain from exercising any right, power, authority or discretion. The Agent and the Swingline Agent may refrain from acting unless and until it receives any such instructions or clarification that it has requested.

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(c)

Save in the case of decisions stipulated to be a matter for any other Lender or group of Lenders under the relevant Finance Document and unless a contrary indication appears in a Finance Document, any instructions given to the Agent or the Swingline Agent by the Majority Lenders shall override any conflicting instructions given by any other Parties and will be binding on all Finance Parties.

(d)

The Agent and the Swingline Agent may refrain from acting in accordance with any instructions of any Lender or group of Lenders until it has received any indemnification and/or security that it may in its discretion require (which may be greater in extent than that contained in the Finance Documents and which may include payment in advance) for any cost, loss or liability which it may incur in complying with those instructions.

(e)

In the absence of instructions, the Agent and the Swingline Agent may act (or refrain from acting) as it considers to be in the best interest of the Lenders.

(f)

The Agent and the Swingline Agent is not authorised to act on behalf of a Lender (without first obtaining that Lender's consent) in any legal or arbitration proceedings relating to any Finance Document.

28.3

Duties of the Agent and the Swingline Agent

(a)

The Agent's and the Swingline Agents duties under the Finance Documents are solely mechanical and administrative in nature.

(b)

Subject to paragraph (c) below, the Agent and the Swingline Agent shall promptly forward to a Party the original or a copy of any document which is delivered to the Agent or the Swingline Agent for that Party by any other Party.

(c)

Without prejudice to Clause 26.7 (Copy of Transfer Certificate or Increase Confirmation to Company), paragraph (b) above shall not apply to any Transfer Certificate or any Increase Confirmation.

(d)

Except where a Finance Document specifically provides otherwise, the Agent and the Swingline Agent are not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party.

(e)

If the Agent or the Swingline Agent receives notice from a Party referring to this Agreement, describing a Default and stating that the circumstance described is a Default, it shall promptly notify the other Finance Parties.

(f)

If the Agent or the Swingline Agent is aware of the non-payment of any principal, interest, commitment fee or other fee payable to a Finance Party (other than the Agent or the Arranger) under this Agreement it shall promptly notify the other Finance Parties.

(g)

The Agent and the Swingline Agent shall have only those duties, obligations and responsibilities expressly specified in the Finance Documents to which it is expressed to be a party (and no others shall be implied).

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28.4

Role of the Arranger

Except as specifically provided in the Finance Documents, the Arranger has no obligations of any kind to any other Party under or in connection with any Finance Document.

28.5

No fiduciary duties

(a)

Nothing in any Finance Document constitutes the Agent, the Swingline Agent or the Arranger as a trustee (Treuhänder) of any other person. Neither the Agent, the Swingline Agent nor the Arranger has any financial or commercial duty of care (Vermögensfürsorgepflicht) for any person.

(b)

Neither the Agent, the Swingline Agent nor the Arranger shall be bound to account to any Lender for any sum or the profit element of any sum received by it for its own account.

28.6

Business with the Group

The Agent, the Swingline Agent and the Arranger may accept deposits from, lend money to and generally engage in any kind of banking or other business with any member of the Group.

28.7

Rights and discretions

(a)

The Agent and the Swingline Agent may:

(i)

rely on any representation, communication, notice or document believed by it to be genuine, correct and appropriately authorised;

(ii)

assume that:

(A)

any instructions received by it from the Majority Lenders, any Lenders or any group of Lenders are duly given in accordance with the terms of the Finance Documents; and

(B)

unless it has received notice of revocation, that those instructions have not been revoked; and

(iii)

rely on a certificate from any person:

(A)

as to any matter of fact or circumstance which might reasonably be expected to be within the knowledge of that person; or

(B)

to the effect that such person approves of any particular dealing, transaction, step, action or thing,

as sufficient evidence that that is the case and, in the case of paragraph (A) above, may assume the truth and accuracy of that certificate.

(b)

The Agent and the Swingline Agent may assume (unless it has received notice to the contrary in its capacity as agent or the swingline agent for the Lenders) that:

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(i)

no Default has occurred (unless it has actual knowledge of a Default arising under Clause 25.1 (Non-payment));

(ii)

any right, power, authority or discretion vested in any Party or any group of Lenders has not been exercised; and

(iii)

any notice or request made by the Company (other than a Utilisation Request) is made on behalf of and with the consent and knowledge of all the Obligors.

(c)

The Agent and the Swingline Agent may engage and pay for the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts.

(d)

Without prejudice to the generality of paragraph (c) above or paragraph (e) below, the Agent and the Swingline Agent may at any time engage and pay for the services of any lawyers to act as independent counsel to the Agent or the Swingline Agent (and so separate from any lawyers instructed by the Lenders) if the Agent or the Swingline Agent in its reasonable opinion deems this to be necessary.

(e)

The Agent and the Swingline Agent may rely on the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts (whether obtained by the Agent, the Swingline Agent or by any other Party) and shall not be liable for any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of its so relying.

(f)

The Agent and the Swingline Agent may act in relation to the Finance Documents through its officers, employees and agents.

(g)

Unless a Finance Document expressly provides otherwise the Agent and the Swingline Agent may disclose to any other Party any information it reasonably believes it has received as agent under this Agreement.

(h)

Without prejudice to the generality of paragraph (g) above, the Agent and the Swingline Agent:

(i)

may disclose; and

(ii)

on the written request of a Borrower or the Majority Lenders shall, as soon as reasonably practicable, disclose,

the identity of a Defaulting Lender to the Company and to the other Finance Parties.

(i)

Notwithstanding any other provision of any Finance Document to the contrary, neither the Agent, the Swingline Agent nor the Arranger is obliged to do or omit to do anything if it would or might in its reasonable opinion constitute a breach of any law or regulation or a breach of a fiduciary duty or duty of confidentiality.

(j)

Notwithstanding any provision of any Finance Document to the contrary, the Agent and the Swingline Agent are not obliged to expend or risk its own funds or otherwise

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incur any financial liability in the performance of its duties, obligations or responsibilities or the exercise of any right, power, authority or discretion if it has grounds for believing the repayment of such funds or adequate indemnity against, or security for, such risk or liability is not reasonably assured to it.

28.8

Responsibility for documentation

Neither the Agent, the Swingline Agent nor the Arranger is responsible or liable for:

(a)

the adequacy, accuracy or completeness of any information (whether oral or written) supplied by the Agent, the Swingline Agent, the Arranger, an Obligor or any other person in or in connection with any Finance Document or the transactions contemplated in the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document;

(b)

the legality, validity, effectiveness, adequacy or enforceability of any Finance Document or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document; or

(c)

any determination as to whether any information provided or to be provided to any Finance Party is non-public information the use of which may be regulated or prohibited by applicable law or regulation relating to insider dealing or otherwise.

28.9

No duty to monitor

The Agent and the Swingline Agent shall not be bound to enquire:

(a)

whether or not any Default has occurred;

(b)

as to the performance, default or any breach by any Party of its obligations under any Finance Document; or

(c)

whether any other event specified in any Finance Document has occurred.

28.10

Exclusion of liability

(a)

Without limiting paragraph (b) below (and without prejudice to any other provision of any Finance Document excluding or limiting the liability of the Agent), the Agent and the Swingline Agent will not be liable for:

(i)

any damages, costs or losses to any person, any diminution in value, or any liability whatsoever arising as a result of taking or not taking any action under or in connection with any Finance Document, unless directly caused by its gross negligence or wilful misconduct;

(ii)

exercising, or not exercising, any right, power, authority or discretion given to it by, or in connection with, any Finance Document or any other agreement, arrangement or document entered into, made or executed in anticipation of,

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under or in connection with, any Finance Document, other than by reason of its gross negligence or wilful misconduct; or

(iii)

without prejudice to the generality of paragraphs (i) and (ii) above, any damages, costs or losses to any person, any diminution in value or any liability whatsoever (but not including any claim based on the fraud of the Agent or the Swingline Agent) arising as a result of:

(A)

any act, event or circumstance not reasonably within its control; or

(B)

the general risks of investment in, or the holding of assets in, any jurisdiction,

including (in each case and without limitation) such damages, costs, losses, diminution in value or liability arising as a result of: nationalisation, expropriation or other governmental actions; any regulation, currency restriction, devaluation or fluctuation; market conditions affecting the execution or settlement of transactions or the value of assets; breakdown, failure or malfunction of any third party transport, telecommunications, computer services or systems; natural disasters or acts of God; war, terrorism, insurrection or revolution; or strikes or industrial action.

(b)

No Party (other than the Agent and the Swingline Agent) may take any proceedings against any officer, employee or agent of the Agent or the Swingline Agent in respect of any claim it might have against the Agent, the Swingline Agent or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Finance Document and any officer, employee or agent of the Agent may rely on this paragraph (b) pursuant to section 328 para 1 German Civil Code (Bürgerliches Gesetzbuch) (echter berechtigender Vertrag zugunsten Dritter).

(c)

The Agent and the Swingline Agent will not be liable for any delay (or any related consequences) in crediting an account with an amount required under the Finance Documents to be paid by the Agent or the Swingline Agent if the Agent or the Swingline Agent has taken all necessary steps as soon as reasonably practicable to comply with the regulations or operating procedures of any recognised clearing or settlement system used by the Agent or the Swingline Agent for that purpose.

(d)

Nothing in this Agreement shall oblige the Agent, the Swingline Agent or the Arranger to carry out:

(i)

any "know your customer" or other checks in relation to any person; or

(ii)

any check on the extent to which any transaction contemplated by this Agreement might be unlawful for any Lender or for any Affiliate of any Lender,

on behalf of any Lender and each Lender confirms to the Agent, the Swingline Agent and the Arranger that it is solely responsible for any such checks it is required to carry out and that it may not rely on any statement in relation to such checks made by the Agent, the Swingline Agent or the Arranger.

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(e)

Without prejudice to any provision of any Finance Document excluding or limiting the Agent's or the Swingline Agents liability, any liability of the Agent and the Swingline Agent arising under or in connection with any Finance Document shall be limited to the amount of actual loss which has been suffered (as determined by reference to the date of default of the Agent or the Swingline Agent or, if later, the date on which the loss arises as a result of such default) but without reference to any special conditions or circumstances known to the Agent or the Swingline Agent at any time which increase the amount of that loss. In no event shall the Agent or the Swingline Agent be liable for any loss of profits, goodwill, reputation, business opportunity or anticipated saving, or for special, punitive, indirect or consequential damages, whether or not the Agent or the Swingline Agent has been advised of the possibility of such loss or damages.

28.11

Lenders' indemnity to the Agent and the Swingline Agent

Each Lender shall (in proportion to its share of the Total Commitments or, if the Total Commitments are then zero, to its share of the Total Commitments immediately prior to their reduction to zero) indemnify the Agent and the Swingline Agent, within five (5) Business Days of demand, against any cost, loss or liability incurred by the Agent (otherwise than by reason of the Agent's or the Swingline Agent’s gross negligence or wilful misconduct) in acting as Agent or Swingline Agent under the Finance Documents (unless the Agent or the Swingline Agent has been reimbursed by an Obligor pursuant to a Finance Document).

28.12

Resignation of the Agent and the Swingline Agent

(a)

The Agent and the Swingline Agent may resign and appoint one of its Affiliates acting through an office in Germany, the United Kingdom or the US as successor by giving notice to the Lenders and the Company.

(b)

Alternatively the Agent and the Swingline Agent may resign by giving 30 days' notice to the Lenders and the Company, in which case the Majority Lenders (after consultation with the Company) may appoint a successor Agent or successor Swingline Agent.

(c)

If the Majority Lenders have not appointed a successor Agent or successor Swingline Agent in accordance with paragraph (b) above within twenty (20) days after notice of resignation was given, the retiring Agent or Swingline Agent (after consultation with the Company) may appoint a successor Agent or successor Swingline Agent (acting through an office in Germany, the United Kingdom or the US).

(d)

In the event of a resignation of the Agent pursuant to paragraphs (a) and (b) above the retiring Agent or Swingline Agent shall, at its own cost, make available to the successor Agent or successor Swingline Agent such documents and records and provide such assistance as the successor Agent or successor Swingline Agent may reasonably request for the purposes of performing its functions as Agent or Swingline Agent under the Finance Documents.

(e)

The Agent's or Swingline Agents resignation notice shall only take effect upon the appointment of a successor.

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(f)

Upon the appointment of a successor, the retiring Agent or Swingline Agent shall be discharged from any further obligation in respect of the Finance Documents (other than its obligations under paragraph (d) above) but shall remain entitled to the benefit of Clause 18.3 (Indemnity to the Agent) and this Clause 28 (and any agency fees for the account of the retiring Agent or Swingline Agent shall cease to accrue from (and shall be payable on) that date). Any successor and each of the other Parties shall have the same rights and obligations amongst themselves as they would have had if such successor had been an original Party.

(g)

After consultation with the Company, the Majority Lenders may, by notice to the Agent or the Swingline Agent, require it to resign in accordance with paragraph (b) above. In this event, the Agent or the Swingline Agent shall resign in accordance with paragraph (b) above.

(h)

The Agent or the Swingline Agent shall resign in accordance with paragraph (b) above (and, to the extent applicable, shall use reasonable endeavours to appoint a successor Agent or successor Swingline Agent pursuant to paragraph (c) above) if on or after the date which is three (3) months before the earliest FATCA Application Date relating to any payment to the Agent or the Swingline Agent under the Finance Documents, either:

(i)

the Agent or the Swingline Agent fails to respond to a request under Clause 16.9 (FATCA Information) and the Company or a Lender reasonably believes that the Agent or the Swingline Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date;

(ii)

the information supplied by the Agent or the Swingline Agent pursuant to Clause 16.9 (FATCA Information) indicates that the Agent or the Swingline Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date; or

(iii)

the Agent or the Swingline Agent notifies the Company and the Lenders that the Agent or the Swingline Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date;

and (in each case) the Company or a Lender reasonably believes that a Party will be required to make a FATCA Deduction that would not be required if the Agent or the Swingline Agent were a FATCA Exempt Party, and the Company or that Lender, by notice to the Agent or the Swingline Agent, requires it to resign.

28.13

Replacement of the Agent or the Swingline Agent

(a)

After consultation with the Company, the Majority Lenders may, by giving thirty (30) days' notice to the Agent or the Swingline Agent (or, at any time the Agent or Swingline Agent is an Impaired Agent or Impaired Swingline Agent, by giving any shorter notice determined by the Majority Lenders) replace the Agent or the Swingline Agent by appointing a successor Agent or successor Swingline Agent (acting through an office in Germany, the United Kingdom or the US).

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(b)

The retiring Agent or Swingline Agent shall (at its own cost if it is an Impaired Agent or Impaired Swingline Agent and otherwise at the expense of the Lenders) make available to the successor Agent or successor Swingline Agent such documents and records and provide such assistance as the successor Agent or successor Swingline Agent may reasonably request for the purposes of performing its functions as Agent or Swingline Agent under the Finance Documents.

(c)

The appointment of the successor Agent or successor Swingline Agent shall take effect on the date specified in the notice from the Majority Lenders to the retiring Agent or retiring Swingline Agent. As from this date, the retiring Agent or retiring Swingline Agent shall be discharged from any further obligation in respect of the Finance Documents (other than its obligations under paragraph (b) above) but shall remain entitled to the benefit of Clause 18.3 (Indemnity to the Agent) and this Clause 28.13 (and any agency fees for the account of the retiring Agent or the retiring Swingline Agent shall cease to accrue from (and shall be payable on) that date).

(d)

Any successor Agent or successor Swingline Agent and each of the other Parties shall have the same rights and obligations amongst themselves as they would have had if such successor had been an original Party.

28.14

Confidentiality

(a)

In acting as agent or swingline agent for the Finance Parties, the Agent and Swingline Agent shall be regarded as acting through its agency division which shall be treated as a separate entity from any other of its divisions or departments.

(b)

If information is received by another division or department of the Agent or Swingline Agent, it may be treated as confidential to that division or department and the Agent or Swingline Agent shall not be deemed to have notice of it.

28.15

Relationship with the Lenders

(a)

Subject to Clause 26.9 (Pro rata interest settlement), the Agent and the Swingline Agent may treat the person shown in its records as Lender at the opening of business (in the place of the Agent's or Swingline Agents principal office as notified to the Finance Parties from time to time) as the Lender acting through its Facility Office:

(i)

entitled to or liable for any payment due under any Finance Document on that day; and

(ii)

entitled to receive and act upon any notice, request, document or communication or make any decision or determination under any Finance Document made or delivered on that day,

unless it has received not less than five (5) Business Days' prior notice from that Lender to the contrary in accordance with the terms of this Agreement.

(b)

Any Lender may by notice to the Agent or Swingline Agent appoint a person to receive on its behalf all notices, communications, information and documents to be made or

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despatched to that Lender under the Finance Documents. Such notice shall contain the address, fax number and (where communication by electronic mail or other electronic means is permitted under Clause 33.6 (Electronic communication)) electronic mail address and/or any other information required to enable the transmission of information by that means (and, in each case, the department or officer, if any, for whose attention communication is to be made) and be treated as a notification of a substitute address, fax number, electronic mail address (or such other information), department and officer by that Lender for the purposes of Clause 33.2 (Addresses) and paragraph (a)(ii) of Clause 33.6 (Electronic communication) and the Agent and the Swingline Agent shall be entitled to treat such person as the person entitled to receive all such notices, communications, information and documents as though that person were that Lender.

28.16

Credit appraisal by the Lenders

Without affecting the responsibility of any Obligor for information supplied by it or on its behalf in connection with any Finance Document, each Lender confirms to the Agent, the Swingline Agent and the Arranger that it has been, and will continue to be, solely responsible for making its own independent appraisal and investigation of all risks arising under or in connection with any Finance Document including but not limited to:

(a)

the financial condition, status and nature of each member of the Group;

(b)

the legality, validity, effectiveness, adequacy or enforceability of any Finance Document and any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document;

(c)

whether that Lender has recourse, and the nature and extent of that recourse, against any Party or any of its respective assets under or in connection with any Finance Document, the transactions contemplated by the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document; and

(d)

the adequacy, accuracy or completeness of any information provided by the Agent, Swingline Agent, any Party or by any other person under or in connection with any Finance Document, the transactions contemplated by any Finance Document or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document.

28.17

Deduction from amounts payable by the Agent or Swingline Agent

If any Party owes an amount to the Agent or the Swingline Agent under the Finance Documents the Agent or the Swingline Agent may, after giving notice to that Party, deduct an amount not exceeding that amount from any payment to that Party which the Agent or the Swingline Agent would otherwise be obliged to make under the Finance Documents and apply the amount deducted in or towards satisfaction of the amount owed. For the purposes of the Finance Documents that Party shall be regarded as having received any amount so deducted.

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28.18

Amounts paid in error

(a)

If the Agent or Swingline Agent pays an amount to another Party and the Agent or the Swingline Agent notifies that Party that that payment was an Erroneous Payment then the Party to whom that amount was paid by the Agent or the Swingline Agent shall on demand refund the same to the Agent or the Swingline Agent together with interest on that amount from the date of payment to the date of receipt by the Agent or the Swingline Agent, calculated by the Agent or the Swingline Agent to reflect its cost of funds.

(b)

The rights and remedies of the Agent and the Swingline Agent (whether arising under this Clause 28.18 or otherwise) which relate to an Erroneous Payment will not be affected by any act, omission, matter or thing which, but for this paragraph (b), would reduce, release or prejudice any such right or remedy (whether or not known by the Agent, the Swingline Agent or any other Party).

(c)

All payments to be made by a Party to the Agent or the Swingline Agent (whether made pursuant to this Clause 28.18 or otherwise) which relate to an Erroneous Payment shall be calculated and be made without (and free and clear of any deduction for) set-off or counterclaim.

(d)

In this Agreement, "Erroneous Payment" means a payment of an amount by the Agent or the Swingline Agent to another Party which the Agent or the Swingline Agent determines (in its sole discretion) was made in error.

28.19

Withholding

To the extent required by any applicable laws, the Agent may withhold from any payment to any Lender an amount equivalent to any applicable withholding Tax. Each Lender shall indemnify and hold harmless the Agent against, and shall make payable in respect thereof within 10 days after demand therefor, any and all Taxes and any and all related losses, claims, liabilities and expenses (including fees, charges and disbursements of any counsel for the Agent) incurred by or asserted against the Agent by the IRS or any other governmental authority as a result of the failure of the Agent to properly withhold Tax from amounts paid to or for the account of such Lender for any reason (including, without limitation, because the appropriate form was not delivered or not properly executed, or because such Lender failed to notify the Agent of a change in circumstance that rendered the exemption from, or reduction of withholding Tax ineffective). A certificate as to the amount of such payment or liability delivered to any Lender by the Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Agent to set off and apply any and all amounts at any time owing to such Lender under this Agreement or any other Finance Document against any amount due the Agent under this Clause 28.19 (Withholding). The agreements in this Clause 28.19 (Withholding) shall survive the resignation and/or replacement of the Agent, any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of the Loans and all other obligations.

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29.

CONDUCT OF BUSINESS BY THE FINANCE PARTIES

No provision of this Agreement will:

(a)

interfere with the right of any Finance Party to arrange its affairs (tax or otherwise) in whatever manner it thinks fit;

(b)

oblige any Finance Party to investigate or claim any credit, relief, remission or repayment available to it or the extent, order and manner of any claim; or

(c)

oblige any Finance Party to disclose any information relating to its affairs (tax or otherwise) or any computations in respect of Tax.

30.

SHARING AMONG THE FINANCE PARTIES

30.1

Payments to Finance Parties

If a Finance Party (a "Recovering Finance Party") receives or recovers any amount from an Obligor other than in accordance with Clause 31 (Payment mechanics) and applies that amount to a payment due under the Finance Documents then:

(a)

the Recovering Finance Party shall, within five (5) Business Days, notify details of the receipt or recovery to the Agent;

(b)

the Agent shall determine whether the receipt or recovery is in excess of the amount the Recovering Finance Party would have been paid had the receipt or recovery been received or made by the Agent and distributed in accordance with Clause 31 (Payment mechanics), without taking account of any Tax which would be imposed on the Agent in relation to the receipt, recovery or distribution; and

(c)

the Recovering Finance Party shall, within five (5) Business Days of demand by the Agent, pay to the Agent an amount (the "Sharing Payment") equal to such receipt or recovery less any amount which the Agent determines may be retained by the Recovering Finance Party as its share of any payment to be made, in accordance with Clause 31.6 (Partial payments).

30.2

Redistribution of payments

The Agent shall treat the Sharing Payment as if it had been paid by the relevant Obligor and distribute it between the Finance Parties (other than the Recovering Finance Party) in accordance with Clause 31.6 (Partial payments).

30.3

Recovering Finance Party's rights

(a)

On a distribution by the Agent under Clause 30.2 (Redistribution of payments), the Recovering Finance Party shall be entitled to receive by way of assignment the rights of the Finance Parties to the extent they have shared in the redistribution.

(b)

If and to the extent that the Recovering Finance Party is not able to rely on its rights under paragraph (a) above, the relevant Obligor shall be liable to the Recovering

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Finance Party for a debt equal to the Sharing Payment which is immediately due and payable.

30.4

Reversal of redistribution

If any part of the Sharing Payment received or recovered by a Recovering Finance Party becomes repayable and is repaid by that Recovering Finance Party, then:

(a)

each Finance Party which has received a share of the relevant Sharing Payment pursuant to Clause 30.2 (Redistribution of payments) shall, upon request of the Agent, pay to the Agent for the account of that Recovering Finance Party an amount equal to the appropriate part of its share of the Sharing Payment (together with an amount as is necessary to reimburse that Recovering Finance Party for its proportion of any interest on the Sharing Payment which that Recovering Finance Party is required to pay); and

(b)

that Recovering Finance Party's rights of assignment in respect of any reimbursement shall be cancelled and the relevant Obligor will be liable to the reimbursing Finance Party for the amount so reimbursed and the Recovering Finance Party shall re-assign any claims assigned to it pursuant to paragraph (a) of Clause 30.3 (Recovering Finance Party's rights).

30.5

Exceptions

(a)

This Clause 30 shall not apply to the extent that the Recovering Finance Party would not, after making any payment pursuant to this Clause, have a valid and enforceable claim against the relevant Obligor.

(b)

A Recovering Finance Party is not obliged to share with any other Finance Party any amount which the Recovering Finance Party has received or recovered as a result of taking legal or arbitration proceedings, if:

(i)

it notified that other Finance Party of the legal or arbitration proceedings; and

(ii)

that other Finance Party had an opportunity to participate in those legal or arbitration proceedings but did not do so as soon as reasonably practicable having received notice and did not take separate legal or arbitration proceedings.

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SECTION 11

ADMINISTRATION

31.

PAYMENT MECHANICS

31.1

Payments to the Agent

(a)

On each date on which an Obligor or a Lender is required to make a payment under a Finance Document, that Obligor or Lender shall make the same available to the Agent (unless a contrary indication appears in a Finance Document) for value on the due date at the time and in such funds specified by the Agent as being customary at the time for settlement of transactions in the relevant currency in the place of payment.

(b)

Payment shall be made to such account in the principal financial centre of the country of that currency (or, in relation to euro, in a principal financial centre in such Participating Member State or London, as specified by the Agent) and with such bank as the Agent, in each case, specifies.

31.2

Distributions by the Agent

Each payment received by the Agent under the Finance Documents for another Party shall, subject to Clause 31.3 (Distributions to an Obligor) and Clause 31.4 (Clawback and pre-funding) be made available by the Agent as soon as practicable after receipt to the Party entitled to receive payment in accordance with this Agreement (in the case of a Lender, for the account of its Facility Office), to such account as that Party may notify to the Agent by not less than five (5) Business Days' notice with a bank specified by that Party in the principal financial centre of the country of that currency (or, in relation to euro, in the principal financial centre of a Participating Member State or London, as specified by that Party).

31.3

Distributions to an Obligor

The Agent may (with the consent of the Obligor or in accordance with Clause 32 (Set-off)) apply any amount received by it for that Obligor in or towards payment (on the date and in the currency and funds of receipt) of any amount due from that Obligor under the Finance Documents or in or towards purchase of any amount of any currency to be so applied.

31.4

Clawback and pre-funding

(a)

Where a sum is to be paid to the Agent under the Finance Documents for another Party, the Agent is not obliged to pay that sum to that other Party (or to enter into or perform any related exchange contract) until it has been able to establish to its satisfaction that it has actually received that sum.

(b)

Unless paragraph (c) below applies, if the Agent pays an amount to another Party and it proves to be the case that the Agent had not actually received that amount, then the Party to whom that amount (or the proceeds of any related exchange contract) was paid by the Agent shall on demand refund the same to the Agent together with interest on that amount from the date of payment to the date of receipt by the Agent, calculated by the Agent to reflect its cost of funds.

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(c)

If the Agent has notified the Lenders that it is willing to make available amounts for the account of a Borrower before receiving funds from the Lenders then if and to the extent that the Agent does so but it proves to be the case that it does not then receive funds from a Lender in respect of a sum which it paid to a Borrower:

(i)

the Agent shall notify the Company of that Lender's identity and the Borrower to whom that sum was made available shall on demand refund it to the Agent; and

(ii)

the Lender by whom those funds should have been made available or, if that Lender fails to do so, the Borrower to whom that sum was made available, shall on demand pay to the Agent the amount (as certified by the Agent) which will indemnify the Agent against any funding cost incurred by it as a result of paying out that sum before receiving those funds from that Lender.

31.5

Impaired Agent

(a)

If, at any time, the Agent becomes an Impaired Agent, an Obligor or a Lender which is required to make a payment under the Finance Documents to the Agent in accordance with Clause 31.1 (Payments to the Agent) may instead either:

(i)

pay that amount direct to the required recipient(s); or

(ii)

if in its absolute discretion it considers that it is not reasonably practicable to pay that amount direct to the required recipient(s), pay that amount or the relevant part of that amount to an interest-bearing account held with an Acceptable Bank and in relation to which no Insolvency Event has occurred and is continuing, in the name of the Obligor or the Lender making the payment (the "Paying Party") and designated as a trust account for the benefit of the Party or Parties beneficially entitled to that payment under the Finance Documents (the "Recipient Party" or "Recipient Parties").

In each case such payments must be made on the due date for payment under the Finance Documents.

(b)

All interest accrued on the amount standing to the credit of the trust account shall be for the benefit of the Recipient Party or the Recipient Parties pro rata to their respective entitlements.

(c)

A Party which has made a payment in accordance with this Clause 31.5 shall be discharged of the relevant payment obligation under the Finance Documents and shall not take any credit risk with respect to the amounts standing to the credit of the trust account.

(d)

Promptly upon the appointment of a successor Agent in accordance with Clause 28.13 (Replacement of the Agent or the Swingline Agent), each Paying Party shall (other than to the extent that that Party has given an instruction pursuant to paragraph (e) below) give all requisite instructions to the bank with whom the trust account is held to transfer the amount (together with any accrued interest) to the successor Agent for

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distribution to the relevant Recipient Party or Recipient Parties in accordance with Clause 31.2 (Distributions by the Agent).

(e)

A Paying Party shall, promptly upon request by a Recipient Party and to the extent:

(i)

that it has not given an instruction pursuant to paragraph (d) above; and

(ii)

that it has been provided with the necessary information by that Recipient Party,

give all requisite instructions to the bank with whom the trust account is held to transfer the relevant amount (together with any accrued interest) to that Recipient Party.

31.6

Partial payments

(a)

Subject to Clause 8.8 (Partial payments Swingline Facility), if the Agent receives a payment that is insufficient to discharge all the amounts then due and payable by an Obligor under the Finance Documents, the Agent shall apply that payment towards the obligations of that Obligor under the Finance Documents in the following order:

(i)

first, in or towards payment pro rata of any unpaid amount owing to the Agent under the Finance Documents;

(ii)

secondly, in or towards payment pro rata of any accrued interest, fee or commission due but unpaid under this Agreement;

(iii)

thirdly, in or towards payment pro rata of any principal due but unpaid under this Agreement; and

(iv)

fourthly, in or towards payment pro rata of any other sum due but unpaid under the Finance Documents.

(b)

The Agent shall, if so directed by the Majority Lenders, vary the order set out in paragraphs (a)(ii) to (a)(iv) above.

(c)

Paragraphs (a) and (b) above will override any appropriation made by an Obligor.

31.7

No set-off by Obligors

All payments to be made by an Obligor under the Finance Documents shall be calculated and be made without (and free and clear of any deduction for) set-off or counterclaim unless the counterclaim is undisputed or has been confirmed in a final non-appealable judgement. Any New Lender and any recipient of security over Lenders' rights according to Clause 26.8 (Security over Lenders' rights) may rely on this Clause 31.7, in the case of any New Lender to whom rights have been assigned according to paragraph (a) of Clause 26.3 (Other conditions of assignment or assignment and transfer by assumption of contract (Vertragsübernahme)) and any recipient of security over Lenders' rights, pursuant to section 328 paragraph 1 German Civil Code (Bürgerliches Gesetzbuch) (echter berechtigender Vertrag zugunsten Dritter).

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31.8

Business Days

(a)

Any payment under the Finance Documents which is due to be made on a day that is not a Business Day shall be made on the next Business Day in the same calendar month (if there is one) or the preceding Business Day (if there is not).

(b)

During any extension of the due date for payment of any principal or Unpaid Sum under this Agreement interest is payable on the principal or Unpaid Sum at the rate payable on the original due date.

31.9

Currency of account

(a)

Subject to paragraphs (b) to (e) below, the Base Currency is the currency of account and payment for any sum due from an Obligor under any Finance Document.

(b)

A repayment of a Loan or Unpaid Sum or a part of a Loan or Unpaid Sum shall be made in the currency in which that Loan or Unpaid Sum is denominated, pursuant to this Agreement, on its due date.

(c)

Each payment of interest shall be made in the currency in which the sum in respect of which the interest is payable was denominated, pursuant to this Agreement, when that interest accrued.

(d)

Each payment in respect of costs, expenses or Taxes shall be made in the currency in which the costs, expenses or Taxes are incurred.

(e)

Any amount expressed to be payable in a currency other than the Base Currency shall be paid in that other currency.

31.10

Change of currency

(a)

Unless otherwise prohibited by law, if more than one currency or currency unit are at the same time recognised by the central bank of any country as the lawful currency of that country, then:

(i)

any reference in the Finance Documents to, and any obligations arising under the Finance Documents in, the currency of that country shall be translated into, or paid in, the currency or currency unit of that country designated by the Agent (after consultation with the Company); and

(ii)

any translation from one currency or currency unit to another shall be at the official rate of exchange recognised by the central bank for the conversion of that currency or currency unit into the other, rounded up or down by the Agent (acting reasonably).

(b)

If a change in any currency of a country occurs, this Agreement will, to the extent the Agent (acting reasonably and after consultation with the Company) specifies to be necessary, be amended to comply with any generally accepted conventions and

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market practice in the Relevant Market and otherwise to reflect the change in currency.

32.

SET-OFF

A Finance Party may set off any matured obligation due from an Obligor under the Finance Documents against any satisfiable (erfüllbar) obligation (within the meaning of section 387 German Civil Code (Bürgerliches Gesetzbuch)) owed by that Finance Party to that Obligor, regardless of the place of payment, booking branch or currency of either obligation. If the obligations are in different currencies, the Finance Party may convert either obligation at a market rate of exchange in its usual course of business for the purpose of the set-off.

33.

NOTICES

33.1

Communications in writing

Any communication to be made under or in connection with the Finance Documents shall be made in writing and, unless otherwise stated, may be made by fax, e-mail or letter.

33.2

Addresses

The address and communication details (and the department or officer, if any, for whose attention the communication is to be made) of each Party for any communication or document to be made or delivered under or in connection with the Finance Documents is:

(a)

in the case of the Company, that identified with the signature pages to this Agreement;

(b)

in the case of each Lender or any other Obligor, that notified in writing to the Agent on or prior to the date on which it becomes a Party; and

(c)

in the case of the Agent, that identified with signature pages to this Agreement,

or any substitute address, fax number, communication details or department or officer as the Party may notify to the Agent (or the Agent may notify to the other Parties, if a change is made by the Agent) by not less than five (5) Business Days' notice.

33.3

Delivery

(a)

Any communication or document made or delivered by one person to another under or in connection with the Finance Documents will only be effective when received (zugegangen), in particular:

(i)

if by way of fax or e-mail, when received in legible form; or

(ii)

if by way of letter, when it has been left at the relevant address,

and, if a particular department or officer is specified as part of its address details provided under Clause 33.2 (Addresses), if addressed to that department or officer.

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(b)

Any communication or document to be made or delivered to the Agent will be effective only when actually received by the Agent and then only if it is expressly marked for the attention of the department or officer identified with the Agent's signature below (or any substitute department or officer as the Agent shall specify for this purpose).

(c)

All notices from or to an Obligor shall be sent through the Agent.

(d)

Any communication or document by the Finance Parties to the Obligors may be made or delivered to the Company for its own account and for the account of the Obligors. For that purpose each Obligor appoints the Company as its agent of receipt (Empfangsvertreter).

(e)

Any communication or document which becomes effective, in accordance with paragraphs (a) to (d) above, after 5.00 p.m. in the place of receipt shall be deemed only to become effective on the following day.

33.4

Notification of address and communication details

Promptly upon changing its address or communication details, the Agent shall notify the other Parties.

33.5

Communication when Agent is Impaired Agent

If the Agent is an Impaired Agent the Parties may, instead of communicating with each other through the Agent, communicate with each other directly and (while the Agent is an Impaired Agent) all the provisions of the Finance Documents which require communications to be made or notices to be given to or by the Agent shall be varied so that communications may be made and notices given to or by the relevant Parties directly. This provision shall not operate after a successor Agent has been appointed.

33.6

Electronic communication

(a)

Any communication or document to be made or delivered by one Party to another under or in connection with the Finance Documents may be made or delivered by unencrypted electronic mail or other electronic means (including, without limitation, by way of posting to a secure website) if those two Parties:

(i)

notify each other in writing of their electronic mail address and/or any other information required to enable the transmission of information by that means; and

(ii)

notify each other of any change to their address or any other such information supplied by them by not less than five (5) Business Days' notice.

(b)

Any such electronic communication or delivery as specified in paragraph (a) above to be made between an Obligor and a Finance Party may only be made in that way to the extent that those two Parties agree that, unless and until notified to the contrary, this is to be an accepted form of communication or delivery.

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(c)

Any such electronic communication or document as specified in paragraph (a) above made or delivered by one Party to another will be effective only when actually received (or made available) in readable form and in the case of any electronic communication or document made or delivered by a Party to the Agent only if it is addressed in such a manner as the Agent shall specify for this purpose.

(d)

Any electronic communication or document which becomes effective, in accordance with paragraph (c) above, after 5:00 p.m. in the place in which the Party to whom the relevant communication or document is sent or made available has its address for the purpose of this Agreement shall be deemed only to become effective on the following day.

(e)

Any reference in a Finance Document to a communication being sent or received or a document being delivered shall be construed to include that communication or document being made available in accordance with this Clause 33.5.

33.7

English language

(a)

Except for the process agent appointment letter in substantially the form of Schedule 15 (Form of Process Agent Appointment Letter), any notice given under or in connection with any Finance Document must be in English.

(b)

All other documents provided under or in connection with any Finance Document must be:

(i)

in English or German, in relation to the corporate documents referred to in Schedule 2 (Conditions Precedent), in their original language); or

(ii)

if not in English or German and not a, corporate document referred to in Schedule 2 (Conditions Precedent), and if so required by the Agent, accompanied by a certified English translation and, in this case, the English translation will prevail unless the document is a constitutional, statutory or other official document.

34.

CALCULATIONS AND CERTIFICATES

34.1

Accounts

In any litigation or arbitration proceedings arising out of or in connection with a Finance Document, the entries made in the accounts maintained by a Finance Party are prima facie evidence (Beweis des ersten Anscheins) of the matters to which they relate.

34.2

Certificates and determinations

(a)

The Finance Parties make the certifications or determinations of a rate or amount under any Finance Document in the exercise of their unilateral right to specify performance (einseitiges Leistungsbestimmungsrecht) which they will exercise with reasonable discretion (billiges Ermessen).

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(b)

The Parties agree not to dispute in any legal proceeding the correctness of the determinations and certifications of a rate or amount made by a Finance Party under any Finance Document unless the determinations or certifications are inaccurate on their face or fraud can be shown.

34.3

Day count convention

Any interest, commission or fee accruing under a Finance Document will accrue from day to day and is calculated on the basis of the actual number of days elapsed and a year of 360 days or, in any case where the practice in the Relevant Market differs, in accordance with that market practice.

35.

PARTIAL INVALIDITY

The Parties agree that should at any time, any provisions of this Agreement be or become void (nichtig), invalid or due to any reason ineffective (unwirksam) this will indisputably (unwiderlegbar) not affect the validity or effectiveness of the remaining provisions and this Agreement will remain valid and effective, save for the void, invalid or ineffective provisions, without any Party having to argue (darlegen) and prove (beweisen) the Parties' intent to uphold this Agreement even without the void, invalid or ineffective provisions.

The void, invalid or ineffective provision shall be deemed replaced by such valid and effective provision that in legal and economic terms comes closest to what the Parties intended or would have intended in accordance with the purpose of this Agreement if they had considered the point at the time of conclusion of this Agreement.

36.

REMEDIES AND WAIVERS

No failure to exercise, nor any delay in exercising, on the part of any Finance Party, any right or remedy under a Finance Document shall operate as a waiver of any such right or remedy or constitute an election to affirm any of the Finance Documents. No election to affirm any Finance Document on the part of any Finance Party shall be effective unless it is in writing. No single or partial exercise of any right or remedy shall prevent any further or other exercise or the exercise of any other right or remedy. The rights and remedies provided in each Finance Document are cumulative and not exclusive of any rights or remedies provided by law.

37.

AMENDMENTS AND WAIVERS

37.1

Required consents

(a)

Subject to Clause 37.2 (All Lender matters) and Clause 37.3 (Other exceptions) any term of the Finance Documents may be amended or waived only with the consent of the Majority Lenders and the Obligors and any such amendment or waiver will be binding on all Parties.

(b)

The Agent may effect, on behalf of any Finance Party, any amendment or waiver permitted by this Clause 37.

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(c)

Paragraph (c) of Clause 26.9 (Pro rata interest settlement) shall apply to this Clause 37.

37.2

All Lender matters

Subject to Clause 37.7 (Replacement of Screen Rate) an amendment or waiver of any term of any Finance Document that has the effect of changing or which relates to:

(a)

the definition of "Majority Lenders" in Clause 1.1 (Definitions);

(b)

an extension to the date of payment of any amount under the Finance Documents (other than any extension in accordance with Clause 3 (Extension Option));

(c)

a reduction in the Margin or a reduction in the amount of any payment of principal, interest, fees or commission payable;

(d)

a change in currency of payment of any amount under the Finance Documents;

(e)

an increase in any Commitment (other than any increase in accordance with Clause 2.2 (Increase) or Clause 2.3 (Increase option)), an extension of any Availability Period (other than any extension in accordance with Clause 3 (Extension of the Termination Date)) or any requirement that a cancellation of Commitments reduces the Commitments of the Lenders rateably under the relevant Facility;

(f)

a change to the Borrowers or Guarantors other than in accordance with Clause 27 (Changes to the Obligors);

(g)

any provision which expressly requires the consent of all the Lenders;

(h)

Clause 2.3 (Finance Parties' rights and obligations), Clause 6.1 (Delivery of a Utilisation Request), , paragraph (a) of Clause 7.2 (Delivery of a Utilisation Request for Swingline Loans), Clause 11.1 (Illegality), Clause 11.2 (Change of control), Clause 11.8 Application of prepayments), Clause 22.15 (Anti-Corruption Laws, Anti-Money Laundering Laws and Sanctions) and Clause 24.11 (Anti-Corruption Laws, Anti-Money Laundering Laws and Sanctions) and related definitions, Clause 26 (Changes to the Lenders), Clause 27 (Changes to the Obligors), Clause 30 (Sharing among the Finance Parties), this Clause 37, Clause 41 (Governing law) or Clause 42.1 (Jurisdiction); or

(i)

the nature or scope of the guarantee and indemnity granted under Clause 21 (Guarantee and indemnity),

shall not be made without the prior consent of all the Lenders.

37.3

Other exceptions

An amendment or waiver which relates to the rights or obligations of the Agent or the Arranger (each in their capacity as such) may not be effected without the consent of the Agent, the Arranger, as the case may be.

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37.4

Disenfranchisement of Defaulting Lenders

(a)

For so long as a Defaulting Lender has any Available Commitment, in ascertaining:

(i)

the Majority Lenders; or

(ii)

whether:

(A)

any given percentage (including, for the avoidance of doubt, unanimity) of the Total Commitments under the Facility; or

(B)

the agreement of any specified group of Lenders,

has been obtained to approve any request for a consent, waiver, amendment or other vote of Lenders under the Finance Documents,

that Defaulting Lender's Commitments under the Facility will be reduced by the amount of its Available Commitments under the Facility and, to the extent that that reduction results in that Defaulting Lender's Total Commitments being zero, that Defaulting Lender shall be deemed not to be a Lender for the purposes of paragraphs (i) and (ii) above.

(b)

For the purposes of this Clause 37.4, the Agent may assume that the following Lenders are Defaulting Lenders:

(i)

any Lender which has notified the Agent that it has become a Defaulting Lender;

(ii)

any Lender in relation to which it is aware that any of the events or circumstances referred to in paragraphs (a), (b) or (c) of the definition of "Defaulting Lender" has occurred,

unless it has received notice to the contrary from the Lender concerned (together with any supporting evidence reasonably requested by the Agent) or the Agent is otherwise aware that the Lender has ceased to be a Defaulting Lender.

37.5

Excluded Commitments

If

(a)

any Defaulting Lender fails to respond to a request for a consent, waiver, amendment of or in relation to any term of any Finance Document or any other vote of Lenders under the terms of this Agreement within ten (10) Business Days:

(b)

any Lender which is not a Defaulting Lender fails to respond to such a request (other than an amendment, waiver or consent referred to in paragraphs (b), (c) and (e) of Clause 37.2 (All Lender matters)) or such a vote within ten (10) Business Days of that request being made

(unless, in either case, the Borrowers and the Agent agree to a longer time period in relation to any request) of that request being made):

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(i)

its Commitment shall not be included for the purpose of calculating the Total Commitments under the Facility when ascertaining whether any relevant percentage (including, for the avoidance of doubt, unanimity) of Total Commitments has been obtained to approve that request; and

(ii)

its status as a Lender shall be disregarded for the purpose of ascertaining whether the agreement of any specified group of Lenders has been obtained to approve that request.

37.6

Replacement of a Defaulting Lender

(a)

The Borrowers may, at any time a Lender has become and continues to be a Defaulting Lender, by giving five (5) Business Days' prior written notice to the Agent and such Lender:

(i)

replace such Lender by requiring such Lender to (and, to the extent permitted by law, such Lender shall) assign and transfer by way of assumption of contract (Vertragsübernahme) pursuant to Clause 26 (Changes to the Lenders) all (and not part only) of its rights and obligations under this Agreement;

(ii)

require such Lender to (and, to the extent permitted by law, such Lender shall) assign and transfer by way of assumption of contract (Vertragsübernahme) pursuant to Clause 26 (Changes to the Lenders) all (and not part only) of the undrawn Commitment of the Lender; or

(iii)

require such Lender to (and, to the extent permitted by law, such Lender shall) assign and transfer by way of assumption of contract (Vertragsübernahme) pursuant to Clause 26 (Changes to the Lenders) all (and not part only) of its rights and obligations in respect of the Facility,

to an Eligible Institution (a "Replacement Lender") selected by the Borrowers and which confirms its willingness to assume and does assume all the obligations, or all the relevant obligations, of the assigning and transferring Lender in accordance with Clause 26 (Changes to the Lenders) for a purchase price in cash payable at the time of transfer which is either:

(i)

in an amount equal to the outstanding principal amount of such Lender's participation in the outstanding Utilisations and all accrued interest (to the extent that the Agent has not given a notification under Clause 26.9 (Pro rata interest settlement)), Break Costs and other amounts payable in relation thereto under the Finance Documents; or

(ii)

in an amount agreed between that Defaulting Lender, the Replacement Lender and the Borrowers and which does not exceed the amount described in paragraph (i) above.

(b)

Any transfer of rights and obligations of a Defaulting Lender pursuant to this Clause 37.6 shall be subject to the following conditions:

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(i)

the Borrowers shall have no right to replace the Agent or Security Agent;

(ii)

neither the Agent nor the Defaulting Lender shall have any obligation to the Borrowers to find a Replacement Lender;

(iii)

the transfer must take place no later than ten (10) days after the notice referred to in paragraph (a) above;

(iv)

in no event shall the Defaulting Lender be required to pay or surrender to the Replacement Lender any of the fees received by the Defaulting Lender pursuant to the Finance Documents; and

(v)

the Defaulting Lender shall only be obliged to transfer its rights and obligations pursuant to paragraph (a) above once it is satisfied that it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to that transfer to the Replacement Lender.

(c)

The Defaulting Lender shall perform the checks described in paragraph (b)(v) above as soon as reasonably practicable following delivery of a notice referred to in paragraph (a) above and shall notify the Agent and the Borrowers when it is satisfied that it has complied with those checks

37.7

Replacement of Screen Rate

(a)

Subject to Clause 37.3 (Other exceptions), if a Screen Rate Replacement Event has occurred in relation to any Screen Rate for a currency which can be selected for a Loan, any amendment or waiver which relates to:

(i)

providing for the use of a Replacement Benchmark in relation to that currency in place of that Screen Rate; and

(ii)

(A)

aligning any provision of any Finance Document to the use of that Replacement Benchmark;

(B)

enabling that Replacement Benchmark to be used for the calculation of interest under this Agreement (including, without limitation, any consequential changes required to enable that Replacement Benchmark to be used for the purposes of this Agreement);

(C)

implementing market conventions applicable to that Replacement Benchmark;

(D)

providing for appropriate fallback (and market disruption) provisions for that Replacement Benchmark; or

(E)

adjusting the pricing to reduce or eliminate, to the extent reasonably practicable, any transfer of economic value from one Party to another as a result of the application of that Replacement Benchmark (and if any

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adjustment or method for calculating any adjustment has been formally designated, nominated or recommended by the Relevant Nominating Body, the adjustment shall be determined on the basis of that designation, nomination or recommendation),

may be made with the consent of the Agent (acting on the instructions of the Majority Lenders) and the Borrowers.

(b)

If any Lender fails to respond to a request for an amendment or waiver described in paragraph (a) above within ten (10) Business Days (or such longer time period in relation to any request which the Borrowers and the Agent may agree) of that request being made:

(i)

its Commitment(s) shall not be included for the purpose of calculating the Total Commitments under the relevant Facility/ies when ascertaining whether any relevant percentage of Total Commitments has been obtained to approve that request; and

(ii)

its status as a Lender shall be disregarded for the purpose of ascertaining whether the agreement of any specified group of Lenders has been obtained to approve that request.

(c)

If, as at 30 September 2022 this Agreement provides that the rate of interest for a Loan in USD is to be determined by reference to the Screen Rate for LIBOR, the Agent (acting on the instructions of the Majority Lenders) and the Borrowers shall enter into negotiations in good faith with a view to agreeing the use of a Replacement Benchmark (including any amendment, replacement or waiver to the definition of LIBOR or Screen Rate, including an alternative or additional page, service or method for the determination thereof or which relates to aligning any provision of this Agreement to the use of that Replacement Benchmark, including making appropriate adjustments to this Agreement for basis, duration, time and periodicity for determination of that Replacement Benchmark for any Interest Period and making other consequential and/or incidental changes) (a "Benchmark Rate Change") in relation to that currency in place of that Screen Rate from and including a date no later than 30 June 2023. If at such date or, if earlier, following a Screen Rate Replacement Event in relation to any Screen Rate for LIBOR (provided, in each case, that where a Screen Rate Replacement Event refers to a point in time in the future (e.g. where a Screen Rate will cease to be published, will be discontinued or will no longer be representative), for the purposes of this paragraph (c), such Screen Rate Replacement Event will be deemed to only occur at that point in time in the future), a Benchmark Rate Change for the relevant currency has not been agreed, Clause 14.3 (Cost of funds) shall apply for any new Utilisation, all future Interest Periods and otherwise under this Agreement where the relevant Screen Rate applies

(d)

In this Clause 37.7:

"Relevant Nominating Body" means any applicable central bank, regulator or other supervisory authority or a group of them, or any working group or committee

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sponsored or chaired by, or constituted at the request of, any of them or the Financial Stability Board.

"Replacement Benchmark" means a benchmark rate which is:

(a)

formally designated, nominated or recommended as the replacement for a Screen Rate by:

(i)

the administrator of that Screen Rate (provided that the market or economic reality that such benchmark rate measures is the same as that measured by that Screen Rate); or

(ii)

any Relevant Nominating Body,

and if replacements have, at the relevant time, been formally designated, nominated or recommended under both paragraphs, the "Replacement Bench­mark" will be the replacement under paragraph (ii) above;

(b)

in the opinion of the Majority Lenders and the Company, generally accepted in the international or any relevant domestic syndicated loan markets as the appropriate successor to a Screen Rate; or

(c)

in the opinion of the Majority Lenders and the Company, an appropriate successor to a Screen Rate.

"Screen Rate Replacement Event" means, in relation to a Screen Rate:

(a)

the methodology, formula or other means of determining that Screen Rate has, in the opinion of the Majority Lenders and the Company, materially changed;

(b)

(i)

(A)

the administrator of that Screen Rate or its supervisor publicly announces that such administrator is insolvent; or

(B)information is published in any order, decree, notice, petition or filing, however described, of or filed with a court, tribunal, exchange, regulatory authority or similar administrative, regulatory or judicial body which reasonably confirms that the administrator of that Screen Rate is insolvent,

provided that, in each case, at that time, there is no successor administrator to continue to provide that Screen Rate;

(ii)

the administrator of that Screen Rate for LIBOR or EURIBOR publicly announces that it has ceased or will cease to provide that Screen Rate for any Quoted Tenor (in relation to LIBOR, other than an Excluded Quoted Tenor) permanently or indefinitely and, at that time, there is no successor

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administrator to continue to provide that Screen Rate for that Quoted Tenor;

(iii)

the supervisor of the administrator of that Screen Rate for LIBOR or EURIBOR publicly announces that such Screen Rate has been or will be permanently or indefinitely discontinued for any Quoted Tenor (in relation to LIBOR, other than an Excluded Quoted Tenor);

(iv)

in the case of a Screen Rate for EURIBOR, the supervisor of the administrator of that Screen Rate makes a public announcement or publishes information:

(A)

stating that that Screen Rate is no longer or, as of a specified future date will no longer be, representative of the underlying market or economic reality that it is intended to measure and that representativeness will not be restored (as determined by such supervisor); and

(B)with awareness that any such announcement or publication will engage certain triggers for fallback provisions in contracts which may be activated by any such pre-cessation announcement or publication

(v)

the administrator of that Screen Rate or its supervisor announces that that Screen Rate for any Quoted Tenor (other than an Excluded Quoted Tenor) may no longer be used; or

(vi)

in the case of the Screen Rate for LIBOR or EURIBOR any Quoted Tenor (in relation to LIBOR, other than an Excluded Quoted Tenor), the supervisor of the administrator of that Screen Rate publicly announces or publishes information (or if the Company and the Agent (acting on the instructions of the Majority Lenders) determine):

(A)

stating that that Screen Rate for LIBOR or EURIBOR for any Quoted Tenor (in relation to LIBOR, other than an Excluded Quoted Tenor) is no longer, or as of a specified future date will no longer be, representative of the underlying market and the economic reality that it is intended to measure and that such representativeness will not be restored (as determined by such supervisor); and

(B)

with awareness that any such announcement or publication will engage certain triggers for fallback provisions in contracts which may be activated by any such pre-cessation announcement or publication; or

(c)

the administrator of that Screen Rate determines that that Screen Rate should be calculated in accordance with its reduced submissions or other contingency or fallback policies or arrangements and the circumstance(s) or event(s) leading

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to such determination are not (in the opinion of the Majority Lenders and the Borrowers) temporary; or

(d)

in the opinion of the Majority Lenders and the Borrowers, that Screen Rate is otherwise no longer appropriate for the purposes of calculating interest under this Agreement.

38.

CONFIDENTIAL INFORMATION

38.1

Confidentiality

Each Finance Party agrees to keep all Confidential Information confidential and not to disclose it to anyone, save to the extent permitted by Clause 26.8 (Security over Lenders' rights), Clause 38.2 (Disclosure of Confidential Information), and Clause 38.3 (Disclosure to numbering service providers) and to ensure that all Confidential Information is protected with security measures and a degree of care that would apply to its own confidential information.

38.2

Disclosure of Confidential Information

Any Finance Party may disclose:

(a)

to any of its Affiliates, Related Funds, service providers and any of its or their officers, directors, employees, professional advisers, auditors, partners and Representatives such Confidential Information as that Finance Party shall consider appropriate if any person to whom the Confidential Information is to be given pursuant to this paragraph (a) is informed in writing of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the confidentiality of the information or is otherwise bound by requirements of confidentiality in relation to the Confidential Information;

(b)

to any person:

(i)

to (or through) whom it assigns or assigns and transfers by way of assumption of contract (Vertragsübernahme) (or may potentially assign or assign and transfer by way of assumption of contract (Vertragsübernahme)) all or any of its rights and/or obligations under one or more Finance Documents or which succeeds (or which may potentially succeed) it as Agent and, in each case, to any of that person's Affiliates, Related Funds, services providers, Representatives and professional advisers;

(ii)

with (or through) whom it enters into (or may potentially enter into), whether directly or indirectly, any sub-participation in relation to, or any other transaction (including credit insurances) under which payments are to be made or may be made by reference to, one or more Finance Documents and/or one or more Obligors and to any of that person's Affiliates, Representatives and professional advisers (including insurance brokers);

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(iii)

appointed by any Finance Party or by a person to whom paragraph (b)(i) or (ii) above applies to receive communications, notices, information or documents delivered pursuant to the Finance Documents on its behalf (including, without limitation, any person appointed under paragraph (b) of Clause 28.15 (Relationship with the Lenders));

(iv)

who invests in or otherwise finances (or may potentially invest in or otherwise finance), directly or indirectly, any transaction referred to in paragraph (b)(i) or (b)(ii) above;

(v)

to whom information is required or requested to be disclosed by any court of competent jurisdiction or any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange or pursuant to any applicable law or regulation;

(vi)

to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitration, administrative or other investigations, proceedings or disputes;

(vii)

to whom or for whose benefit that Finance Party charges, assigns or otherwise creates Security (or may do so) pursuant to Clause 26.8 (Security over Lenders' rights);

(viii)

who is a Party; or

(ix)

with the consent of the Company;

in each case, such Confidential Information as that Finance Party shall consider appropriate if:

(A)

in relation to paragraphs (b)(i), (b)(ii) and (b)(iii) above, the person to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking except that there shall be no requirement for a Confidentiality Undertaking if the recipient is a professional adviser and is subject to professional obligations to maintain the confidentiality of the Confidential Information;

(B)

in relation to paragraph (b)(iv) above, the person to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking or is otherwise bound by requirements of confidentiality in relation to the Confidential Information they receive and is informed that some or all of such Confidential Information may be price-sensitive information;

(C)

in relation to paragraphs (b)(v), (b)(vi) and (b)(vii) above, the person to whom the Confidential Information is to be given is informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that there shall be no

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requirement to so inform if, in the opinion of that Finance Party, it is not practicable so to do in the circumstances;

(c)

to any person appointed by that Finance Party or by a person to whom paragraph (b)(i) or (b)(ii) above applies to provide administration or settlement services in respect of one or more of the Finance Documents including without limitation, in relation to the trading of participations in respect of the Finance Documents, such Confidential Information as may be required to be disclosed to enable such service provider to provide any of the services referred to in this paragraph (c) if the service provider to whom the Confidential Information is to be given has entered into a confidentiality agreement substantially in the form of the LMA Master Confidentiality Undertaking for Use With Administration/Settlement Service Providers or such other form of confidentiality undertaking agreed between the Company and the relevant Finance Party; and

(d)

to any rating agency (including its professional advisers) such Confidential Information as may be required to be disclosed to enable such rating agency to carry out its normal rating activities in relation to the Finance Documents and/or the Obligors if the rating agency to whom the Confidential Information is to be given is informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive information.

38.3

Disclosure to numbering service providers

(a)

Any Finance Party may disclose to any national or international numbering service provider appointed by that Finance Party to provide identification numbering services in respect of this Agreement, the Facility and/or one or more Obligors the following information:

(i)

names of Obligors;

(ii)

country of domicile of Obligors;

(iii)

place of incorporation of Obligors;

(iv)

date of this Agreement;

(v)

Clause 41 (Governing law);

(vi)

the names of the Agent and the Arranger;

(vii)

date of each amendment and restatement of this Agreement;

(viii)

amounts of, and names of, the facilities (and any tranches);

(ix)

amount of Total Commitments;

(x)

currencies of the facilities;

(xi)

type of facilities ;

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(xii)

ranking of facilities;

(xiii)

Termination Date for the Facility;

(xiv)

changes to any of the information previously supplied pursuant to paragraphs (i) to (xiii) above; and

(xv)

such other information agreed between such Finance Party and the Company,

to enable such numbering service provider to provide its usual syndicated loan numbering identification services.

(b)

The Parties acknowledge and agree that each identification number assigned to this Agreement, the Facility and/or one or more Obligors by a numbering service provider and the information associated with each such number may be disclosed to users of its services in accordance with the standard terms and conditions of that numbering service provider.

(c)

The Agent shall notify the Company and the other Finance Parties of:

(i)

the name of any numbering service provider appointed by the Agent in respect of this Agreement, the Facility and/or one or more Obligors; and

(ii)

the number or, as the case may be, numbers assigned to this Agreement, the Facility and/or one or more Obligors by such numbering service provider.

38.4

Entire agreement

This Clause 38 and Clause 26.8 (Security over Lenders' rights) constitutes the entire agreement between the Parties in relation to the obligations of the Finance Parties under the Finance Documents regarding Confidential Information and supersedes any previous agreement, whether express or implied, regarding Confidential Information.

38.5

Inside information

Each of the Finance Parties acknowledges that some or all of the Confidential Information is or may be price-sensitive information and that the use of such information may be regulated or prohibited by applicable legislation including securities law relating to insider dealing and market abuse and each of the Finance Parties undertakes not to use any Confidential Information for any unlawful purpose.

38.6

Notification of disclosure

Each of the Finance Parties agrees (to the extent permitted by law and regulation) to inform the Company:

(a)

of the circumstances of any disclosure of Confidential Information made pursuant to paragraph (b)(v) of Clause 38.2 (Disclosure of Confidential Information) except where such disclosure is made to any of the persons referred to in that paragraph during the ordinary course of its supervisory or regulatory function; and

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(b)

upon becoming aware that Confidential Information has been disclosed in breach of this Clause 38.

38.7

Continuing obligations

The obligations in this Clause 38 are continuing and, in particular, shall survive and remain binding on each Finance Party for a period of twelve (12) Months from the earlier of:

(a)

the date on which all amounts payable by the Obligors under or in connection with this Agreement have been paid in full and all Commitments have been cancelled or otherwise cease to be available; and

(b)

the date on which such Finance Party otherwise ceases to be a Finance Party.

39.

CONFIDENTIALITY OF FUNDING RATES

39.1

Confidentiality and disclosure

(a)

The Agent and each Obligor agree to keep each Funding Rate confidential and not to disclose it to anyone, save to the extent permitted by paragraphs (b) and (c) below.

(b)

The Agent may disclose:

(i)

any Funding Rate to the relevant Borrower pursuant to Clause 12.7 (Notification of rates of interest); and

(ii)

any Funding Rate to any person appointed by it to provide administration services in respect of one or more of the Finance Documents to the extent necessary to enable such service provider to provide those services if the service provider to whom that information is to be given has entered into a confidentiality agreement substantially in the form of the LMA Master Confidentiality Undertaking for Use With Administration/Settlement Service Providers or such other form of confidentiality undertaking agreed between the Agent and the relevant Lender.

(c)

The Agent may disclose any Funding Rate, and each Obligor may disclose any Funding Rate, to:

(i)

any of its Affiliates and any of its or their officers, directors, employees, professional advisers, auditors, partners and Representatives if any person to whom that Funding Rate is to be given pursuant to this paragraph (i) is informed in writing of its confidential nature and that it may be price-sensitive information except that there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the confidentiality of that Funding Rate or is otherwise bound by requirements of confidentiality in relation to it;

(ii)

any person to whom information is required or requested to be disclosed by any court of competent jurisdiction or any governmental, banking, taxation or other

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regulatory authority or similar body, the rules of any relevant stock exchange or pursuant to any applicable law or regulation if the person to whom that Funding Rate is to be given is informed in writing of its confidential nature and that it may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of the Agent or the relevant Obligor, as the case may be, it is not practicable to do so in the circumstances;

(iii)

any person to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitration, administrative or other investigations, proceedings or disputes if the person to whom that Funding Rate is to be given is informed in writing of its confidential nature and that it may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of the Agent or the relevant Obligor, as the case may be, it is not practicable to do so in the circumstances; and

(iv)

any person with the consent of the relevant Lender.

39.2

Related obligations

(a)

The Agent and each Obligor acknowledge that each Funding Rate is or may be price-sensitive information and that its use may be regulated or prohibited by applicable legislation including securities law relating to insider dealing and market abuse and the Agent and each Obligor undertake not to use any Funding Rate for any unlawful purpose.

(b)

The Agent and each Obligor agree (to the extent permitted by law and regulation) to inform the relevant Lender:

(i)

of the circumstances of any disclosure made pursuant to paragraph (c)(ii) of Clause 39.1(Confidentiality and disclosure) except where such disclosure is made to any of the persons referred to in that paragraph during the ordinary course of its supervisory or regulatory function; and

(ii)

upon becoming aware that any information has been disclosed in breach of this Clause 39.

39.3

No Event of Default

No Event of Default will occur under Clause 25.2 (Other obligations) by reason only of an Obligor's failure to comply with this Clause 39.

40.

LENDING AFFILIATES

40.1

Lending Affiliate definitions

In this Agreement:

"Appointing Lender" means:

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(a)

in relation to an Original Lending Affiliate, the Lender specified as an Original Lender opposite that Original Lending Affiliate's name in Schedule 11 (Original Lending Affiliates); and

(b)

in relation to a New Lending Affiliate, the Lender which is party to the New Lending Affiliate Appointment Notice relating to that New Lending Affiliate.

"Appointment Date" means, in relation to the appointment of a New Lending Affiliate, the later of:

(a)

the proposed Appointment Date specified in the relevant New Lending Affiliate Appointment Notice; and

(b)

the date on which the Agent executes the relevant New Lending Affiliate Appointment Notice.

"Lending Affiliate" means, in relation to a Lender:

(a)

an Original Lending Affiliate of that Lender; and

(b)

a New Lending Affiliate of that Lender,

which in each case has not ceased to be a Party as such in accordance with the terms of this Agreement.

"Lending Affiliate Loan" means, in relation to a Lending Affiliate, a Loan in which that Lending Affiliate has been nominated to participate pursuant to Clause 40.6 (Nomination of Lending Affiliate Loans).

"Lending Affiliate Loan Notice" means a notice substantially in the form set out in Schedule 13 (Form of Lending Affiliate Loan Notice).

"Lending Affiliate Resignation Notice" means a notice substantially in the form set out in Schedule 14 (Form of Lending Affiliate Resignation Notice).

"New Lending Affiliate" means, in relation to a Lender, an entity which has become a Party as a "New Lending Affiliate" of that Lender in accordance with Clause 40.3 (Appointment of New Lending Affiliates).

"New Lending Affiliate Appointment Notice" means a notice substantially in the form set out in Schedule 12 (Form of New Lending Affiliate Appointment Notice).

"Original Lending Affiliate" means, in relation to an Original Lender, any entity specified as an Original Lending Affiliate opposite that Original Lender's name in Part I or Part II of Schedule 11 (Original Lending Affiliates).

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40.2

Original Lending Affiliate tax status confirmations

(a)

Each Original Lending Affiliate shall indicate in the New Lending Affiliate Appointment Notice for the benefit of the Agent and without liability to any Obligor, which of the following categories it falls in:

(i)

not a Qualifying Lender;

(ii)

a Qualifying Lender (other than a Treaty Lender or a US Qualifying Lender);

(iii)

a US Qualifying Lender; or

(iv)

a Treaty Lender.

(b)

If an Original Lending Affiliate fails to indicate its status in accordance with this Clause 40.2 then that Original Lending Affiliate shall be treated for the purposes of this Agreement (including by each Obligor) as if it is not a Qualifying Lender until such time as it notifies the Agent which category applies (and the Agent, upon receipt of such notification, shall inform the Company). For the avoidance of doubt, the New Lending Affiliate Appointment Notice shall not be invalidated by any failure of a Original Lending Affiliate to comply with this Clause 40.2.

40.3

Appointment of New Lending Affiliates

(a)

Subject to this Clause 40.3 an entity shall become a Party as a "New Lending Affiliate" of a Lender on the relevant Appointment Date if:

(i)

that entity is an Affiliate of that Lender;

(ii)

that Affiliate is a bank or financial institution which is regularly engaged in or established for the purpose of making, purchasing or investing in loans, securities or other financial assets;

(iii)

that Affiliate is permitted to perform and capable of performing revolving lending business in the relevant jurisdiction of a Borrower;

(iv)

that Affiliate has been named to the Company as soon as practical prior to the Appointment Date (taking into account that the Company is required to carry out an onboarding procedure in respect of such Affiliate);

(v)

that Lender and that Affiliate deliver to the Agent a duly completed New Lending Affiliate Appointment Notice in relation to that Affiliate; and

(vi)

the Agent executes that New Lending Affiliate Appointment Notice.

(b)

The Agent shall, subject to paragraph (c) below, as soon as reasonably practicable after receipt by it of a duly completed New Lending Affiliate Appointment Notice appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that New Lending Affiliate Appointment Notice. For the avoidance of doubt, the Agent shall execute a New Lending Affiliate

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Appointment Notice even if the onboarding procedure referred to in paragraph (a) (iv) above in respect of the New Lending Affiliate has not been successfully completed. In this case, the Company, the Appointing Lender and the New Lending Affiliate shall use best efforts to successfully complete the onboarding procedure in respect of the New Lending Affiliate subject to paragraph (d) (iii) of Clause 40.14.

(c)

The Agent shall only be obliged to execute a New Lending Affiliate Appointment Notice delivered to it by a Lender and an Affiliate of that Lender once it is satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to that Affiliate becoming a Party as a New Lending Affiliate.

(d)

The Agent shall, as soon as reasonably practicable after it has executed a New Lending Affiliate Appointment Notice, send to the Company a copy of that New Lending Affiliate Appointment Notice.

(e)

If a proposed appointment of an Affiliate of a Lender as a New Lending Affiliate obliges that Affiliate to comply with "know your customer" or similar identification procedures in circumstances where the necessary information is not already available to it, each Obligor shall promptly upon the request of that Lender supply, or procure the supply of, such documentation and other evidence as is reasonably requested by that Lender (on behalf of that Affiliate) in order for that Affiliate to carry out and be satisfied that it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents.

(f)

Unless the Agent and the Company agrees otherwise, an Affiliate of a Lender shall not become a Party as a New Lending Affiliate if, as a result of that Affiliate becoming a Party as a New Lending Affiliate, that Lender would be the Appointing Lender of two or more Lending Affiliates.

40.4

Lending Affiliate fee

Each New Lending Affiliate shall, on the date upon which it becomes a Party as a New Lending Affiliate, pay to the Agent (for its own account) a fee of EUR 3,000.

40.5

Lending Affiliates as Lenders

(a)

Subject to this Clause 40 any reference in a Finance Document to a "Lender" shall be construed to include a Lending Affiliate, any reference to an "Original Lender" shall be construed to include an Original Lending Affiliate and, to the extent a Lending Affiliate is nominated to participate in a Swingline Loan, any reference to a "Swingline Lender" shall be construed to include that Lending Affiliate.

(b)

An Appointing Lender and each of its Lending Affiliates shall be treated as a single Lender for the purposes of:

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(i)

determining an Appointing Lender's Available Commitment or Available Swingline Commitment or whether participations exceed an Appointing Lender's Revolving Facility Commitment; and

(ii)

Clause 8.9 (Loss sharing), Clause 11.1 (Illegality), Clause 11.2 (Change of control), and Clause 11.5 (Right of replacement or repayment and cancellation in relation to a single Lender).

40.6

Nomination of Lending Affiliate Loans

(a)

Each Original Lending Affiliate is nominated by its Appointing Lender to participate in any Loan, or class of Loan, specified opposite the name of that Original Lending Affiliate in Schedule 11 (Original Lending Affiliates).

(b)

An Appointing Lender may, by delivery of a duly completed Lending Affiliate Loan Notice to the Agent and the Company no later than the applicable time specified in paragraph (c) below, nominate any of its Lending Affiliates to participate in any Loan, or class of Loan, specified in that Lending Affiliate Loan Notice.

(c)

Any Lending Affiliate Loan Notice delivered pursuant to paragraph (b) above shall be delivered:

(i)

to the extent that a Loan specified in that Lending Affiliate Loan Notice is a Revolving Facility Loan to which paragraph (b) of Clause 10.1 (Repayment of Revolving Facility Loans) would have applied had that Loan not been specified in that Lending Affiliate Loan Notice, no later than five (5) Business Days before the proposed Utilisation Date of that Loan; and

(ii)

in any other case, no later than five (5) Business Days before the proposed Utilisation Date of any Loan specified in that Lending Affiliate Loan Notice,

or, in each case, at such later time agreed by the Agent and the Company.

(d)

A Loan, or class of Loan, may only be specified pursuant to paragraphs (a) or (b) above by reference to any of:

(i)

the Borrower(s) of that Loan or those Loans;

(ii)

the jurisdiction of incorporation of the Borrower(s) of that Loan or those Loans;

(iii)

the currency of that Loan or those Loans; or

(iv)

in the case of the specification of an individual Loan, the proposed Utilisation Date of that Loan.

(e)

Clause 26 (Changes to the Lenders) shall not apply to any nomination of a Lending Affiliate Loan or to the effects of that nomination pursuant to this Clause 40.

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40.7

Participation by Lending Affiliate

(a)

An Appointing Lender which nominates its Lending Affiliate to participate in any Loan, or class of Loan, pursuant to Clause 40.6 (Nomination of Lending Affiliate Loans) will be released from its obligations under the Finance Documents which relate to that Loan, or class of Loan, and that Lending Affiliate will be bound by obligations equivalent to those obligations.

(b)

Without prejudice to Clause 28.11 (Lenders' indemnity to the Agent and the Swingline Agent) an Appointing Lender shall not be responsible for, or liable for any damages, costs or losses to any person arising as a result of, the non-performance by any Lending Affiliate of that Appointing Lender of that Lending Affiliate's obligations under the Finance Documents.

40.8

Payments

(a)

Notwithstanding Clause 28.15 (Relationship with the Lenders) (and subject to paragraph (b) below) any obligation under any Finance Document to pay an amount to a Lender, or to the Agent on a Lender's behalf, in relation to a Lending Affiliate Loan shall be construed as an obligation to pay that amount to the Lending Affiliate nominated by that Lender to participate in that Lending Affiliate Loan or to the Agent on behalf of that Lending Affiliate.

(b)

Each Lending Affiliate appoints its Appointing Lender as its agent for the purpose of receipt of payments under the Finance Documents and, notwithstanding Clause 31.2 (Distributions by the Agent), and subject to Clause 31.4 (Clawback and pre-funding), each payment received by the Agent under the Finance Documents for a Lending Affiliate shall be made available by the Agent as soon as practicable after receipt to the Appointing Lender of that Lending Affiliate to such account as that Appointing Lender may notify to the Agent by not less than five Business Days' notice with a bank specified by that Appointing Lender in the principal financial centre of the country of that currency (or, in relation to euro, in the principal financial centre of a Participating Member State or London, as specified by that Appointing Lender).

40.9

Commitments and voting

(a)

Without prejudice to Clause 40.7 (Participation by Lending Affiliate), a Lending Affiliate has no Commitment and any portion of a Commitment which relates to any Lending Affiliate Loan of that Lending Affiliate remains part of the Commitment of the Appointing Lender of that Lending Affiliate.

(b)

Any term of this Agreement which acts to cancel or reduce a Commitment on the repayment or prepayment of a Loan shall, in the case of the repayment or prepayment of a Lending Affiliate Loan of a Lending Affiliate, operate to cancel or reduce the corresponding portion of the Commitment of the Appointing Lender of that Lending Affiliate.

(c)

No reference in a Finance Document to a "Lender" shall be construed to include any Lending Affiliate for the purposes of ascertaining whether the agreement of any

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specified group of Lenders has been obtained to approve any request for a consent, waiver, amendment or any other vote of Lenders under the Finance Documents. The agreement of any Lending Affiliate is not required to approve a request for any such consent, waiver, amendment or vote.

40.10

Effect on assignments and transfers

(a)

Any assignment or transfer by an Appointing Lender pursuant to Clause 26 (Changes to the Lenders) of its rights and/or obligations under the Finance Documents which relate to that portion of its Commitment which relates to a Lending Affiliate Loan shall be construed to include an assignment or transfer, as the case may be, by it, on behalf of its Lending Affiliate nominated to participate in that Lending Affiliate Loan, of that Lending Affiliate's rights and/or obligations under the Finance Documents which relate to that Lending Affiliate Loan.

(b)

Subject to paragraph (c) below the rights and/or obligations of a Lending Affiliate under the Finance Documents may not be assigned or transferred other than pursuant to an assignment or transfer by its Appointing Lender described in paragraph (a) above.

(c)

A Lending Affiliate (the "Existing Lending Affiliate") may, subject to Clause 26 (Changes to the Lenders), assign any of its rights under any Finance Document which relate to an outstanding Lending Affiliate Loan to another Lending Affiliate of its Appointing Lender (the "Alternative Lending Affiliate") or to its Appointing Lender.

(d)

An assignment described in paragraph (c) above will only be effective on receipt by the Agent of written confirmation from the Alternative Lending Affiliate or, as the case may be, the Appointing Lender (in form and substance satisfactory to the Agent) that the Alternative Lending Affiliate or, as the case may be, the Appointing Lender will assume the same obligations to the other Finance Parties as it would have been under if, in the case of an Alternative Lending Affiliate, it had been nominated to participate in that Lending Affiliate Loan or, in the case of an Appointing Lender, the Existing Lending Affiliate had not been nominated to participate in that Lending Affiliate Loan.

(e)

Paragraph (a)(i) of Clause 26.3 (Other conditions of assignment or assignment and transfer by assumption of contract (Vertragsübernahme)) shall not apply to an assignment described in paragraph (c) above.

40.11

Communications

(a)

Each Lending Affiliate shall be represented by its Appointing Lender for all administrative purposes under the Finance Documents and each Lending Affiliate shall deal with each other Party exclusively through its Appointing Lender.

(b)

The Agent shall be entitled to carry out all dealings with a Lending Affiliate through the Appointing Lender of that Lending Affiliate and may give to that Appointing Lender any notice, document or other communication required to be given by the Agent to that Lending Affiliate.

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40.12

Defaulting Lenders

An Appointing Lender shall be treated as a Defaulting Lender if any Lending Affiliate of that Appointing Lender is a Defaulting Lender, and a Lending Affiliate shall be treated as a Defaulting Lender if its Appointing Lender is a Defaulting Lender.

40.13

Other adjustments

(a)

Any obligation under this Agreement for a Lending Affiliate to transfer its rights and obligations under this Agreement shall be construed as an obligation for the Appointing Lender of that Lending Affiliate to transfer its rights and obligations under this Agreement which relate to that portion of its Commitment which relates to any Lending Affiliate Loan of that Lending Affiliate.

(b)

If:

(i)

a Lending Affiliate is nominated to participate in any Loan, or class of Loan, pursuant to the delivery of a Lending Affiliate Loan Notice; and

(ii)

as a result of circumstances existing at the date of delivery of that Lending Affiliate Loan Notice an Obligor would be obliged to make a payment to that Lending Affiliate under Clause 16 (Tax Gross-Up and Indemnities) or Clause 17 (Increased Costs),

then that Lending Affiliate is only entitled to receive payment under those Clauses in respect of a Lending Affiliate Loan which is the subject of that Lending Affiliate Loan Notice to the same extent as its Appointing Lender would have been if that Loan had not been a Lending Affiliate Loan. This paragraph (b) shall not apply in relation to Clause 16.2 (Tax gross-up), to a Lending Affiliate that is a Qualifying Lender (subject to completion of any relevant procedural formalities).

(c)

References to an Affiliate of a Lender (the "Relevant Lender") or to a Lender which is an Affiliate of the Relevant Lender in:

(i)

the definition of "Revolving Facility Commitment";

(ii)

Clause 7.5 (Relationship with the Revolving Facility);

(iii)

Clause 8.9 (Loss sharing);

(iv)

paragraphs (b) and (c) of Clause 11.1 (Illegality);

(v)

Clause 11.2 (Change of control);

(vi)

Clause 11.5 (Right of replacement or repayment and cancellation in relation to a single Lender); and

(vii)

paragraph (e) of Clause 26.3 (Other conditions of assignment or assignment and transfer by assumption of contract (Vertragsübernahme)) and

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shall not include either a Lending Affiliate of the Relevant Lender in its capacity as such or, if the Relevant Lender is a Lending Affiliate, the Appointing Lender of the Relevant Lender in its capacity as such.

40.14

Resignation of Lending Affiliate

(a)

If no Lending Affiliate Loan in respect of which a Lending Affiliate has rights or obligations under this Agreement is outstanding, that Lending Affiliate and its Appointing Lender may request that such Lending Affiliate (the "Resigning Lending Affiliate") ceases to be a Lending Affiliate by delivering to the Agent a Lending Affiliate Resignation Notice.

(b)

The Agent shall as soon as reasonably practicable after receipt by it of a duly completed Lending Affiliate Resignation Notice appearing on its face to comply with the terms of this Agreement, and delivered in accordance with the terms of this Agreement, accept that Lending Affiliate Resignation Notice and notify the Appointing Lender of that Resigning Lending Affiliate and the Company of its acceptance.

(c)

Upon notification by the Agent to that Appointing Lender and the Company of its acceptance of the resignation of that Resigning Lending Affiliate:

(i)

that Resigning Lending Affiliate shall cease to be a Lending Affiliate and shall have no further rights or obligations under the Finance Documents as a Lending Affiliate; and

(ii)

any nomination of that Lending Affiliate to participate in any Loan, or class of Loan, shall be cancelled.

(d)

A Lending Affiliate shall, and its Appointing Lender shall procure that such Lending Affiliate will, resign pursuant to this Clause 40.14 if:

(i)

that Lending Affiliate ceases to be an Affiliate of its Appointing Lender;

(ii)

its Appointing Lender ceases to be a Party; or

(iii)

the onboarding procedure set out in Clause 40.3 (a) (iv) cannot be successfully completed within 30 calendar days (or such longer period as agreed between the Company, the Appointing Lender and the Lending Affiliate) after the accession of the Lending Affiliate to this Agreement and such accession leads to an unlawfulness for any Obligor in which case, the Company, the Lending Affiliate and the Appointing Lender shall cooperate to satisfy the requirements for a resignation of the Lending Affiliate pursuant to this Clause 40.14.

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SECTION 12

GOVERNING LAW AND ENFORCEMENT

41.

GOVERNING LAW

This Agreement and any non-contractual obligations arising out of or in connection with it are governed by German law.

42.

ENFORCEMENT

42.1

Jurisdiction

(a)

The courts of Frankfurt am Main, Germany have non-exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including a dispute relating to the existence, validity or termination of this Agreement or any non-contractual obligation arising out of or in connection with this Agreement) (a "Dispute").

(b)

The Parties agree that the courts of Frankfurt am Main, Germany are the most appropriate and convenient courts to settle Disputes and accordingly no Party will argue to the contrary.

(c)

Notwithstanding paragraphs (a) and (b) above, no Party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Parties may take concurrent proceedings in any number of jurisdictions.

42.2

Service of process

(a)

Without prejudice to any other mode of service allowed under any relevant law, each Obligor (other than an Obligor incorporated in Germany):

(i)

irrevocably appoints the Company (the "Process Agent") as its agent for service of process in relation to any proceedings before the German courts in connection with any Finance Document;

(ii)

agrees that failure by a Process Agent to notify the relevant Obligor of the process will not invalidate the proceedings concerned; and

(iii)

undertakes to deliver to the Process Agent without undue delay upon execution of this Agreement a process agent appointment letter (the "Process Agent Appointment Letter") substantially in the form of Schedule 15 (Form of Process Agent Appointment Letter) and to send a copy of the executed Process Agent Appointment Letter to the Agent.

(b)

The Process Agent hereby acknowledges the appointment. The Process Agent shall ensure that documents to be served to an Obligor may validly be served by delivery to the Process Agent. In particular, the Process Agent shall notify the Agent of any change of address, accept any documents delivered to it on behalf of an Obligor and fulfil any

Page 159/193


requirements of section 171 of the German Code of Civil Procedure (Zivilprozess­ordnung), in parti­cular present the original Process Agent Appointment Letter to any person effecting the service of process as required pursuant to section 171 sentence 2 of the German Code of Civil Procedure (Zivilprozessordnung).

43.

CONCLUSION OF THIS AGREEMENT (VERTRAGSSCHLUSS)

(a)

The Parties to this Agreement may choose to conclude this Agreement by an exchange of signed signature page(s), transmitted by any means of telecommunication (telekom­munikative Übermittlung) such as by way of fax or electronic photocopy (including e-mail).

(b)

If the Parties to this Agreement choose to conclude this Agreement pursuant to paragraph (a) above, they will transmit the signed signature page(s) of this Agreement to Noerr Partnerschaftsgesellschaft mbB, attention to Dr. Nikolai Warneke (Nikolai.Warneke@noerr.com), Dr. Alexander Schilling (Alexander.Schilling@noerr.com) and Patrick Geist (Patrick.Geist@noerr.com) (each a "Recipient"). This Agreement will be considered concluded once one Recipient has actually received the signed signature page(s) (Zugang der Unterschriftsseite(n)) from all Parties to this Agreement (whether by way of fax, electronic photocopy or other means of telecommunication) and at the time of the receipt of the last outstanding signature page(s) by such one Recipient.

(c)

For the purposes of this Clause 43 only, the Parties to this Agreement appoint each  Recipient as their attorney (Empfangsvertreter) and expressly allow (gestatten) each Recipient to collect the signed signature page(s) from all and for all Parties to this Agreement. For the avoidance of doubt, each Recipient will have no further duties connected with its position as Recipient. In particular, each Recipient may assume the conformity to the authentic original(s) of the signature page(s) transmitted to it by means of telecommunication, the genuineness of all signatures on the original signature page(s) and the signing authority of the signatories.

44.

DECLARATION IN RELATION TO GERMAN ANTI-MONEY LAUNDERING ACT

Each Borrower confirms towards each Lender that it utilised the proceeds of the Loans granted hereunder for its own account (für eigene Rechnung) but not at the instance of another economic beneficiary (wirtschaftlich Berechtigter) in the meaning of section 3 paragraph 4 of the German Money Laundering Act (Gesetz über das Aufspüren von Gewinnen aus schweren Straftaten (Geldwäschegesetz - GwG)). Each Borrower undertakes to notify the Agent without undue delay in writing, if in the future a situation arises in which contrary to the foregoing such Borrower acts for the account of another beneficial owner.

This Agreement has been entered into on the date stated at the beginning of this Agreement.

Page 160/193


SCHEDULE 1

THE ORIGINAL PARTIES

Part I

The Original Lenders

Name of Original Lender

Revolving Facility Commitment

Bank of America, N.A., London Branch

EUR 81,632,655

Crédit Agricole Corporate and Investment Bank Deutschland

EUR 81,632,655

Deutsche Bank Luxembourg S.A.

EUR 81,632,655

Wells Fargo Bank, N.A.

EUR 81,632,655

Scotiabank (Ireland) Designated Activity Company

EUR 81,632,655

BNP Paribas S.A. Niederlassung Deutschland

EUR 81,632,655

Citibank Europe Plc, Germany Branch

EUR 81,632,655

Commerzbank Aktiengesellschaft, Filiale Luxemburg

EUR 81,632,655

Goldman Sachs Bank USA

EUR 81,632,655

ING Bank, a branch of ING-DiBa AG

EUR 81,632,655

JPMorgan Chase Bank, N.A., London Branch

EUR 81,632,655

Mizuho Bank, Ltd.

EUR 81,632,655

Société Générale S.A. Frankfurt Branch

EUR 81,632,655

Truist Bank

EUR 81,632,655

UniCredit Bank AG, New York Branch

EUR 81,632,655

Banco Santander, S.A. Filiale Frankfurt

EUR 40,816,325

BANK OF CHINA LIMITED Zweigniederlassung Frankfurt am Main Frankfurt Branch

EUR 40,816,325

Barclays Bank Ireland PLC

EUR 40,816,325

Signature pages to – FMC Sustainability‐Linked Revolving Credit Facility Agreement


Banco Bilbao Vizcaya Argentaria, S.A., Niederlassung Deutschland

EUR 40,816,325

The Bank of New York Mellon

EUR 40,816,325

Credit Suisse (Deutschland) Aktiengesellschaft

EUR 40,816,325

DZ BANK AG Deutsche Zentral-Genossenschaftsbank, Frankfurt am Main

EUR 40,816,325

Fifth Third Bank, National Association

EUR 40,816,325

Landesbank Hessen-Thüringen Girozentrale

EUR 40,816,325

HSBC Trinkaus & Burkhardt AG

EUR 36,468,499

HSBC Bank USA, N.A.

EUR 4,347,826

Landesbank Baden-Württemberg

EUR 40,816,325

MUFG Bank (Europe) N.V. Germany Branch

EUR 40,816,325

PNC Bank, National Association

EUR 40,816,325

Raiffeisen Bank International AG

EUR 40,816,325

Royal Bank of Canada

EUR 40,816,325

Skandinaviska Enskilda Banken AB (publ) Frankfurt Branch

EUR 40,816,325

Sumitomo Mitsui Banking Corporation

EUR 40,816,325

The Toronto-Dominion Bank

EUR 40,816,325

U.S. Bank National Association

EUR 40,816,325

Total EUR 2,000,000,000

Signature pages to – FMC Sustainability‐Linked Revolving Credit Facility Agreement


Part II

The Original Swingline Lenders

Name of Original Swingline Lender

Swingline Commitment

Bank of America, N.A.

USD 8,695,653

Crédit Agricole Corporate and Investment Bank Deutschland

USD 8,695,653

Deutsche Bank AG New York Branch

USD 8,695,653

Wells Fargo Bank, N.A.

USD 8,695,653

Scotiabank (Ireland) Designated Activity Company

USD 8,695,652

BNP Paribas S.A. Niederlassung Deutschland

USD 8,695,652

Citibank Europe Plc, Germany Branch

USD 8,695,652

Commerzbank Aktiengesellschaft, Filiale Luxemburg

USD 8,695,652

Goldman Sachs Bank USA

USD 8,695,652

JPMorgan Chase Bank, N.A.

USD 8,695,652

Mizuho Bank, Ltd.

USD 8,695,652

Societe Generale, acting through its New York branch

USD 8,695,652

Truist Bank

USD 8,695,652

UniCredit Bank AG, New York Branch

USD 8,695,652

Banco Santander, S.A.

USD 4,347,826

BANK OF CHINA LIMITED Zweigniederlassung Frankfurt am Main Frankfurt Branch

USD 4,347,826

Barclays Bank Ireland PLC

USD 4,347,826

Banco Bilbao Vizcaya Argentaria, S.A., Niederlassung Deutschland

USD 4,347,826

The Bank of New York Mellon

USD 4,347,826

Signature pages to – FMC Sustainability‐Linked Revolving Credit Facility Agreement


Credit Suisse AG, New York Branch

USD 4,347,826

DZ BANK AG Deutsche Zentral-Genossenschaftsbank, Frankfurt am Main

USD 4,347,826

Fifth Third Bank, National Association

USD 4,347,826

Landesbank Hessen-Tueringen Girozentrale, New York Branch

USD 4,347,826

HSBC Bank USA, N.A.

USD 4,347,826

Landesbank Baden-Wuerttemberg New York Branch

USD 4,347,826

MUFG Bank, Ltd., New York Branch

USD 4,347,826

PNC Bank, National Association

USD 4,347,826

Raiffeisen Bank International AG

USD 4,347,826

Royal Bank of Canada

USD 4,347,826

Skandinaviska Enskilda Banken AB (publ) Frankfurt Branch

USD 4,347,826

Sumitomo Mitsui Banking Corporation

USD 4,347,826

The Toronto-Dominion Bank

USD 4,347,826

Total USD 200,000,000

Signature pages to – FMC Sustainability‐Linked Revolving Credit Facility Agreement


SCHEDULE 2

CONDITIONS PRECEDENT

Part I

Conditions Precedent to Initial Utilisation

1.

Original Obligors

(a)

In relation to the Company and the general partner of the Company an up-to-date electronic commercial register extract (Handelsregisterausdruck) and its articles of association (Satzung).

(b)

In relation to an Original Obligor incorporated or established in a jurisdiction other than Germany a copy of its constitutional documents.

(c)

For each Original Obligor, a specimen of the signature of each person authorised to execute any Finance Document and other documents and notices (including, if relevant, any Utilisation Request) to be signed and/or despatched by it under or in connection with the Finance Documents to which that Original Obligor is a party.

(d)

In relation to an Original Obligor incorporated in a jurisdiction other than Germany a solvency certificate of such Original Obligor.

(e)

A certificate of an authorised signatory of the relevant Original Obligor certifying that each copy document relating to it specified in this Part I of Schedule 2 (Conditions Precedent) is correct, complete and in full force and effect as at a date no earlier than the date of this Agreement.

2.

Legal opinions

(a)

An enforceability legal opinion of Latham & Watkins LLP, legal advisers to the Arranger and the Agent in Germany, substantially in the form distributed to the Original Lenders prior to signing this Agreement.

(b)

A capacity legal opinion of Noerr Partnerschaftsgesellschaft mbH, legal advisers to the Company in Germany, substantially in the form distributed to the Original Lenders prior to signing this Agreement.

(c)

A capacity legal opinion of Allen & Overy LLP, legal advisers to the Company in the US, substantially in the form distributed to the Original Lenders prior to signing this Agreement.

3.

Other documents and evidence

(a)

A copy of this Agreement signed by each party thereto.

(b)

A copy of the Original ESG Report.

(c)

The Original Financial Statements.

Signature pages to – FMC Sustainability‐Linked Revolving Credit Facility Agreement


(d)

A copy of the Process Agent Appointment Letter signed by Fresenius Medical Care Holdings, Inc. and the Process Agent.

(e)

Copies of any Fee Letter signed by the relevant parties thereto.

(f)

Evidence of cancellation and repayment of the Existing Facility Agreement (other than fees) by no later than the earlier of (i) the first Utilisation Date and (ii) the day falling five (5) Business Days after the date of this Agreement.

(g)

Evidence that the fees, costs and expenses then due from the Company pursuant to Clauses 15 (Fees) and 20 (Costs and Expenses) have been paid or will be paid by the date of this Agreement.

Signature pages to – FMC Sustainability‐Linked Revolving Credit Facility Agreement


Part II

Conditions Precedent Required to Be Delivered by An Additional Borrower

1.

An Accession Letter, duly executed by the Additional Borrower and the Company.

2.

In relation to an Additional Borrower incorporated or established in Germany an up-to-date electronic excerpt from the commercial register (elektronischer Abruf aus dem Handelsregister), a copy of the articles of association (Satzung) or partnership agreement (Gesellschaftsvertrag) and, if applicable, an up-to-date shareholder's list. In relation to an Additional Borrower incorporated in a jurisdiction than other than Germany a copy of its constitutional documents.

3.

A specimen of the signature of each person authorised to execute any Finance Document and other documents and notices (including any Utilisation Request) to be signed and/or despatched by it under or in connection with the Finance Documents to which that Additional Borrower is a party.

4.

A certificate of an authorised signatory of the Additional Borrower certifying that each copy document listed in this Part II of Schedule 2 (Conditions Precedent) is correct, complete and in full force and effect as at a date no earlier than the date of the Accession Letter.

5.

A copy of any other Authorisation or other document, opinion or assurance which the Agent considers to be necessary or desirable in connection with the entry into and performance of the transactions contemplated by the Accession Letter or for the validity and enforceability of any Finance Document.

6.

If available, the latest audited financial statements of the Additional Borrower.

7.

A legal opinion of the legal advisers to the Arranger and the Agent in Germany in relation to the enforceability, legality, validity and binding effect of the Accession Letter.

8.

A legal opinion of the legal advisers to the Group in the jurisdiction in which the Additional Borrower is incorporated in relation to existence, capacity, authority, due execution and due representation of the Additional Borrower.

9.

If the proposed Additional Borrower is incorporated in a jurisdiction other than Germany, evidence that the process agent specified in Clause 42.2(Service of process), if not an Obligor, has accepted its appointment in relation to the proposed Additional Borrower together with a copy of the executed Process Agent Appointment Letter in relation to the proposed Additional Borrower.

Signature pages to – FMC Sustainability‐Linked Revolving Credit Facility Agreement


SCHEDULE 3

REQUESTS

Part I

Utilisation Request – Revolving Facility Loans

From:

[Borrower]

To:

[Agent]

Dated:

[]

Dear Sir or Madam

Fresenius Medical Care AG & Co. KGaA – EUR 2,000,000,000 Facility Agreement

dated [] 2021 (the "Agreement")

1.

We refer to the Agreement. This is a Utilisation Request. Terms defined in the Agreement have the same meaning in this Utilisation Request unless given a different meaning in this Utilisation Request.

2.

We wish to borrow a Revolving Facility Loan on the following terms:

Proposed Utilisation Date:

[] (or, if that is not a Business Day, the next Business Day)

Facility to be utilised:

Revolving Facility

Currency of Loan:

[]

Amount:

[] or, if less, the Available Facility

Interest Period:

[]

3.

We confirm that each condition specified in Clause 5.2 (Further conditions precedent) of the Agreement is satisfied on the date of this Utilisation Request.

4.

The Company confirms to each Finance Party that each of the Repeated Representations [provided that for Rollover Loans the representation in Clause 22.9 (No event of default) shall only relate to Material Events of Default] is true and correct as at the date hereof as if made by reference to the facts and circumstances existing on the date hereof.

5.

[This Loan is to be made in [whole]/[part] for the purpose of refinancing [identify maturing Revolving Facility Loan]. [The proceeds of this Loan should be credited to [account].]] /[The proceeds of this Loan should be credited to [account].]

6.

This Utilisation Request is irrevocable.

Signature pages to – FMC Sustainability‐Linked Revolving Credit Facility Agreement


Yours faithfully

…………………………………

authorised signatory/ies for

[name of relevant Borrower]

…………………………………

authorised signatory/ies for

[name of Company]**


**

If different from Borrower.

Signature pages to – FMC Sustainability‐Linked Revolving Credit Facility Agreement


Part II

Utilisation Request – Swingline Loans

From:

[Swingline Borrower]

To:

[Agent]

Dated:

[]

Dear Sir or Madam

Fresenius Medical Care AG & Co. KGaA – EUR 2,000,000,000 Facility Agreement

dated [] 2021 (the "Agreement")

1.

We refer to the Agreement. This is a Utilisation Request. Terms defined in the Agreement have the same meaning in this Utilisation Request unless given a different meaning in this Utilisation Request.

2.

We wish to borrow a Swingline Loan on the following terms:

Proposed Utilisation Date:

[] (or, if that is not a New York Business Day, the next New York Business Day)

Facility to be utilised:

Swingline Facility

Amount:

$ [] or, if less, the Available Swingline Facility

Interest Period:

[]

3.

We confirm that each condition specified in Clause 7.4 (Swingline Lender' participation) of the Agreement is satisfied on the date of this Utilisation Request.

4.

[This Swingline Loan is to be made in [whole]/[part] for the purpose of refinancing [identify maturing Swingline Loan]. [The proceeds of this Swingline Loan should be credited to [account].]] /[The proceeds of this Swingline Loan should be credited to [account].]

5.

This Utilisation Request is irrevocable.

Yours faithfully

…………………………………

authorised signatory/ies for

[name of relevant Swingline Borrower]

Signature pages to – FMC Sustainability‐Linked Revolving Credit Facility Agreement


SCHEDULE 4

FORM OF TRANSFER CERTIFICATE

To:

[] as Agent

From:

[The Existing Lender] (the "Existing Lender") and [The New Lender] (the "New Lender")

Dated:

[]

Fresenius Medical Care AG & Co. KGaA – EUR 2,000,000,000 Facility Agreement

dated [] 2021 (the "Agreement")

1.

We refer to the Agreement. This is a Transfer Certificate. Terms defined in the Agreement have the same meaning in this Transfer Certificate unless given a different meaning in this Transfer Certificate.

2.

We refer to Clause 26.6 (Procedure for assignment and transfer by assumption of contract (Vertragsübernahme)) of the Agreement:

(a)

The Existing Lender and the New Lender agree to the Existing Lender assigning and transferring to the New Lender by assumption of contract (Vertragsübernahme) of the Agreement and in accordance with Clause 26.6 (Procedure for assignment and transfer by assumption of contract (Vertragsübernahme)) of the Agreement, all of the Existing Lender's rights and obligations under the Agreement and the other Finance Documents which relate to that portion of the Existing Lender's Commitment(s) and participations in Loans under the Agreement as specified in the Schedule.

(b)

The proposed Transfer Date is [].

(c)

The Facility Office, address, communication and attention details for notices of the New Lender for the purposes of Clause 33.2 (Addresses) of the Agreement are set out in the Schedule.

3.

The New Lender expressly acknowledges the limitations on the Existing Lender's obligations set out in paragraph (c) of Clause 26.5 (Limitation of responsibility of Existing Lenders) of the Agreement.

4.

The New Lender expressly confirms that it [can/cannot] exempt the Agent from the restrictions pursuant to section 181 German Civil Code (Bürgerliches Gesetzbuch) and similar restrictions applicable to it pursuant to any other applicable law as provided for in paragraph (c) of Clause 28.1 (Appointment of the Agent and Swingline Agent) of the Agreement.

5.

The New Lender confirms, for the benefit of the Agent and without liability to any Obligor, that it is:

(a)

[a Qualifying Lender (other than a Treaty Lender or a US Qualifying Lender)];

Signature pages to – FMC Sustainability‐Linked Revolving Credit Facility Agreement


(b)

[a US Qualifying Lender];

(c)

[a Treaty Lender;]

(d)

[not a Qualifying Lender]1

6.

7.The New Lender confirms that it is not incorporated, having its place of effective management, or acting through a Facility Office or office, as the case may be, located in a Non-Cooperative Jurisdiction.

7.

This Transfer Certificate and any non-contractual obligations arising out of or in connection with it are governed by German law.

8.

This Transfer Certificate has been entered into on the date stated at the beginning of this Transfer Certificate.


1

Delete as applicable. Each New Lender is required to confirm which of these three categories it falls within.

Signature pages to – FMC Sustainability‐Linked Revolving Credit Facility Agreement


THE SCHEDULE

Commitment/rights and obligations to be assigned and transferred by way of assumption of contract (Vertragsübernahme)

[insert relevant details]

[Facility Office address, communication and attention details for notices and account details for payments,]

[Existing Lender]

[New Lender]

By:

By:

This Transfer Certificate is accepted by the Agent and the Transfer Date is confirmed as [].

[Agent]

By:

Signature pages to – FMC Sustainability‐Linked Revolving Credit Facility Agreement


SCHEDULE 5

FORM OF EXTENSION REQUEST

To:

[Agent]

From:

[Company]

Dated:

[]

Dear Sir or Madam

Fresenius Medical Care AG & Co. KGaA – EUR 2,000,000,000 Facility Agreement

dated [] 2021 (the "Agreement")

1.

We refer to the Agreement. This is an Extension Request. Terms defined in the Agreement have the same meaning in this Extension Request unless given a different meaning in this Extension Request.

2.

We wish to request through you that [each Lender extends the Initial Termination Date for a period of 1 (one) year.]* /[each Lender extends [in the case of a First Anniversary Extending Lender the Termination Date for a period of a further 1 (one) year and,]** [in the case of a First Anniversary Non-Extending Lender, the Initial Termination Date for a period of [1 (one)/2 (two)]*** years]****].

3.

We confirm to each Finance Party that each of the Repeated Representations is true and correct as at the date hereof as if made by reference to the facts and circumstances existing on the date hereof.

4.

This Extension Request is irrevocable.

5.

This Extension Request and any non-contractual obligations arising out of or in connection with it are governed by German law.

6.

The courts of Frankfurt am Main, Germany have exclusive jurisdiction to settle any dispute arising out of or in connection with this Extension Request.

Yours faithfully

…………………………………

authorised signatory/ies for

[Company]

Signature pages to – FMC Sustainability‐Linked Revolving Credit Facility Agreement


SCHEDULE 6

FORM OF INCREASE REQUEST

To:

[Agent]

From:

[Company]

Dated:

[]

Dear Sir or Madam

Fresenius Medical Care AG & Co. KGaA – EUR 2,000,000,000 Facility Agreement

dated [] 2021 (the "Agreement")

1.

We refer to the Agreement. This is an Increase Request. Terms defined in the Agreement have the same meaning in this Increase Request unless given a different meaning in this Increase Request.

2.

We wish to increase the Total Commitments by an aggregate amount of EUR [                   ] in accordance with Clause 2.3 (Increase Option) of the Agreement. [Include further details of Relevant Lenders are respective requested amounts]

3.

We confirm to each Finance Party that (i) each of the Repeated Representations is true and correct as at the date hereof as if made by reference to the facts and circumstances existing on the date hereof and (ii) no Default has occurred which is continuing on the date of this Increase Request or would result from the acceptance of this Increase Request.

4.

This Increase Request is irrevocable.

5.

This Increase Request and any non-contractual obligations arising out of or in connection with it are governed by German law.

6.

The courts of Frankfurt am Main, Germany have exclusive jurisdiction to settle any dispute arising out of or in connection with this Increase Request.

Yours faithfully

…………………………………

authorised signatory/ies for

[Company]

Signature pages to – FMC Sustainability‐Linked Revolving Credit Facility Agreement


SCHEDULE 7

FORM OF ACCESSION LETTER

To:

[] as Agent

From:

[Subsidiary] and [Company]

Dated:

[]

Dear Sir or Madam

Fresenius Medical Care AG & Co. KGaA – EUR 2,000,000,000 Facility Agreement

dated [] 2021 (the "Agreement")

1.

We refer to the Agreement. This is an Accession Letter. Terms defined in the Agreement have the same meaning in this Accession Letter unless given a different meaning in this Accession Letter.

2.

[Subsidiary] agrees to become an Additional Borrower and to be bound by the terms of the Agreement as an Additional Borrower pursuant to Clause 27.2 (Additional Borrowers) of the Agreement. [Subsidiary] is a company duly incorporated under the laws of [name of relevant jurisdiction] and is a wholly-owned Subsidiary of the Company.

3.

The Company confirms that no Default is continuing or would occur as a result of [Subsidiary] becoming an Additional Borrower.

4.

We confirm to each Finance Party that each of the Repeated Representations is true and correct in relation to us as at the date hereof as if made by reference to the facts and circumstances existing on the date hereof.

5.

[Subsidiary's] administrative details are as follows:

Address:

Fax No:

Attention:

6.

This Accession Letter and any non-contractual obligations arising out of or in connection with it are governed by German law.

[Company]

[Subsidiary]

Signature pages to – FMC Sustainability‐Linked Revolving Credit Facility Agreement


SCHEDULE 8

FORM OF RESIGNATION LETTER

To:

[] as Agent

From:

[resigning Obligor] and [Company]

Dated:

[]

Dear Sir or Madam

Fresenius Medical Care AG & Co. KGaA – EUR 2,000,000,000 Facility Agreement

dated [] 2021 (the "Agreement")

1.

We refer to the Agreement. This is a Resignation Letter. Terms defined in the Agreement have the same meaning in this Resignation Letter unless given a different meaning in this Resignation Letter.

2.

Pursuant to [Clause 27.3 (Resignation of a Borrower)]/[Clause 27.5 (Resignation of a Guarantor)] of the Agreement, we request that [resigning Obligor] be released from its obligations as a [Borrower]/[Guarantor] under the Agreement.

3.

We confirm that:

(a)

no Default is continuing or would result from the acceptance of this request; and

(b)

[] *

4.

This Resignation Letter and any non-contractual obligations arising out of or in connection with it are governed by German law.

[Company]

[Subsidiary]

By:

By:


*

Insert any other conditions required by the Facility Agreement.

Signature pages to – FMC Sustainability‐Linked Revolving Credit Facility Agreement


SCHEDULE 9

TIMETABLES

Loans in euro

Loans in other currencies

Borrower delivers a request for approval of an Optional Currency to the Agent in accordance with Clause 5.3 (Conditions relating to Optional Currencies)

N/A

U-6 10 am London time

Agent notifies the Lenders of a request for approval of an Optional Currency in accordance with Clause 5.3 (Conditions rela­ting to Optional Currencies)

N/A

U-5

Lenders respond to the Agent in relation to a request for approval of an Optional Currency in accordance with Clause 5.3 (Con­di­tions relating to Optional Currencies)

N/A

U-4

Agent notifies the relevant Borrower if a currency is approved as an Optional Curren­cy in accordance with Clause 5.3 (Conditions relating to Optional Currencies)

N/A

U-4

Delivery of a duly completed Utilisation Request (Clause 6.1 (De­li­very of a Utilisation Re­quest))

U-3 10 am London time

U-3 10 am London time

Agent determines (in relation to a Utilisation) the Base Currency Amount of the Loan, if required under Clause 6.4 (Lenders' participation) and notifies the Lenders of the Loan in accor­dance with Clause 6.4 (Lenders' participation)

U-3 10 am London time

U-3 10 am London time

Signature pages to – FMC Sustainability‐Linked Revolving Credit Facility Agreement


Agent receives a notification from a Lender under Clause 9.2 (Unavailability of a currency)

N/A

U-3 10 am London time

Agent gives notice in accordance with Clause 9.2 (Unavailability of a currency)

N/A

U-3 10 am London time

EURIBOR or LIBOR is fixed

U-2 10 am London time

U-2 10 a m London time

Delivery of a duly completed Utili­sation Request (Clause 7.2 (Delivery of a Utilisation Request for Swingline Loans))

N/A

U-0 2 pm New York time

Swingline Agent determines (in relation to a Utilisation) the Base Currency Amount of the Swingline Loan and announces the prime lending rate in dollars or, as the case may be, the Federal Funds Rate under Clause 8.5 (Interest), if required under Clause 7.4 (Swingline Lenders' partici­pation) and notifies each Swing­line Lender of the amount of its participation in the Swingline Loan under Clause 7.4 (Swingline Lenders' partici­pa­tion)

N/A

U-0 3 pm New York time

U – refers to the number of Business Days before the relevant Utilisation Date.

Signature pages to – FMC Sustainability‐Linked Revolving Credit Facility Agreement


SCHEDULE 10

FORM OF INCREASE CONFIRMATION

To:

[] as Agent and [] as Company, for and on behalf of each Obligor

From:

[the Increase Lender] (the "Increase Lender")

Dated:

[]

Fresenius Medical Care AG & Co. KGaA – EUR 2,000,000,000 Facility Agreement

dated [] 2021 (the "Agreement")

1.

We refer to the Agreement. This is an Increase Confirmation. Terms defined in the Agreement have the same meaning in this Increase Confirmation unless given a different meaning in this Increase Confirmation.

2.

We refer to Clause 2.2 (Increase) of the Agreement.

3.

The Increase Lender agrees to assume and will assume all of the obligations corresponding to the Commitment(s) specified in the Schedule (the "Relevant Commitment(s)") as if it had been an Original Lender under the Agreement in respect of the Relevant Commitment(s).

4.

The proposed date on which the increase in relation to the Increase Lender and the Relevant Commitment(s) is to take effect (the "Increase Date") is [].

5.

On the Increase Date, the Increase Lender becomes party to the Finance Documents as a Lender.

6.

The Facility Office and address, communication and attention details for notices to the Increase Lender for the purposes of Clause 33.2 (Addresses) of the Agreement are set out in the Schedule.

7.

The Increase Lender expressly acknowledges the limitations on the Lenders' obligations referred to in paragraph (i) of Clause 2.2 (Increase) of the Agreement.

8.

The Increase Lender expressly confirms that it [can/cannot] exempt the Agent from the restrictions pursuant to section 181 German Civil Code (Bürgerliches Gesetzbuch) and similar restrictions applicable to it pursuant to any other applicable law as provided for in paragraph (c) of Clause 28.1 (Appointment of the Agent and Swingline Agent).

9.

The Increase Lender confirms, for the benefit of the Agent and without liability to any Obligor, that it is:

(a)

[a Qualifying Lender (other than a Treaty Lender or a US Qualifying Lender);]

(b)

[a US Qualifying Lender];

(c)

[a Treaty Lender;]

Signature pages to – FMC Sustainability‐Linked Revolving Credit Facility Agreement


(d)

[not a Qualifying Lender].2

10.

.The New Lender confirms that it is not incorporated, having its place of effective management, or acting through a Facility Office or office, as the case may be, located in a Non-Cooperative Jurisdiction.

[11/12].

This Increase Confirmation and any non-contractual obligations arising out of or in connection with it are governed by German law.

[12/13].

This Increase Confirmation has been entered into on the date stated at the beginning of this Increase Confirmation.


2

Delete as applicable - each Increase Lender is required to confirm which of these three categories it falls within.

Signature pages to – FMC Sustainability‐Linked Revolving Credit Facility Agreement


THE SCHEDULE

Relevant Commitment(s)/rights and obligations to be assumed by the Increase Lender

[insert relevant details]

[Facility Office address, communication and attention details for notices and account details for payments]

[Increase Lender]

By:

This Increase Confirmation is accepted by the Agent and the Increase Date is confirmed as [].

Agent

By:

Signature pages to – FMC Sustainability‐Linked Revolving Credit Facility Agreement


SCHEDULE 11

ORIGINAL LENDING AFFILIATES

Name of Original Lender

Name of Original Lending Affiliate(s)

Lending Affiliate Loan(s)

[]

[]

[]

[]

[]

[]

[]

[]

[]

[]

[]

[]

[]

[]

[]

[]

[]

[]

[]

[]

[]

[]

[]

[]

[]

[]

[]

[]

[]

[]

Signature pages to – FMC Sustainability‐Linked Revolving Credit Facility Agreement


SCHEDULE 12

FORM OF NEW LENDING AFFILIATE APPOINTMENT NOTICE

To:

[] as Agent

From:

[The Appointing Lender] (the "Appointing Lender") and [The New Lending Affiliate] (the "New Lending Affiliate")

Dated:

Fresenius Medical Care AG & Co. KGaA – EUR 2,000,000,000 Facility Agreement

dated [] 2021 (the "Agreement")

1.

We refer to the Agreement. This is a New Lending Affiliate Appointment Notice. Terms defined in the Agreement have the same meaning in this New Lending Affiliate Appointment Notice unless given a different meaning in this New Lending Affiliate Appointment Notice.

2.

We refer to Clause 40.3 (Appointment of New Lending Affiliates) of the Agreement:

(a)

The Appointing Lender appoints the New Lending Affiliate as a party to the Agreement as a New Lending Affiliate of the Appointing Lender and the New Lending Affiliate agrees to that appointment.

(b)

The proposed Appointment Date is [].

(c)

The Facility Office of the New Lending Affiliate is set out in the Schedule.

3.

We refer to Clause 40.4 (Original Lender Tax Status Confirmation) and the New Lending Affiliate confirms, for the benefit of the Agent and without liability to any Obligor, that it is:

(a)

[a Qualifying Lender (other than a Treaty Lender or a US Qualifying Lender);]

(b)

[a US Qualifying Lender];

(c)

[a Treaty Lender;]

(d)

[not a Qualifying Lender].

4.

The New Lending Affiliate confirms that it is not incorporated, having its place of effective management, or acting through a Facility Office or office, as the case may be, located in a Non-Cooperative Jurisdiction.

5.

This New Lending Affiliate Appointment Notice may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this New Lending Affiliate Appointment Notice.

6.

This New Lending Affiliate Appointment Notice and any non-contractual obligations arising out of or in connection with it are governed by German law.

Signature pages to – FMC Sustainability‐Linked Revolving Credit Facility Agreement


7.

This New Lending Affiliate Appointment Notice has been entered into on the date stated at the beginning of this New Lending Affiliate Appointment Notice.

Signature pages to – FMC Sustainability‐Linked Revolving Credit Facility Agreement


THE SCHEDULE

[New Lending Affiliate's Facility Office [and account details for payments]3]

[Appointing Lender]

[New Lending Affiliate]

By:

By:

This New Lending Affiliate Appointment Notice is accepted by the Agent and the Appointment Date is confirmed as [].

[Agent]

By:


3

Include if the Agent is to make direct payments to Lending Affiliates.

Signature pages to – FMC Sustainability‐Linked Revolving Credit Facility Agreement


SCHEDULE 13

FORM OF LENDING AFFILIATE LOAN NOTICE

To:

[] as Agent and [] as Company

From:

[The Appointing Lender] (the "Appointing Lender") and [the Lending Affiliate] (the "Lending Affiliate")

Dated:

Fresenius Medical Care AG & Co. KGaA – EUR 2,000,000,000 Facility Agreement

dated [] 2021 (the "Agreement")

1.

We refer to the Agreement. This is a Lending Affiliate Loan Notice. Terms defined in the Agreement have the same meaning in this Lending Affiliate Loan Notice unless given a different meaning in this Lending Affiliate Loan Notice.

2.

We refer to Clause 40.6 (Nomination of Lending Affiliate Loans) of the Agreement. The Appointing Lender nominates the Lending Affiliate to participate in:

[specify, by reference to one or more of the criteria listed in paragraph (d) of Clause 40.6 (Nomination of Lending Affiliate Loans) of the Agreement, each individual Loan, or class of Loan, in which the Lending Affiliate is to participate in place of the Appointing Lender]

("the Lending Affiliate Loan[s]").

3.

The Lending Affiliate confirms that it is a Party as a Lending Affiliate, acknowledges the nomination described in paragraph 2 above and confirms that it shall participate in the Lending Affiliate Loan[s].

[Appointing Lender]

By:

[Lending Affiliate]

By:

Signature pages to – FMC Sustainability‐Linked Revolving Credit Facility Agreement


SCHEDULE 14

FORM OF LENDING AFFILIATE RESIGNATION NOTICE

To:

[] as Agent

From:

[Resigning Lending Affiliate] (the "Resigning Lending Affiliate") and [Appointing Lender] (the "Appointing Lender")

Dated:

Fresenius Medical Care AG & Co. KGaA – EUR 2,000,000,000 Facility Agreement

dated [] 2021 (the "Agreement")

1.

We refer to the Agreement. This is a Lending Affiliate Resignation Notice. Terms defined in the Agreement have the same meaning in this Lending Affiliate Resignation Notice unless given a different meaning in this Lending Affiliate Resignation Notice.

2.

We refer to Clause 40.14 (Resignation of Lending Affiliate) of the Agreement and request that the Resigning Lending Affiliate cease to be a Lending Affiliate under the Agreement.

3.

We confirm that:

(a)

no Lending Affiliate Loan in respect of which the Resigning Lending Affiliate has rights or obligations under the Agreement is outstanding; and

(b)

any nomination of the Lending Affiliate to participate in any Loan, or class of Loan, shall be cancelled on the Agent's acceptance of this Lending Affiliate Resignation Notice.

4.

This Lending Affiliate Resignation Notice and any non-contractual obligations arising out of or in connection with it are governed by German law.

[Resigning Lending Affiliate]

By:

[Appointing Lender]

By:

Signature pages to – FMC Sustainability‐Linked Revolving Credit Facility Agreement


SCHEDULE 15

FORM OF PROCESS AGENT

APPOINTMENT LETTER

To:

Fresenius Medical Care AG & Co. KGaA
Else-Kröner-Str. 1
61352 Bad Homburg

as process agent

From:

[Obligor]

Date:

[]

Dear Sir or Madam

Fresenius Medical Care AG & Co. KGaA – EUR 2,000,000,000 Facility Agreement

dated [] 2021 (the "Agreement")

We refer to the Agreement and hereby irrevocably appoint you as our agent for service of process in relation to any proceeding before any German court in connection with the above mentioned Agreement.

wir beziehen uns auf den Vertrag und ernennen Sie hiermit unwiderruflich zu unserem Vertreter für Zustellungen im Zusammenhang mit Verfahren vor deutschen Gerichten bezüglich des oben genannten Vertrages.

The text decisive for this Power of Attorney is the one written in German language. Therefore, in case of inconsistencies between the German and the English wording, the German wording shall prevail.

Der für die Vollmacht maßgebliche Text ist derjenige, der in deutscher Sprache abgefasst ist. Bei einer unterschiedlichen Auslegung des deutschsprachigen und des englischsprachigen Textes hat der deutschsprachige Text Vorrang.

This letter shall be governed by German law.

Dieser Brief unterliegt deutschem Recht.

___________________________

Title:

[Obligor]

Place, date / Ort, Datum:

Signature pages to – FMC Sustainability‐Linked Revolving Credit Facility Agreement


We hereby confirm receipt of the Process Agent Appointment Letter.

Hiermit bestätigen wir, diese Bestellung erhalten zu haben.


Title / Titel: Member of the board of / Vorstandsmitglied der Fresenius Medical Care Management AG as general partner / als Komplementärin der Fresenius Medical Care AG & Co. KGaA

Place, date / Ort, Datum:


Title / Titel: Member of the board of / Vorstandsmitglied der Fresenius Medical Care Management AG as general partner / als Komplementärin der Fresenius Medical Care AG & Co. KGaA

Place, date / Ort, Datum:

Signature pages to – FMC Sustainability‐Linked Revolving Credit Facility Agreement


SCHEDULE 16

FORM OF ACCESSION CONFIRMATION

To:

[] as Agent

From:

[The Acceding Lender] (the "Acceding Lender")

Dated:

[]

Fresenius Medical Care AG & Co. KGaA – EUR 2,000,000,000 Facility Agreement

dated [] 2021 (the "Agreement")

1.

We refer to the Agreement. This is an Accession Confirmation. Terms defined in the Agreement have the same meaning in this Accession Confirmation unless given a different meaning in this Accession Confirmation.

2.

We refer to Clause 2.3 (Increase Option) of the Agreement.

3.

The Acceding Lender agrees to assume and will assume all of the obligations corresponding to the Commitment specified in the Schedule (the "Relevant Commitment") as if it were an Original Lender under the Agreement in relation to the Commitment which it is to assume.

4.

The proposed date on which the accession in relation to the Acceding Lender and the Relevant Commitment is to take effect (the "Accession Date") shall be the date of acceptance of this Accession Confirmation by the Agent.

5.

On the Accession Date, the Acceding Lender will become a Party as a Lender.

6.

The Facility Office and address, e-mail address and attention details for notices to the Acceding Lender for the purposes of Clause 33.2 (Addresses) of the Agreement are set out in the Schedule.

7.

The Acceding Lender expressly confirms that it [can/cannot] exempt the Agent from the restrictions pursuant to section 181 German Civil Code (Bürgerliches Gesetzbuch) and similar restrictions applicable to it pursuant to any other applicable law as provided for in paragraph (c) of Clause 28.1 (Appointment of the Agent and Swingline Agent) of the Agreement.

8.

The Acceding Lender confirms, for the benefit of the Agent and without liability to the Borrowers, that it is:

(a)

[a Qualifying Lender (other than a Treaty Lender or a US Qualifying Lender);]

(b)

[a US Qualifying Lender;]

(c)

[a Treaty Lender;]

Signature pages to – FMC Sustainability‐Linked Revolving Credit Facility Agreement


(d)

[not a Qualifying Lender].4

9.

The Acceding Lender confirms that it is not incorporated, having its place of effective management, or acting through a Facility Office or office, as the case may be, located in a Non-Cooperative Jurisdiction.

10.

The Acceding Lender confirms to the other Finance Parties represented by the Agent that it will assume the same obligations to those Parties as it would have been under if it was an Original Lender.

11.

This Accession Confirmation and any non-contractual obligations arising out of or in connection with it are governed by German law.

12.

The courts of Frankfurt am Main, Germany have exclusive jurisdiction to settle any dispute arising out of or in connection with this Accession Confirmation.


4

Delete as applicable - each Acceding Lender is required to confirm which of these three categories it falls within.

Signature pages to – FMC Sustainability‐Linked Revolving Credit Facility Agreement


THE SCHEDULE

Relevant Commitment/rights and obligations to be assumed by the Acceding Lender

[insert relevant details]

[Facility Office address, communication and attention details for notices and account details for payments,]

[Acceding Lender]

[Company]

By:

By:

This Accession Confirmation is accepted as an Accession Confirmation for the purpose of the Agreement by the Agent and the Accession Date is confirmed as [].

[Agent]

By:

Signature pages to – FMC Sustainability‐Linked Revolving Credit Facility Agreement


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Exhibit 10.4

EXECUTION COPY

FIRST AMENDMENT

TO

FOURTH AMENDED AND RESTATED LOAN NOTE

FIRST AMENDMENT TO FOURTH AMENDED AND RESTATED LOAN NOTE (this “First Amendment”) made and effective as of the 2nd day of July, 2021 between Fresenius Medical Care AG & Co. KGaA, a German partnership limited by shares (“FME”) and Fresenius Medical Care Holdings, Inc., a New York corporation (collectively, the “Borrowers”), and Fresenius SE & Co. KGaA, a German partnership limited by shares (collectively with any specified subsidiary, the “Lender”).

WHEREAS, Borrowers and Lender are parties to a Fourth Amended and Restated Loan Note dated March 10, 2020 (the “Note”), pursuant to which Lender may make Advances to the Borrowers jointly and severally from time to time in an aggregate amount up to €600,000,000 (or the Euro equivalent of any amount denominated in any other currency as determined by Lender in accordance with the Note);

WHEREAS, the Note incorporates certain definitions from that certain Credit Agreement entered into on 30 October 2012, amongst others, the Borrowers, the other borrowers identified therein, the guarantors identified therein, the lenders which are a party thereto and Bank of America, N.A., as administrative agent, as amended and/or as amended and restated from time to time which is currently defined in the Note as “FMC Credit Agreement” (the “2012 Credit Agreement”);

WHEREAS, on 1 July, 2021, the Borrowers terminated the 2012 Credit Agreement and entered into a new “Syndicated Credit Facility,” (as defined below), which refinanced and replaced the 2012 Credit Agreement; and

WHEREAS, Borrowers and Lender have agreed to amend certain provisions of the Note to ensure continued consistency between the Note and the Syndicated Credit Facility ;

NOW, THEREFORE, in consideration of the premises set forth above, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Borrowers and Lender agree as follows:

1.Amendments to Definitions. Clause 1 of the Note is hereby amended as set forth below.

FMC Credit Agreement.”  The definition of “FMC Credit Agreement” set forth in the first paragraph of Clause 1 of the Note is hereby deleted in its entirety.

Syndicated Credit Facility.” Clause 1 of the Note is hereby further amended by the addition of a definition of “Syndicated Credit Facility” to read in full as follows:

Syndicated Credit Facility” means the Sustainability-Linked Revolving Credit Facility Agreement dated 1 July, 2021 between the Borrowers, as borrowers and guarantors thereunder, and the financial institutions party thereto in their respective capacities as Coordinators, Bookrunners, Arrangers, Original Lenders (including their respective Original Lending Affiliates), Sustainability Agent, Agent and Swingline Agent, as it may be amended, restated, supplemented, or otherwise modified, or renewed, refunded, replaced, or refinanced from time to time.

Debtor Relief Law.”  Clause 1 of the Note is hereby further amended by the addition of a definition of “Debtor Relief Law,” to read in full as follows:

1


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

All other capitalized terms used but not otherwise defined in the Note, as amended hereby, shall bear the respective meanings assigned thereto in the Syndicated Credit Facility (as said term is defined in this First Amendment).

2.Amendment to Clause 4. Clause 4 of the Note is hereby amended and restated to read in its entirety as follows:

4.Borrowers and Lender hereby agree that with effect from the date of this First Amendment, the unpaid principal amount of each Advance made hereunder shall bear interest at a fluctuating rate per annum equal to EURIBOR (for Advances denominated in euro) or, in relation to any Advance not in euro, LIBOR, determined in each case in accordance with the Syndicated Credit Facility, plus a Margin as defined in the Syndicated Credit Facility. Determinations of EURIBOR and LIBOR shall be subject to Clause 14.1, paragraphs (a) through(d), inclusive, of the Syndicated Credit Facility. The Margin in relation to any Advance shall initially be 0.60 per cent per annum. The Margin will be adjusted by reference to the Credit Ratings awarded to FME as set out in the table below:

Credit Ratings of FME

Margin (in % p.a.)

Moody’s

S&P/Fitch

A3 or higher

A- or higher

0.35

Baa1

BBB+

0.45

Baa2

BBB

0.55

Baa3

BBB-

0.65

Ba1 or below

BB+ or below

0.90

For Loans in USD, the applicable Margin shall be increased by 0.15 percentage points. Any such adjustments shall be subject to and effected in accordance with paragraphs (iii), (iv) and (v) of Clause 12.3(c) of the Syndicated Credit Facility.

On the date of this First Amendment, the ESG Score assigned to the Company is 46.4. The applicable Margin (as adjusted and determined pursuant to the preceding table) will be adjusted (or further adjusted, as the case may be) by reference to FME’s ESG Score as set out in the table below:

ESG Score

Margin adjustment

(in bps per annum)

>53

-3.0

>50 but <53

-1.5

>39 but <50

0

<39

+3.0

2


or, in the event of a KPI Switch, pursuant to the KPI-linked adjustment mechanism determined in accordance with the Syndicated Credit Facility.

Any adjustment to the Margins under this Note shall be made as and when the Margins under the Credit Agreement change and shall be calculated and determined in accordance with the Syndicated Credit Facility.

Interest shall be payable in arrears upon maturity, on any prepayment and on any acceleration of the principal amount hereof and shall be computed on the basis of a 360-day year for the actual number of days elapsed (including the first day and excluding the last day).

3.Amendment to Clause 10.  The Note is hereby further amended by deleting the notation of
Clause 10 as “[Reserved]” and replacing it with a new Clause 10 reading in its entirety as follows:

10.Borrowers shall pay to the Lender a utilization fee in euro on the daily aggregate amount of all Advances outstanding under this Note computed at the rate of (i) 0.10 per cent per annum for each day on which the aggregate amount of outstanding Advances exceeds EUR 1.00 but is less than or equal to EUR 200,000,000, (ii) 0.20 per cent. per annum for each day on which the aggregate amount of outstanding Advances exceeds EUR 200,000,000 but is less than or equal to EUR 400,000,000, and (iii) 0.40 per cent per annum for each day on which the aggregate amount of outstanding Advances exceeds EUR 400,000,000. The accrued utilization fee shall be payable in arrears in euro (a) on the last day of each calendar quarter which ends prior to July 31, 2022, (b) on July 31, 2022, and (c) upon payment in full of all Advances and cancellation of this Note prior to July 31, 2022, at the time the cancellation is effective.  For purposes of calculating such utilization fee, the amount of any outstanding Advances made in any currency other than euro shall be converted into euro at the spot rate of exchange obtained by Lender from Bloomberg, or any other publicly available spot rate of exchange selected by Lender (acting reasonably), for the purchase of the relevant currency with euro in the European Union foreign exchange market at or about 11:00 a.m. on the date which is three Business Days before the due date for payment of the utilization fee, and notified by Lender to Borrowers.

4.Effective Date.  This First Amendment shall be effective as of the date set forth above. Effective as of such date, each outstanding Advance under this Note on such date shall bear interest and, if applicable, accrue fees at the respective rates for interest and fees set forth herein.

5.Signatures. The words “execution,” “signed,” “signature” and words of like import in this First Amendment or in any other certificate, agreement or document related to this First Amendment, if any, shall include images of manually executed signatures transmitted by facsimile or other electronic format (including, without limitation, “pdf,” “tif” or “jpg”) and other electronic signatures (including, without limitation, DocuSign and AdobeSign). The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, domestic or foreign, including, without limitation, the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, and any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code

6.Reference to and Effect on the Note. Except as specifically provided herein, the Note remains in full force and effect and is hereby ratified and confirmed by Borrowers and Lender.

3


IN WITNESS WHEREOF, this First Amendment to Fourth Amended and Restated Loan Note has been executed as of the day and year first written above.

BORROWERS:

FRESENIUS MEDICAL CARE AG & Co. KGaA,

represented by

Fresenius Medical Care Management AG

(its General Partner)

By:

/s/ Rice Powell

Name:

Rice Powell

Title:

Member of the Management Board

By:

/s/ Helen Giza

Name:

Helen Giza

Title:

Member of the Management Board

FRESENIUS MEDICAL CARE HOLDINGS, INC.

By:

/s/ Mark Fawcett

Name:

Mark Fawcett

Title:

Senior Vice President and Treasurer

LENDER:

FRESENIUS SE & Co. KGaA,

represented by

Fresenius Management SE

(its General Partner)

By:

/s/ Stephan Sturm

Name:

Stephan Sturm

Title:

Chief Executive Officer

By:

/s/ Rachel Empey

Name:

Rachel Empey

Title:

Chief Financial Officer

[Signature Page to First Amendment to Fourth Amended and Restated Loan Note]

4


Exhibit 10.5

EXECUTION VERSION

LETTER AGREEMENT

Dated as of July 1, 2021

in relation to

SEVENTH AMENDED AND RESTATED

TRANSFER AND ADMINISTRATION AGREEMENT

Dated as of November 24, 2014

THIS LETTER AGREEMENT (this “Letter Agreement”), dated as of July 1, 2021, is entered into by and among (i) NMC FUNDING CORPORATION, a Delaware corporation, as purchaser (the “Purchaser”) and as transferor (the “Transferor”), (ii) NATIONAL MEDICAL CARE, INC., a Delaware corporation, as seller (the “Seller”) and as collection agent (the “Collection Agent”), (iii) FRESENIUS MEDICAL CARE AG & CO. KGAA, a German partnership limited by shares (“FME KGaA”), (iv) FRESENIUS MEDICAL CARE HOLDINGS, INC. (“FMCH” and together with FME KGaA, the “Parent Companies”), (iv) the “Administrative Agents” and “Bank Investors” identified on the signature pages hereto, and (v) THE BANK OF NOVA SCOTIA, as agent (the “Agent”).

PRELIMINARY STATEMENTS

A.This Letter Agreement refers to the (i) Seventh Amended and Restated Transfer and Administration Agreement, dated as of November 24, 2014, among the Transferor, the Collection Agent, the “Conduit Investors,” the “Bank Investors,” the Administrative Agents, and the Agent (as amended, restated, supplemented or otherwise modified prior to the date hereof, the “TAA”); and (ii) the Credit Agreement dated as of October 30, 2012 among FME KGaA, FMCH, the other borrowers identified therein, the guarantors identified therein, the lenders party thereto, and Bank of America, N.A., as administrative agent (as amended, restated, supplemented or otherwise modified and in existence immediately before the date hereof, the “FME KGaA Credit Facility”). Capitalized terms not otherwise defined in this Letter Agreement shall have the meanings assigned to them in the TAA.

B.As of the date of this Letter Agreement, the FME KGaA Credit Facility has been repaid in full.

C.On or before the date of this Letter Agreement, FME KGaA and FMCH, as the original borrowers, have entered into the EUR 2,000,000,000 Sustainability-Linked Revolving Facility Agreement (the “Revolving Facility”), with the various mandated lead arrangers, lead arrangers, bookrunners, and coordinators party thereto, Crédit Agricole Corporate and Investment Bank, as sustainability coordinator, and Bank of America Europe DAC and Bank of America, N.A., as agent and swingline agent, respectively.

D.Under Section 1.1 of the TAA, the definition of the term “Consolidated Leverage Ratio” on any date has the same meaning as it has in the FME KGaA Credit Facility as


in effect on such date. However, that same definition also provides that, if the FME KGaA Credit Facility is no longer in existence, the term “Consolidated Leverage Ratio” will have the same meaning as it had in the FME KGaA Credit Facility immediately before the FME KGaA Credit Facility ceased to exist.

E.Under Section 1.1 of the TAA, the term “FME KGaA Credit Facility” means “the Credit Agreement dated as of October 30, 2012 among FME KGaA, FMCH, the other borrowers identified therein, the guarantors identified therein, the lenders party thereto, and Bank of America, N.A., as Administrative Agent, as amended, restated, supplemented, modified, renewed, refunded, replaced or refinanced and in effect at any time.” (emphasis added)

F.One of the conditions precedent to the effectiveness of the Revolving Facility (in Schedule 2, Part 1, paragraph 3(f)) is “Evidence of cancellation and repayment of the [FME KGaA Credit] Facility…”

G.The satisfaction of that condition precedent suggests that, as soon as the Revolving Facility becomes effective, the FME KGaA Credit Facility no longer exists. However, the word “replaced” in the definition of the FME KGaA Credit Facility suggests that the Revolving Facility, as the replacement for the FME KGaA Credit Facility, continues to be the FME KGaA Credit Facility as that term is defined in the TAA.

H.No definition for “Consolidated Leverage Ratio” appears in the Revolving Facility.

I.Pending the execution and delivery of Amendment No. 4 to the TAA, and related amendments to the Receivables Purchase Agreement, the Transferring Affiliate Letter, and the Parent Agreement, the parties all wish to state their mutual understanding with respect to the replacement of the FME KGaA Credit Facility, the definition of the term “Consolidated Leverage Ratio” and the reporting thereof, and the covenant in the Parent Agreement requiring compliance with a specified Consolidated Leverage Ratio, in each case as set forth in Section 1 below.

NOW, THEREFORE, in consideration of the premises set forth above, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:

SECTION 1.  Agreement.  Subject to the satisfaction of the conditions precedent set forth in Section 2 below, each of the parties hereto acknowledges and agrees as follows, henceforth:

(a)The original FME KGaA Credit Facility has been replaced by the Revolving Facility and is the new “FME KGaA Credit Facility” for purposes of that definition in Section 1.1 of the TAA.

(b)For purposes of the definition of “Applicable Margin” in Section 1.1 of the TAA, henceforth, the “Consolidated Leverage Ratio” shall be the Consolidated Leverage Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agents pursuant to Section 5.1(a)(iii) of the TAA.

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(c)The Transferor shall no longer be required to report the Consolidated Leverage Ratio in any Compliance Certificate delivered pursuant to Section 5.1(a)(iii) of the TAA.

(d)Section 2.3(g) of the TAA and Section 6(a)(v) of the Parent Agreement shall henceforth have no effect.

SECTION 2.  Conditions Precedent.  This Letter Agreement shall become effective and be deemed effective as of the date hereof (the “Effective Date”) subject to the Agent’s receipt of:

(a)counterparts of this Letter Agreement duly executed by the Seller, the Purchaser, the Transferor, the Collection Agent, the Administrative Agents and the Agent; and

(b)assurances satisfactory to the Agent that the Revolving Facility has become effective.

SECTION 4.  Fees, Costs and Expenses.  The Transferor agrees to pay on demand all reasonable fees and out-of-pocket expenses of external counsel and auditors for the Agent and each Administrative Agent incurred in connection with the preparation, execution and delivery of this Letter Agreement.

SECTION 5.  Reference to and Effect on the TAA. Except as specifically provided herein, the TAA and all other documents, instruments and agreements executed and/or delivered in connection therewith shall remain in full force and effect and are hereby ratified and confirmed.

SECTION 6.  Governing Law.

THIS LETTER AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO THE CONFLICT OF LAW PROVISIONS) AND DECISIONS OF THE STATE OF NEW YORK.

SECTION 7.  Execution in Counterparts.

7.1This Letter Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be an original, and all of which taken together shall constitute but one and the same instrument.

7.2Delivery of an executed counterpart of this Letter Agreement by facsimile or electronic delivery in portable document format (a “PDF”) shall be equally as effective as delivery of an original executed counterpart of this Letter Agreement. Any party delivering an executed counterpart of this Letter Agreement by facsimile or PDF shall also deliver an original executed counterpart of this Letter Agreement, but the failure to deliver an original executed counterpart shall not affect the validity, enforceability and binding effect of this Letter Agreement.

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SECTION 8. Headings. Section headings in this Letter Agreement are included herein for convenience of reference only and shall not constitute a part of this Letter Agreement for any other purpose.

[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]

[signature pages to follow]

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IN WITNESS WHEREOF, the parties hereto have caused this Letter Agreement to be executed by their respective officers thereunto duly authorized as of the date first written above.

NMC FUNDING CORPORATION,

as Purchaser and as Transferor

By:

/s/ Mark Fawcett

Name:

Mark Fawcett

Title:

Senior Vice President and Treasurer

NATIONAL MEDICAL CARE, INC.,

as Seller and as Collection Agent

By:

/s/ Mark Fawcett

Name:

Mark Fawcett

Title:

Senior Vice President and Treasurer

Signature Page

Letter Agreement re FME KGaA Credit Facility (2021)


FRESENIUS MEDICAL CARE AG & Co. KGaA,

as a Parent Company

represented by

Fresenius Medical Care Management AG

(General Partner)

By:

/s/ Rice Powell

Name:

Rice Powell

Title:

CEO and Chairman of the Management Board

By:

/s/ Helen Giza

Name:

Helen Giza

Title:

Member of the Management Board

FRESENIUS MEDICAL CARE HOLDINGS, INC.,

as a Parent Company

By:

/s/ Mark Fawcett

Name:

Mark Fawcett

Title:

Senior Vice President and Treasurer

Signature Page

Letter Agreement re FME KGaA Credit Facility (2021)


THE BANK OF NOVA SCOTIA,

as Agent, an Administrative Agent and a Bank Investor

By:

/s/ Darren Ward

Name:

Darren Ward

Title:

Managing Director

Signature Page

Letter Agreement re FME KGaA Credit Facility (2021)


CREDIT AGRICOLE CORPORATE AND

INVESTMENT BANK, NEW YORK,

as an Administrative Agent and a Bank Investor

By:

/s/ Konstantina Kourmpetis

Name:

Konstantina Kourmpetis

Title:

Managing Director

By:

/s/ Roger Klepper

Name:

Roger Klepper

Title:

Managing Director

Signature Page

Letter Agreement re FME KGaA Credit Facility (2021)


BARCLAYS BANK PLC,

as an Administrative Agent

By:

/s/ John McCarthy

Name:

John McCarthy

Title:

Director

Sheffield Receivables Company, LLC,

as a Bank Investor

By:

/s/ John McCarthy

Name:

John McCarthy

Title:

Director

Signature Page

Letter Agreement re FME KGaA Credit Facility (2021)


ROYAL BANK OF CANADA,

as an Administrative Agent and a Bank Investor

By:

/s/ Janine D. Marsini

Name:

Janine D. Marsini

Title:

Authorized Signatory

By:

/s/ Kimberly L Wagner

Name:

Kimberly L. Wagner

Title:

Authorized Signatory

Signature Page

Letter Agreement re FME KGaA Credit Facility (2021)


PNC BANK, NATIONAL ASSOCIATION,

as an Administrative Agent and a Bank Investor

By:

/s/ Eric Bruno

Name:

Eric Bruno

Title:

Senior Vice President

By:

/s/ Eric Bruno

Name:

Eric Bruno

Title:

Senior Vice President

Signature Page

Letter Agreement re FME KGaA Credit Facility (2021)


MUFG BANK, LTD. f/k/a THE BANK OF

TOKYO-MITSUBISHI UFJ, LTD., NEW YORK

BRANCH, as an Administrative Agent

By:

/s/ Eric Williams

Name:

Eric Williams

Title:

Managing Director

MUFG BANK, LTD. f/k/a THE BANK OF

TOKYO-MITSUBISHI UFJ, LTD., NEW YORK

BRANCH, as a Bank Investor

By:

/s/ Eric Williams

Name:

Eric Williams

Title:

Managing Director

Signature Page

Letter Agreement re FME KGaA Credit Facility (2021)


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, 2021

By:

/s/ RICE POWELL

Rice Powell

Chief Executive Officer and Chairman of the Management Board of the General Partner


Exhibit 31.2

CERTIFICATION PURSUANT TO SECTION 302

OF THE SARBANES-OXLEY ACT OF 2002

I, Helen Giza, 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, 2021

By:

/s/ HELEN GIZA

Helen Giza

Chief Financial Officer and member of the Management Board of the General Partner


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 2021 containing its unaudited financial statements as of June 30, 2021 and for the six-months periods ending June 30, 2021 and 2020, as submitted to the Securities and Exchange Commission on the date hereof (the “Report”), the undersigned, Rice Powell, Chief Executive Officer and Helen Giza, 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, 2021

By:

/s/ HELEN GIZA

Helen Giza

Chief Financial Officer and member of the Management Board of the General Partner

July 30, 2021