SUPPLEMENTAL INDENTURE
Exhibit 10.4
THIS SUPPLEMENTAL INDENTURE dated as of June 20, 2011, among FMC FINANCE III S.A., a
corporation under the laws of Luxembourg (the “Original Issuer”), as Issuer, FRESENIUS MEDICAL CARE
AG & Co. KGaA, a partnership limited by shares (Kommanditgesellschaft auf Aktien) organized under
the laws of the Federal Republic of Germany (the “Company”), FRESENIUS MEDICAL CARE HOLDINGS, INC.,
a New York corporation (“FMCH”) and FRESENIUS MEDICAL CARE DEUTSCHLAND GmbH, a limited liability
company organized under the laws of the Federal Republic of Germany (“FMCD” and, together with the
Company and FMCH, the “Guarantors”), FRESENIUS MEDICAL CARE US FINANCE, INC., a Delaware
corporation (the “Successor Issuer”), and U.S. BANK NATIONAL ASSOCIATION, a national banking
association, as trustee (the “Trustee”), with reference to that certain Indenture dated as of July
2, 2007, by and among the Issuer, the Guarantors and the Trustee (the “Indenture”). Capitalized
terms used and not defined herein shall have the meanings ascribed to such terms in the Indenture.
RECITALS
WHEREAS, the Indenture provides that the issuer of the Notes may sell, assign, transfer,
convey or otherwise dispose of all or substantially all of its properties and assets to a Person
organized under the laws of a state of the United States or other specified jurisdictions, provided
that, among other things, the acquiring Person enters into a supplemental indenture pursuant to
which such Person assumes the obligations of the Issuer under the Notes and the Indenture and
subjects itself to all of the provisions of the Indenture and that, upon execution of such
supplemental indenture and satisfaction of the conditions set forth in the Indenture with respect
to such assumption and the related supplemental indenture, the acquiring Person shall succeed to,
and be substituted for, and may exercise every right and power of, the Issuer under the Indenture
and the former Issuer shall be discharged from all obligations and covenants under the Indenture
and the Notes;
WHEREAS, the Original Issuer and the Successor have entered into an agreement for the
disposition of substantially all of the assets and liabilities of the Original Issuer to the
Successor Issuer in consideration of the Successor Issuer’s assumption of substantially all of the
liabilities of the Original Issuer including, without limitation, its liabilities and obligations
under the Notes and the Indenture, which disposition shall be effective upon the execution of this
Supplemental Indenture;
WHEREAS, an Officers’ Certificate of the Company pursuant to Sections 9.6 and 11.2 of the
Indenture, in the form required pursuant to Section 11.3 of the Indenture, has been delivered to
the Trustee simultaneously with the execution and delivery of this Supplemental Indenture;
WHEREAS, Opinions of Counsel pursuant to Sections 5.1, 9.6 and 11.2 of the Indenture, in the
form required by Section 11.3 of the Indenture, have been
delivered to the Trustee simultaneously with the execution and delivery of this Supplemental
Indenture; and
WHEREAS, contemporaneously with the execution and delivery of this Supplemental Indenture,
there is being delivered to the Trustee under the Indenture a Global Note issued by the Successor
Issuer in the aggregate principal amount of $500,000,000.00 with the Note Guarantees of the
Guarantors endorsed thereon (the “Successor Issuer Notes”), to be authenticated and issued upon the
Successor Issuer’s assumption of the obligations of the Issuer on the Notes and under the Indenture
pursuant to this Supplemental Indenture.
NOW, THEREFORE, for and in consideration of the premises and of the mutual covenants herein
contained, and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows for the benefit of the other parties and for the
equal and ratable benefit of the Holders:
ARTICLE I
SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE
SECTION 1.1. Definitions. Capitalized terms used and not defined herein shall have the
respective meanings ascribed to such terms in the Indenture.
SECTION 1.2. Assumption of Obligations of the Issuer by the Successor Issuer. The
Successor Issuer hereby assumes and agrees to perform the obligations of the Original Issuer under
the Notes and the Indenture and subjects itself to all of the provisions (including the
representations and warranties) of the Indenture as the Issuer of the Notes.
SECTION 1.3. Release of Issuer. Pursuant to Section 5.1 of the Indenture, upon
execution of this Supplemental Indenture by the Trustee the Successor Issuer shall succeed to, and
be substituted for, and shall be entitled to exercise every right and power of, the Issuer under
the Indenture, with the same effect as if it were the Issuer thereunder, and the Original Issuer
shall be discharged from all obligations and covenants under the Indenture and the Notes.
SECTION 1.4. References to the Issuer. To effect the assumption by the Successor
Issuer of the obligations of the Original Issuer, the Indenture is hereby amended and supplemented
to provide that all references in the Indenture and the Notes to the Original Issuer as Issuer of
the Notes shall henceforth be deemed references to the Successor Issuer as Issuer of the Notes.
SECTION 1.5. Amendment to Indenture. The Indenture is hereby amended and supplemented
as follows:
(a) Section 4.12 of the Indenture is hereby amended by deleting the fourth paragraph
thereof and replacing it with the following:
The Issuer will pay any present stamp, court or documentary taxes, or any
other excise, property or similar taxes, charges or levies (including any
penalties, interest or other liabilities related thereto) which arise in The United
States (or any political subdivision thereof or therein) from the execution,
delivery and registration of Notes upon original issuance and initial resale of the
Notes or any other document or instrument referred to therein. If at any time the
Issuer changes its place of organization to outside of 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 other
document or instrument referred to therein under any law, rule or regulation in
effect at the time of such change, or in connection with, the enforcement of the
Notes or any such other document or instrument.
(b) By virtue of the conversion of Fresenius AG into Fresenius SE, a European Company
(Societas Europaea) on July 13, 2007, and the subsequent change of legal form of Fresenius
SE from a European Company to a partnership limited by shares (Kommanditgesellschaft auf
Aktien), which became effective January 28, 2011, each reference in the Indenture to
“Fresenius AG” shall henceforth be a reference to “Fresenius SE & Co. KGaA.”
SECTION 1.6. Full Force and Effect of Guarantees. The Company, FMCH and FMCD each
acknowledges and agrees that its Note Guarantee shall continue in full force and effect and that
all of its obligations thereunder shall be valid and enforceable and shall not be impaired or
limited by the execution or effectiveness of this Supplemental Indenture.
ARTICLE II
FORM OF NOTE AND NOTE GUARANTEE
FORM OF NOTE AND NOTE GUARANTEE
Pursuant to Section 2.1 of the Indenture, new forms of Note and Note Guarantee are hereby
established, in the forms annexed as Annex A and B hereto, respectively, conforming with the
amendments to the Indenture set forth herein, provided, that the existing certificates evidencing
the Notes and the Note Guarantees endorsed thereon shall continue to represent the Notes and the
Note Guarantees, as amended hereby, until replaced by the Successor Issuer Notes.
ARTICLE III
MISCELLANEOUS
MISCELLANEOUS
SECTION 3.1. Section 9.1 of the Indenture. This Supplemental Indenture is a
supplemental indenture pursuant to Section 9.1 of the Indenture. Upon
execution and delivery of this Supplemental Indenture, the terms and conditions of this
Supplemental Indenture shall be part of the terms and conditions of the Indenture for any and all
purposes, and all the terms and conditions of both shall be read together as though they constitute
one and the same instrument, except that in the case of conflict, the provisions of this
Supplemental Indenture shall control.
SECTION 3.2. Full Force and Effect. Except as they have been modified in this
Supplemental Indenture, each and every term and provision of the Indenture shall continue in full
force and effect, and all references to the Indenture in the Indenture shall be deemed to mean the
Indenture as supplemented and amended pursuant hereto.
SECTION 3.3. Counterparts. All parties hereto may sign any number of copies of this
Supplemental Indenture. Each signed copy or counterpart shall be an original, but all of them
together shall represent one and the same agreement.
SECTION 3.4. Governing Law. THIS SUPPLEMENTAL INDENTURE AND THE RIGHTS AND DUTIES OF
THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK.
SECTION 3.5. Headings. The headings of the Articles and Sections of this Supplemental
Indenture have been inserted for convenience of reference only, are not to be considered a part of
this Supplemental Indenture and shall in no way modify or restrict any of the terms or provisions
hereof.
SECTION 3.6. Recitals of the Original Issuer, the Successor Issuer and the Guarantors.
The Recitals contained herein and, upon issuance, the form of Note and Note Guarantee annexed
hereto, except the Trustee’s certificate of authentication, shall be taken as the statements of the
Original Issuer, the Successor Issuer and the Guarantors, as the case may be, and the Trustee
assumes no responsibility for the correctness thereof. The Trustee makes no representations as to,
and assumes no responsibility for, the validity of this Supplemental Indenture.
[The remainder of this page has been intentionally left blank. Signature pages follow.]
IN WITNESS WHEREOF, the parties have caused this Supplemental Indenture to be duly executed,
as of the day and year first above written.
| FMC FINANCE III S.A., as Original Issuer | FRESENIUS MEDICAL CARE AG & Co. KGaA, a partnership limited by shares and represented by FRESENIUS MEDICAL CARE MANAGEMENT AG, its general partner, as Guarantor |
|||||||
By:
|
/s/ Xxxxxxxx Xxx
|
By: | /s/Xxxxxxx Xxxxxxx
|
|||||
| Title: Director | Title: Member of the Management Board | |||||||
| By: | /s/Xxxxxxxx Xxxxx
|
|||||||
| Title: Member of the Management Board | ||||||||
| FRESENIUS MEDICAL CARE US FINANCE, INC., as Successor Issuer |
FRESENIUS MEDICAL CARE DEUTSCHLAND GMBH |
|||||||
By:
|
/s/ Xxxx Xxxxxxx
|
By: | /s/Xxxxxxxxx Xxxxxxx
|
|||||
| Title: Vice President & Treasurer | Title: Managing Director | |||||||
| By: | /s/Xxxxxxxx Xxxxxx
|
|||||||
| Title: Managing Director | ||||||||
| FRESENIUS MEDICAL
CARE HOLDINGS, INC. |
||||||||
| By: | /s/ Xxxx Xxxxxxx | |||||||
| Name: Xxxx Xxxxxxx Title: Vice President & Treasurer |
||||||||
[Signature Page to Supplemental Indenture]
IN WITNESS WHEREOF, the parties have caused this Supplemental Indenture to be duly executed,
as of the day and year first above written.
| U.S. BANK NATIONAL ASSOCIATION, as Trustee |
||||
| By: | /s/Xxxxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxxxx X. Xxxxxx | |||
| Title: | Vice President | |||
[Signature Page to Supplemental Indenture]
EXHIBIT A — FORM OF NOTE
EXHIBIT B — FORM OF GUARANTEE
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO
AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY OR A NOMINEE OF THE DEPOSITORY
TRUST COMPANY. THIS NOTE IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A
PERSON OTHER THAN THE DEPOSITORY TRUST COMPANY OR ITS NOMINEE EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER THAN A
TRANSFER OF THIS NOTE AS A WHOLE TO THE DEPOSITORY TRUST COMPANY OR A NOMINEE OF THE DTC)
MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
FRESENIUS MEDICAL CARE US FINANCE, INC.
6 7/8% Senior Note due 2017
CUSIP No.: 35803Q AD9
No.001 $500,000,000.00
FRESENIUS MEDICAL CARE US FINANCE, INC., a corporation organized under the laws of Delaware
(the “Issuer”, which term includes any successor entity), for value received, promises to pay to
Cede & Co. or its registered assigns upon surrender hereof the principal sum indicated on Schedule
A hereof, on July 15, 2017.
Interest Payment Dates: January 15 and July 15, commencing January 15, 2008
Record Dates: January 1 and July 1 immediately preceding the related Interest Payment Dates
Reference is made to the further provisions of this Note contained herein, which will for all
purposes have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Issuer has caused this Note to be signed manually or by facsimile by
its duly authorized Responsible Officers.
| FRESENIUS MEDICAL CARE US FINANCE, INC. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
This is one of the Notes referred to in the within-mentioned Indenture:
| U.S. BANK NATIONAL
ASSOCIATION, as Trustee |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Dated:
[REVERSE OF NOTE]
FRESENIUS MEDICAL CARE US FINANCE, INC.
6 7/8% Senior Note due 2017
1. Interest. FRESENIUS MEDICAL CARE US FINANCE, INC., a corporation organized under
the laws of Delaware (the “Issuer”), promises to pay interest on the principal amount of this Note
at the rate and in the manner specified below. Interest on the Notes will accrue at 6 7/8% per
annum on the principal amount then outstanding, and be payable semi-annually in cash in arrears on
each January 15 and July 15, or if any such day is not a Business Day, on the next succeeding
Business Day, commencing January 15, 2008, to the Holder hereof. Notwithstanding any exchange of
this Note for a Definitive Note during the period starting on a Record Date relating to such
Definitive Note and ending on the immediately succeeding interest payment date, the interest due on
such interest payment date shall be payable to the Person in whose name this Global Note is
registered at the close of business on the Record Date for such interest. Interest on the Notes
will accrue from the most recent date to which interest has been paid. Interest will be computed
on the basis of a 360-day year of twelve 30-day months.
The Issuer shall pay interest on overdue principal and on overdue installments of interest
(without regard to any applicable grace periods) and on any Additional Amounts, from time to time
on demand at the rate borne by the Notes. Any interest paid on this Note shall be increased to the
extent necessary to pay Additional Amounts as set forth herein.
2. Additional Amounts. All payments made under or with respect to the Notes under the
Indenture or pursuant to any Note Guarantee must be made free and clear of and without withholding
or deduction for or on account of any present or future tax, duty, levy, impost, assessment or
other governmental charge (including penalties, interest and other liabilities related thereto)
imposed or levied by or on behalf of (1) the United States, Germany, Luxembourg, the United Kingdom
or any political subdivision or governmental authority thereof or therein having the power to tax,
(2) any jurisdiction from or through which payment on the Notes is made, or any political
subdivision or governmental authority thereof or therein having the power to tax or (3) any other
jurisdiction in which the payor is organized or otherwise considered to be a resident for tax
purposes, or any political subdivision or governmental authority thereof or therein having the
power to tax (each a “Relevant Taxing Jurisdiction”), collectively, “Taxes,” unless the Issuer or
any Guarantor is required to withhold or deduct Taxes by law or by the interpretation or
administration thereof by the relevant government authority or agency provided, however, that in
determining what withholding is required by law for U.S. federal income and withholding tax
purposes, the Issuer and any Guarantor shall be entitled to treat any payments on or in respect of
the Notes as if the Notes were issued by a U.S. person as defined in section 7701(a)(30) of the
Code. If the Issuer or any Guarantor is so required to withhold or deduct any amount for or on
account of Taxes from any payment made under or with respect to the Notes, the Issuer or such
Guarantor, as the case may be, will be required to pay such amount — “Additional Amounts” — as
may be necessary so that the net amount (including Additional Amounts) received by each Holder
after such withholding or deduction (including
any withholding or deduction on such Additional Amounts) will not be less than the amount such
Holder would have
-1-
received if such Taxes had not been withheld or deducted; provided, however, that
no Additional Amounts will be payable with respect to payments made to any Holder or beneficial
owner to the extent such Taxes are imposed by reason of (i) its being or having been connected with
the Relevant Taxing Jurisdiction or any political subdivision or governmental authority thereof or
therein having the power to tax, otherwise than by the acquisition, ownership, holding, disposition
or enforcement of the Notes or the receipt of payments thereunder, or (ii) such Holder or
beneficial owner not cooperating with the Issuer or the Guarantors in completing any procedural
formalities that it is legally eligible to complete and are necessary for the Issuer or the
Guarantors to pay or obtain authorization to make payments without such Taxes (including, without
limitation, providing prior to the receipt of any payment on or in respect of a Note a complete,
correct and executed IRS Form W-8 or W-9 or successor form, as applicable, with all appropriate
attachments); provided, however, that for purposes of this obligation to pay Additional Amounts,
the Issuer and any Guarantor shall be entitled, for U.S. federal income and withholding tax
purposes, to treat any payments on or in respect of the Notes as if the Notes were issued by a U.S.
person as defined in section 7701(a)(30) of the Code. Further, no Additional Amounts shall be
payable with respect to (i) any Tax imposed by the United States or any political subdivision or
governmental authority thereof or therein on interest by reason of any Holder or beneficial owner
holding or owning, actually or constructively, 10 percent or more of the total combined voting
power of all classes of stock of the Issuer or any Guarantor entitled to vote or (ii) any Tax
imposed by the United States or any political subdivision or governmental authority thereof or
therein on interest by reason of any Holder or beneficial owner being a controlled foreign
corporation that is a related person within the meaning of Section 864(d)(4) of the Code with
respect to the Issuer or any Guarantor. The Issuer will also make such withholding or deduction
and remit the full amount deducted or withheld to the relevant authority as and when required in
accordance with applicable law. The Issuer will furnish to the Trustee, within 30 days after the
date the payment of any Taxes is due under applicable law, certified copies of tax receipts
evidencing such payment by the Issuer.
Wherever in the Indenture or the Notes there are mentioned, in any context, (1) the payment of
principal, (2) purchase prices in connection with a purchase of Notes under the Indenture or the
Notes, (3) interest or (4) any other amount payable on or with respect to any of the Notes, such
reference shall be deemed to include payment of Additional Amounts as described under this heading
to the extent that, in such context, Additional Amounts are, were or would be payable in respect
thereof.
The Issuer will pay any present stamp, court or documentary taxes, or any other excise,
property or similar taxes, charges or levies (including any penalties, interest or other
liabilities related thereto) which arise in the United States (or any political subdivision thereof
or therein) from the execution, delivery and registration of Notes upon original issuance and
initial resale of the Notes or any other document or instrument referred to therein. If at any
time the Issuer changes its place of organization to outside of 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 other
document
-2-
or instrument referred to therein under any law, rule or regulation in effect at the time
of such change, or in connection with, the enforcement of the Notes or any such other document or
instrument.
The foregoing obligations will survive any termination, defeasance or discharge of the
Indenture. References in this section (“Additional Amounts”) to the Issuer or Guarantor shall apply
to any successor(s) thereto.
3. Method of Payment. The Issuer shall pay interest on the Notes (except defaulted
interest) to the Person in whose name this Note is registered at the close of business on the
Record Date for such interest. Holders must surrender Notes to a Paying Agent to collect principal
payments. The Issuer shall pay principal and interest in U.S. dollars. Immediately available
funds for the payment of the principal of (and premium, if any), interest and Additional Amounts,
if any, on this Note due on any interest payment date, Maturity Date, Redemption Date or other
repurchase date will be made available to the Paying Agent to permit the Paying Agent to pay such
funds to the Holders on such respective dates.
4. Paying Agent and Registrar. Initially, U.S. Bank National Association will act as
Paying Agent and as Registrar. In the event that a Paying Agent or transfer agent is replaced, the
Issuer will provide notice thereof (so long as the Notes are Global Notes) published in a leading
newspaper having general circulation in New York City (which is expected to be The Wall Street
Journal) (and, if and so long as the Notes are listed on the Luxembourg Stock Exchange and the
rules of such stock exchange shall so require, published in a newspaper having a general
circulation in Luxembourg (which is expected to be the Luxemburger Wort)) and (in the case of
Definitive Notes), in addition to such publication, mailed by first-class mail to each Holder’s
registered address. The Issuer may change any Registrar without notice to the Holders. The
Issuer, the Company or any of their Subsidiaries may, subject to certain exceptions, act in the
capacity of Registrar or transfer agent.
5. Indenture. The Issuer issued the Notes under an Indenture, dated as of July 2,
2007, among FMC Finance III S.A. (the “Original Issuer”), Fresenius Medical Care AG & Co. KGaA (the
“Company”), Fresenius Medical Care Holdings, Inc. (“FMCH”), Fresenius Medical Care Deutschland GmbH
(“FMCD” and together with the Company and FMCH, the “Guarantors”), and U.S. Bank National
Association (the “Trustee”) as Trustee, as amended and supplemented by a Supplemental Indenture
dated as of June 20, 2011 among the Issuer, the Original Issuer, the Guarantors and the Trustee (as
so amended and supplemented, the “Indenture”). This Note is one of a duly authorized issue of
Notes (as defined in the Indenture) of the Issuer designated as its 6 7/8% Senior Notes due 2017.
The terms of the Notes include those stated in the Indenture. Notwithstanding anything to the
contrary herein, the Notes are subject to all such terms, and Holders of Notes are referred to the
Indenture for a statement of them. The Notes are general obligations of the Issuer. The Notes are
not limited in aggregate principal amount and Additional Notes (as defined in the Indenture) may be
issued from time to time under the Indenture, in each case subject to the terms of the Indenture;
provided that the aggregate principal amount of Notes that will be issued on the Closing Date (as
defined in the Indenture) will not exceed $500,000,000. Each Holder, by accepting a Note, agrees
to be bound
by all of the terms and provisions of the Indenture, as the same may be amended from time to
time.
-3-
6. Ranking. The Notes will be senior unsecured obligations of the Issuer. The payment
of the principal of, premium, if any, and interest on the Notes (and the Guarantees of such
obligations under the Note Guarantees) will:
| • | rank pari passu in right of payment with all other Indebtedness of the Issuer and the Guarantors, as applicable, that is not by its terms expressly subordinated to other Indebtedness of the Issuer and the Guarantors, as applicable; | ||
| • | rank senior in right of payment to all Indebtedness of the Issuer and the Guarantors, as applicable, that is, by its terms, expressly subordinated to the senior Indebtedness of the Issuer and the Guarantors, as applicable; and | ||
| • | be effectively subordinated to the Secured Indebtedness of the Issuer and the Guarantors, as applicable, to the extent of the value of the collateral securing such Indebtedness, and to the Indebtedness of the Subsidiaries that are not Guarantors of the Notes. |
7. Note Guarantee. As provided in the Indenture and subject to certain limitations
set forth therein, the obligations of the Issuer under the Indenture and this Note are Guaranteed
on a senior unsecured basis pursuant to Note Guarantees endorsed hereon. The Indenture provides
that a Guarantor shall be released from its Note Guarantee upon compliance with certain conditions.
8. Optional Redemption. The Issuer may redeem all or, from time to time, a part of
the Notes, at its option, at a redemption price equal to 100% of the principal amount of the Notes
plus accrued interest to the redemption date, plus the excess of:
(a) as determined by the calculation agent (which shall initially be the Trustee), the
sum of the present values of the remaining scheduled payments of principal and interest on
the Notes being redeemed not including any portion of such payment of interest accrued on
the date of redemption, from the redemption date to the maturity date, discounted to the
redemption date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day
months) at the Treasury Rate plus 50 basis points; over
(b) 100% of the principal amount of the Notes being redeemed.
If the optional redemption date is on or after an interest record date and on or before the
related interest payment date, the accrued and unpaid interest, if any, will be paid to the Person
in whose name the Note is registered at the close of business on such record date, and no
additional interest will be payable to beneficial Holders whose Notes will be subject to redemption
by the Issuer.
In the case of any partial redemption, the Trustee will select the Notes for redemption in
compliance with the requirements of the principal securities exchange, if any, on which the Notes
are listed or, if the Notes are not listed, then by lot, on a pro rata basis, or by
-4-
such other
method as the Trustee in its sole discretion will deem to be fair and appropriate, although no Note
of $75,000 in original principal amount or less will be redeemed in part. If any Note is to be
redeemed in part only, the notice of redemption relating to that Note will state the portion of the
principal amount thereof to be redeemed. A new Note in principal amount equal to the unredeemed
portion thereof will be issued and delivered to the Trustee, or in the case of Definitive Notes,
issued in the name of the Holder thereof upon cancellation of the original Note.
9. Special Tax Redemption. The Issuer is entitled to redeem the Notes, at its option,
at any time in whole but not in part, upon not less than 30 nor more than 60 days’ notice, at 100%
of the principal amount of the Notes, plus accrued and unpaid interest (if any) to the date of
redemption (a “Tax Redemption Date”) (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant interest payment date), in the event the Issuer
has become or would become obligated to pay, on the next date on which any amount would be payable
with respect to the Notes, any additional amounts as a result of:
(a) a change in or an amendment to the laws (including any regulations promulgated
under such laws) of any Relevant Taxing Jurisdiction; or
(b) any change in or amendment to any official position regarding the application,
administration or interpretation of such laws, treaties, regulations or rulings (including a
holding, judgment or order by a court of competent jurisdiction);
which change or amendment to such laws or official position is announced and becomes effective on
or after the date of issuance of the Notes; provided that the Issuer determines, in its reasonable
judgment, that the obligation to pay such additional amounts cannot be avoided by the use of
reasonable measures available to it.
Notice of any such redemption must be given within 270 days of the earlier of the announcement
or effectiveness of any such change.
10. Notice of Redemption. Notice of redemption will be given at least 30 days but not
more than 60 days before the Redemption Date or Tax Redemption Date, as the case may be, (i) so
long as the Notes are in global form, by publishing in a leading newspaper having a general
circulation in New York (which is expected to be The Wall Street Journal) (and, if and so long as
the Notes are listed on the Luxembourg Stock Exchange and the rules of such stock exchange shall so
require, a newspaper having a general circulation in Luxembourg (which is expected to be the
Luxemburger Wort)) and notify the Holders, the Trustee and the Luxembourg Stock Exchange, if
applicable and (ii) in the case of Definitive Notes, in addition to such publication, by mailing
first-class mail to each Holder’s registered address. Notes in denominations of $75,000 may be
redeemed only in whole. The Trustee may select for redemption portions (equal to $75,000 or any
integral multiple of $1,000 in excess thereof) of the principal of Notes that have denominations
larger than $75,000.
Except as set forth in the Indenture, from and after any Redemption Date or Tax Redemption
Date, as the case may be, if monies for the redemption of the Notes called for redemption shall
have been deposited with the Paying Agent for redemption on such Redemption Date or Tax Redemption
Date, as the case may be, then, unless the Issuer defaults in the payment
-5-
of such Redemption Price,
the Notes called for redemption will cease to bear interest and Additional Amounts, if any, and the
only right of the Holders of such Notes will be to receive payment of the Redemption Price.
11. Change of Control. Each Holder of the Notes, upon the occurrence of a Change of
Control Triggering Event, will have the right to require that the Issuer repurchase such Holder’s
Notes, at a purchase price in cash equal to 101% of the principal amount thereof plus accrued and
unpaid interest, if any, to the date of purchase (subject to the right of Holders of record on the
relevant record date to receive interest due on the relevant interest payment date). Holders of
Notes that are subject to an offer to purchase will receive a Change of Control offer from the
Company prior to any related Change of Control payment date and may elect to have such Notes
purchased by completing the form entitled “Option of Holder to Elect Purchase” appearing below.
12. Denominations; Form. The Global Notes are in registered global form, without
coupons, in denominations of $75,000 and integral multiples of $1,000 in excess thereof.
13. Persons Deemed Owners. The registered Holder of this Note shall be treated as the
owner of it for all purposes, subject to the terms of the Indenture.
14. Unclaimed Funds. If funds for the payment of principal, interest, premium or
Additional Amounts remain unclaimed for two years, the Trustee and the Paying Agents will repay the
funds to the Issuer at its written request. After that, all liability of the Trustee and such
Paying Agents with respect to such funds shall cease.
15. Legal Defeasance and Covenant Defeasance. The Issuer may be discharged from its
obligations under the Indenture and the Notes except for certain provisions thereof (“Legal
Defeasance”), and may be discharged from its obligations to comply with certain covenants contained
in the Indenture (“Covenant Defeasance”), in each case upon satisfaction of certain conditions
specified in the Indenture.
16. Amendment; Supplement; Waiver. Subject to certain exceptions specified in the
Indenture, the Indenture or the Notes may be amended or supplemented with the written consent of
the Holders of at least a majority in principal amount of the Notes then outstanding, and any
existing Default or Event of Default or compliance with any provision of the Indenture or the Notes
may be waived with the consent of the Holders of a majority in principal amount of the Notes then
outstanding.
17. Restrictive Covenants. The Indenture imposes certain covenants that, among other
things, limit the ability of the Issuer, the Company, the Guarantors and their Subsidiaries to
incur additional Indebtedness, to incur additional Liens, to enter into Sale and Leaseback
Transactions and enter into certain consolidations or mergers. The limitations are
subject to a number of important qualifications and exceptions. The Issuer must annually
report to the Trustee on compliance with such limitations.
-6-
18. Successors. When a successor assumes all the obligations of its predecessor under
the Notes and the Indenture in accordance with the terms of the Indenture, the predecessor will be
released from those obligations.
19. Defaults and Remedies. If an Event of Default (other than an Event of Default
specified in clause (7) of Section 6.1 of the Indenture) occurs and is continuing, the Trustee or
the Holders of at least 25% in principal amount of the then outstanding Notes may declare all the
Notes to be due and payable immediately in the manner and with the effect provided in the
Indenture. Holders of Notes may not enforce the Indenture or the Notes except as provided in the
Indenture. The Trustee is not obligated to enforce the Indenture or the Notes unless it has
received full indemnity. The Indenture permits, subject to certain limitations therein provided,
Holders of a majority in aggregate principal amount of the Notes then outstanding to direct the
Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of Notes
notice of any continuing Default or Event of Default (except a Default in payment of principal,
premium, interest and Additional Amounts, if any, including an accelerated payment) if it
determines that withholding notice is in their interest.
20. Trustee Dealings with Issuer. The Trustee under the Indenture, in its individual
or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with the
Company, its Subsidiaries or their respective Affiliates as if it were not the Trustee.
21. No Recourse Against Others. No director, officer, employee, incorporator or
stockholder of the Issuer, Fresenius SE & Co. KGaA, or of the Board of Directors of the Company or
the Guarantors, as such, shall have any liability for any obligations of the Issuer or any
Guarantor under the Notes, the Indenture or the Note Guarantees or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note
waives and releases all such liability. The waiver and release are part of the consideration for
issuance of the Notes and the Note Guarantees. Such waiver and release may not be effective to
waive liabilities under the U.S. federal securities laws and it is the view of the SEC that such a
waiver is against public policy. In addition, such waiver and release may not be effective under
the laws of the Federal Republic of Germany. The waiver and release are part of the consideration
for issuance of the Notes.
22. Authentication. This Note shall not be valid until the Trustee or authenticating
agent signs the certificate of authentication on this Note.
23. Abbreviations and Defined Terms. Customary abbreviations may be used in the name
of a Holder of a Note or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants
by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in
common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act). Unless otherwise defined
herein, terms defined in the Indenture are used herein as defined therein.
24. CUSIP Numbers. The Issuer will cause the CUSIP number to be printed on the Notes
as a convenience to the Holders of the Notes. No representation is made as to the accuracy of such
numbers as printed on the Notes and reliance may be placed only on the other identification numbers
printed hereon.
-7-
25. Governing Law. THIS NOTE AND THE INDENTURE, AND THE RIGHTS AND DUTIES OF THE
PARTIES HEREUNDER AND THEREUNDER, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK. THE NOTE GUARANTEES WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK EXCEPT CERTAIN MATTERS CONCERNING LIMITATION THEREOF WILL
BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE FEDERAL REPUBLIC OF GERMANY.
-8-
SCHEDULE A
SCHEDULE OF PRINCIPAL AMOUNT
The initial principal amount at maturity of this Note shall be $500,000,000.00. The following
decreases/increases in the principal amount at maturity of this Note have been made:
| Total Principal | Notation | |||||||
| Amount | Made by | |||||||
| Date of | Decrease in | Increase in | Following Such | or on | ||||
| Decrease/ | Principal | Principal | Decrease/ | Behalf of | ||||
| Increase | Amount | Amount | Increase | Trustee | ||||
|
|
-9-
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Issuer pursuant to Section 4.11 of the
Indenture, check the box below:
o
If you want to elect to have only part of this Note purchased by the Issuer pursuant to
Section 4.11 of the Indenture, state the amount: $________________
Date:
Your Signature:
(Sign exactly as your name appears on the other side of this Note)
(Sign exactly as your name appears on the other side of this Note)
Signature Guarantee:
Participant in a recognized Signature Guarantee Medallion Program
Participant in a recognized Signature Guarantee Medallion Program
(or other signature guarantor program reasonably acceptable to the Trustee)
-10-
NOTE GUARANTEE
For value received, each of the Guarantors hereby jointly and severally unconditionally
Guarantees, on a senior unsecured basis, to each Holder of a Note authenticated and delivered by
the Trustee, and to the Trustee on behalf of such Holder, the due and punctual payment of the
principal of (and premium, if any) and interest (including Additional Amounts, if any) on such Note
when and as the same shall become due and payable, whether at the Stated Maturity, by acceleration,
call for redemption, purchase or otherwise, in accordance with the terms of such Note and of the
Indenture.
In case of the failure of the Issuer punctually to make any such payment, each of the
Guarantors hereby jointly and severally agrees to cause such payment to be made punctually when and
as the same shall become due and payable, whether at the Stated Maturity or by acceleration, call
for redemption, purchase or otherwise, and as if such payment were made by the Issuer. The Note
Guarantee extends to the Issuer’s repurchase obligations arising from a Change of Control pursuant
to the Indenture.
Each of the Guarantors hereby jointly and severally agrees that its obligations hereunder
shall be unconditional, irrespective of the validity, regularity or enforceability of such Note or
the Indenture, the absence of any action to enforce the same, any exchange, release or
non-perfection of any Lien on any collateral for, or any release or amendment or waiver of any term
of any other Guarantee of, or any consent to departure from any requirement of any other Guarantee
of, all or any of the Notes, the effects of Bankruptcy Law applicable in the event of bankruptcy
proceedings being opened with respect to the Issuer, of all or any portion of the claims of the
Trustee or any of the Holders for payment of any of the Notes, any waiver or consent by the Holder
of such Note or by the Trustee with respect to any provisions thereof or of the Indenture, the
obtaining of any judgment against the Issuer or any action to enforce the same or any other
circumstances which might otherwise constitute a legal or equitable discharge or defense of a
guarantor. Each of the Guarantors hereby waives the benefits of diligence, presentment, demand for
payment, any requirement that the Trustee or any of the Holders protect, secure, perfect or insure
any security interest in or other Lien on any property subject thereto or exhaust any right or take
any action against the Issuer or any other Person or any collateral, filing of claims with a court
in the event of insolvency or bankruptcy of the Issuer, any right to require a proceeding first
against the Issuer, protest or notice with respect to such Note or the Indebtedness evidenced
thereby and all demands whatsoever, and covenants that this Note Guarantee will not be discharged
in respect of such Note except by complete performance of the obligations contained in such Note
and in this Note Guarantee. Each of the Guarantors hereby agrees that, in the event of a default
in payment of principal (or premium, if any) or interest (including Additional Amounts, if any) on
such Note, whether at its Stated Maturity, by acceleration, call for redemption, purchase or
otherwise, legal proceedings may be instituted by the Trustee on behalf of, or by, the Holder of
such Note, subject to the terms and conditions set forth in the Indenture, directly against each of
the Guarantors to enforce this Note Guarantee without first proceeding against the Issuer. Each
Guarantor agrees that, to the extent permitted by applicable law, if, after the occurrence and
during the continuance of an Event of Default, the Trustee or any of the Holders is prevented by
applicable law from exercising its respective rights to accelerate the maturity of the Notes, to
collect interest on the Notes, or to enforce or exercise any other
right or
-11-
remedy with respect to the Notes, or the Trustee or the Holders are
prevented from taking any action to realize on any collateral, such Guarantor agrees to pay to the
Trustee for the account of the Holders, upon demand therefor, the amount that would otherwise have
been due and payable had such rights and remedies been permitted to be exercised by the Trustee or
any of the Holders.
No reference herein to the Indenture and no provision of this Note Guarantee or of the
Indenture shall alter or impair the Note Guarantee of any Guarantor, which is absolute and
unconditional, of the due and punctual payment of the principal of (and premium, if any) and
interest (including Additional Amounts, if any) on the Note upon which this Note Guarantee is
endorsed.
This Note Guarantee shall remain in full force and effect and continue to be effective should
any petition be filed by or against the Issuer for liquidation or reorganization, or equivalent
proceeding under applicable law, should the Issuer become insolvent or make an assignment for the
benefit of creditors or should a receiver or trustee be appointed for all or any significant part
of the Issuer’s assets, or the equivalent of any of the foregoing under applicable law, and shall,
to the fullest extent permitted by applicable law, continue to be effective or be reinstated, as
the case may be, if at any time payment and performance of the Notes is, pursuant to applicable
law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on
the Notes whether as a voidable preference, fraudulent transfer, or as otherwise provided under
similar laws affecting the rights of creditors generally or under applicable laws of the
jurisdiction of formation of the Issuer, all as though such payment or performance had not been
made. In the event that any payment, or any part thereof, is rescinded, reduced, restored or
returned, the Notes shall, to the fullest extent permitted by applicable law, be reinstated and
deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.
The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long
as the exercise of such right does not impair the rights of the Holders under this Note Guarantee.
The Guarantors or any particular Guarantor shall be released from this Note Guarantee upon the
terms and subject to certain conditions provided in the Indenture.
By delivery of a supplemental indenture to the Trustee in accordance with the terms of the
Indenture or the execution of a Guarantee Agreement, each Person that becomes, or assumes the
obligations of, a Guarantor after the date of the Indenture will be deemed to have executed and
delivered this Note Guarantee for the benefit of the Holder of this Note with the same effect as if
such Guarantor were named below.
All terms used in this Note Guarantee which are defined in the Indenture referred to in the
Note upon which this Note Guarantee is endorsed shall have the meanings assigned to them in such
Indenture.
This Note Guarantee shall not be valid or obligatory for any purpose until the certificate of
authentication on the Note upon which this Note Guarantee is endorsed shall have been executed by
the Trustee under the Indenture by manual signature.
-12-
Each Note Guarantee (other than that of the Company) will be limited in amount to an amount
not to exceed the maximum amount that can be guaranteed by the applicable Guarantor without
rendering the Note Guarantee, as it relates to such Guarantor, voidable under applicable law
relating to fraudulent conveyance or fraudulent transfer or similar laws affecting the rights of
creditors generally or under applicable law of the jurisdiction of incorporation of such Guarantor.
In the case of Fresenius Medical Care Deutschland GmbH (“FMCD”), the following provisions
apply:
The Note Guarantee of FMCD will be limited if and to the extent payment under such Note
Guarantee or the application of enforcement proceeds would cause such Guarantor’s net assets
(Reinvermögen) calculated as the sum of the balance sheet positions shown under § 266(2)(A),
(B) and (C) German Commercial Code (Handelsgesetzbuch), less the sum of the liabilities
shown under the balance sheet positions pursuant to § 266(3)(B), (C) and (D) German
Commercial Code to fall below the Guarantor’s registered share capital (Stammkapital). For
the purposes of such calculation, the following adjustments will be made: (i) the amount of
any increase of the registered share capital out of retained earnings (Kapitalerhöhung aus
Gesellschaftsmitteln) after the Closing Date that has been effected without the prior
consent of the Trustee shall be deducted from the registered share capital; and (ii)
liabilities incurred in violation of the provisions of the Notes and the Indenture shall be
disregarded. In the event such Guarantor’s net assets fall below its registered share
capital, such Guarantor, upon request of the Trustee, will realize in due course, to the
extent legally permitted, any and all of its assets that are shown in the balance sheet with
a book value (Buchwert) that is significantly lower than the market value of the assets if
the relevant assets are not necessary for such Guarantor’s business (nicht
betriebsnotwendiges Vermögen).
Reference is made to Article X of the Indenture for further provisions with respect to this
Note Guarantee.
THE NOTE GUARANTEES WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK EXCEPT THAT THE LIMITATIONS OF THE NOTE GUARANTEES EXPRESSED IN SECTION 10.1(c)
OF THE INDENTURE (AND THE EQUIVALENT PROVISIONS IN THE ELEVENTH PARAGRAPH HEREOF) WILL BE CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE FEDERAL REPUBLIC OF GERMANY.
-13-
IN WITNESS WHEREOF, each of the Guarantors has caused this Note Guarantee to be duly executed.
| FRESENIUS MEDICAL CARE AG & CO. KGaA, a German partnership limited by shares, represented by FRESENIUS MEDICAL CARE MANAGEMENT AG, a German corporation, its general partner, as a Guarantor |
||||||
| By: |
|
|||||
| Title: Member of the Management Board | ||||||
| By: |
|
|||||
| Title: Member of the Management Board | ||||||
| FRESENIUS MEDICAL CARE HOLDINGS, INC., as a Guarantor | ||||||
| By: |
|
|||||
| Title: | ||||||
| FRESENIUS MEDICAL CARE DEUTSCHLAND GMBH, as a Guarantor |
||||||
| By: |
|
|||||
| Title: | ||||||
| By: |
|
|||||
| Title: | ||||||
-14-
