Common use of Note Guarantee Clause in Contracts

Note Guarantee. Each Guarantor hereby fully, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, jointly and severally with each other Guarantor, to each Holder of the Notes and the Trustee the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, interest and Special Interest, if any, on the Notes and all other monetary Obligations of the Company under this Indenture. Each Guarantor further agrees (to the extent permitted by law) that the Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Article X notwithstanding any extension or renewal of any Obligation. Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Obligations. The obligations of each Guarantor hereunder shall not be affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any Note held by any Holder or the Trustee for the Obligations of any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; or (f) any change in the ownership of the Company. Each Guarantor further agrees that its Note Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any Note held for payment of the Obligations. Except as expressly set forth in Article VIII and Section 10.2, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of the Trustee or any Holder to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the Obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity. Each Guarantor further agrees that its Note Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or interest or Special Interest, if any, on any of the Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise. In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders an amount equal to the sum of (i) the unpaid amount of such Obligations then due and owing and (ii) accrued and unpaid interest on such Obligations then due and owing (but only to the extent not prohibited by law) and except as provided in Section 10.2. Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Obligations Guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations Guaranteed hereby and (y) in the event of any such declaration of acceleration of such Obligations, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purposes of this Note Guarantee. Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Section 10.1.

Note Guarantee. Each Guarantor The Company hereby fully, fully and unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, jointly and severally with each other Guarantor, to each Holder of the Notes and the Trustee Trustee, the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, and interest on the Notes in the amounts and Special Interestat the times when due and interest on the overdue principal of, premium, if any, and interest on the Notes Notes, if lawful, and the Repurchase Price, if applicable, with respect to any Note (the “Obligations”) on an unsecured senior subordinated basis (the “Note Guarantee”). The Note Guarantee ranks junior to all other monetary Obligations existing and future Senior Debt of the Company on the same terms as the Notes are subordinated thereto under this IndentureArticle XV. Each Guarantor further agrees The Note Guarantee is effectively subordinated to all indebtedness and other liabilities of all Subsidiaries of the Company (to other than the extent permitted by law) Issuer). Other than as set out above, the Note Guarantee ranks equally in right of payment with all of the Company’s other existing and future liabilities that are not secured or are not otherwise subordinated in favor of the Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Article X notwithstanding any extension or renewal of any ObligationNote Guarantee. Each Guarantor The Company waives presentation to, demand of payment from and protest to the Company Issuer of any of the Obligations and also waives notice of protest for nonpayment. Each Guarantor The Company waives notice of any default under the Notes or the Obligations. The obligations of each Guarantor the Company hereunder shall not be affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any Note security held by any Holder or the Trustee for the Obligations of or any of them; or (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; or (f) any change Change in the ownership Control of the CompanyIssuer. Each Guarantor The Company further agrees that its the Note Guarantee herein constitutes a Guarantee guarantee of payment when due (and not a Guarantee guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any Note security held for payment of the any Obligations. Except as expressly set forth in Article VIII and Section 10.2, the The obligations of each Guarantor the Company hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment or performance of the Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor the Company herein shall not be discharged or impaired or otherwise affected by the failure of the Trustee or any Holder to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the Obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor the Company or would otherwise operate as a discharge of such Guarantor the Company as a matter of law or equity. Each Guarantor The Company further agrees that its the Note Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of of, or interest or Special Intereston, if any, on any of the Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise. In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor the Company by virtue hereof, upon the failure of the Company to pay any of the Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption repurchase or otherwise, each Guarantor the Company hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders Trustee an amount equal to the sum of (i) the unpaid amount of such Obligations then due and owing and (ii) accrued and unpaid interest on such Obligations then due and owing (but only to the extent not prohibited by law) and except as provided in Section 10.2). Each Guarantor The Company further agrees that, as between such Guarantorthe Company, on the one hand, and the Holders, on the other hand, (x) the maturity of the any Obligations Guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its the Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the any Obligations Guaranteed hereby and (y) in the event of any such declaration of acceleration of such Obligations, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor Company for the purposes of this Note Guarantee. Each Guarantor The Company also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Section 10.13.1.

Note Guarantee. Each (a) The New Guarantor hereby fully, unconditionally and irrevocably guarantees, as primary obligor on a joint and not merely as surety, jointly and severally with each other Guarantorseveral basis, to each Holder of Securities (including each Holder of Securities issued under the Notes Indenture after the date of this Fourth Supplemental Indenture) and to the Trustee and its successors and assigns, (i) the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, interest and Special Interest, if any, on the Notes and all other monetary Obligations obligations of the Company under this the Indenture (including obligations to the Trustee) and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company under the Indenture. Each The New Guarantor further agrees that its obligations hereunder shall be unconditional, irrespective of the absence or existence of any action to enforce the same, the recovery of any judgment against the Company (except to the extent permitted by lawsuch judgment is paid) or any waiver or amendment of the provisions of the Indenture or the Securities to the extent that any such action or any similar action would otherwise constitute a legal or equitable discharge or defense of the Obligations may New Guarantor (except that such waiver or amendment shall be extended or renewedeffective in accordance with its terms). (b) The New Guarantor further agrees that its Guarantee constitutes a guarantee of payment, in whole or in part, without notice or performance and compliance and not merely of collection. (c) The New Guarantor further assent from it, and that it will remain bound under this Article X notwithstanding any extension or renewal of any Obligation. Each Guarantor waives presentation agrees to waive presentment to, demand of payment from and protest to the Company of any of the Obligations its Guarantee, and also waives diligence, notice of acceptance of its Guarantee, presentment, demand for payment, notice of protest for nonpayment. Each Guarantor waives notice , the filing of any default under claims with a court in the Notes event of merger or bankruptcy of the Obligations. The obligations of each Guarantor hereunder shall not be affected by (a) the failure of any Holder to assert any claim or demand or to enforce Company and any right or remedy to require a proceeding first against the Company or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any Person. The obligations of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any Note held New Guarantor shall not be affected by any Holder failure or policy on the part of the Trustee for the Obligations of any of them; (e) the failure of any Holder to exercise any right or remedy against under the Indenture or the Securities of any other Guarantor; or series. (fd) any change in the ownership The obligation of the CompanyNew Guarantor to make any payment hereunder may be satisfied by causing the Company or another Obligor to make such payment. Each Guarantor further agrees that its Note Guarantee herein constitutes a Guarantee If any Holder of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had Security or the Trustee is required by any Holder court or otherwise to return to the Company or any Obligor or any custodian, trustee, liquidator or other similar official acting in relation to any Note held for payment of the Obligations. Except as expressly set forth in Article VIII and Section 10.2, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of the Trustee or any Holder to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the Obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity. Each Guarantor further agrees that its Note Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or interest or Special Interest, if any, on any of the Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise. In furtherance of the foregoing and not in limitation of any other right which such Obligor any Holder has at law or in equity against any Guarantor amount paid by virtue hereof, upon the failure of the Company to pay any of them to the Obligations when and as the same shall become dueTrustee or such Holder, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cashany applicable guarantee, to the Holders an amount equal to the sum of extent theretofore discharged, shall be reinstated in full force and effect. (ie) the unpaid amount of such Obligations then due and owing and (ii) accrued and unpaid interest on such Obligations then due and owing (but only to the extent not prohibited by law) and except as provided in Section 10.2. Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Obligations Guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations Guaranteed hereby and (y) in the event of any such declaration of acceleration of such Obligations, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purposes of this Note Guarantee. Each The New Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders any Holder of Securities in enforcing any of their respective rights under its Guarantee. (f) Any term or provision of this Section 10.1Fourth Supplemental Indenture to the contrary notwithstanding, the maximum aggregate amount of the New Guarantor’s Guarantee shall not exceed the maximum amount that can be hereby guaranteed without rendering this Fourth Supplemental Indenture, as it relates to the New Guarantor, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer or similar laws affecting the rights of creditors generally.

Note Guarantee. Each Subject to the provisions of this Article X, each Guarantor hereby fully, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, jointly and severally with each other Guarantor, to each Holder of the Notes Notes, to the extent lawful, and to the Trustee the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, and interest and Special Interest, if any, on the Notes and all other monetary Obligations obligations of the Company Issuer under this IndentureIndenture and the Notes (including, without limitation, interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the obligations under Section 7.6) (all the foregoing being hereinafter collectively called the “Guarantor Obligations”). Each Guarantor further agrees (to the extent permitted by lawlawful) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will shall remain bound under this Article X notwithstanding any extension or renewal of any Guarantor Obligation. Each Guarantor waives (to the extent lawful) presentation to, demand of of, payment from and protest to the Company Issuer of any of the Guarantor Obligations and also waives (to the extent lawful) notice of protest for nonpayment. Each Guarantor waives (to the extent lawful) notice of any default under the Notes or the Guarantor Obligations. The Each Guarantor further agrees that its Note Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations. Except as set forth in Section 4.3, Section 10.2 and Article VIII, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not (to the extent lawful) be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not (to the extent lawful) be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company Issuer or any other Person person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any Note security held by any Holder or the Trustee for the Guarantor Obligations of or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; or (f) any change in the ownership of the Company. Each Guarantor further agrees that its Note Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any Note held for payment of the Obligations. Except as expressly set forth in Article VIII and Section 10.2, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of the Trustee or any Holder to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the Guarantor Obligations, ; or by (g) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity. Each Guarantor agrees that its Note Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 4.3, Section 10.2 and Article VIII. Each Guarantor further agrees that its Note Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or interest or Special Interestof, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company Issuer or otherwise. In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company Issuer to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and willshall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Obligations then due and owing (but only to the extent not prohibited by law) and except as provided in Section 10.2owing. Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guarantor Obligations Guaranteed guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantor Obligations Guaranteed guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purposes of this Note Guarantee. Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Section 10.1Section. Neither the Issuer nor the Guarantors shall be required to make a notation on the Notes to reflect any Guarantee or any release, termination or discharge thereof and any such notation shall not be a condition to the validity of any Guarantee. The execution by each Guarantor of this Indenture (or a supplemental indenture in the form of Exhibit D) evidences the Note Guarantee of such Guarantor, whether or not the person signing as an officer of the Guarantor still holds that office at the time of authentication of any Note. The delivery of any Note by the Trustee after authentication constitutes due delivery of the Note Guarantee set forth in this Indenture on behalf of each Guarantor.

Note Guarantee. Each (a) The New Guarantor hereby fully, unconditionally and irrevocably guarantees, as primary obligor on a joint and not merely as surety, jointly and severally with each other Guarantorseveral basis, to each Holder of Securities (including each Holder of Securities issued under the Notes Indenture after the date of this Eighth Supplemental Indenture) and to the Trustee and its successors and assigns, (i) the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, interest and Special Interest, if any, on the Notes and all other monetary Obligations obligations of the Company under this the Indenture (including obligations to the Trustee) and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company under the Indenture. Each The New Guarantor further agrees that its obligations hereunder shall be unconditional, irrespective of the absence or existence of any action to enforce the same, the recovery of any judgment against the Company (except to the extent permitted by lawsuch judgment is paid) or any waiver or amendment of the provisions of the Indenture or the Securities to the extent that any such action or any similar action would otherwise constitute a legal or equitable discharge or defense of the Obligations may New Guarantor (except that such waiver or amendment shall be extended or renewedeffective in accordance with its terms). (b) The New Guarantor further agrees that its Guarantee constitutes a guarantee of payment, in whole or in part, without notice or performance and compliance and not merely of collection. (c) The New Guarantor further assent from it, and that it will remain bound under this Article X notwithstanding any extension or renewal of any Obligation. Each Guarantor waives presentation agrees to waive presentment to, demand of payment from and protest to the Company of any of the Obligations its Guarantee, and also waives diligence, notice of acceptance of its Guarantee, presentment, demand for payment, notice of protest for nonpayment. Each Guarantor waives notice , the filing of any default under claims with a court in the Notes event of merger or bankruptcy of the Obligations. The obligations of each Guarantor hereunder shall not be affected by (a) the failure of any Holder to assert any claim or demand or to enforce Company and any right or remedy to require a proceeding first against the Company or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any Person. The obligations of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any Note held New Guarantor shall not be affected by any Holder failure or policy on the part of the Trustee for the Obligations of any of them; (e) the failure of any Holder to exercise any right or remedy against under the Indenture or the Securities of any other Guarantor; or series. (fd) any change in the ownership The obligation of the CompanyNew Guarantor to make any payment hereunder may be satisfied by causing the Company or another Obligor to make such payment. Each Guarantor further agrees that its Note Guarantee herein constitutes a Guarantee If any Holder of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had Security or the Trustee is required by any Holder court or otherwise to return to the Company or any Obligor or any custodian, trustee, liquidator or other similar official acting in relation to any Note held for payment of the Obligations. Except as expressly set forth in Article VIII and Section 10.2, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of the Trustee or any Holder to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the Obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity. Each Guarantor further agrees that its Note Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or interest or Special Interest, if any, on any of the Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise. In furtherance of the foregoing and not in limitation of any other right which such Obligor any Holder has at law or in equity against any Guarantor amount paid by virtue hereof, upon the failure of the Company to pay any of them to the Obligations when and as the same shall become dueTrustee or such Holder, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cashany applicable guarantee, to the Holders an amount equal to the sum of extent theretofore discharged, shall be reinstated in full force and effect. (ie) the unpaid amount of such Obligations then due and owing and (ii) accrued and unpaid interest on such Obligations then due and owing (but only to the extent not prohibited by law) and except as provided in Section 10.2. Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Obligations Guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations Guaranteed hereby and (y) in the event of any such declaration of acceleration of such Obligations, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purposes of this Note Guarantee. Each The New Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders any Holder of Securities in enforcing any of their respective rights under its Guarantee. (f) Any term or provision of this Section 10.1Eighth Supplemental Indenture to the contrary notwithstanding, the maximum aggregate amount of the New Guarantor’s Guarantee shall not exceed the maximum amount that can be hereby guaranteed without rendering this Eighth Supplemental Indenture, as it relates to the New Guarantor, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer or similar laws affecting the rights of creditors generally.

Note Guarantee. (a) Note Guarantee extends to the Issuer’s repurchase obligations arising from a Change of Control pursuant to Section 4.11. Each Guarantor hereby fully, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, jointly and severally agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of such Note or this Indenture, the absence of any action to enforce the same, any exchange, release or non-perfection of any Lien on any collateral for, or any release or amendment or waiver of any term of any other Guarantee of, or any consent to departure from any requirement of any other Guarantee of all or any of the Notes, the effects of Bankruptcy Law applicable in the event of bankruptcy proceedings being opened with each other Guarantorrespect to the Issuer, to each 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 the Notes and such Note or by the Trustee with respect to any provisions thereof or of this Indenture, the full 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 punctual 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 when dueof principal (or premium, if any) or interest (including Additional Amounts, if any) on such Note, whether at maturityits Stated Maturity, by acceleration, by redemption call for redemption, purchase or otherwise, of legal proceedings may be instituted by the principal Trustee on behalf of, premiumor by, if anythe Holder of such Note, interest subject to the terms and Special Interest, if any, on the Notes and all other monetary Obligations of the Company under conditions set forth in this Indenture, directly against each Guarantor to enforce the Note Guarantee without first proceeding against the Issuer. Each Guarantor further 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 Obligations may be extended Trustee or renewed, in whole any of the Holders. No provision of the Note Guarantee or in part, without notice of this Indenture shall alter or further assent from it, and that it will remain bound under this Article X notwithstanding any extension or renewal impair the Note Guarantee of any ObligationGuarantor, which is absolute and unconditional, of the due and punctual payment of the principal of (and premium, if any) and interest (including Additional Amounts, if any) on the Note upon which such Note Guarantee is endorsed. Each Guarantor waives presentation toNote 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, demand should the Issuer become insolvent or make an assignment for the benefit of payment from and protest to creditors or should a receiver or trustee be appointed for all or any significant part of the Company Issuer’s assets, or the equivalent of any of the Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default foregoing under the Notes or the Obligations. The obligations of each Guarantor hereunder shall not be affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any Note held by any Holder or the Trustee for the Obligations of any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; or (f) any change in the ownership of the Company. Each Guarantor further agrees that its Note Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any Note held for payment of the Obligations. Except as expressly set forth in Article VIII and Section 10.2, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Obligations in full), including any claim of waiver, release, surrender, alteration or compromiseapplicable -67- law, and shall not be subject shall, to any defense of setoffthe fullest extent permitted by applicable law, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of the Trustee or any Holder to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the Obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity. Each Guarantor further agrees that its Note Guarantee herein shall 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, of principal of is rescinded, reduced, restored or interest or Special Interestreturned, if any, on any of the Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise. In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay any of the Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cashNotes 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 equal not to exceed the maximum amount that can be guaranteed by the applicable Guarantor without rendering the Note Guarantee, as it relates to such Guarantor, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer or similar laws affecting the rights of creditors generally or under applicable law of the jurisdiction of incorporation of such Guarantor. (c) In the case of Fresenius Medical Care Deutschland GmbH (“FMCD”), the following provisions apply: Without limiting the agreements set forth in Section 11.8, the Note Guarantee of FMCD will be limited if and to the extent payment under such Note Guarantee or the application of enforcement proceeds would cause (i) FMCD’s net assets (Reinvermögen - calculated as the sum of the balance sheet positions shown under § 266(2)(A), (B) and (C) German Commercial Code (Handelsgesetzbuch)) less the sum of the liabilities (shown under the balance sheet positions pursuant to § 266(3)(B), (C) and (D) German Commercial Code) to fall below FMCD’s registered share capital (Stammkapital) or (ii) (if the amount of the net assets is already an amount less than the registered share capital) cause such amount to be further reduced and, in either case, thereby affecting the assets required for the obligatory preservation of its registered share capital according to section 30, 31 of the German Limited Liability Company Act (GmbHG) (such event a “Capital Impairment”). For the purposes of calculating the Capital Impairment, the following adjustments will be made: (i) the unpaid amount of such Obligations then due and owing 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) accrued liabilities incurred in violation of the provisions of the Notes and unpaid interest on such Obligations then this Indenture shall be disregarded. In the event FMCD’s net assets fall below its registered share capital, FMCD, upon request of the Trustee will realize in due and owing (but only 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 prohibited necessary for FMCD’s business (nicht betriebsnotwendiges Vermögen). -68- If FMCD objects to the amount demanded by lawthe Trustee under the Note Guarantee within twenty (20) business days after the Trustee has submitted to FMCD a payment demand FMCD shall appoint within five (5) business days a reputable international auditor to determine the exact amount. The auditor shall notify FMCD and except as provided in Section 10.2the Trustee of the maximum amount payable under the Note Guarantee within forty (40) business days after its appointment. Each Guarantor further agrees that, as between The costs of such Guarantor, on auditor’s determination shall be borne by FMCD. The determination of the one handauditor shall be binding for FMCD, and the HoldersHolders (except for manifest error). To the extent that any payment has been made under the Note Guarantee by FMCD that would be necessary for FMCD to be able to cure any Capital Impairment or Liquidity Impairment such payment shall immediately — upon FMCD’s demand — be returned to FMCD by any person receiving such payment, on provided, however, in no event shall the other hand, (x) Trustee or Paying Agent have any responsibility or liability for the maturity return of any amount distributed to any Holder or beneficial owner of the Obligations Guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations Guaranteed hereby and (y) in the event of any such declaration of acceleration of such Obligations, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purposes of this Note Guarantee. Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred Notes by the Trustee or Paying Agent, including, without limitation, any obligation to seek return of such amounts from such Holder or beneficial owner. If (i) FMCD does not object to the payment amount within the 20 business days period or (ii) if FMCD does not appoint the auditor within the 5 business days period or (iii) if the auditor fails to notify the amount payable within the 40 days period, then the Trustee shall be entitled to enforce the Note Guarantee without further delay. The burden of demonstration and proof (Darlegungs- und Beweislast) regarding the Capital Impairment and the maximum amount payable under the Note Guarantee shall remain with FMCD. The maximum amount payable under the guarantee shall be limited to the extent and as long as FMCD as a consequence of the payment would become unable to pay its debts when due (zahlungsunfähig) within the meaning of section 64 GmbHG (such event a “Liquidity Impairment”). For the purpose of establishing whether a Liquidity Impairment would occur, payments made by FMCD after the Trustee has notified FMCD of its intention to enforce the Note Guarantee with respect to payment obligations that are not due at the time of the payment shall be disregarded, unless the Trustee has consented to such payments (at the direction of the Holders of at least a majority in principal amount of the Notes then outstanding). From the time the Trustee has notified FMCD and the Company of its intention to enforce the Note Guarantee, the Company may not make any payment demands against FMCD under shareholder loans and all such payment obligations of FMCD towards the Company shall be deferred, subordinated or waived as the Company sees fit, until the Trustee notifies FMCD that it is no longer enforcing the Note Guarantee or the Trustee consents (at the direction of the Holders of at least a majority in principal amount of the Notes then outstanding) to the payments to be made to the Company. Such notice may be delivered by the Trustee at any rights time and, if not previously delivered, will be delivered by the Trustee after the Notes have been repaid in full and all other obligations under this Section 10.1Indenture are satisfied.