Exhibit 10.4
CONFORMED COPY
DATED 21 JULY 2005
SENIOR FACILITIES AGREEMENT
between
THE COMPANY NAMED HEREIN
as Original Borrower
THE COMPANY NAMED HEREIN
as Original Guarantor
DEUTSCHE BANK AG, LONDON BRANCH
BARCLAYS CAPITAL
(the investment banking division of Barclays Bank PLC)
and
THE ROYAL BANK OF SCOTLAND PLC
as Mandated Lead Arrangers and Bookrunners
BANC OF AMERICA SECURITIES LIMITED
as Co-Arranger
THE FINANCIAL INSTITUTION NAMED HEREIN
as Original Lender
DEUTSCHE BANK AG, LONDON BRANCH
acting as Facility Agent
DEUTSCHE BANK AG, LONDON BRANCH
acting as Security Agent
DEUTSCHE BANK AG, LONDON BRANCH
acting as Issuing Bank
LOGO [g38003img001.jpg]
5 Old Broad Street
London EC2N 1DW
Bringing this document or any certified copy of this document into the Republic
of Austria as
well as any written confirmation or written reference to this document may cause
the
imposition of Austrian Stamp Tax.
TABLE OF CONTENTS
Page
1.
DEFINITIONS AND INTERPRETATION
1
2.
THE FACILITIES
38
3.
PURPOSE
43
4.
CONDITIONS OF UTILISATION
44
5.
UTILISATION OF LOANS
46
6.
UTILISATION BY WAY OF BANK GUARANTEES
49
7.
BANK GUARANTEES
52
8.
ANCILLARY FACILITIES
56
9.
REPAYMENT
65
10.
PREPAYMENT
67
11.
CANCELLATION
72
12.
PAYMENTS
73
13.
CURRENCY OPTION
77
14.
TAXES
79
15.
CHANGE IN CIRCUMSTANCES
89
16.
INTEREST
93
17.
FEES
96
18.
OTHER INDEMNITIES
98
19.
GUARANTEE AND INDEMNITY
100
20.
GERMAN CONFIRMATION IN RELATION TO BACK TO BACK FINANCING
107
21.
REPRESENTATIONS
108
22.
INFORMATION UNDERTAKINGS
117
23.
FINANCIAL COVENANTS
123
24.
GENERAL UNDERTAKINGS
131
25.
EVENTS OF DEFAULT
152
26.
CHANGES TO THE LENDERS
159
27.
CHANGES TO THE OBLIGORS
163
28.
ROLE OF THE FACILITY AGENT, THE ARRANGERS, THE ISSUING BANKS AND OTHERS
168
29.
SHARING AMONG THE FINANCE PARTIES
177
30.
SET-OFF
178
31.
NOTICES AND CONFIDENTIALITY
179
(i)
32.
CALCULATIONS AND CERTIFICATES
184
33.
PARTIAL INVALIDITY
184
34.
REMEDIES AND WAIVERS
185
35.
AMENDMENTS AND WAIVERS
185
36.
COUNTERPARTS
187
37.
GOVERNING LAW
187
38.
ENFORCEMENT
188
SCHEDULE 1
THE ORIGINAL PARTIES
189 SCHEDULE 2
CONDITIONS PRECEDENT
192 SCHEDULE 3
REQUESTS
198 SCHEDULE 4
FORM OF TRANSFER CERTIFICATE
205 SCHEDULE 5
FORM OF ACCESSION LETTER
211 SCHEDULE 6
FORM OF
RESIGNATION LETTER
212 SCHEDULE 7
FORM OF COMPLIANCE CERTIFICATE
214
SCHEDULE 8
TIMETABLES
215 SCHEDULE 9
FORM OF LETTER OF CREDIT
217
SCHEDULE 10
SECURITY
220 SCHEDULE 11
FORMALITIES CERTIFICATES
223
SCHEDULE 12
FORM OF CONFIDENTIALITY UNDERTAKING/PRIMARY SYNDICATION
CONFIDENTIALITY LETTER
227 SCHEDULE 13
REPORTS PREPARED IN RELATION TO THE
TRANSACTION
233 SCHEDULE 14
FORM OF CONFIRMATION
234 SCHEDULE 15
OPTION B TERM-OUT FACILITY SUMMARY TERMS AND CONDITIONS
236
(ii)
THIS AGREEMENT is dated 21 July 2005 and made
BETWEEN:
(1) THE COMPANY NAMED IN PART 1 OF SCHEDULE 1 as original borrowers (the
"Original Borrower");
(2) THE COMPANY NAMED IN PART 2 OF SCHEDULE 1 as original guarantors (the
"Original Guarantor");
(3) DEUTSCHE BANK AG, LONDON BRANCH, BARCLAYS CAPITAL (the investment banking
division of Barclays Bank PLC) and THE ROYAL BANK OF SCOTLAND PLC as mandated
lead arrangers