Exhibit 4.12


 


	
  

  	
  LIMITED LIABILITY PARTNERSHIP

  



 


CONCORDIA BUS
AB (PUBL)


(THE “COMPANY”)


 


AND


 


DEUTSCHE BANK
TRUST COMPANY AMERICAS


(THE “TRUSTEE”)


 


AMENDMENT TO
INDENTURE


dated February
7, 2000 between Concordia Bus AB (publ) and 

Deutsche Bank Trust Company Americas, as Trustee


 


4 October 2005


 

















 


SUPPLEMENTAL
INDENTURE (this “Supplemental Indenture”),
dated October 4, 2005, between Concorda Bus AB (publ), a public limited
liability company organized under the laws of Sweden (the “Company”), having its principal executive
office at Solna Strandväg, SE-171 54 Stockholm, Sweden, and Deutsche Bank Trust
Company Americas (the “Trustee”),
a banking corporation organized under the laws of the State of New York, having
its principal office at 60 Wall Street, New York, NY 10005.


 


WITNESSETH:


 


WHEREAS, the
Company has heretofore executed and delivered to the Trustee an Indenture (the “Indenture”), dated February 7, 2000,
providing for the issuance by the Company of €160,000,000 11% Senior
Subordinated Notes due February 15, 2010 (the “Notes”);


 


WHEREAS,
pursuant to Section 902 of the Indenture, the Company and the Trustee may amend
or supplement certain terms and covenants contained in the Indenture with the
written consent of the holders of Notes representing at least a majority in
principal amount of the outstanding Notes, subject to certain exceptions
specified in Section 902 of the Indenture;


 


WHEREAS, the
Board of Directors of the Company has passed a resolution authorizing the
execution of this Supplemental Indenture;


 


WHEREAS, the
Company and certain beneficial holders of Notes have signed the restructuring
agreement among, inter alia, GS Capital Partners
III, L.P., GS Capital Partners III Offshore L.P., Goldman, Sachs & Co.
Verwaltungs GmbH, Schoyen Gruppen AS, Bus, Concordia Bus AB, Concordia Bus BV
and Concordia Bus Holding AB, dated July 22, 2005 (the “Restructuring Agreement”) and pursuant to
which those holders agreed to make the amendments set out in Section 3 hereof;


 


WHEREAS, as of
the date hereof, holders of Notes representing a majority in principal amount
of the outstanding Notes and eligible to consent in accordance with the terms
of the Indenture have consented to the adoption of the amendments provided for
herein to the Indenture (the “Consents”)
and have not revoked such consents; and


 


WHEREAS, the
Company has delivered to the Trustee the Officers’ Certificate and Opinion of
Counsel contemplated by Sections 903 and 102 of the Indenture.


 


NOW THEREFORE,
in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Company and the
Trustee mutually covenant and agree for the equal and ratable benefit of the
holders of the Notes as follows:


 


1.                                 CAPITALIZED TERMS.


Capitalized
terms used herein without definition shall have the meanings assigned to them
in the Indenture.


 


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2.                                 REPRESENTATIONS AND
WARRANTIES; CONDITIONS PRECEDENT


 


2.1                           The Company represents and warrants
that (i) all beneficial holders of Notes were treated equally and given the
opportunity to participate in the restructuring provided for in the
Restructuring Agreement, (ii) any consideration offered to be paid and paid to
any holder of Notes for or as an inducement to give the Consents was offered to
be paid to all holders of the Notes and was paid to all holders of the Notes
who gave their Consents, and (iii) each of the conditions precedent to the
amendment and supplement of the Indenture pursuant to this Supplemental
Indenture (including such conditions pursuant to Section 902 of the Indenture)
have been satisfied in all respects.


 


3.                                 AMENDMENTS TO THE
INDENTURE.


Pursuant to
Section 902 of the Indenture, the Company and the Trustee hereby agree to amend
the Indenture as follows:


 


The
Supplemental Indenture is hereby amended as follows:


 


(a)                                      Section 1004 of the Indenture, titled “Existence”, is hereby deleted in its entirety and replaced
with the words “Intentionally omitted.” All textual references in the Indenture
and the Notes exclusively relating to Section
1004 are hereby deleted.


 


(b)                                     Section 1005 of the Indenture, titled “Maintenance of Properties”, is hereby deleted in its
entirety and replaced with the words “Intentionally omitted.” All textual
references in the Indenture and the Notes exclusively relating to Section 1005 are hereby deleted.


 


(c)                                      Section 1006 of the Indenture, titled “Payment of Taxes and Other Claims”, is hereby deleted in its
entirety and replaced with the words “Intentionally omitted.” All textual
references in the Indenture and the Notes exclusively relating to Section 1006 are hereby deleted.


 


(d)                                     Section 1007 of the Indenture, titled “Maintenance of Insurance”, is hereby deleted in its entirety
and replaced with the words “Intentionally omitted.” All textual references in
the Indenture and the Notes exclusively relating to Section 1007 are hereby
deleted.


 


(e)                                      Section 1008 of the Indenture, titled “Limitation of Indebtedness and Issuance of Disqualified Share Capital
and Preferred Shares”, is hereby deleted in its entirety and
replaced with the words “Intentionally omitted.” All textual references in the
Indenture and the Notes exclusively relating to Section 1008 are hereby
deleted.


 


(f)                                        Section 1009 of the Indenture, titled “Limitation on Restricted Payments”, is hereby deleted in its
entirety and replaced with the words “Intentionally omitted.” All textual
references in the Indenture and the Notes exclusively relating to Section 1009 are hereby deleted.


 


(g)                                     Section 1010 of the Indenture, titled “Limitations on Dividends and Other Payment Restrictions Affecting
Subsidiaries”, is hereby deleted in its entirety 


 


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and replaced with the words “Intentionally omitted.”
All textual references in the Indenture and the Notes exclusively relating to Section 1010 are hereby deleted.


 


(h)                                     Section 1011 of the Indenture, titled “Limitation on Liens”, is hereby deleted in its entirety and
replaced with the words “Intentionally omitted.” All textual references in the
Indenture and the Notes exclusively relating to Section 1011 are hereby
deleted.


 


(i)                                         Section 1012 of the Indenture, titled “Limitation on Sale and Leaseback Transactions”, is hereby deleted
in its entirety and replaced with the words “Intentionally omitted.” All
textual references in the Indenture and the Notes exclusively relating to Section 1012 are hereby deleted.


 


(j)                                         Section
1013 of the Indenture, titled “Limitation on
Transactions with Affiliates and Related Persons”, is hereby deleted in its entirety and
replaced with the words “Intentionally omitted.” All textual references in the
Indenture and the Notes exclusively relating to Section 1013 are hereby
deleted.


 


(k)                                      Section
1016 of the Indenture, titled “Limitation on
Sales and Issuance of Equity Interests in Restricted Subsidiaries”, is hereby deleted in its entirety and
replaced with the words “Intentionally omitted.” All textual references in the
Indenture and the Notes exclusively relating to Section 1016 are hereby
deleted.


 


(l)                                         Section
1017 of the Indenture, titled “Limitation on
Issuances of Guarantees of Indebtedness”, is hereby deleted in its entirety and replaced with the words “Intentionally
omitted.” All textual references in the Indenture and the Notes exclusively
relating to Section 1017 are hereby deleted.


 


(m)                                   Section
1019 of the Indenture, titled “Provision of
Financial Information”, is
hereby deleted in its entirety and replaced with the words “Intentionally
omitted.” All textual references in the Indenture and the Notes exclusively
relating to Section 1019 are hereby deleted.


 


(n)                                     Section
1020 of the Indenture, titled “Statement by
Officers as to Default; Compliance Certificates”, is hereby deleted in its entirety and
replaced with the words “Intentionally omitted.” All textual references in the
Indenture and the Notes exclusively relating to Section 1020 are hereby
deleted.


 


(o)                                     Subsection (3) of Clause 501 is hereby deleted and replaced with the
following: “failure by the Company or any of its Restricted Subsidiaries to
comply with the provisions of Article Eight or Sections 1008, 1009, 1012 or
1016 or otherwise take any action which is not permitted by or omit to take any
action which is required by such Article or any such Section whether or not
required or compelled to do so by or upon the direction of the holders of the
Company’s Share Capital or otherwise”.


 


(p)                                     Section
501(9) of the Indenture, is hereby deleted
in its entirety and replaced with the words “Intentionally omitted.” All
textual references in the Indenture and the Notes exclusively relating to Section 501(9) are hereby deleted.


 


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(q)                                     Section
501(10) of the Indenture, is hereby deleted
in its entirety and replaced with the words “Intentionally omitted.” All
textual references in the Indenture and the Notes exclusively relating to Section 501(10) are hereby deleted.


 


(r)                                        Section
515 of the Indenture, is hereby deleted
in its entirety and replaced with the words “Intentionally omitted.” All
textual references in the Indenture and the Notes exclusively relating to Section 515 are hereby deleted.


 


(s)                                      Section
801(1)(b) of the Indenture, is hereby deleted
in its entirety and replaced with the words “Intentionally omitted.” All
textual references in the Indenture and the Notes exclusively relating to Section 801(1)(b) are hereby deleted.


 


(t)                                        Section
801(1)(d) of the Indenture, is hereby deleted
in its entirety and replaced with the words “Intentionally omitted.” All
textual references in the Indenture and the Notes exclusively relating to Section 801(1)(d) are hereby deleted.


 


(u)                                     Section
802 of the Indenture, is hereby deleted
in its entirety and replaced with the words “Intentionally omitted.” All textual
references in the Indenture and the Notes exclusively relating to Section 802 are hereby deleted.


 


(v)                                     Section
1304(2)(a) of the Indenture, is hereby
deleted in its entirety and replaced with the words “Intentionally
omitted.” All textual references in the Indenture and the Notes exclusively
relating to Section 1304(2)(a) are hereby deleted.


 


4.                                 RATIFICATION OF
INDENTURE; SUPPLEMENTAL INDENTURE PART OF INDENTURE.


 


Except as
expressly amended hereby, the Indenture is in all respects ratified and
confirmed and all the terms, conditions and provisions thereof shall remain in
full force and effect. The parties acknowledge that, pursuant to Section 904 of
the Indenture, this Supplemental Indenture shall form a part of the Indenture
for all purposes, and every holder of Notes previously or hereafter
authenticated and delivered under the Indenture shall be bound hereby. All
agreements of the Company in this Supplemental Indenture shall bind its
successors. All agreements of the Trustee in this Supplemental Indenture shall
bind its successors.


 


5.                                 GOVERNING LAW.


 


THIS
SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.


 


6.                                 AUTHORITY OF
TRUSTEE; INDEMNITY


 


6.1                           Authority of Trustee


 


The Trustee is
entering into this Supplemental Indenture in reliance on the accuracy of the
statements made in the foregoing recitals and of the representations and
warranties of 


 


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the Company
contained in Section 2 hereof. The Company acknowledges and agrees that the
Trustee has based such reliance solely on an assumption that the foregoing
matters are true and that the Trustee has not independently verified the
validity of such assumption.


 


6.2                           No Representation by Trustee;
Trustee’s Disclaimer


 


The recitals
contained herein, and the representations and warranties of the Company in Section
2 hereof, shall be taken solely as the statements of the Company, and the
Trustee assumes no responsibility for their correctness. The Trustee shall not
be responsible for and makes no representation as to the validity or adequacy
of this Supplemental Indenture or of the Indenture or the Notes, in each case
as amended and supplemented by this Supplemental Indenture.


 


6.3                           Indemnity


 


The Company
hereby agrees to indemnify the Trustee against any and all loss, liability and
expense incurred by the Trustee in connection with actions taken by it in
furtherance of the implementation of the Restructuring, including without
limitation in respect of its execution and delivery of this Supplemental
Indenture, in accordance with the provisions of Section 607 of the Indenture,
which provisions shall apply mutatis
mutandis as if set out in full herein.


 


7.                                 AGENT FOR
SERVICE;  SUBMISSION TO JURISDICTION.


 


By the
execution and delivery of this Supplemental Indenture, the Company (i)
acknowledges that it has, by separate written instrument, irrevocably
designated and appointed CT Corporation System as its authorized agent upon
which process may be served in any suit or proceeding arising out of or
relating to this Supplemental Indenture that may be instituted in any Federal
or State court in the Borough of Manhattan, The City of New York or brought
under Federal or State securities laws or brought by the Trustee in its
capacity as a trustee hereunder, and acknowledges that CT Corporation System
has accepted such designation, (ii) submits to the jurisdiction of any such
court in any such suit or proceeding and waives, to the extent possible, any
objection which it may now or hereafter have to the laying of venue of any such
proceeding or any claim of inconvenient forum, and (iii) agrees that service of
process upon CT Corporation System shall be deemed in every respect effective
service of process upon it in any such suit or proceeding. The Company further
agrees to take any and all action, including the execution and filing of any
and all such documents and instruments, as may be necessary to continue such
designation and appointment of CT Corporation System in full force and effect
so long as this Supplemental Indenture shall be in full force and effect.


 


8.                                 MULTIPLE ORIGINALS.


 


8.1                           The parties may sign any number of
copies of this Supplemental Indenture. Each signed copy shall be an original,
but all of them together represent the same agreement. One signed copy is
enough to prove this Supplemental Indenture.


 


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8.2                           This Supplemental Indenture may be
executed in one or more counterparts and when a counterpart has been executed
by each party, all such counterparts taken together shall constitute one and
the same agreement.


 


9.                                 EFFECT OF HEADINGS.


 


The Section
headings herein are for convenience only and shall not effect the construction
thereof.


 


10.                           CONFLICTS.


 


To the extent
of any inconsistency between the terms of the Indenture or the Notes and this
Supplemental Indenture, the terms of this Supplemental Indenture will control.


 


11.                           ENTIRE AGREEMENT.


 


This
Supplemental Indenture constitutes the entire agreement of the parties hereto
with respect to the amendments to the Indenture set forth herein. A copy of
this Supplemental Indenture shall be attached by the Trustee to the Indenture
and by the Company on its duplicate thereof.


 


12.                           ENFORCEABILITY


 


In case any
provision in this Supplemental Indenture shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions hereof or of the Indenture shall not in any way be affected or
impaired thereby.


 


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IN WITNESS
WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed on their respective behalf, by their respective representative
thereunto duly authorized, on the date first above written.


 


 


	
   

  	
  CONCORDIA
  BUS AB (PUBL)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Per Skärgård

  	
   

  
	
   

  	
  Name: Per Skärgård

  
	
   

  	
  Title: Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CONCORDIA
  BUS AB (PUBL)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Eric
  Linnarsson

  	
   

  
	
   

  	
   

  
	
   

  	
  Name: Eric
  Linnarsson

  
	
   

  	
  Title:
  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  DEUTSCHE
  BANK TRUST COMPANY AMERICAS,

  as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Rodney
  Gaughan

  	
   

  
	
   

  	
  Name: Rodney Gaughan

  
	
   

  	
  Title: Assistant Vice President

  
					



 


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(Signature page to Supplemental Indenture.)


 


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