**Exhibit 4.6**

 

CONFORMEDCOPY

 

Dated 20 July 2005

 

for

 

**CONCORDIABUS AB (PUBL)**

 

and

 

**CONCORDIABUS NORDIC HOLDING AB**

 

with

 

**DEUTSCHEBANK LUXEMBOURG S.A.**acting as Facility Agent

 

and with

 

**CITICORPTRUSTEE COMPANY LIMITED**acting as Security Agent

 

----

 

**MezzanineFacility Agreement**

 

----

 

**CADWALADER**

Cadwalader, Wickersham & Taft LLP265 StrandLondon, WC2R 1BHTel: +44 (0) 20 7170 8700Fax: +44 (0) 20 7170 8600

 

----

 

TABLE OF CONTENTS

 
| 1      | DEFINITIONS AND INTERPRETATION         |   |
|--------|----------------------------------------|--------|
|   |                                   |   |
| 2      | THE FACILITY                           |   |
|   |                                   |   |
| 3      | PURPOSE                                |   |
|   |                                   |   |
| 4      | CONDITIONS OF UTILISATION              |   |
|   |                                   |   |
| 5      | UTILISATION                            |   |
|   |                                   |   |
| 6      | REPAYMENT                              |   |
|   |                                   |   |
| 7      | PREPAYMENT AND CANCELLATION            |   |
|   |                                   |   |
| 8      | INTEREST                               |   |
|   |                                   |   |
| 9      | INTEREST PERIODS                       |   |
|   |                                   |   |
| 10     | CHANGES TO THE CALCULATION OF INTEREST |   |
|   |                                   |   |
| 11     | FEES                                   |   |
|   |                                   |   |
| 12     | TAX GROSS UP AND INDEMNITIES           |   |
|   |                                   |   |
| 13     | INCREASED COSTS                        |   |
|   |                                   |   |
| 14     | OTHER INDEMNITIES                      |   |
|   |                                   |   |
| 15     | MITIGATION BY THE LENDERS              |   |
|   |                                   |   |
| 16     | COSTS AND EXPENSES                     |   |
|   |                                   |   |
| 17     | REPRESENTATIONS                        |   |
|   |                                   |   |
| 18     | INFORMATION UNDERTAKINGS               |   |
|   |                                   |   |
| 19     | COVENANTS                              |   |
|   |                                   |   |
| 20     | DEFAULT                                |   |
|   |                                   |   |
| 21     | CHANGES TO THE LENDERS                 |   |
|   |                                   |   |
| 22     | CHANGES TO THE OBLIGORS                |   |
|   |                                   |   |
| 23     | ROLE OF THE AGENT                      |   |
|   |                                   |   |
| 24     | SHARING AMONG THE FINANCE PARTIES      |   |
|   |                                   |   |
| 25     | PAYMENT MECHANICS                      |   |

 

i

----

 
| 26              | SET-OFF                                                   |   |
|-----------------|-----------------------------------------------------------|--------|
|            |                                                      |   |
| 27              | NOTICES                                                   |   |
|            |                                                      |   |
| 28              | CALCULATIONS AND CERTIFICATES                             |   |
|            |                                                      |   |
| 29              | PARTIAL INVALIDITY                                        |   |
|            |                                                      |   |
| 30              | REMEDIES AND WAIVERS                                      |   |
|            |                                                      |   |
| 31              | AMENDMENTS AND WAIVERS                                    |   |
|            |                                                      |   |
| 32              | COUNTERPARTS                                              |   |
|            |                                                      |   |
| 33              | GOVERNING LAW                                             |   |
|            |                                                      |   |
| 34              | ENFORCEMENT                                               |   |
|            |                                                      |   |
| SCHEDULE 1 |                                                      |
|            | THE ORIGINAL PARTIES                                      |   |
|            |                                                      |   |
| Part I     |                                                      |   |
|            | The Borrowers                                             |   |
|            |                                                      |   |
| Part II    |                                                      |   |
|            | The Original Lenders                                      |   |
|            |                                                      |   |
| SCHEDULE 2 |                                                      |
|            | CONDITIONS PRECEDENT                                      |   |
|            | Part IA                                              |   |
|            | Conditions precedent to initial Utilisation  of Tranche A |   |
|            |                                                      |   |
| Part IB    |                                                      |   |
|            | [Reserved]                                                |   |
|            |                                                      |   |
| Part IC    |                                                      |   |
|            | Conditions precedent to initial Utilisation  of Tranche C |   |
|            |                                                      |   |
| SCHEDULE 3 |                                                      |
|            | REQUESTS                                                  |   |
|            |                                                      |   |
| SCHEDULE 4 |                                                      |
|            | MANDATORY COST FORMULAE                                   |   |
|            |                                                      |   |
| SCHEDULE 5 |                                                      |
|            | FORM OF TRANSFER CERTIFICATE                         |   |
|            |                                                      |   |
| SCHEDULE 6 |                                                      |
|            | STRUCTURE PAPER                                           |   |
|            |                                                      |   |
| SCHEDULE 7 |                                                      |

 

ii

----

 
| SCHEDULE 8                                |                                |
|------------------------------------------------|-------------------------------------|
|                                           | FORM OF COMPLIANCE CERTIFICATE |   |
|                                           |                                |   |
| SCHEDULE 9 – FORMS OF PAYMENT NOTICE |                                |
|                                           | Part I                         |   |
|                                           | SSL Account                         |   |
|                                           | Interest Payment Notice             |   |
|                                           |                                |   |
| Part II                                   |                                |   |
|                                           | SSL Account                         |   |
|                                           | Prepayment / Repayment Notice       |   |

 

iii

----

 

**THISAGREEMENT** (the “**Agreement**”) is dated       July 2005and made between:

 

(1)                                  **CONCORDIA BUS AB (PUBL)**, a companyorganised and existing under the laws of Sweden under registered number 556576-4569with its registered office at Solna Strand väg 78, 17154 Solna, Sweden (“**Bus**”);

 

(2)                                  **CONCORDIA BUS NORDIC HOLDING AB** a companyorganised and existing under the laws of Sweden under registered number 556028-1122with its registered office at Solna Strandväg 78, 17154 Solna, Sweden (“**Holding**”)

 

(3)                                  **THE FINANCIAL INSTITUTIONS** listed in Part IIof Schedule 1 (*The Original Parties*)as lenders (in this capacity, the “**OriginalLenders**”);

 

(4)                                  **DEUTSCHE BANK LUXEMBOURG S.A.,**a companyorganised and existing under the laws of Luxembourg as facility agent for theother Finance Parties (in this capacity, the “**FacilityAgent**”); and

 

(5)                                  **CITICORP TRUSTEE COMPANY LIMITED,**a companyorganised and existing under the laws of England and Wales as security agentfor the Lenders (in this capacity, the “**SecurityAgent**”).

 

**ITIS AGREED** as follows:

 

**SECTION IINTERPRETATION**

 

**1              DEFINITIONSAND INTERPRETATION**

 

**1.1          Definitions**

 

In thisAgreement:

 

“**Acceptable Bank**” means a commercial bank ortrust company which has a rating of A or higher by Standard & Poor’sand A-2 or higher by Moody’s for its short-term senior unsecured debtobligations.

 

“**Account Authorisation**” means a notice tothe Account Bank in substantially the form set out in Schedule 7 hereto.

 

“**Account Bank**” means Östgöta Enskilda Bank,Danske Bank A/S Danmark, Sverige Filial, Kungsholmen Företag, Box 12129,Fleminggatan 20, S-102 24 Stockholm, Sweden.

 

“**Acquired Debt**” means,with respect to any specified Person:

 

(a)                                  FinancialIndebtedness of any other Person existing at the time such other Person ismerged with or into or became a Subsidiary of such specified Person, whether ornot such Financial Indebtedness is incurred in connection with, or incontemplation of, such other Person merging with or into, or becoming aSubsidiary of, such specified Person; and

 

----

 

(b)                                 FinancialIndebtedness assumed, or secured by an encumbrance encumbering any assetacquired, by such specified Person.

 

“**Additional Cost Rate**” has the meaning givento it in Schedule 4 (*Mandatory Costformulae*).

 

“**Ad Hoc Committee’s Advisers**” shall mean theAd Hoc Committee’s Financial Advisers and the Ad Hoc Committee’s LegalAdvisers.

 

“**Ad Hoc Committee’s Financial Advisers**”shall mean Houlihan Lokey Howard & Zukin (Europe) Limited.

 

“**Ad Hoc Committee’s Legal Advisers**” shallmean Cadwalader, Wickersham & Taft LLP.

 

“**Advance**” means a Tranche A Advance or aTranche C Advance.

 

“**Affiliate**” of any Person means any otherPerson directly or indirectly controlling or controlled by or under direct orindirect common control with such Person. For the purposes of this definition, “control”, as used with respect toany Person, means the possession, directly or indirectly, of the power todirect or cause the direction of the management or policies of such Person,whether through the ownership of voting securities, by agreement orotherwise.  For the purposes of thisdefinition, the terms “controlling”, “controlled by” and “under common controlwith” have correlative meanings.

 

“**Agent**” means the Facility Agent or theSecurity Agent.

 

“**Agreed Costs Schedule**”is the schedule of costs produced by Alvarez and Marsal as advisers toNordic and agreed by Houlihan Lokey Howard Zukin advisers to the Lenders.

 

“**Applicable Accounting Principles**” meanssuch accounting principles, standards and practices as are generally acceptedin the accounting profession in Sweden from time to time, consistently applied.

 

“**Asset Sale**” means:

 

(a)                                  thesale, lease, conveyance or other disposition of any assets or rights, otherthan sales of inventory (other than buses) in the ordinary course of businessconsistent with past practices; provided that the sale, lease, conveyance orother disposition of all or substantially all of the assets of each RelevantCompany and its respective Restricted Subsidiaries taken as a whole will begoverned by Article 8 and Article 1016 of the Senior Notes Indentureand not by Clause 19.12 (*Limitation onCertain Asset Sales*);

 

(b)                                 theissuance of Equity Interests by any of the Relevant Company’s RestrictedSubsidiaries or the sale of Equity Interests in any of its Subsidiaries.

 

Notwithstandingthe preceding, the following items will not be deemed to be Asset Sales:

 

3

----

 

(a)                                  anysingle transaction or series of related transactions (other than sales ofbuses) that (i) involves assets having a fair market value of less thanSEK 8,000,000 or (ii) results in net proceeds to the Relevant Company andits Restricted Subsidiaries of less than SEK 8,000,000, and in each case whichwhen aggregated with the Net Proceeds of all other such disposals does notexceed SEK 25,000,000;

 

(b)                                 anytransfer of assets between or among the Relevant Company, Nordic and theRelevant Company’s Wholly Owned Restricted Subsidiaries that are SubsidiaryGuarantors provided that this sub-paragraph (b) does not include anytransfer of assets by Swebus AB or Swebus Busco AB which is not made inaccordance with the terms of the Senior Notes Indenture;

 

(c)                                  anissuance of Equity Interests by a Wholly Owned Restricted Subsidiary of theRelevant Company to the Relevant Company or to another Wholly Owned RestrictedSubsidiary of the Relevant Company; and

 

(d)                                 salesof property or equipment that has become worn-out, obsolete or damaged orotherwise unsuitable for use in connection with the business of the RelevantCompany or its Restricted Subsidiaries (including, without limitation, busesthat the Relevant Company or its Restricted Subsidiaries determined in goodfaith will not meet applicable public transportation authority requirements,which, if met, would permit such buses to be a part of the fleet utilized inlocal public transportation contracts), provided that any dispositions madepursuant to this parenthetical are made for fair market value (as determined ingood faith by the disposing entity’s board of directors or that entity’s chieffinancial officer) and further provided that sub-clause (c) of clause19.12 (*Limitation on Certain Asset Sales*)is complied with.

 

“**Attributable Debt**” in respect of a Sale andLeaseback Transaction means, at the time of determination, the present value ofthe obligation of the lessee for net rental payments during the remaining termof the lease included in such Sale and Leaseback Transaction including anyperiod for which such lease has been extended or may, at the option of thelessor, be extended. Such present value will be calculated using a discountrate equal to the rate of interest implicit in such transaction, determined inaccordance with GAAP.

 

“**Auditors**” means such firmof accountants as the Relevant Company may appoint.

 

“**Authorisation**” means a governmental orregulatory authorisation, consent, approval, resolution, licence, exemption,filing, notarisation or registration.

 

“**Authorised Signatory**” means a personregistered with the Swedish Companies Registration Office (Sw. Bolágsvevliet)as authorised to sign for each of the Borrowers, individually or jointly.

 

“**Available Commitment**” means in relation toa Lender and a Facility at any time, and save as otherwise provided herein, itsCommitment in relation to that Facility less the aggregate of its share of theAdvances under that Facility which are then outstanding.

 

4

----

 

“**Available Facility**” means in relation to aFacility, the aggregate for the time being of each Lender’s AvailableCommitment in respect of that Facility.

 

“**Availability Period**” means the Tranche AAvailability Period or the Tranche C Availability Period.

 

“**Beneficial Owner**” has the meaning assignedto such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act,except that in calculating the beneficial ownership of any particular “person”(as such term is used in Section 13(d)(3) of the Exchange Act), such “person”will be deemed to have beneficial ownership of all securities that such “person”has the right to acquire, whether such right is currently exercisable or isexercisable only upon the occurrence of a subsequent condition.

 

“**Binding Restructuring Agreement**” means theagreement duly executed by, inter alia, Bus, Holding, Nordic, persons entitledto enter into commitments in respect of not less than 75% in aggregate principalamount of the outstanding Subordinated Notes, Goldman Sachs Partners III, L.P.,Schoyen Gruppen AS and the Borrowers, Nordic and the Senior Group (as definedtherein), setting out, inter alia, the terms and conditions of theRestructuring.

 

“**Borrowers**” means the Tranche A Borrower andthe Tranche C Borrower as the context so requires, otherwise, “**Borrower**” means, until the Tranche AAdvance Utilisation Date, the Tranche C Borrower and, from that date, theTranche A Borrower.

 

“**Break Costs**” means the amount (if any) bywhich:

 

(a)                                  theinterest which a Lender should have received for the period from the date ofreceipt of all or any part of its participation in an Advance or Unpaid Sum tothe last day of the current Interest Period in respect of that Advance orUnpaid Sum, had the principal amount or Unpaid Sum received been paid on thelast day of that Interest Period;

 

exceeds:

 

(b)                                 theamount which that Lender would be able to obtain by placing an amount equal tothe principal amount or Unpaid Sum received by it on deposit with a leadingbank in the Relevant Interbank Market for a period starting on the Business Dayfollowing receipt or recovery and ending on the last day of the currentInterest Period.

 

“**Business Day**” means a day (other than aSaturday or Sunday) on which banks are open for general business in Luxembourgand Stockholm and if on that day a payment in or a purchase of Euros is to bemade, which is also a TARGET Day.

 

“**Calculation Date**” has the meaning specifiedin the definition of Disqualified Share Capital.

 

“**Capital Lease Obligation**” means, at thetime any determination thereof is to be made, the amount of the liability inrespect of a capital lease that would at that time be required to becapitalised on a balance sheet in accordance with GAAP.

 

5

----

 

“**Cash Equivalents**”means:

 

(a)                                  cashin hand or on deposit with any Acceptable Bank with a maturity of one year orless;

 

(b)                                 SwedishKronor, euro and US dollars;

 

(c)                                  debtsecurities issued or directly and fully guaranteed or insured by the governmentof Sweden, the United States of America or the United Kingdom or any agency orinstrumentality thereof (provided that the full faith and credit of Sweden, theUnited States of America or the United Kingdom, respectively, is pledged insupport thereof) having maturities of not more than six months from the date ofacquisition;

 

(d)                                 certificatesof deposit and eurodollar time deposits with maturities of six months or lessfrom the date of acquisition, bankers’ acceptances with maturities notexceeding six months and overnight bank deposits, in each case, having a ratingof at least P-1 from Moody’s and A-1 from S&P;

 

(e)                                  repurchaseobligations with a term of not more than seven days for underlying securitiesof the types described in (c) and (d) above entered into with anyfinancial institution authorized to operate in Sweden under Swedish bankinglaws whose long term unsecured, unsubordinated debt rating is at least Aa3 byMoody’s or AA- by S&P;

 

(f)                                    commercialpaper having the highest rating obtainable from Moody’s or S&P and in eachcase maturing within six months after the date of acquisition; and

 

(g)                                 moneymarket funds at least 95% of the assets of which constitute Cash Equivalents ofthe kinds described in Clauses (b) through (f) of this definition.

 

“**Cash Interest**” means interest calculated byapplying the Cash Margin plus EURIBOR to the outstanding principal amount ofthe relevant Advance together with any Mandatory Cost.

 

“**Cash Margin**” means 6.5 per cent. per annum.

 

“**Change of Control**” means the occurrence ofany of the following:

 

(a)                                  thesale, transfer, conveyance or other disposition (other than by way of merger orconsolidation), in one or a series of related transactions, of all or substantiallyall of the assets of the Relevant Company and its Subsidiaries taken as a wholeto any “person” (as such term is used in Section 13(d)(3) of theExchange Act) other than a Permitted Holder;

 

(b)                                 theapproval by the holders of Share Capital of any Parent Company, the RelevantCompany or Nordic of any plan or proposal for the liquidation or dissolution ofsuch Parent Company, the Relevant Company or Nordic, as applicable (whether ornot otherwise in compliance with the provisions of this Agreement).

 

6

----

 

(c)                                  afterthe Restructuring any single Person (other than the Permitted Holders) becomesthe Beneficial Owner, directly or indirectly, pursuant to a bona fidetransaction at arm’s length of shares representing more than 35% of theaggregate ordinary voting power represented by the issued and outstanding ShareCapital of any Parent Company, the Relevant Company or Nordic and the ownershipof such Person in such entity shall exceed that of the Permitted Holderscollectively;

 

(d)                                 thefirst day on which a majority of the members of the board of directors of theRelevant Company are not Continuing Directors of the Relevant Company, or thefirst day on which a majority of the members of the board of directors of anyParent Company are not Continuing Directors of such Parent Company, except asotherwise agreed between the Lenders and the Relevant Company or Nordic; or

 

(e)                                  theRelevant Company or Nordic consolidates with, or merges with or into, anyPerson, or any Person consolidates with, or merges with or into, the RelevantCompany or Nordic, in any such event pursuant to a transaction in which any ofthe outstanding Voting Shares of the Relevant Company, or Nordic are convertedinto or exchanged for cash, securities or other property, other than any suchtransaction where the Voting Shares of the Relevant Company or Nordic,outstanding immediately prior to such transaction are converted into orexchanged for Voting Shares (other than Disqualified Share Capital) of thesurviving or transferee Person constituting a majority of the outstandingshares of such Voting Shares of such surviving or transferee Person immediatelyafter giving effect to such issuance.

 

Notwithstandingthe preceding, neither the execution of the Binding Restructuring Agreement,nor any of the transactions contemplated thereby, including the Restructuring,shall be considered to be a “**Change ofControl**”.

 

“**Closing Date**” means the date on which theRestructuring closes substantially on the terms of and in accordance with theBinding Restructuring Agreement.

 

“**Collateral**” means all collateral securing,or purported to be securing, directly or indirectly, the Notes, the NoteGuarantees or the obligations to the Senior Note Trustee pursuant to the SeniorNotes Indenture Security Documents.

 

“**Commission**” means the United StatesSecurities and Exchange Commission, as from time to time constituted, createdunder the Exchange Act, or, if at any time after the execution of thisinstrument such Commission is not existing and performing the duties nowassigned to it under the Trust Indenture Act, then the body performing suchduties at such time.

 

“**Commitment**” means in respect of theFacility:

 

(a)                                  inrelation to an Original Lender, the Euro amount set opposite its name in Schedule IPart II (*The Original Lenders*)under the headings “Tranche A” and “Tranche C” and the amounts in Euros of anyother Commitment transferred to it under this Agreement; and

 

7

----

 

(b)                                 inrelation to any other Lender, the Euro amounts of any Commitment transferred toit under this Agreement,

 

to the extentnot cancelled, reduced or transferred by it under this Agreement.

 

“**Compliance Certificate**” means a certificatesubstantially in the form set out in Schedule 8 (*Form of Compliance Certificate*).

 

“**Compound Interest**”means interest calculated by applying the rate set out in paragraph (b) ofClause 8.1 (*Calculation of interest*)to the outstanding principal amount of the relevant Advance and shall accrue inaccordance with sub-Clause 8.3 (*CompoundInterest*).

 

“**Compound Margin**” means6.5 per cent. per annum.

 

“**Consolidated Cashflow**” means, with respectto any Person for any period, the Consolidated Net Income of such Person forsuch period:

 

(a)                                  *plus* an amount equal to any non-recurringloss plus any net loss realized in connection with an Asset Sale, to the extentsuch losses were deducted in computing such Consolidated Net Income, and minusan amount equal to any extraordinary gain and minus any net gain realized inconnection with an Asset Sale, to the extent such gains were included incomputing such Consolidated Net Income;

 

(b)                                 *plus* charges classified and reflected asnon-recurring on the date of this Agreement and for any other such period, ineach case, on the Relevant Company’s consolidated financial statements preparedin accordance with GAAP;

 

(c)                                  *plus* provision for taxes based on incomeor profits of such Person and its Restricted Subsidiaries for such period(other than income or profits taxes attributable to extraordinary, unusual ornonrecurring gains or losses or taxes attributable to sales or dispositionsoutside the ordinary course of business), to the extent that such provision fortaxes was deducted in computing such Consolidated Net Income;

 

(d)                                 *plus* consolidated interest expense of suchPerson and its Restricted Subsidiaries for such period, whether paid or accruedand whether or not capitalized (including, without limitation, amortization ofdebt issuance costs and original issue discount, non-cash interest payments,the interest component of any deferred payment obligations, the interestcomponent of all payments associated with Capital Lease Obligations, imputedinterest with respect to Attributable Debt, commissions, discounts and otherfees and charges incurred in respect of letter of credit or bankers’ acceptancefinancings, and net payments, if any, pursuant to Hedging Obligations), to theextent that any such expense was deducted in computing such Consolidated NetIncome;

 

(e)                                  *plus* depreciation, amortization (includingamortization of goodwill and other intangibles but excluding amortization ofprepaid cash expenses that were paid

 

8

----

 

in a priorperiod) and other non-cash expenses (excluding any such non-cash expense to theextent that it represents an accrual of or reserve for cash expenses in anyfuture period or amortization of a prepaid cash expense that was paid in aprior period) of such Person and its Restricted Subsidiaries for such period tothe extent that such depreciation, amortization and other non-cash expenseswere deducted in computing such Consolidated Net Income;

 

(f)                                    *minus* non-cash items increasing suchConsolidated Net Income for such period, other than items that were accrued inthe ordinary course of business;

 

in each case,on a consolidated basis and determined in accordance with GAAP.

 

Notwithstandingthe preceding, the provision for taxes based on the income or profits of, andthe depreciation and amortization and other non-cash charges of, a RestrictedSubsidiary of the Relevant Company will be added to Consolidated Net Income tocompute Consolidated Cash Flow of that Relevant Company only to the extent thata corresponding amount would be permitted at the date of determination to bedistributed by way of dividend to that Relevant Company by such RestrictedSubsidiary without prior approval (that has not been obtained), pursuant to theterms of its charter and all agreements, instruments, judgments, decrees,orders, statutes, rules and governmental regulations applicable to thatSubsidiary or its shareholders.

 

“**Consolidated Net Income**” means, withrespect to any specified Person for any period, the aggregate of the Net Incomeof such Person and its Restricted Subsidiaries for such period, on aconsolidated basis, determined in accordance with GAAP; provided that:

 

(a)                                  theNet Income (but not loss) of any Person that is not a Restricted Subsidiary orthat is accounted for by the equity method of accounting will be included onlyto the extent of the amount of dividends or distributions paid in cash to thespecified Person or a Wholly Owned Subsidiary thereof;

 

(b)                                 theNet Income of any Restricted Subsidiary will be excluded to the extent that thedeclaration or payment of dividends or similar distributions by that RestrictedSubsidiary of that Net Income is not at the date of determination permittedwithout any prior governmental approval (that has not been obtained) or,directly or indirectly, by operation of the terms of its charter or anyagreement, instrument, judgment, decree, order, statute, rule orgovernmental regulation applicable to that Restricted Subsidiary or itsshareholders;

 

(c)                                  theNet Income of any Person acquired in a pooling of interests transaction for anyperiod prior to the date of such acquisition will be excluded;

 

(d)                                 theNet Income (but not loss) of any Unrestricted Subsidiary will be excluded,whether or not distributed to the specified Person or one of its Subsidiaries;

 

(e)                                  thecumulative effect of a change in accounting principles will be excluded;

 

(f)                                    anyrestoration to income of any contingency reserve of an extraordinary, non-recurringor unusual nature will be excluded, except to the extent that

 

9

----

 

provision forsuch reserve was made out of Consolidated Net Income accrued in any period forwhich Consolidated Net Income is required to be calculated for purposes of thisAgreement; and

 

(g)                                 forpurposes of Clause 19.7 (*Limitation on RestrictedPayments*) covenant, in the case of a successor to the specifiedPerson by consolidation or merger or as a transferee of the specified Person’sassets, any earnings of the successor corporation prior to such consolidation,merger or transfer of assets will be excluded.

 

“**Continuing Directors**” means, with respectto a company, as of any date of determination, any member of the board ofdirectors of such company who:

 

(a)                                  wasa member of such board of directors on the date of this Agreement; or

 

(b)                                 wasnominated for election or elected to such board of directors with the approvalof a majority or, in the event such nomination or election is made statutorilyby action of the shareholders of or corporate assembly with respect to suchcompany, with the concurrence of a majority of the Continuing Directors whowere members of such board of directors at the time of such nomination orelection.

 

“**Default**” means an Event of Default or anyevent or circumstance specified in Clause 20 (*Default*)which would (with the expiry of a grace period, the giving of notice, themaking of any determination under the Finance Documents or any combination ofany of the foregoing) be an Event of Default.

 

“**Designated Website**” has the meaning set outin Clause 27.8 (*Use of Websites*).

 

“**Disqualified Share Capital**” means any ShareCapital that, by its terms (or by the terms of any security into which it isconvertible, or for which it is exchangeable, in each case at the option of theholder thereof), or upon the happening of any event, matures or is mandatorilyredeemable, pursuant to a sinking fund obligation or otherwise, or redeemableat the option of the holder thereof, in whole or in part, on or prior to thedate that is six months after the date on which the Notes mature.  Notwithstanding the preceding sentence, anyShare Capital that would constitute Disqualified Share Capital solely becausethe holders thereof have the right to require the Relevant Company torepurchase such Share Capital upon the occurrence of a change of control or anasset sale will not constitute Disqualified Share Capital if the terms of suchShare Capital provide that the Relevant Company may not repurchase or redeemany such Share Capital pursuant to such provisions unless such repurchase orredemption complies with Clause 19.7 (*Limitationon Restricted Payments*).

 

“**Environmental Claim**” means any claim,proceeding or investigation by any person in respect of any Environmental Law.

 

“**Environmental Laws**” means allinternational, European Union, national, federal, state or local statutes,orders, regulations or other law or subordinate legislation or common law orguidance notes or regulatory codes of practice, circulars and equivalentcontrols (whether or not having the force of law, but if not, then in respectof which compliance is customary) including judicial interpretation of any ofthe

 

10

----

 

foregoingconcerning the environment or health and safety (including without limitationregulating, relating to or imposing liability on standards of conductconcerning Hazardous Materials) which are in existence now or in the future andare binding at any time on any member of the Group in the relevant jurisdictionin which that member of the Group has been or is operating (including by theexport of its products or its waste to that jurisdiction).

 

“**Environmental Permits**” means any permit,licence, consent, approval and other authorisation and the filing of anynotification, report or assessment required under any Environmental Law for theoperation of the business of any member of the Group conducted on or from theproperties owned or used by the relevant member of the Group.

 

“**Equity Interests**” means Share Capital andall warrants, options or other rights to purchase or acquire Share Capital (butexcluding any debt security that is convertible into, or exchangeable for,Share Capital).

 

“**EURIBOR**” means, in relation to any Advance:

 

(a)                                  theapplicable Screen Rate; or

 

(b)                                 (ifno Screen Rate is available for the Interest Period of that Advance or overdueamount) the arithmetic mean of the rates (rounded upwards to four decimalplaces) as supplied to the Facility Agent at its request quoted by theReference Banks to leading banks in the European interbank market,

 

in each caseas of 11.00 a.m. on the Quotation Day for the offering of deposits inEuros in an amount equal to the amount for a period comparable to the InterestPeriod of that Advance, prepayment or overdue amount.

 

“**Event of Default**” means any event orcircumstance specified as such in Clause 20 (*Default*).

 

“**Exchange Act**” means the U.S. SecuritiesExchange Act of 1934, as amended.

 

“**Existing Lender**” has the meaning ascribedto it in Clause 21 (*Changes to the Lenders*).

 

“**Existing Security**” means the Security Interestscurrently securing, inter alia, Nordic’s obligations under the Notes.

 

“**Facility**” means the Tranche A Facility andthe Tranche C Facility.

 

“**Facility Office**” means the office oroffices notified by a Lender to the Facility Agent in writing on or before thedate it becomes a Lender (or, following that date, by not less than fiveBusiness Days’ written notice) as the office or offices through which it willperform its obligations under this Agreement.

 

“**Fee Letter**” means any letter or lettersdated on or about the date of this Agreement between the Bus, Holding, Nordic,the Agents and the Original Lenders setting out any of the fees referred to inClause 11 (*Fees*).

 

11

----

 

“**Final Repayment Date**” means 1 February 2010.

 

“**Finance Documents**” means:

 

(a)           this Agreement;

 

(b)           any Fee Letter;

 

(c)           any Transfer Certificate;

 

(d)           any Security Document

 

(e)                                  theFacility Agent Fee Letter; and

 

(f)                                    anyother document designated as such by the Facility Agent and the RelevantCompany.

 

“**Finance Party**” means any Lender, theFacility Agent and the Security Agent.

 

“**Financial Indebtedness**” means, with respectto any specified Person, any indebtedness of such Person, whether or notcontingent:

 

(a)                                  inrespect of borrowed money;

 

(b)                                 evidencedby bonds, notes, debentures or similar instruments or letters of credit or bankguarantees (or reimbursement agreements in respect thereof);

 

(c)                                  inrespect of banker’s acceptances;

 

(d)                                 representingCapital Lease Obligations or Attributable Debt with respect to Sale andLeaseback transactions;

 

(e)                                  representingthe balance deferred and unpaid of the purchase price of any property, exceptany such balance that constitutes an accrued expense or trade payable; or

 

(f)                                    representingany Hedging Obligations;

 

if and to theextent any of the preceding items (other than letters of credit and HedgingObligations) would appear as a liability in the balance sheet of the specifiedPerson prepared in accordance with GAAP. In addition, the term “**Financial Indebtedness**” includes allFinancial Indebtedness of any other Person secured by a Security Interest onany asset or property of the specified Person (whether or not such FinancialIndebtedness is assumed by the specified Person) and, to the extent not otherwiseincluded, the Guarantee by such Person of any indebtedness of any other Person.

 

The amount ofany Financial Indebtedness outstanding as of any date will be:

 

(1)                                  theaccreted value thereof, in the case of any Financial Indebtedness issued withoriginal issue discount; or

 

12

----

 

(2)                                  theprincipal amount thereof, together with any interest thereon that is more than30 days past due, in the case of any other Financial Indebtedness.

 

For theavoidance of doubt, Financial Indebtedness will not include amounts owed underoperating leases that would not be Attributable Debt.

 

“**First Ranking Pledge over the Subordinated ShareholderLoan**” means the first ranking pledge granted by Holding in favour ofthe Security Agent for the benefit of the Tranche C Lenders over its rights andinterests under the Subordinated Shareholder Loan on or about the date of thisAgreement.

 

“**Fixed Charge Coverage Ratio**” means withrespect to any specified Person for any period, the ratio of the ConsolidatedCash Flow of such Person and its Restricted Subsidiaries for such period to theFixed Charges of such Person for such period. In the event that the specifiedPerson or any of its Restricted Subsidiaries incurs, assumes, Guarantees or redeemsany Financial Indebtedness (other than revolving credit borrowings) or issuesor redeems Preferred Shares subsequent to the commencement of the period forwhich the Fixed Charge Coverage Ratio is being calculated but prior to the dateon which the event for which the calculation of the Fixed Charge Coverage Ratiois made (the “**Calculation Date**”),then the Fixed Charge Coverage Ratio will be calculated giving pro forma effectto such incurrence, assumption, Guarantee or redemption of Financial Indebtedness,or such issuance or redemption of Preferred Shares, as if the same had occurredat the beginning of the applicable four-quarter reference period.

 

In addition,for purposes of calculating the Fixed Charge Coverage Ratio:

 

(a)                                  acquisitionsthat have been made by the specified Person or any of its RestrictedSubsidiaries, including through mergers or consolidations and including anyrelated financing transactions, during the four-quarter reference period orsubsequent to such reference period and on or prior to the Calculation Datewill be deemed to have occurred on the first day of the four-quarter referenceperiod and Consolidated Cash Flow for such reference period will be calculatedwithout giving effect to sub-clause (c) of the proviso set forth in thedefinition of Consolidated Net Income;

 

(b)                                 theConsolidated Cash Flow attributable to discontinued operations, as determinedin accordance with GAAP, and operations or businesses disposed of prior to theCalculation Date, will be excluded; and

 

(c)                                  theFixed Charges attributable to discontinued operations, as determined inaccordance with GAAP, and operations or businesses disposed of prior to theCalculation Date, will be excluded, but only to the extent that the obligationsgiving rise to such Fixed Charges will not be obligations of the specifiedPerson or any of its Restricted Subsidiaries following the Calculation Date.

 

“**Fixed Charges**” means, with respect to anyPerson for any period, the sum, without duplication, of:

 

(a)                                  theconsolidated interest expense of such Person and its Restricted Subsidiariesfor such period, whether paid or accrued, including, without

 

13

----

 

limitation,amortization of debt issuance costs and original issue discount, non-cashinterest payments, the interest component of any deferred payment obligations,the interest component of all payments associated with Capital LeaseObligations, imputed interest with respect to Attributable Debt, commissions,discounts and other fees and charges incurred in respect of letter of credit orbankers’ acceptance financings, and net payments, if any, pursuant to HedgingObligations; plus

 

(b)                                 theconsolidated interest of such Person and its Restricted Subsidiaries that wascapitalized during such period;

 

(c)                                  anyinterest expense on Financial Indebtedness of another Person that is guaranteedby such Person or one of its Restricted Subsidiaries or secured by a SecurityInterest on assets of such Person or one of its Restricted Subsidiaries, whetheror not such Guarantee or Security Interest is called upon; plus

 

(d)                                 theproduct of (a) all payments (whether by way of dividends, distributions oradvances, and whether or not in cash) (i) in respect of the SubordinatedShareholder Loan other than interest payments and (ii) on any series ofPreference Shares of such Person or any of its Restricted Subsidiaries, otherthan dividend payments on Equity Interests payable solely in Equity Interestsof the Relevant Company (other than Disqualified Share Capital) or to theRelevant Company or a Restricted Subsidiary of the Relevant Company, times (b) afraction, the numerator of which is one and the denominator of which is oneminus the then current combined federal, state and local statutory tax rate ofsuch Person, expressed as a decimal, in each case, on a consolidated basis andin accordance with GAAP.

 

“**Free Cash Flow**” means Consolidated Cashflowminus Working Capital Charges and minus the sum of Permitted Investments andNet Proceeds.

 

“**GAAP**” means accounting principles andpractices which are (i) generally accepted in Sweden from time to time and(ii) consistent with the accounting principles applied by the RelevantCompany, and any variation to such accounting principles and practices which isnot material.

 

“**Global Note**” means a note evidencing all ora part of all the Notes substantially in the form set forth in the Senior NotesIndenture.

 

“**Group**” means the Relevant Company and itsSubsidiaries for the time being, and “**memberof the Group**” means any one of them.

 

“**Guarantee**” means a guarantee other than byendorsement of negotiable instruments for collection in the ordinary course ofbusiness, direct or indirect, in any manner including by way of a pledge ofassets or through letters of credit or reimbursement agreements in respectthereof, of all or any part of any Financial Indebtedness.

 

“**Hazardous Materials**” means any substance (i) whichis or becomes defined as a “hazardous waste”, “hazardous substance”, “radioactivewaste”, “biohazardous waste”, “infectious waste”, “toxic substance”, pollutantor contaminant (or any other term or expression intended to define, list orclassify substances by reason of

 

14

----

 

propertiesharmful to health, safety or the environment (including harmful properties suchas ignitability, corrosivity, reactivity, carcinogenicity, toxicity,reproductive toxicity, reproductive toxicity or words of similar import underany applicable Environmental Law)) under any Environmental Laws; or (ii) withoutlimitation, which is or contains petroleum and petroleum products (includingcrude oil, natural gas or geothermal resources; any flammable substances orexplosives; any radioactive materials; pesticides; polychlorinated biphenyls;asbestos; urea formaldehyde foam insulation; radon gas; infectious materials;or any other chemical, material or substances, exposure to which is prohibited,limited or regulated by any governmental authority.

 

“**Hedging Obligations**” means, with respect toany Person, the obligations of such Person under:

 

(a)                                  anyarrangement with any other Person, whereby, directly or indirectly, such Personis entitled to receive from time to time periodic payments calculated byapplying either a floating or a fixed rate of interest on a stated notionalamount in exchange for periodic payments made by such Person calculated byapplying a fixed or a floating rate of interest on the same notional amountinterest rate swap, cap, floors, and collar agreements;

 

(b)                                 anyforeign exchange contract, currency swap agreement or other similar agreementor arrangement designed to protect the Relevant Company or any RestrictedSubsidiary against fluctuations in currency values; and

 

(c)                                  anyagreement or arrangement designed to protect the Relevant Company or any of itsRestricted Subsidiaries against fluctuations in fuel prices.

 

“**Holding Company**” means, in relation to aperson, any other person in respect of which it is a Subsidiary.

 

“**Increased Cost**” has the meaning assigned toit in Clause 13 (*Increased Costs*).

 

“**Incur**” means, with respect to any FinancialIndebtedness or other obligation of any Person, to create, issue, incur (byconversion, exchange or otherwise), assume, Guarantee or otherwise becomedirectly or indirectly liable in respect of such Financial Indebtedness orother obligation including by acquisition of Subsidiaries or the recording, asrequired pursuant to GAAP or otherwise, of any such Financial Indebtedness orother obligation on the balance sheet of such Person (and “Incurrence”, “Incurred”,“Incurrable” and “Incurring” shall have meanings correlative to the foregoing).

 

“**Insolvency Law**” means any law applicable tothe insolvency of a Person or the relief of debtors generally and, with respectto a Swedish company, means in particular the Bankruptcy Act (Sw. Konkurslagen(1987:672) and the Business Reorganization Act (Sw. lag (1996:764) omföretagsrekonstruktion), in each case as amended from time to time, and anysuccessor thereto.

 

“**Intellectual Property**” means all patents andpatent applications, trade and service marks and trade and service markapplications (and all goodwill associated with such applications), all brandand trade names, all copyrights and rights in the nature of

 

15

----

 

copyright, alldesign rights, all registered designs and applications for registered designs,all trade secrets, know how and all other intellectual property rights owned bymembers of the Group throughout the world and interests of any member of theGroup in any of the foregoing, and all rights under any agreements entered intoby or for the benefit of any member of the Group relating to the use orexploitation of any such rights.

 

“**Interest Payment Date**” means 15 June and15 December each year and the Final Repayment****Date.

 

“**Interest Payment Notice**” means a noticesubstantially in the form set out in Part I of Schedule 9 hereto.

 

“**Interest Period**” means, in relation to anAdvance, each six month period ending on 15 June and 15 December and,in relation to an Unpaid Sum, each period determined in accordance with Clause8.5 (*Default Interest*).

 

“**Intragroup Capital Contribution**” means (a) theportion of the SEK 108,273,353 debt obligation owed by Nordic to the Tranche ABorrower which is assigned and transferred (in the amount of SEK 80,000,000) bythe Tranche A Borrower to the Tranche C Borrower on or around the date of thisAgreement and/or (b) the remainder of such debt which is not transferredby the Tranche A Borrower to the Tranche C Borrower, as the context requires..

 

“**Investments**” means, with respect to anyPerson, all investments by such Person in other Persons (including Affiliates)in the forms of direct or indirect loans (including Guarantees of FinancialIndebtedness or other obligations), advances or capital contributions(excluding commission, travel and similar advances to officers and employeesmade in the ordinary course of business), purchases or other acquisitions forconsideration of Financial Indebtedness, Equity Interests or other securities,together with all items that are or would be classified as investments on abalance sheet prepared in accordance with GAAP. If a Relevant Company or any Restricted Subsidiary of that RelevantCompany sells or otherwise disposes of any Equity Interests of any direct orindirect Restricted Subsidiary of that Relevant Company such that, after givingeffect to any such sale or disposition, such Person is no longer a RestrictedSubsidiary of that Relevant Company, such Relevant Company will be deemed tohave made an Investment on the date of any such sale or disposition equal tothe fair market value of the Equity Interests of such Restricted Subsidiary notsold or disposed of in an amount determined as provided in Clause 19.7 (*Limitation on Restricted Payments*).

 

“**Joint Venture**” means, with respect to anyPerson, any corporation, association, partnership or other business entity ofwhich 50% of the total Voting Shares thereof is owned or controlled, directlyor indirectly, by such Person or one or more Wholly Owned RestrictedSubsidiaries of such Person (or a combination thereof).

 

“**Lender**” means:

 

(a)                                  anyOriginal Lender; and

 

16

----

 

(b)                                 anybank, financial institution, trust, fund or other entity which has become aParty in accordance with Clause 21 (*Changesto the Lenders*).

 

“**LIBOR**” means, in relation to any Advance:

 

(a)                                  theapplicable Libor Screen Rate;

 

(b)                                 (ifno Libor Screen Rate is available for Euros for the Interest Period of thatAdvance) the arithmetic mean of the rates (rounded upwards to four decimalplaces) as supplied to the Facility Agent at its request quoted by theReference Banks to leading banks in the London interbank market; or

 

(c)                                  (ifnone of the Reference Banks supplies to the Facility Agent a rate for LIBOR inEuros for the Interest Period of that Advance), the rate notified to theFacilty Agent by that Lender as soon as practicable and in any event beforeinterest is due to be paid in respect of that Interest Period, to be that whichexpress as a percentage rate per annum the cost to that Lender of funding itsparticipation in that Advance from whatever source it may reasonably select,

 

in each caseas of 11 a.m. (London time) on the Quotation Day for the offering ofdeposits in Euros in an amount comparable to the amount of that Advance and fora period comparable to the Interest Period for that Advance.

 

“**Libor Screen Rate**” means; in relation toLIBOR, the rate in Euros displayed on the appropriate page of the Teleratescreen.  If the agreed page isreplaced or service ceases to be available, the Facility Agent may (acting ingood faith) specify another page or service displaying the appropriaterate after consultation with the relevant Borrower and the Lenders.

 

“**Limited Recourse Note**” means the note to beissued by Holding to Bus on a limited recourse basis at the time and inconsideration of the transfer of the Subordinated Shareholder Loan from Bus toHolding, with a face value equivalent to all sums outstanding including principaland accrued but unpaid interest on the Subordinated Shareholder Loan at thattime.

 

“**Listing**” means a listing of all or any partof the share capital of any member of the Group on the UK Listing Authority oron any other recognised investment exchange (as defined in the FinancialServices Markets Act 2000) or any other sale or issue by way of floatation orpublic offering or any equivalent circumstances in relation to any member ofthe Group in any jurisdiction.

 

“**Majority Lenders**” means, until the TrancheA Advance Utilisation Date, the Majority Tranche C Lenders, and from that date,the Majority Tranche A Lenders.

 

“**Majority Tranche A Lenders**” means:

 

(a)                                  ifthere are no Tranche A Advances then outstanding, a Tranche A Lender or TrancheA Lenders whose Tranche A Commitments aggregate more than 66? per cent. of theTotal Tranche A Commitments (or, if the Total Tranche A Commitments have beenreduced to zero, aggregate more than 66? per cent. of the Total Tranche ACommitments immediately prior to the reduction); or

 

17

----

 

(b)                                 atany other time, a Tranche A Lender or Tranche A Lenders whose participations inthe Tranche A Advances then outstanding aggregate more than 66? per cent. ofall the Tranche A Advances then outstanding.

 

“**Majority Tranche C Lenders**” means:

 

(a)                                  ifthere are no Tranche C Advances then outstanding, a Tranche C Lender or TrancheC Lenders whose Tranche C Commitments aggregate more than 66? per cent. of theTotal Tranche C Commitments (or, if the Total Tranche C Commitments have beenreduced to zero, aggregate more than 66? per cent. of the Total Commitmentsimmediately prior to the reduction); or

 

(b)                                 atany other time, a Tranche C Lender or Tranche C Lenders whose participations inthe Tranche C Advances then outstanding aggregate more than 66? per cent. ofall the Tranche C Advances then outstanding.

 

“**Management Services Agreement**” means theagreement dated as of January 14, 2000 among Concordia Bus BV, ConcordiaBus Management AS and Ingenior M.O. Schoyens Bilcentraler AS, a Norwegiancompany.

 

“**Mandatory Cost**” means for a Lender the costof complying with any reserve asset, liquidity, cash margin or other regulatoryrequirement affecting it, expressed as a percentage rate per annum, includingany reserve asset requirements of the European Central Bank, Regulation D ofthe U.S. Board of Governors of the Federal Reserve System and, for a Lenderparticipating through a Facility Office in the United Kingdom, those calculatedby the Facility Agent in accordance with Schedule 4 (*Mandatory Costs*).

 

“**Margin Stock**” has the meaning assigned tothat term in Regulation U of the U.S. Board of Governors of the Federal ReserveSystem as in effect from time to time.

 

“**Market Disruption Event**” means each of thefollowing has occurred at or about noon (Luxembourg time) on the Quotation Dayfor the relevant Interest Period: (i) the Screen Rate is not available and(ii) none or only one of the Reference Banks supplies a rate to theFacility Agent to determine EURIBOR for Euros for the Interest Period.

 

“**Material Adverse Effect**” means an effect,event, matter or circumstance (or any series of any thereof) which in thereasonable opinion of the Majority Lenders is or is reasonably likely tomaterially and adversely affect:

 

(a)                                  thebusiness, operations, assets, condition (financial or otherwise) or prospectsof the Relevant Company, and/or the Group taken as a whole;

 

(b)                                 theability of an Obligor to perform its obligations under the Finance Documents;or

 

(c)                                  thevalidity or enforceability of the Finance Documents,

 

provided thatany effect, event, matter or circumstance that relates to a matter disclosed tothe Ad Hoc Committee’s Advisers prior to the date of this Agreement shall bedisregarded for the purposes of this definition;

 

18

----

 

“**Month**” means a period starting on one dayin a calendar month and ending on the numerically corresponding day in the nextcalendar month, except that:

 

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

 

(b)                                 ifthere is no numerically corresponding day in the calendar month in which thatperiod is to end, that period shall end on the last Business Day in thatcalendar month; and

 

(c)                                  ifan Interest Period begins on the last Business Day of a calendar month, thatInterest Period shall end on the last Business Day in the calendar month inwhich that Interest Period is to end.

 

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

 

“**Net Income**” means, with respect to anyPerson, the net income (loss) of such Person and its Restricted Subsidiaries,determined in accordance with GAAP and before any reduction in respect ofpreferred share dividends, excluding, however:

 

(a)                                  anygain (but not loss), together with any related provision for taxes on such gain(but not loss), realized in connection with: (i) any Asset Sale; or (ii) thedisposition of any securities by such Person or any of its RestrictedSubsidiaries or the extinguishment of any Financial Indebtedness of such Personor any of its Restricted Subsidiaries; and

 

(b)                                 anyextraordinary gain (but not loss), together with any related provision fortaxes on such extraordinary gain (but not loss).

 

“**Net Proceeds**” means the aggregate cashproceeds received by the Relevant Company or any of its Restricted Subsidiariesin respect of any Asset Sale (including any cash received upon the sale orother disposition of any non-cash consideration received in any Asset Sale),net of the direct costs relating to such Asset Sale paid in cash, including,without limitation, legal, accounting and investment banking fees, and salescommissions, and any relocation expenses incurred as a result thereof, taxespaid or payable as a result thereof, in each case after taking into account anyavailable tax credits or deductions and any tax sharing arrangements andamounts required to be applied to the repayment of Financial Indebtednesssecured by a Security Interest on the asset or assets that were the subject ofsuch Asset Sale.

 

“**New Lender**” has the meaning assigned to itin Clause 21 (*Changes to the Lenders*).

 

“**Non-Recourse Debt**” means FinancialIndebtedness:

 

(a)                                  asto which neither the Relevant Company nor any of its Restricted Subsidiaries (a) providescredit support of any kind (including any undertaking, agreement or instrument thatwould constitute Financial Indebtedness), (b) is directly or indirectlyliable as a guarantor or otherwise, or (c) constitutes the lender;

 

19

----

 

(b)                                 nodefault with respect to which (including any rights that the holders thereofmay have to take enforcement action against an Unrestricted Subsidiary) wouldpermit upon notice, lapse of time or both any holder of any other FinancialIndebtedness (other than the Senior Notes as amended) of the Relevant Companyor any of its Restricted Subsidiaries to declare a default on such otherFinancial Indebtedness or cause the payment thereof to be accelerated orpayable prior to its stated maturity; and

 

(c)                                  asto which the lenders have been notified in writing that they will not have anyrecourse to the shares or assets of the Relevant Company or any of itsRestricted Subsidiaries.

 

“**Nordic**” means Concordia Bus Nordic AB(publ).

 

“**Notes**” means the €130,000,000.00 9.125%Senior Secured Notes due 1 August 2009 issued pursuant to the Senior NotesIndenture.

 

“**Note Guarantees**” means the guarantee infavour of the Notes given by a Note Guarantor pursuant to the Senior NotesIndenture.

 

“**Note Guarantors**” means the guarantors underthe Senior Notes Indenture.

 

“**Obligations**” means any principal, interest,penalties, fees, expenses, indemnifications, reimbursements, damages and otherliabilities payable under the documentation governing any FinancialIndebtedness.

 

“**Obligors**” means the Tranche A Borrower andthe Tranche C Borrower as the context so requires, otherwise, “**Obligor**” means until the Tranche A AdvanceUtilisation Date, the Tranche C Borrower and from that date the Tranche ABorrower.

 

“**Officer’s Certificate**” means, with respectto any Person, a certificate signed by an Authorized Signatory of such Person.

 

“**Original Financial Statements**” means inrelation to the Relevant Company, the audited consolidated financial statementsof the Group for the financial year ended 28 February.

 

“**Original Lenders**” means the Financial institutionslisted in Part II of Schedule 1 hereto.

 

“**Paper Form Lender**” has the meaning setout in Clause 27.8 (*Use of Websites*).

 

“**Parent Companies**” means Concordia BusHolding AB and until the initial drawdown of Tranche A, Concordia Bus AB.

 

“**Participating Member State**” means anymember state of the European Communities that adopts or has adopted the Euro asits lawful currency in accordance with legislation of the European Communityrelating to Economic and Monetary Union.

 

“**Party**” means a party to this Agreement; providedthat a reference to such a party shall not include that party if it has ceasedto be a party under this Agreement.

 

20

----

 

“**Payment Date**” has the meaning assigned toit in Clause 7.5 (*Prepayments duringInterest Periods*).

 

“**Permitted Business**” means the business ofproviding public transportation services in the Nordic Region and Europe(including the Baltic States) and businesses ancillary or reasonably related orsimilar thereto.

 

“**Permitted Holders**” means the ConsentingNoteholders (as that term is defined in the Binding Restructuring Agreement)who become shareholders of Bus, and each of their respective Affiliates.

 

“**Permitted Investments**” means:

 

(a)                                  anyInvestment in the Relevant Company or Nordic by any Restricted Subsidiary ofthe Relevant Company, provided that any Financial Indebtedness evidencing suchInvestment is unsecured and subordinated, pursuant to a written agreement, tothe Relevant Company’s obligations under the Notes and this Agreement;

 

(b)                                 anyInvestment by either Bus or Holding in any of its Subsidiaries by way of equityor shareholders’ contribution or subordinated loans or in any manner permittedby applicable laws.

 

(c)                                  anyInvestment by the Relevant Company or any Restricted Subsidiary of the RelevantCompany in a Person primarily engaged in Permitted Business, if (a) suchPerson is or, as a result of such Investment becomes, a Restricted Subsidiaryof the Relevant Company; or (b) such Person is merged, consolidated oramalgamated with or into, or transfers or conveys substantially all of itsassets to, or is liquidated into, the Relevant Company or the RestrictedSubsidiary of the Relevant Company;

 

(d)                                 anyInvestment made as a result of the receipt of non-Cash Equivalent considerationfrom an Asset Sale that was made pursuant to and in compliance with Clause19.12 (*Limitation on Certain Asset Sales*);

 

(e)                                  anyInvestment in Cash Equivalents;

 

(f)                                    Investmentsin securities of trade creditors or customers received in settlement ofobligations or pursuant to any plan of reorganization or similar arrangementupon the bankruptcy or insolvency of such trade creditors of customers;

 

(g)                                 loansand advances to directors, officers and employees of the Relevant Company andits Restricted Subsidiaries in the ordinary course of business for bona fidebusiness purposes not in excess of an aggregate SEK 3 million at any one timeoutstanding;

 

(h)                                 HedgingObligations entered into in the ordinary course of business and not forspeculative purposes;

 

(i)                                     investmentsin prepaid expenses, negotiable instruments held for collection, and lease,utility and workers’ compensation, performance and other similar deposits;

 

21

----

 

(j)                                     anyprepayments on operating leases;

 

(k)                                  anyPermitted Joint Venture Investment, provided that the consideration paid orpayable for such Investment, when aggregated with the consideration paid orpayable (measured on the date each such Investment was made and without givingeffect to subsequent changes in value) for all other Investments comprisingPermitted Joint Venture Investments made pursuant to this clause (k) does notexceed the amount, calculated at the time such Investment is made, equal to (a) 25.0%of the Consolidated Cash Flow of the Relevant Company for the period (taken asone accounting period) from the date of this Agreement to the end of theRelevant Company’s most recently ended fiscal quarter for which financialstatements are available at the time of such Investment, if such ConsolidatedCash Flow for such period is a positive amount, plus (b) 100% of theaggregate of (i) the net cash proceeds and (ii) the fair market valueof Strategic Assets transferred or conveyed to the Relevant Company or itsRestricted Subsidiaries (as valued at the time of transfer or conveyance to theRelevant Company or its Restricted Subsidiaries, and as determined in goodfaith by the board of directors of the Relevant Company or its RestrictedSubsidiaries and evidenced by a resolution of such board), in each casereceived by the Relevant Company or its Restricted Subsidiaries at the time ofor concurrently with such Investment as a contribution to the Relevant Company’sor its Restricted Subsidiaries’ common equity capital, provided that the amountof such net cash proceeds and the fair market value of such Strategic Assetswill be excluded from (a)(iv)(C)(II) of Clause 19.7 (*Limitation of Restricted Payments*);

 

(l)                                     anyPermitted Minority Investment, provided that the consideration paid or payablefor such Investment, when aggregated with the consideration paid or payable(measured on the date each such Investment was made and without giving effectto subsequent changes in value) for all other Investments comprising PermittedMinority Investments made pursuant to this clause (l) does not exceed theamount, calculated at the time such Investment is made, equal to (a) 7.5%of the Consolidated Cash Flow of the Relevant Company for the period (taken asone accounting period) from the date of this Agreement to the end of theRelevant Company’s most recently ended fiscal quarter for which financialstatements are available at the time of such Investment, if such ConsolidatedCash Flow for such period is a positive amount, plus (b) 100% of theaggregate of (i) the net cash proceeds and (ii) the fair market valueof Strategic Assets transferred or conveyed to the Relevant Company or itsRestricted Subsidiaries (as valued at the time of transfer or conveyance to theRelevant Company or its Restricted Subsidiaries, and as determined in goodfaith by the board of directors of the Relevant Company or its RestrictedSubsidiaries and evidenced by a resolution of such board), in each casereceived by the Relevant Company or its Restricted Subsidiaries at the time ofor concurrently with such Investment as a contribution to the Relevant Company’sor its Restricted Subsidiaries’ common equity capital, provided that the amountof such net cash proceeds and the fair market value of such Strategic Assets willbe excluded from (a)(iv)(C)(II) of Clause 19.7 (*Limitation on Restricted Payments)*;

 

22

----

 

(m)                               anyother Investment in any Person having a fair market value (measured on the datesuch Investment was made and without giving effect to subsequent changes invalue) not to exceed the sum of (i) SEK 10,000,000 minus (ii) aggregatefair market value (measured on the date each such Investment was made andwithout giving effect to subsequent changes in value) of all other Investmentsmade pursuant to this clause (m) since the date of this Agreement plus (iii) tothe extent that any such Investment made pursuant to this clause (m) is soldfor Cash Equivalents or otherwise liquidated or repaid for Cash Equivalents,the lesser of (A) the cash return of capital with respect to suchInvestment (less the cost of disposition, if any) and (B) the initialamount of such other Investment; and

 

(n)                                 anyacquisitions of assets solely in exchange for the issuance of Equity Interests(other than Disqualified Share Capital) of the Relevant Company.

 

“**Permitted Joint Venture Investment**” meansthe Investment by the Relevant Company or one or more Wholly Owned RestrictedSubsidiaries of the Relevant Company in a Joint Venture; provided that, in anysuch case, such Joint Venture shall be engaged primarily in a PermittedBusiness.

 

“**Permitted Minority Investment**” means theInvestment by the Relevant Company or by a Wholly Owned Restricted Subsidiaryof the Relevant Company in any corporation, association, partnership or otherbusiness entity of which less than 50% of the total Voting Shares thereof will,upon consummation of such acquisition or other Investment, be owned orcontrolled by the Relevant Company or one or more of the Wholly OwnedRestricted Subsidiaries of the Relevant Company (or a combination thereof), butover which the Relevant Company or one or more Wholly Owned RestrictedSubsidiaries of the Relevant Company (or a combination thereof) maintains thepower to influence or participate in the management thereof by virtue ofrepresentation on such corporation’s, association’s, partnership’s or otherbusiness entity’s board of directors (or persons performing similar functions)through a contractual relationship with such entity or with the holders of suchentity’s Voting Shares; provided that, in any such case, such corporation,association, partnership or other business entity shall be engaged primarily ina Permitted Business.

 

“**Permitted Refinancing Indebtedness**” meansany Financial Indebtedness of the Relevant Company or its RestrictedSubsidiaries issued in exchange for, or the net proceeds of which are used toextend, refinance, renew, replace, defease or refund other FinancialIndebtedness of the Relevant Company or its Restricted Subsidiaries (other thanintercompany Financial Indebtedness owed to any of the Relevant Company’sSubsidiaries); provided that:

 

(a)                                  theprincipal amount (or accreted value, if applicable) of such PermittedRefinancing Indebtedness does not exceed the principal amount of (or accretedvalue, if applicable), plus accrued interest on, the Financial Indebtedness soextended, refinanced, renewed, replaced, defeased or refunded (plus the amountof reasonable expenses incurred in connection therewith); and

 

(b)                                 suchPermitted Refinancing Indebtedness has a final maturity date later than thefinal maturity date of, and has a Weighted Average Life to Maturity equal to orgreater than the Weighted Average Life to Maturity of, the Financial

 

23

----

 

Indebtednessbeing extended, refinanced, renewed, replaced, defeased or refunded; and

 

(c)                                  ifthe Financial Indebtedness being extended, refinanced, renewed, replaced,defeased or refunded is subordinated in right of payment to the Notes, suchPermitted Refinancing Indebtedness has a final maturity date later than thefinal maturity date of, and is subordinated in right of payment to, the Noteson terms at least as favourable to the holders of the Notes as those contained inthe documentation governing the Financial Indebtedness being extended,refinanced renewed, replaced, defeased or refunded.

 

“**Permitted Security Interests**” means:

 

(a)                                  SecurityInterests existing on the date of this Agreement.

 

(b)                                 SecurityInterests to secure Financial Indebtedness incurred under a Revolving CreditFacility permitted by Clause 19.6(b)(vi), provided that (a) such SecurityInterests consist solely of security interests in accounts receivable (andrelated assets); (b) the aggregate nominal value of all such accountsreceivable is not more than the amount outstanding under the Revolving CreditFacility at the time such Security Interest is created; (c) such SecurityInterests rank *pari passu* with orare subordinated to the Security Interests with respect to the Notes and (d) suchSecurity Interests do not exceed, in aggregate, SEK 100,000,000;

 

(c)                                  SecurityInterests created under the Senior Notes Indenture Security Documents;

 

(d)                                 SecurityInterests to secure Permitted Refinancing Debt incurred to refinance FinancialIndebtedness that was previously so secured; provided that such SecurityInterests do not extend to cover any property or assets of the Relevant Companyor any Restricted Subsidiaries other than that pledged under the Security Interestssecuring the Financial Indebtedness being refinanced;

 

(e)                                  SecurityInterests in favour of the Relevant Company or a Wholly Owned RestrictedSubsidiary of the Relevant Company that is a Subsidiary Guarantor;

 

(f)                                    SecurityInterests on property of a Person existing at the time such Person is mergedwith or into or consolidated with the Relevant Company or any RestrictedSubsidiary of the Relevant Company; provided that such Security Interests werein existence prior to the contemplation of such merger or consolidation and donot extend to any assets other than those of the Person merged into orconsolidated with the Relevant Company or the Restricted Subsidiary;

 

(g)                                 SecurityInterests on property existing at the time of acquisition thereof by the RelevantCompany or any Restricted Subsidiary of the Relevant Company, provided thatsuch Security Interests were in existence prior to the contemplation of suchacquisition;

 

24

----

 

(h)                                 SecurityInterests to secure the performance of tenders or bids, government contracts orconcessions, statutory obligations, surety or appeal bonds, performance bondsor other obligations of a like nature (other than obligations in respect ofborrowed money) incurred in the ordinary course of business;

 

(i)                                     SecurityInterests to secure Financial Indebtedness incurred under (i) CapitalLease Obligations, mortgage financing or purchase money obligations in eachcase for the purpose of financing all or any part of the purchase price or costof construction or improvement of any property, plant or equipment or buses orother vehicles used in the business of the Group and (ii) AttributableDebt in respect of Sale and Leaseback transactions, provided that such SecurityInterests incurred pursuant to (i) and (ii) shall not exceed, inaggregate SEK 100,000,000;

 

(j)                                     SecurityInterests for taxes, assessments or governmental charges or claims that are notyet delinquent or that are being contested in good faith by appropriateproceedings promptly instituted and diligently concluded, provided that anyreserve or other appropriate provision as will be required in conformity withGAAP will have been made therefor;

 

(k)                                  statutorySecurity Interests of landlords and Security Interests of carriers, warehousemen,mechanics, suppliers, materialmen, repairmen and other Security Interestsimposed by law incurred in the ordinary course of business for sums not yetdelinquent or being contested in good faith, if such reserve or otherappropriate provision, if any, as shall be required by GAAP shall have beenmade in respect thereof;

 

(l)                                     SecurityInterests incurred or deposits made in the ordinary course of business inconnection with workers’ compensation, unemployment insurance and other typesof social security, including any Security Interests securing letters of creditissued in the ordinary course of business in connection therewith;

 

(m)                               SecurityInterests arising out of or related to judgments not giving rise to an Event ofDefault so long as such Security Interests is adequately bonded and anyappropriate legal proceedings which may have been duly initiated for review ofsuch judgment shall not have been finally terminated or the period within whichsuch proceedings may be initiated shall not have expired;

 

(n)                                 easements,rights-of-way, zoning restrictions and other similar charges or SecurityInterests in respect of real property not interfering in any material respectwith the ordinary conduct of the business of the Relevant Company or any of itsRestricted Subsidiaries;

 

(o)                                 SecurityInterests upon specific items of inventory or other goods and proceeds of anyPerson securing such Person’s obligations in respect of bankers’ acceptancesissued or created for the account of such Person to facilitate the purchase,shipment or storage of such inventory or other goods;

 

(p)                                 SecurityInterests securing reimbursement obligations with respect to commercial lettersof credit which encumber documents and other property relating to such lettersof credit and products and proceeds thereof;

 

25

----

 

(q)                                 SecurityInterests encumbering deposits made to secure obligations arising fromstatutory, regulatory, contractual or warranty requirements of the RelevantCompany or any of its Restricted Subsidiaries, including rights of offset andset-off;

 

(r)                                    SecurityInterests incurred in the ordinary course of business of the Relevant Companyor any Restricted Subsidiary with respect to obligations that do not exceed SEK150,000,000****at any one timeoutstanding less the amount of any Financial Indebtedness secured by SecurityInterests granted pursuant to Clause (a) of this definition;

 

(s)                                  SecurityInterests created or to be created under or pursuant to the Security Documents;and

 

(t)                                    Secondranking Security Interests granted by Holdings in favour of Bus over Holding’sinterests in the Subordinated Shareholder Loan and the Intragroup CapitalContribution.

 

“**Person**” means an individual, partnership,limited partnership, company, corporation, limited liability company, jointstock company, joint venture, association, trust, business trust,unincorporated organization, or a government or agency or political subdivisionthereof.

 

“**Preferred Shares**” of any Person means anyShare Capital of such Person that has any rights which are preferential to therights of any other Share Capital of such Person with respect to dividends orredemptions or upon liquidation.

 

“**Public Equity Offering**” means anyunderwritten public offering of Share Capital (other than Disqualified ShareCapital) of the Relevant Company or Nordic, in which (a) the grossproceeds to the Relevant Company or Nordic, respectively, are at least €50million and (b) with respect to an offering other than by Nordic, theproceeds of which are contributed to Nordic, directly or indirectly, in theform of a subscription for, or capital contribution in respect of, ShareCapital in Nordic that is not Redeemable Share Capital.

 

“**Quotation Day**” means, in relation to anyperiod for which an interest rate is to be determined, two TARGET Days beforethe first day of that period, unless market practice differs in the RelevantInterbank Market for a currency, in which case the Quotation Day for thatcurrency will be determined by the Facility Agent in accordance with marketpractice in the Relevant Interbank Market (and if quotations would normally begiven by leading banks in the Relevant Interbank Market on more than one day,the Quotation Day will be the last of those days).

 

“**Receivables**” means, with respect to anyperson, all rights of that person to payment for goods sold or leased or forservices rendered, whether or not they have been earned by performance, andincludes all book debts due to that person.

 

“**Redeemable Share Capital**” means any ShareCapital that, either by its terms or by the terms of any security into which itis convertible or exchangeable or otherwise, is or upon the happening of anevent or the passage of time would be, required to be redeemed prior to thefinal stated maturity of the principal of the Notes or is

 

26

----

 

redeemable atthe option of the holder thereof at any time prior to such final statedmaturity (other than upon a change of control of Nordic in circumstances whereholders of the Notes would have similar rights), or is convertible into orexchangeable for debt securities at any time prior to such final statedmaturity at the option of the holder thereof.

 

“**Reference Banks**” means, in relation toLIBOR, the principal London office of Royal Bank of Scotland plc, Barclays Bankplc and JPMorgan Chase Bank, N.A. or such other banks as may be appointed bythe Facility Agent in consultation with the relevant Borrower.

 

“**Reference Banks**” means in relation toEURIBOR, Deutsche Bank Luxembourg S.A. and the principal office in London ofCredit Suisse and JPMorgan Chase Bank, N.A., or (in any such case) such otherbanks as may be appointed by the Facility Agent in consultation with therelevant Borrower.

 

“**Released Person**” means (i) each of SchoyenGruppen AS, Goldman, Sachs & Co. Verwaltungs GmbH, GS Capital PartnersIII Offshore, L.P. And GS Capital Partners III, L.P. and their respectiveAffiliates, Concordia Bus BV and Concordia Bus Holding AB (ii) each of theHonourable Richard Simon Sharp and Steven Richard Sher of Goldman Sachs, FrodeLarsen and Harald Aernkvaern of Schoyen, whether personally or in theircapacities as existing or former directors of Bus and/or Holding and/or Bus’subsidiaries, and (iii) Frode Larsen and Harald Aernkvaern in relation totheir existing directorships of other companies in the Group.

 

“**Relevant Company**”****means until the Tranche A Advance Utilisation Date, theTranche C Borrower and from the Tranche A Advance Utilisation Date, theTranche A Borrower.

 

“**Relevant Interbank Market**” means theEuropean interbank market.

 

“**Repayment Notice**”means a notice substantially in the form set out in Part II or Part IVof Schedule 9 hereto.

 

“**Repeating Representations**” means each ofthe representations set out in Clauses 17.1 (*Status*)to 17.6 (*Governing law and enforcement*).

 

“**Representative**” shall mean in respect ofthe parties hereto any directors, agents, officers, employees and/orprofessional advisers.

 

“**Reservations**” means the principles thatequitable remedies are remedies which may be granted or refused at thediscretion of the court, the limitation of enforcement by laws relating tobankruptcy, insolvency, liquidation, reorganisation, court schemes, moratoria,administration and other laws generally affecting the rights of creditors, andthe time barring of claims under any applicable limitation acts.

 

“**Residual Value Guarantee**” means acommitment by a bus manufacturer or finance company (or an affiliated entity)to repurchase buses from, or on behalf of, a bus operator according to aSpecified Residual Value

 

“**Restricted Investments**” means an Investmentother than a Permitted Investment.

 

27

----

 

“**Restricted Payments**” has the meaning givento it in Clause 19.7.

 

“**Restricted Subsidiary**” of a Person means any Subsidiary ofsuch Person that is not an Unrestricted Subsidiary.  For the avoidance of doubt Nordic shall bedeemed to be a Restricted Subsidiary for the purposes of this Agreement.

 

“**Restructuring**” means the exchange of the Subordinated Notes for ordinary sharesof Bus representing on a primary basis at least 97.5% of the ordinary sharecapital of the company, substantially pursuant to the terms and conditions ofthe Binding Restructuring Agreement.

 

“**Revolving Credit Facilities**” means withrespect to the Relevant Company or its Subsidiaries, one or more debtfacilities or commercial paper facilities with banks, insurance companies orother institutional lenders providing for revolving credit loans, receivablesfinancing (including through the sale or factoring of receivables to suchlenders or to special purpose entities formed to borrow from or issuesecurities to such lenders against such receivables), letters of credit orother forms of guarantees and assurances or other credit facilities, includingoverdrafts, in each case, as amended, restated, modified, renewed, refunded,replaced or refinanced in whole or in part from time to time, provided,however, that “**Revolving Credit Facilities**”will not mean any Financial Indebtedness that expressly provides that it issubordinated in right of payment to any other Financial Indebtedness.

 

“**Sale and Leaseback Transaction**” means anydirect or indirect arrangement with any Person or to which any such Person is aparty, providing for the leasing to the Relevant Company or a RestrictedSubsidiary of any property, whether owned by the Relevant Company or anyRestricted Subsidiary on the date of this Agreement or later acquired, whichhas been or is to be sold or transferred by the Relevant Company or suchRestricted Subsidiary to such Person or to any other Person from whom fundshave been or are to be advanced by such person on the security of such property;provided, however, that the term “Sale and Leaseback” shall not include thesale of (a) all or a portion of the depots currently held by SwebusFastigheter AB or its subsidiaries or (b) the shares of Swebus FastigheterAB or any of its subsidiaries, if substantially simultaneously with such sale,the Relevant Company or a Restricted Subsidiary leases on a long-term basis allor substantially all of (i) in the case of such a sale of depots, thedepots so sold or (ii) in the event of such a sale of shares of SwebusFastigheter AB or any of its subsidiaries, the depots that comprise all orsubstantially all of the assets of Swebus Fastigheter AB or such subsidiary.

 

“**Screen Rate**” means in relation to EURIBOR,the percentage rate per annum determined by the Banking Federation of theEuropean Union for the relevant period displayed on the appropriate page ofthe Telerate screen selected by the Facility Agent (acting reasonably).  If the relevant page is replaced orservice ceases to be available, the Facility Agent may specify another page and/orservice displaying the appropriate rate after consultation with the RelevantCompany and the Lenders.

 

“**Second Ranking Pledge over the SubordinatedShareholder Loan**” means the second ranking pledge granted by Holdingin favour of Bus over its rights and interests under the SubordinatedShareholder Loan on or about the date of this Agreement.

 

28

----

 

“**Security Documents**” means:

 

(a)                                  eachsecurity document referred to in Part I of Schedule 2; and

 

(b)                                 anyother document entered into by any member of the Group creating or evidencing aSecurity Interest for all or any part of the obligation of the Obligor or anyof them under any of the Finance Documents.

 

“**Security Interest**” means a mortgage, charge(fixed or floating), standard security, pledge, lien, assignment for security,hypothecation, right of set-off, reservation of title or security interest orany other agreement, trust or arrangement (including, without limitation, asale and repurchase agreement) having a similar effect and any agreement toenter into, create or establish any of the foregoing.

 

“**Senior Notes Indenture**”means the indenture dated 22 January 2004 in respect of the Notes, as maybe amended from time to time.

 

“**Senior Notes Indenture Security Documents**”means the security documents executed in relation to the security in connectionwith the Senior Notes Indenture.

 

“**Senior Notes Trustee**” means the trustee forthe Notes.

 

“**Share Capital**” means:

 

(a)           in the case of a corporation,corporate stock and shares;

 

(b)                                 inthe case of an association or business entity, any and all shares, interests,participations, rights or other equivalents (however designated) of corporatestock and shares;

 

(c)                                  inthe case of a partnership or limited liability company, partnership ormembership interests (whether general or limited); and

 

(d)                                 anyother interest or participation that confers on a Person the right to receive ashare of the profits and losses of, or distributions of assets of, the issuingPerson.

 

“**Specified Residual Value**” means theguaranteed value of a bus according to a schedule in the Residual ValueGuarantee that identifies fixed prices for value of buses based on bus age andcondition at future specified dates. This value is correlated to expectedused-bus resale values.

 

“**SSL Account**” means account number EUR 1345-01-11647(IBAN: SE6912000000013450111647) (SWIFT code: DABASESX)  held with the Account Bank in the name of theTranche C Borrower, or such other account as may be substituted for thataccount in accordance with the terms of Clause 7.8(h).

 

“**Stated Maturity**” means, with respect to anyinstalment of interest or principal on any Financial Indebtedness, the date onwhich such payment of interest or principal was scheduled to be paid in theoriginal documentation governing such Financial Indebtedness, and shall notinclude any contingent obligations to repay, redeem or

 

29

----

 

repurchase anysuch interest or principal prior to the date originally scheduled for thepayment thereof.

 

“**Strategic Assets**” means (i) ShareCapital of a Person which is engaged primarily in a Permitted Business and (ii) property,plant, equipment, buses and other assets, real or personal, tangible orintangible, the use of which is necessary or useful in the conduct of thebusiness and operations of the Relevant Company and its Subsidiaries at thetime the same are transferred or conveyed to the Relevant Company or itsRestricted Subsidiaries.

 

“**Structure Paper**” means the Structure Paperagreed between the Borrowers and the Lenders on or about the date hereof andattached as Schedule 6 hereto.

 

“**Subordinated Notes**” means the EUR160,000,000 11% Senior Subordinated Notes due 2010 issued by Concordia Bus AB.

 

“**Subordinated Notes Indenture**” means theindenture dated 7 February 2000 in respect of the Subordinated Notes.

 

“**Subordinated Shareholder Loan**” means theloan from Bus to Nordic in an original principal amount of SEK 501.3 million,made pursuant to a subordinated loan agreement executed on February 28,2002 and amended and restated and transferred to Holding on the date of thisAgreement and which will be re-transferred from Holding to Bus on or before theTranche A Advance Utilisation Date.

 

“**Subsidiary**” means :

 

(a)                                  asubsidiary within the meaning of section 736 of the Companies Act 1985;and

 

(b)                                 asubsidiary undertaking within the meaning of section 258 of the CompaniesAct 1985.

 

“**Subsidiary Guarantor**” means a guarantorunder the Senior Notes Indenture and Nordic (unless otherwise specified).

 

“**TARGET Day**” means any day on which theTrans-European Automated Real-time Gross Settlement Express Transfer paymentsystem is open for the settlement of payments in Euro.

 

“**Tax**” means any tax, levy, impost, duty orother charge or deduction or withholding of a similar nature (including anypenalty or interest payable in connection with any failure to pay or any delayin paying any of the same).

 

“**Tax Deduction**” means a deduction orwithholding for or on account of Tax from a payment under a Finance Document.

 

“**Taxes Act**” means the Income and CorporationTaxes Act 1988.

 

“**Total Commitments**” means the Total TrancheA Commitments and the Total Tranche C Commitments.

 

30

----

 

“**Total Tranche A Commitments**” means theTranche A Commitments of all Tranche A Lenders, being EUR 45,000,000 at thedate of this Agreement.

 

“**Total Tranche C Commitments**” means theTranche C Commitments of all Tranche C Lenders being EUR 25,000,000 at the dateof this Agreement.

 

“**Tranche A Advance**” means the principalamount of the loan made or to be made under the Tranche A Facility as from timeto time reduced by any repayment or prepayment and as from time to timeincreased by interest accruing to the principal amount of the Tranche AFacility pursuant to Clause 8 (*Interest*).

 

“**Tranche A Advance Utilisation Date**” meansthe date of Utilisation of Tranche A, being the date on which the Tranche AAdvance is made or to be made, as the context requires.

 

“**Tranche A Availability Date**” means theClosing Date.

 

“**Tranche A Availability Period**” means theperiod from and including the Closing Date to and including the date which is10 days after the Closing Date.

 

“**Tranche A Borrower**” means Bus.

 

“**Tranche A Call Option Premium**” has themeaning set out in Clauses 7.3 (*VoluntaryPrepayment of Tranche A and Tranche C*).

 

“**Tranche A Commitment**” means:

 

(a)                                  inrelation to an Original Lender, the amount set below its name adjacent to theheading “Tranche A Commitment” in Part II of Schedule 1 hereto (*the Original Lenders*) and the amount ofany other Tranche A Commitment transferred to it under this Agreement; and

 

(b)                                 inrelation to any other Lender, the amount of any Tranche A Commitmenttransferred to it under this Agreement,

 

each to theextent not cancelled, reduced or transferred under this Agreement.

 

“**Tranche A Facility**” or “**Tranche A**”means the term loan facility to be made available by the Tranche A FacilityLenders pursuant to Clause 2.1(a) (*TrancheA Facility*).

 

“**Tranche A Lenders**” means those OriginalLenders providing Tranche A Commitments in Part II of Schedule 1hereto.

 

“**Tranche C Advance**” means the principalamount of each loan made or to be made under the Tranche C Facility as fromtime to time reduced by any repayment or prepayment and as from time to timeincreased by interest accruing to the principal amount of the Tranche CFacility and capitalised pursuant to Clause 8 (*Interest*).

 

“**Tranche C Advance Utilisation Date**” meansthe date of Utilisation of Tranche C, being the date on which a Tranche CAdvance is made or to be made, as the context requires.

 

31

----

 

“**Tranche C Availability Period**” means inrelation to the Tranche C Facility, the period from and including the date ofthis Agreement to and including the earlier of (i) the Closing Date and (ii) 31December 2005 (or such later date as may be agreed between the partieshereto, each acting reasonably).

 

“**Tranche C Borrower**” means Holding.

 

“**Tranche C Call Option Premium**” has themeaning set out in Clauses 7.3 (*VoluntaryPrepayment of Tranche A and Tranche C*).

 

“**Tranche C Commitment**” means:

 

(a)                                  inrelation to an Original Lender, the amount set below its name adjacent to theheading “Tranche C Commitment” in Part II of Schedule 1 hereto (*the Original Lenders*) and the amount ofany other Tranche C Commitment transferred to it under this Agreement; and

 

(b)                                 inrelation to any other Lender, the amount of any Tranche C Commitmenttransferred to it under this Agreement,

 

each to theextent not cancelled, reduced or transferred under this Agreement.

 

“**Tranche C Facility**” or “**Tranche C**”means the term loan facility to be made available by the Tranche C FacilityLenders pursuant to Clause 2.1(b) (*TrancheC Facility*).

 

“**Tranche C Lenders**” means those OriginalLenders providing Tranche C Commitments in Part II of Schedule 1hereto.

 

“**Transfer Certificate**” means a certificatesubstantially in the form set out in Schedule 5 (*Form of Transfer Certificates*) or anyother form agreed between the Facility Agent and the relevant Borrower.

 

“**Transfer Date**” means, in relation to atransfer, the later of:

 

(a)                                  theproposed Transfer Date specified in the Transfer Certificate; and

 

(b)                                 thedate on which the Facility Agent executes the Transfer Certificate.

 

“**Unpaid Sum**” means any sum due and payablebut unpaid by an Obligor under the Finance Documents.

 

“**Unrestricted Subsidiary**” means anySubsidiary of the Relevant Company that is designated by the board of directorsof the Relevant Company as an Unrestricted Subsidiary pursuant to a boardresolution, but only to the extent that such Subsidiary:

 

(a)                                  hasno Financial Indebtedness other than Non-Recourse Debt;

 

(b)                                 isnot party to any agreement, contract, arrangement or understanding with theRelevant Company or any Restricted Subsidiary of the Relevant Company unlessthe terms of any such agreement, contract, arrangement or understanding are noless favourable to the Relevant Company or such

 

32

----

 

RestrictedSubsidiary than those that might be obtained at the time of such designationfrom Persons who are not Affiliates of the Relevant Company;

 

(c)                                  isa Person with respect to which neither the Relevant Company nor any of its RestrictedSubsidiaries has any direct or indirect obligation (a) to subscribe foradditional Equity Interests or (b) to maintain or preserve such Person’sfinancial condition or to cause such Person to achieve any specified levels ofoperating results;

 

(d)                                 hasnot guaranteed or otherwise directly or indirectly provided credit support forany Financial Indebtedness of the Relevant Company or any of its RestrictedSubsidiaries; and

 

(e)                                  hasat least one director on its board of directors that is not a director orexecutive officer of the Relevant Company or any of its Restricted Subsidiariesand has at least one executive officer that is not a director or executiveofficer of the Relevant Company or any of its Restricted Subsidiaries.

 

Anydesignation of a Subsidiary of the Relevant Company as an UnrestrictedSubsidiary will be evidenced to the Facility Agent by filing with the FacilityAgent a certified copy of the board resolution of the Relevant Company givingeffect to such designation and an Officers’ Certificate certifying that suchdesignation complied with the preceding conditions and was permitted by Clause19.7 (*Limitation on Restricted Payments*).If, at any time, any Unrestricted Subsidiary would fail to meet the precedingrequirements as an Unrestricted Subsidiary, it will thereafter cease to be anUnrestricted Subsidiary for purposes of this Agreement and any FinancialIndebtedness of such Subsidiary will be deemed to be Incurred by a RestrictedSubsidiary of the Relevant Company as of the date it so fails to meet suchrequirements and, if such Financial Indebtedness is not permitted to beIncurred as of such date under Clause 19.6 (*Limitationon Financial Indebtedness*) the Relevant Company will be in defaultof such Section.  The board of directorsof the Relevant Company may at any time designate any Unrestricted Subsidiaryto be a Restricted Subsidiary; provided that any Financial Indebtedness of suchSubsidiary will be deemed to be Incurred by a Restricted Subsidiary of theRelevant Company of any outstanding Financial Indebtedness of such UnrestrictedSubsidiary and such designation will only be permitted if (1) suchFinancial Indebtedness is permitted under paragraph (1) of Clause 19.6 (*Limitation on Financial Indebtedness*),calculated on a pro forma basis as if such designation had occurred at thebeginning of the four-quarter reference period; and (2) no Default orEvent of Default would be in existence following such designation.

 

“**Utilisation**” means a utilisation of theFacility.

 

“**Utilisation Date**” means a Tranche A AdvanceUtilisation Date, and a Tranche C Advance Utilisation Date.

 

“**Utilisation Request**” means a noticesubstantially in the form set out in Part I of Schedule 3 (*Requests*).

 

33

----

 

“**VAT**” means value added tax as provided forin the Value Added Tax Act 1994 and any other tax of a similar nature.

 

“**Voting Shares**” of any Person as of any datemeans the Share Capital of such Person that is at the time entitled to vote(without regard to the occurrence of any contingency) in the election of theboard of directors (or persons performing similar functions) of such Person.

 

“**Website Lender**” has the meaning set out inClause 27.8 (*Use of Websites*).

 

“**Weighted Average Life to Maturity**” means,when applied to any Financial Indebtedness or Disqualified Share Capital at anydate, the number of years obtained by dividing:

 

(a)                                  thesum of the products obtained by multiplying (a) the amount of each thenremaining instalment, sinking fund, serial maturity or other required paymentsof principal, including payment at final maturity, in respect thereof, by (b) thenumber of years (calculated to the nearest one-twelfth) that will elapsebetween such date and the making of such payment; by

 

(b)                                 thethen principal amount or liquidation preference of such Financial Indebtednessor Disqualified Share Capital.

 

“**Wholly Owned Restricted Subsidiary**” of anyPerson means a Restricted Subsidiary of such Person all of the outstandingShare Capital or other ownership interests of which (other than directors’qualifying shares) shall at the time be owned by such Person and/or by one ormore Wholly Owned Restricted Subsidiaries of such Person.

 

“**Working Capital Changes**” means the changein the inventory, current liabilities and current receivables, each on a basisand determined in accordance with GAAP.

 

**1.2          Construction**

 

(a)           Unless a contrary indication appears,any reference in this Agreement to:

 

(i)                                     the“**Facility Agent**”, the “**Security Agent**”, any “**Lender**”, any “**Obligor**” or any “**Party**”or any other person shall be construed so as to include its successors intitle, permitted assigns and permitted transferees;

 

(ii)                                  the“**assets**” of a person shall beconstrued as a reference to all or any part of its present and future business,undertaking, property, shareholdings, assets and revenues (including any rightto receive revenues and uncalled capital);

 

(iii)                               this“**Agreement**”, a “**Finance Document**” or any other agreement,instrument or document includes references to such agreement, instrument ordocument as amended, supplemented, novated, reenacted and/or restated;

 

34

----

 

(iv)                              “**indebtedness**” includes any obligation(present or future, actual or contingent) for the payment or repayment of money,whether present or future, actual or contingent and whether as principal orsurety;

 

(v)                                 “**in the agreed terms**” means as agreedbetween the Relevant Company and the Facility Agent acting on the instructionsof the Majority Lenders;

 

(vi)                              a“**person**” includes any person,individual, firm, company, corporation, government, state or agency of a stateor any association, joint venture association, organisation, institution, trustor partnership (whether or not having separate legal personality) or two or moreof the foregoing;

 

(vii)                           a“**regulation**” includes anyregulation, rule, directive, request, guideline, order, decree, otherlegislative measure, code, circular, notice, demand or injunction (whether ornot having the force of law including those with which it is customary forpersons to whom it is directed to comply, even if compliance is not mandatory)of any governmental authority;

 

(viii)                        a**provision of law** includesreferences to such provision as re-enacted, amended or extended and anysubordinate legislation made under it;

 

(ix)                                a**time of day** is a reference toLuxembourg time;

 

(x)                                   “**clauses**”, “**paragraphs**” and “**schedules**”shall be construed as references to clauses and paragraphs of, and schedulesto, this Agreement;

 

(xi)                                one**gender** includes all genders, andreference to the singular includes the plural and vice versa;

 

(xii)                             “**including**” and “**in particular**” shall not be construed restrictively but shallmean “including, without prejudice to the generality of the foregoing” and “inparticular, but without prejudice to the generality of the foregoing”;

 

(xiii)                          “**writing**” includes facsimile transmissionlegibly received, or any electronic method of communication approved by theFacility Agent acting on the instructions of the Majority Lenders except in relationto any certificate, forecast, report, notice, resolution or other documentwhich is expressly required by this Agreement to be signed, and “**written**” has a corresponding meaning;

 

(xiv)      (A)                                     a**certified document** means suchdocument certified as genuine and in full force and effect or, if a copy, atrue, complete and up-to-date copy of the original in each case by a directorof the party providing the document or such other person as that party maydemonstrate to the Facility Agent’s

 

35

----

 

satisfactionacting on the instructions of the Majority Lenders has authority to providesuch a certificate;

 

(B)                                any**certificate** to be provided underthis Agreement or any Finance Document by a Borrower shall mean a certificatein the agreed terms, addressed to the Facility Agent and capable of beingrelied upon by the Finance Parties, dated and signed by an authorised signatoryof the relevant Borrower.

 

(b)                                 Theindex and any headings, sub-headings or footnotes in this Agreement are forease of reference and shall be ignored in construing this Agreement.

 

(c)                                  Unlessa contrary indication appears, a term used in any other Finance Document or inany notice given under or in connection with any Finance Document has the samemeaning in that Finance Document or notice as in this Agreement.

 

(d)                                 ADefault is “**continuing**” for thepurposes of the Finance Documents until (i) it is expressly waived and anyconditions of the waiver fulfilled to the Majority Lenders’ satisfaction (actingreasonably) or (ii) where the circumstances which caused it are capable ofremedy, until those circumstances have been remedied to the Majority Lenders’satisfaction (acting reasonably) and the position is as it would have been ifsuch Default had not occurred (and in the case of late delivery of a documentor withdrawal of a claim whose existence constituted a Default, that Defaultshall be deemed not to be continuing once delivery or withdrawal has occurred).

 

(e)                                  Any“**consent**”, “**waiver**” or “**approval**” required from a Finance Party under a FinanceDocument must be in writing and will be of no effect if not in writing.

 

(f)                                    “**EUR**” and “ **Euro**” means the single currency of the Participating MemberStates and “**SEK**” denotes thelawful currency of Sweden.

 

**1.3          Third party rights**

 

(a)                                  Unlessexpressly provided to the contrary in a Finance Document and other than withrespect to Clause 17 (*Representations*),19.19 (*Release*) and 19.21(Additional Lender Covenant) a person who is not a Party has no right under theContracts (Rights of Third Parties) Act 1999 (the “Third Parties Act”) toenforce or to enjoy the benefit of any term of this Agreement.

 

(b)                                 Notwithstandingany term of any Finance Document, the consent of any third party is notrequired for any variation (including any release or compromise of anyliability under) or termination of that Finance Document.

 

**1.4          Miscellaneous**

 

Unless thecontrary intention appears:

 

(a)                                  anamount in Euro is payable only in the Euro unit;

 

36

----

 

(b)                                 aterm used in any other Finance Document or in any notice given under or inconnection with any Finance Document has the same meaning in that FinanceDocument or notice as in this Agreement;

 

(c)                                  ifthere is an inconsistency between this Agreement and any other FinanceDocument, this Agreement will prevail; and

 

(d)                                 anyobligation of a Borrower or a Relevant Company or an Obligor under the FinanceDocuments which is not a payment obligation shall arise only after thatBorrower has been lent the proceeds of the relevant Tranche and shall remain inforce only for so long as any payment obligation (other than indemnities) ofthat Borrower, Relevant Company or Obligor is or may be outstanding under theFinance Documents.

 

**1.5          Obligations Several**

 

Notwithstandingany term of any other Finance Document, covenants, undertakings,representations and warranties and other obligations given by, or of, more thanone Obligor are several and pro rata to their respective total borrowings underthis Agreement and no Obligor shall be liable for the failure by any otherObligor to perform its obligations under any Finance Documents,.

 

37

----

 

**SECTION 2**

**THEFACILITY**

 

**2              THEFACILITY**

 

**2.1          The Facility**

 

Subject to theterms of this Agreement:

 

(a)                                  **Tranche A Facility**: The Lenders makeavailable to the Tranche A Borrower a Euro term loan facility in a maximumaggregate initial principal amount not exceeding the Total Tranche ACommitments of EUR 45,000,000.00, secured by the Security Interests providedfor in the security documents described in Part IA of Schedule 2hereto;

 

(b)                                 **Tranche C Facility**: The Lenders makeavailable to the Tranche C Borrower a Euro term loan facility in a maximumaggregate initial principal amount not exceeding the Total Tranche CCommitments of EUR 25,000,000.00, secured by the Security Interests providedfor in the security documents described in Part IC of Schedule 2hereto.

 

**2.2          Finance Parties’ rights andobligations**

 

(a)                                  Theobligations of each Finance Party under the Finance Documents are several.  Failure by a Finance Party to perform itsobligations under the Finance Documents does not affect the obligations of anyother Party under the Finance Documents. No Finance Party is responsible for the obligations of any other FinanceParty under the Finance Documents.

 

(b)                                 Therights of each Finance Party under or in connection with the Finance Documentsare separate and independent rights and any debt arising under the FinanceDocuments to a Finance Party from the Obligors shall be a separate andindependent debt.

 

(c)                                  AFinance Party may, except as otherwise stated in the Finance Documents,separately enforce its rights under the Finance Documents.

 

(d)                                 EachObligor and each of the Finance Parties agrees that the Security Agent shall bethe joint and several creditor of each obligation of that Obligor towards anyof the Finance Parties under any Finance Document, and that accordingly theSecurity Agent will have its own independent right to require and receiveperformance by that Obligor of those obligations.  However, any discharge of any such obligationto one of the Security Agent or a Finance Party shall, to the same extent,discharge the corresponding obligation owing to the other.

 

(e)                                  Withoutlimiting or affecting the Security Agent’s rights against each Obligor (whetherunder this paragraph or under any other provision of the Security Documents),the Security Agent agrees with each other Finance Party (on a several dividedbasis) that, subject as set out in the next sentence, it will not

 

----

 

exercise itsrights as a joint and several creditor with a Finance Party except with theconsent of the relevant Finance Party. However, for the avoidance of doubt, nothing in the previous sentence shallin any way limit the Security Agent’s right to act in the protection orpreservation of rights under or to enforce any Security Document, ascontemplated by this Agreement or the relevant Security Document (or to do anyact reasonably incidental to any of the foregoing).

 

(f)            The Tranche ABorrower shall notify the Facility Agent of the Closing Date at least oneBusiness Day before such date.

 

**2.3          Maximum aggregate principal amount**

 

Notwithstandingthe provisions of Clause 2.1 above, the principal amount of any Facility mayexceed the total Commitments in respect of that Facility if and insofar as CashInterest or Compound Interest ha s been added to the principal amount of thatFacility pursuant to Clause 8 below (*Interest*).

 

**3              PURPOSE**

 

**3.1          Purpose**

 

(a)                                  **Tranche A Facility**: The Tranche A Borrowershall apply the proceeds of amounts drawn down under the Tranche A Facility inaccordance with the Agreed Costs Schedule and the Structure Paper;

 

(b)                                 **Tranche C Facility**: The Tranche C Borrowershall apply the proceeds of amounts drawn under the Tranche C Facility pursuantto the Agreed Costs Schedule and the Structure Paper.

 

**3.2          Financial Assistance**

 

No proceeds ofany Utilisation hereunder shall be applied in a manner which may be prohibitedby any financial assistance or other similar laws in any relevant jurisdiction.

 

**3.3          Monitoring**

 

No FinanceParty is bound to monitor or verify the application of proceeds of anyUtilisation.

 

**4              CONDITIONSOF UTILISATION**

 

**4.1          Initialconditions precedent**

** **

(a)                                  **Tranche A**

 

The Tranche ABorrower may not deliver a Utilisation Request in relation to Tranche A unlessthe Facility Agent has notified the Tranche A Borrower that the Facility Agenthas received all of the documents and evidence listed in Part IA of Schedule 2(*Conditions precedent*), in formand substance satisfactory to the Facility Agent acting

 

39

----

 

on theinstructions of the Majority Tranche A Lenders (each acting reasonably).  The Facility Agent shall give this noticepromptly upon being so satisfied.

 

(b)                                 **Tranche C**

 

The Tranche CBorrower may not deliver a Utilisation Request unless the Facility Agent hasnotified the Tranche C Borrower that the Facility Agent has received all of thedocuments and evidence listed in Part I C of Schedule 2 (*Conditions precedent*), (save for suchdocuments and evidence that is only required in relation to Tranche A) in formand substance satisfactory to the Facility Agent acting on the instructions ofthe Majority Tranche C Lenders (each acting reasonably).  The Facility Agent shall give this noticepromptly upon being so satisfied.

 

**4.2          Further conditions precedent**

 

The obligationof each Lender to participate in any Utilisation under a Facility is subject tothe further condition precedent that, on the date of the Utilisation Requestand on the proposed Utilisation Date:

 

(a)                                  noDefault is continuing or would result from the proposed Utilisation; and

 

(b)                                 theRepeating Representations to be made by the Borrower under that Facility are truein all material respects.

 

**4.3          Maximum number of Advances**

 

The Tranche ABorrower may not deliver more than one Utilisation Request in respect of theTranche A Facility.  The Tranche CBorrower may make multiple Utilisation Requests in relation to Tranche C.

 

40

----

 

**SECTION 3**

**UTILISATION**

 

**5**                                         **UTILISATION**

 

**5.1          Delivery of a Utilisation Request**

 

(a)                                  TheTranche C Borrower may utilise the Tranche C Facility by delivery to theFacility Agent of a duly completed Utilisation Request not later than 10 a.m.Luxembourg time on the date of the signing of this Agreement.

 

(b)                                 TheTranche A Borrower may utilise the Tranche A Facility by delivery to theFacility Agent of a duly completed Utilisation Request not later than 10 a.m.Luxembourg time on the date which is three Business Days before the day of theproposed Advance.

 

**5.2          Completion of a Utilisation Request**

 

(a)                                  EachUtilisation Request is irrevocable and will not be regarded as having been dulycompleted unless:

 

(i)            the proposed Utilisation Date is aBusiness Day within the relevant Availability Period; and

 

(ii)           the amount of the Utilisationcomplies with Clause 5.3 (*Currency andamount*)

 

**5.3          Currency and amount**

 

(a)           The currency specified in aUtilisation Request must be in Euros.

 

(b)           The amount of a proposed Advancespecified in a Utilisation Request must be:

 

(i)            in relation to the Tranche AAdvance, EUR 45,000,000;

 

(ii)                                  inrelation to any Tranche C Advance, an amount which is not more than TotalTranche C Commitments and which is a minimum of EUR 5,000,000.

 

**5.4          Lenders’ participation in Advances**

 

(a)                                  Ifthe relevant conditions set out in this Agreement have been met each Lendershall make its participation in each Advance available to the Facility Agent bythe Utilisation Date therefore through its Facility Office.

 

(b)                                 Theamount of each Lender’s participation in each Advance under a Facility will beequal to the proportion borne by its Available Commitment to the AvailableFacility immediately prior to making the Advance in each case under thatFacility.

 

----

 

**SECTION 4**

**REPAYMENT,PREPAYMENT AND CANCELLATION**

 

**6**                                         **REPAYMENT**

 

6.1                                 Subjectto the provisions of this Agreement the Tranche A Borrower shall repay theTranche A Facility in full on the Final Repayment Date.

 

6.2                                 IfTranche C is not prepaid in accordance with sub-Clause 7.2 (*Mandatory Repayment – Tranche C*) then theTranche C Borrower shall repay Tranche C in full on the Final Repayment Date.

 

**7              PREPAYMENTAND CANCELLATION**

** **

**7.1          Mandatory Prepayment – Change ofControl**

 

(a)                                  Ifa Change of Control occurs:

 

(i)            the Borrower shall promptly notifythe Facility Agent upon becoming aware of that event;

 

(ii)                                  ifthe Majority Lenders so require, the Facility Agent shall, by not less than 30days notice to the relevant Borrower, cancel the Facility and declare alloutstanding Advances, together with accrued interest, and all other amountsaccrued under the Finance Documents immediately due and payable, whereupon theFacility will be cancelled and all such outstanding amounts will becomeimmediately due and payable.

 

**7.2          Mandatory Prepayment – Tranche C**

 

On the TrancheA Advance Utilisation Date, the Tranche C Borrower shall, subject to Clause 7.9(*Permitted Prepayments and Repayments*)and the provisions of this Clause 7.2, prepay all Tranche C Advancesoutstanding.  For the purposes of thisClause 7.2, the amount of the Tranche C Advance shall be determined ignoringany accrued but unpaid Cash Interest and all Compound Interest and CashInterest that has been added to the principal amount thereof in accordance withthis Agreement.  On the Tranche A AdvanceUtilisation Date, all such interest (including capitalised interest) on theTranche C Facility shall up to the amount specified in the Structure Paper bepaid to the Tranche C Lenders by the Tranche A Borrower in cash and allinterest which is accrued but remains unpaid (including capitalised interest)on the Tranche C Facility and all other sums outstanding under this Agreementin relation to Tranche C (excluding, for the avoidance of doubt, the principalamount of the Tranche C Advance as determined in accordance with this Clause7.2) shall automatically be novated to the Tranche A Borrower and shallthereafter be deemed to be added to the principal amount of the Tranche AAdvance.  Nothing in this Clause 7.3shall act to reduce the Available Commitment of any Lender in respect of anyFacility.

 

----

 

**7.3          Voluntary prepayment of Tranche A andTranche C**

 

(a)                                  Novoluntary prepayment of the Tranche A Facility may be made during the period 12months from the Tranche A Advance Utilisation Date.  Thereafter, subject to Clause 7.9 (*Permitted Prepayments and Repayments*), theTranche A Borrower may, if it gives the Facility Agent no less than ten (10) BusinessDays (or such shorter period as the Majority Lenders may agree) prior notice,prepay the whole or any part of the Tranche A Facility (but if in part, beingan amount that reduces the amount of the Tranche A Facility by a minimum amountof EUR 5,000,000) at par plus the following premium (the “**Tranche A Call Option Premium**”);

 

(i)                                     duringthe period commencing 12 months from the Tranche A Advance Utilisation Date(the “**First Period**”) until theSecond Period (as defined below), the Tranche A Call Option Premium shall be anamount which is equal to the product of (A) the amount of the Tranche AFacility which is being prepaid and (B) an annual rate which is equal tothe sum of (x) 6 months EURIBOR (using a Quotation Day two Business Days beforethe voluntary prepayment is made) and (y) 650bps;

 

(ii)                                  duringthe period commencing 24 months from the Tranche A Advance Utilisation Date(the “**Second Period**”) until theThird Period (as defined below), the Tranche A Call Option Premium shall be anamount which is equal to the product of (A) the amount of the Tranche AFacility which is being prepaid and (B) 50% of an annual rate which isequal to the sum of (x) 6 months EURIBOR (using a Quotation Day two BusinessDays before the voluntary prepayment is made) and (y) 650bps;

 

(iii)                               duringthe period commencing 36 months from the Tranche A Advance Utilisation Date(the “**Third Period**”) until theFourth Period (as defined below), the Tranche A Call Option Premium shall be anamount which is equal to the product of (A) the amount of the Tranche AFacility which is being prepaid and (B) 25% of an annual rate which isequal to the sum of (x) 6 months EURIBOR (using a Quotation Day two BusinessDays before the voluntary prepayment is made) and (y) 650bps;

 

(iv)                              duringthe period commencing 48 months from the Tranche A Advance Utilisation Date anduntil the Final Repayment Date (the “**FourthPeriod**”), the Tranche A Call Option Premium shall be zero;

 

where “par” isan amount equal to the sum of (a) outstanding Advances under Tranche Abeing prepaid (b) Cash Interest and Compound Interest accrued and unpaidthereon up to the date of prepayment; and (c) the Tranche A Lenders’ costsand expenses then due and payable by Bus and not previously paid by Bus andshall exclude any other premium, penalty or Break Costs.

 

(b)                                 TheTranche C Borrower may not voluntarily prepay the Tranche C Advances until thedate which is 12 months from the first Tranche C Advance Utilisation

 

43

----

 

Date.  Thereafter, subject to Clause 7.9 (*Permitted Prepayments and Repayments*), itmay, if it gives the Facility Agent no less than ten (10) Business Days(or such shorter period as the Majority Lenders may agree) prior notice, prepaythe whole or any part of the Tranche C Facility (but if in part, being anamount that reduces the amount of the Tranche C Facility by a minimum amount ofEUR 5,000,000 at the following rate (the “**TrancheC Call Option Premium**”) each without penalty or Break Costs:

 

(i)                                     duringthe period commencing 12 months from the Tranche C Advance Utilisation Date(the “**First Period**”) until theSecond Period (as defined below), the Tranche C Call Option Premium shall be anamount which is equal to the product of (A) the amount of the Tranche CFacility which is being prepaid and (B) an annual rate which is equal tothe sum of (x) 6 months EURIBOR (using a Quotation Day two Business Days beforethe voluntary prepayment is made) and (y) 650bps;

 

(ii)                                  duringthe period commencing 24 months from the Tranche C Advance Utilisation Date (the“**Second Period**”) until the ThirdPeriod (as defined below), the Tranche C Call Option Premium shall be an amountwhich is equal to the product of (A) the amount of the Tranche C Facilitywhich is being prepaid and (B) 50% of an annual rate which is equal to thesum of (x) 6 months EURIBOR (using a Quotation Day two Business Days before thevoluntary prepayment is made) and (y) 650bps;

 

(iii)                               duringthe period commencing 36 months from the Tranche C Advance Utilisation Date(the “**Third Period**”) until the FourthPeriod (as defined below), the Tranche C Call Option Premium shall be an amountwhich is equal to the product of (A) the amount of the Tranche C Facilitywhich is being prepaid and (B) 25% of an annual rate which is equal to thesum of (x) 6 months EURIBOR (using a Quotation Day two Business Days before thevoluntary prepayment is made) and (y) 650bps;

 

(iv)                              duringthe period commencing 48 months from the Tranche C Advance Utilisation Date anduntil the Final Repayment Date (the “**FourthPeriod**”), the Tranche C Call Option Premium shall be zero;

 

where “par” isan amount equal to the sum of (a) outstanding Advances under Tranche Cbeing prepaid (b) Cash Interest and Compound Interest accrued and unpaidthereon up to the date of prepayment; and (c) the Tranche C Lenders’ costsand expenses then due and payable by Holding and not previously paid by Holdingand shall exclude any other premium, penalty or Break Costs.

 

(c)                                  Uponrepayment or prepayment in full of the Tranche A Facility or the Tranche CFacility, the Facility Agent shall direct the Security Agent, and upon receiptof that direction the Security Agent, together with the Lenders in respect ofthe Facility that has been prepaid shall take all steps and shall executeamendments and documents as may be necessary to ensure the release of anySecurity Interests which have been granted to the Security Agent on

 

44

----

 

behalf of theLenders with respect to that Facility, provided that the Security Agent will onlyact on the direction given to it by the Facility Agent and subject to theprovisions of Clause 23 (*Role of Agent*).

 

**7.4          Mandatory cancellation**

 

The undrawnCommitment of each Lender in relation to a Facility will be automaticallycancelled at the close of business on the last day of the Availability Periodfor that Facility.

 

**7.5          Prepayments during Interest Periods**

 

In the event aprepayment under this Clause 7 would otherwise be required on a day (the “**Payment Date**”) that is not the last day ofan Interest Period, the Borrower which is liable to make such prepayment mayelect (by written notice to the Facility Agent to be received by it no laterthan five (5) Business Days prior to such Payment Date) to prepay theAdvances on the next day after such Payment Date that is the last day of anInterest Period provided that such next day is less than ninety (90) days aftersuch Payment Date.  The provisions ofClause 7.3(a) and (b) shall not apply to any payment made inaccordance with Clause 8.7 (*Late Payment ofCash Interest*).

 

**7.6          Right of repayment and cancellation inrelation to a single Lender**

 

(a)           If:

 

(i)                                     anysum payable to any Lender by an Obligor is required to be increased underparagraph (c) of Clause 12.2 (*Tax grossup*)*,* or

 

(ii)                                  anyLender claims indemnification from a Borrower under Clause 12.3 (*Tax indemnity*) or Clause 13.1 (*Increased costs*),

 

the Borrowerwhich is liable to make such payment may, whilst the circumstance giving riseto the requirement or indemnification continues, give the Facility Agent noticeof cancellation of the Commitment of that Lender and its intention to procurethe repayment of that Lender’s participation in the Advances.  In addition, the Borrower shall have theright to procure the repayment of the Lender’s participation in the Advances bya third party.  On receipt of such noticeby the Facility Agent, the Lender named in the notice will be obliged to acceptsuch repayment provided that the terms of such repayment are no less favourableto that Lender than would be the case if the repayment were a prepayment underClause 7.3.

 

(b)                                 Onreceipt of a notice referred to in paragraph (a) above, the Commitment ofthat Lender shall immediately be reduced to zero.

 

(c)                                  Onthe last day of each Interest Period which ends after a Borrower has givennotice to a Lender under paragraph (a) above (or, if earlier, the datespecified by the relevant Borrower in that notice) that Borrower shall repaythat Lender’s participation in the Loan.

 

45

----

 

**7.7          Restrictions**

 

(a)                                  Anynotice of cancellation or prepayment given by any Party under this Clause 7shall be irrevocable and, unless a contrary indication appears in thisAgreement, shall specify the date or dates upon which the relevant cancellationor prepayment is to be made, the affected Advances and Commitments and theamount of that cancellation or prepayment.

 

(b)                                 Anyprepayment under this Agreement shall be made (x) other than in the case of aprepayment of the Tranche C Advance in accordance with Clause 7.2 together withaccrued interest on the amount prepaid and (y) without premium or penalty, save(i) any Call Option Premium payable under Clause 7.3 (*Voluntary Prepayment of Tranche A and Tranche C*),and (ii) any Break Costs payable under Clause 10.4 (*Break Costs*).

 

(c)           A Borrower may not re-borrow any partof the Facilities which it has prepaid.

 

(d)                                 ABorrower shall not repay or prepay all or any part of the Advances or cancelall or any part of the Commitments except at the times and in the mannerexpressly provided for in this Agreement.

 

(e)                                  Noamount of the Commitments cancelled under this Agreement may be subsequentlyreinstated.

 

(f)                                    Ifthe Facility Agent receives a notice under this Clause 7 it shall promptlyforward a copy of that notice to either the relevant Borrower or the affectedLender or Lenders, as appropriate.

 

**7.8          Order of Payment under theSubordinated Shareholder Loan**

 

(a)                                  TheTranche C Borrower shall grant a pledge over the SSL Account in favour of theSecurity Agent for the benefit of the Tranche C Lenders. The agreement creatingsuch pledge shall be in substantially the form submitted to the Lenders priorto the signing of this Agreement and shall be submitted to the Facility Agent,signed on behalf of the Tranche C Borrower, in accordance with Schedule 2hereto.

 

(b)                                 Theaccount authorisation in the form set out in Schedule 7 to this agreement(the “**Account Authorisation**”)shall require that the Account Bank apply any funds received in respect ofinterest or principal under the Subordinated Shareholder Loan into the SSLAccount from time to time in accordance with the directions of the FacilityAgent which directions shall be given in compliance with paragraphs (g) and(i) below.

 

(c)                                  TheFacility Agent shall (subject to the provisions of Clause 23 (*Role of Agent*)) promptly following receiptof the document set out in paragraph (a) above from the Tranche C Borrower(i) sign the draft Account Authorisation as set out in Schedule 7 ofthis Agreement, (ii) submit the Account Authorisation and the SSL Accountpledge agreement so received to the Security Agent for signing, and (iii) instructthe Security Agent to sign such documents in accordance with the authority ofthe Lenders which authority

 

46

----

 

shall bedeemed to be irrevocably given by each Lender by virtue of the signing of thisAgreement.

 

(d)                                 TheSecurity Agent shall (subject to the provisions of Clause 23 (*Role of Agent*)), if so instructed by theFacility Agent, (i) sign the pledge and retain a copy for its own recordsand (ii) sign the Account Authorisation as sent to it by the FacilityAgent and return it to the Facility Agent.

 

(e)                                  Onreceipt of the signed Account Authorisation, the Facility Agent shall submit itto the Account Bank.

 

(f)                                    TheTranche C Borrower shall procure that all payments made by Nordic from time totime in respect of interest and principal under the Subordinated ShareholderLoan shall be paid directly into the SSL Account.  The Tranche A Borrower shall procure that anypayments made by Nordic from time to time after the Tranche A AdvanceUtilisation Date in respect of interest and principal under the SubordinatedShareholder Loan shall be paid into the SSL Account.

 

(g)                                 TheFacility Agent shall, on or prior to each Interest Payment Date, provide to theAccount Bank a notice (an “**Interest PaymentNotice**”) in substantially the form set out in Part I of Schedule 9hereto, which shall set out the amount of Cash Interest due on the Tranche CFacility or, as the case may be, the Tranche A Facility on the forthcomingInterest Payment Date.  The InterestPayment Notice shall include an instruction to the Account Bank to pay any sumsreceived to the credit of the SSL Account:

 

(i)                                     *first,* to the Facility Agent, until thesums so received in that Interest Period are equal to the aggregate amount ofCash Interest set out in the Interest Payment Notice; and

 

(ii)                                  *second*, to Bus (as pledgee under theSecond Ranking Pledge over the Subordinated Shareholder Loan) to the extent ofany amount received by it under the Subordinated Shareholder Loan during anInterest Period which is in excess of the payment to be made by the relevantBorrower during that Interest Period pursuant to paragraph (i) above.

 

(h)                                 Ifrequested by the Tranche A Borrower, on or after the Tranche A AdvanceUtilisation Date, the SSL Account may be substituted with an account of theTranche A Borrower in respect of which the instructions from the Tranche CBorrower, the Facility Agent and the Security Agent referred to in paragraphs (a) to(g) above shall be given once again by each relevant party in relation tothe new SSL Account and the terms of these paragraphs shall apply *mutatis mutandis* to the operation of suchaccount, with references to the Tranche C Borrower being read as references tothe Tranche A Borrower.  Such new SSLAccount will be pledged by the Tranche A Borrower to the Security Agent for thebenefit of the Tranche A Lenders.

 

(i)                                     Whenthe Facility Agent receives a notice that the Tranche C Facility or, as thecase may be, the Tranche A Facility is to be repaid or prepaid in accordancewith the terms of Clause 7.3 (*VoluntaryPrepayments*), or when

 

47

----

 

the Tranche CFacility or, as the case may be, the Tranche A Facility, is to be otherwiserepaid in its entirety in accordance with the terms of this Agreement, theFacility Agent shall in either case promptly issue a notice to the Account Bankin substantially the form set out in Part II of Schedule 9 hereto(such notice being, in the case of a prepayment, a “**Prepayment Notice**” or, in the case of a repayment, a ‘**Repayment Notice**”).  Following receipt of the amount to be repaidor prepaid the Facility Agent shall distribute the amount so received to theTranche A Lenders or, as the case may be, the Tranche C Lenders and shall, assoon as possible thereafter, issue a new Interest Payment Notice to the AccountBank under clause (g) above setting out the amount of Cash Interestremaining due in respect of the Tranche C Facility or, as the case may be, theTranche A Facility for the remainder of that Interest Period.

 

(j)                                     TheFacility Agent shall apply all funds received from the SSL Account towardspayment of the Tranche C Facility or, as the case may be, the Tranche AFacility as soon as is practicable after receipt thereof.

 

**7.9          Payments under the Intra-Group CapitalContribution**

 

The Tranche CBorrower shall procure that all payments made by Nordic from time to time inrespect of interest and principal under the Intra-Group Capital Contributionshall be paid directly into the SSL Account. The Tranche A Borrower shall procure that any payments made by Nordicfrom time to time after the Tranche A Advance Utilisation Date in respect ofinterest and principal under the Intra-Group Capital Contribution shall be paidinto the SSL Account.  Any sums receivedthe SSL Account pursuant to this Clause 7.9 shall be applied in accordance withthe terms of Clause 7.8 above and the instructions and notices issued pursuantthereto.

 

**7.10        PermittedPrepayments and Repayments**

 

An amount isonly required to be applied in prepayment or repayment of the Facility underClause 6 and this Clause 7 if to do so is permitted under the other FinanceDocuments and Senior Notes Indenture and related documents and provided thatthe Facility Agent is not required to verify that any prepayment made pursuantto this Clause 7 is permitted under any other Finance Document and the SeniorNotes Indenture and such related documents.

 

48

----

 

**SECTION 5**

**COSTSOF UTILISATION**

 

**8**                                         **INTEREST**

 

**8.1          Calculation of interest**

 

The rate ofinterest on the Tranche A Advance and each Tranche C Advance for each InterestPeriod in relation thereto is the percentage rate per annum which is theaggregate of the applicable:

 

(a)           Cash Margin;

 

(b)           Compound Margin;

 

(c)           EURIBOR; and

 

(d)           Mandatory Cost, if any,

 

in each casefor that Interest Period.

 

**8.2          Payment of Cash Interest**

 

(a)                                  EachBorrower shall subject to the last sentence of Clause 8.5(a) and thisClause 8.2 pay accrued Cash Interest on each Advance made to it on the last dayof each Interest Period (and, if the Interest Period is longer than six Months,on the dates falling at six Monthly intervals after the first day of theInterest Period during that Interest Period). Subject to Clause 8.7, Cash Interest not paid by the Tranche A Borrowerand/or the Tranche C Borrower on any Interest Payment Date for each InterestPeriod shall, be added to the relevant Advance as principal amount on the firstday of the next Interest Period.  For theavoidance of doubt, Compound Interest shall be treated in accordance withsub-Clause 8.3.

 

(b)                                 Therelevant Borrower shall give the Facility Agent at least two Business Days’notice prior to making a payment of Cash Interest with respect to any Facility.

 

**8.3          Compound Interest**

 

In addition tosub-Clause 8.2 above, interest on each Tranche A Advance and Tranche C Advancefor each Interest Period relating thereto shall accrue during each InterestPeriod at the rate equal to the Compound Margin and the amount of interest soaccrued on each Tranche A Advance and Tranche C Advance shall be added to therelevant Advance as principal amount on the first day of the next InterestPeriod.

 

**8.4          Calculation**

 

Interest willaccrue daily from and including the first day of each Interest Period and shallbe calculated on the basis of a 360 day year.

 

----

 

**8.5          Default interest**

 

(a)                                  Ifan Obligor does not pay any amount payable by it under a Finance Document onits due date, interest shall accrue on the overdue amount from the due date upto the date of actual payment (both before and after judgment) at a rate 2 percent. higher than the rate which would have been payable if the overdue amounthad, during the period of non-payment, constituted an Advance in the currency of the overdue amount for successive Interest Periods, each of a durationselected by the Facility Agent (acting reasonably).  For the avoidance of doubt, if Cash Interestis not paid by the Borrower for any reason whatsoever the terms of this Clause8.5 shall not apply to the amount of such Cash Interest and there shall be nodefault or breach of the Finance Documents by that Borrower.

 

(b)                                 Anyinterest accruing under this Clause 8.5 (*Defaultinterest*) shall be immediately payable by the Obligor on demand bythe Facility Agent.

 

(c)                                  Defaultinterest (if unpaid) arising on an overdue amount will be compounded with theoverdue amount at the end of each Interest Period applicable to that overdueamount but will remain immediately due and payable.

 

**8.6          Notification of rates of interest**

 

The FacilityAgent shall promptly notify the Lenders and the relevant Borrower of thedetermination of a rate of interest under this Agreement.

 

**8.7          Late payment of Cash Interest whichhas been compounded**

 

Subject toClause 8.2(b), if any Cash Interest on the Tranche A Advance or the Tranche CAdvance has been added to the relevant Advance as principal amount pursuant tothe second sentence of Clause 8.2 above, the relevant Borrower may, at any timeprior to the date which is five Business Days before the Interest Payment Dateimmediately following the Interest Payment Date on which such Cash Interest hasbeen so added, pay to the Facility Agent an amount equal to all or part of suchCash Interest which has been added to the relevant Advance in the mannerdescribed herein, provided that the Borrower has given the Facility Agent atleast two Business Days’ notice of such payment and provided further that eachBorrower may in any case make no more than three payments under this Clause 8during any Interest Period.  The TrancheA Call Option Premium, or the Tranche C Call Option Premium (as the case maybe) shall not be payable with respect to the Cash Interest payment made inaccordance with this Clause 8.7.  Theamount paid in respect of Cash Interest herein shall be deemed to be deductedfrom the principal amount outstanding on the relevant Facility on the first dayof the Interest Period during which such payment is made.  Payment made under this Clause will notresult in any penalty or Break Costs being payable.  Notwithstanding any of the foregoing, theTranche A Borrower may not make any payment pursuant to this Clause 8.7 duringthe period between (and excluding) the Tranche A Advance Utilisation Date andthe Interest Payment Date immediately thereafter.

 

50

----

 

**9**                                         **INTEREST PERIODS**

 

(a)                                  EachInterest Period shall be no longer than six (6) months provided that anInterest Period for an Advance shall not extend beyond the Final RepaymentDate.

 

(b)                                 EachInterest Period for an Advance shall start, if such Interest Period is thefirst Interest Period for the Advance, on the Utilisation Date for the Advanceand once the Advance has been advanced on the last day of its precedingInterest Period.

 

**9.2          Non-Business Days**

 

If an InterestPeriod would otherwise end on a day which is not a Business Day, that InterestPeriod will instead end on the next Business Day in that calendar month (ifthere is one) or the preceding Business Day (if there is not).

 

**9.3          Other adjustments**

 

The FacilityAgent and a Borrower may enter into such other arrangements as they may agreefor the adjustment of Interest Periods with respect to that Borrower.

 

**9.4          Notification**

 

The FacilityAgent shall notify each Borrower and each Lender of the duration of eachInterest Period promptly after ascertaining its duration.

 

**10           CHANGESTO THE CALCULATION OF INTEREST**

** **

**10.1        Absence of quotations**

 

Subject toClause 10.2 (*Market disruption*),if EURIBOR is to be determined by reference to the Reference Banks but aReference Bank does not supply a quotation by noon on the Quotation Day, theapplicable EURIBOR shall be determined on the basis of the quotations of the remainingReference Banks.

 

**10.2        Market disruption**

 

If a MarketDisruption Event occurs in relation to an Advance for any Interest Period, thenthe rate of interest on each Lender’s share of that Advance for the InterestPeriod shall be the rate per annum which is the sum of:

 

(a)           the Cash Margin;

 

(b)           the Compound Margin (whereapplicable);

 

(c)           LIBOR; and

 

(d)           the Mandatory Cost, if any,applicable to that Lender’s participation in the Advance.

 

51

----

 

**10.3        Alternative basis of interest or funding**

 

(a)                                  Ifa Market Disruption Event occurs and the Facility Agent or a Borrower sorequires, the Facility Agent and that Borrower shall enter into negotiations(for a period of not more than thirty days) with a view to agreeing asubstitute basis for determining the rate of interest payable by that Borrower.

 

(b)                                 Anyalternative basis agreed pursuant to paragraph (a) above shall, with theprior consent of all the Lenders and the relevant Borrower, be binding on allParties.

 

**10.4        Break Costs**

 

(a)                                  Saveas otherwise provided herein, a Borrower shall, within three (3) BusinessDays of demand by a Finance Party, pay to that Finance Party its Break Costsattributable to all or any part of an Advance or Unpaid Sum being paid by thatBorrower on a day other than the last day of an Interest Period for thatAdvance or Unpaid Sum.

 

(b)                                 EachLender shall, as soon as reasonably practicable after a demand by the FacilityAgent, provide a certificate confirming the amount of its Break Costs for anyInterest Period in which they accrue.

 

(c)                                  Forthe avoidance of doubt, Break Costs shall not be payable with respect to anypayment made under Clause 8.7 (*Late Paymentof Cash Interest which has been compounded*) or with respect to anyprepayment of the Tranche A Facility or the Tranche C Facility pursuant toClause 7.2 (*Mandatory Prepayment of TrancheC*) or 7.3 (*Voluntary Prepaymentof Tranche A and Tranche C*).

 

**11**                                  **FEES**

 

**11.1        Commitment fee**

 

The Tranche ABorrower shall, on the Tranche A Advance Utilisation Date upon receipt of theproceeds of the Tranche A Advance, pay to the Facility Agent on account of theTranche A Lenders commitment fees in the amounts and at the time agreed in theFees Letter.  The Tranche C Borrowershall, on a Tranche C Advance Utilisation Date, pay to the Facility Agent onaccount of the Tranche C Lenders commitment fees in the amounts and at the timeagreed in the Fees Letter.

 

**11.2        Funding Fee**

 

The Tranche ABorrower shall, on the Tranche A Advance Utilisation Date upon receipt of theproceeds of the Tranche A Advance, pay to the Facility Agent on account of theTranche A Lenders funding fees in the amounts and at the time agreed in theFees Letter.  The Tranche C Borrowershall, on a Tranche C Advance Utilisation Date, pay to the Facility Agent onaccount of the Tranche C Lenders funding fees in the amounts and at the timeagreed in the Fees Letter.

 

52

----

 

**11.3        Facility Agent’s fee**

 

The Tranche ABorrower or the Tranche C Borrower, as applicable, shall pay to the FacilityAgent (for its own account) an agency fee in the amount and at the time agreedin the Fees Letter or any other agreement setting out the fees agreed betweenthe Facility Agent, the Tranche A Borrower and the Tranche C Borrower (asapplicable).

 

**11.4        Security Agent’s Fee**

 

The Tranche ABorrower or the Tranche C Borrower, as applicable, shall pay to the SecurityAgent (for its own account) an agency fee in the amount and at the time agreedin the Fees Letter or any other agreement setting out the fees agreed betweenthe Security Agent, the Tranche A Borrower and the Tranche C Borrower (asapplicable).

 

**11.5        Exclusion of Fees**

 

For theavoidance of doubt (i) any fee referred to in sub-clauses 11.1 and 11.2above shall not be payable if the Facility with respect to which that fee ispayable is not utilised, (ii) the Tranche A Borrower shall not be liablein respect of fees referred to in sub-clause 11.4 above before the Tranche AAdvance Utilisation Date and (iii) nothing in this clause 11 affects theliability for payment of professional fees, then remaining unpaid.

 

53

----

 

**SECTION 6**

**ADDITIONALPAYMENT OBLIGATIONS**

 

**12           TAXGROSS UP AND INDEMNITIES**

** **

**12.1        Definitions**

 

In this Clause12:

 

(a)                                  “**Protected Party**” means a Finance Partywhich is or will be, for or on account of Tax, subject to any liability orrequired to make any payment in relation to a sum received or receivable (orany sum deemed for the purposes of Tax to be received or receivable) under aFinance Document.

 

(b)                                 “**Tax Credit**” means a credit against, reliefor remission for, or repayment of, any Tax.

 

(c)                                  “**Tax Payment**” means either the increase in apayment made by a Borrower to a Finance Party under Clause 12.2 (*Tax gross-up*) or a payment under Clause12.3 (*Tax indemnity*).

 

**12.2        Tax gross-up**

 

(a)                                  Eachrelevant Borrower shall make all payments to be made by it without any TaxDeduction, unless a Tax Deduction is required by law.

 

(b)                                 Ifa Borrower or a Lender is aware that it must make a Tax Deduction (or thatthere is any change in the rate or the basis of a Tax Deduction), it mustpromptly notify the Facility Agent. Similarly, a Lender shall notify theFacility Agent on becoming so aware in respect of a payment to that Lender. TheFacility Agent must then promptly notify the affected Parties.

 

(c)                                  Ifa Tax Deduction is required by law to be made by a Borrower or the FacilityAgent the amount of the payment due from that Borrower shall be increased to anamount which (after making any Tax Deduction) leaves an amount equal to thepayment which would have been due if no Tax Deduction had been required.

 

(d)                                 Ifa Borrower is required to make a Tax Deduction, it must make the minimum TaxDeduction allowed by law and must make any payment required in connection withthat Tax Deduction within the time allowed by law.

 

(e)                                  Withinthirty (30) days of making either a Tax Deduction or any payment required inconnection with that Tax Deduction, the respective Borrower must deliver to theFacility Agent for the Finance Party entitled to the payment evidencereasonably satisfactory to that Finance Party that the Tax Deduction has beenmade or (as applicable) any appropriate payment paid to the relevant taxingauthority.

 

----

 

(f)                                    EachLender which is entitled to receive payments from a Borrower at a reduced rateof withholding by virtue of a double taxation treaty shall cooperate incompleting any procedural formalities necessary for that Borrower to obtainauthorisation to make that payment at a reduced rate of withholding.

 

**12.3        Tax indemnity**

 

(a)                                  Eachrelevant Borrower shall (within 3 Business Days of a demand by the FacilityAgent) pay to a Protected Party an amount equal to any loss or liability whichthat Protected Party determines will be or has been suffered (directly orindirectly) by that Protected Party for or on account of Tax in relation to apayment received or receivable (or any payment deemed to be received orreceivable) under a Finance Document.

 

(b)                                 Paragraph(a) above shall not apply to any Tax assessed on a Finance Party under thelaw of the jurisdiction in which:

 

(i)                                     thatFinance Party is incorporated or, if different, the jurisdiction (orjurisdictions) in which that Finance Party has a Facility Office and is treatedas resident for tax purposes; or

 

(ii)                                  thatFinance Party’s Facility Office is located in respect of amounts received orreceivable in that jurisdiction,

 

if that Tax isimposed on or calculated by reference to the net income received or receivableby that Finance Party. However, any payments deemed to be received orreceivable, including any amount treated as income but not actually received bythe Finance Party, such as Tax Deduction, will not be treated as net incomereceived or receivable for this purpose.

 

(c)           Paragraph (a) above shall notapply to any Tax assessed on a Finance Party to the extent a loss, liability orcost:

 

(i)                                     iscompensated for by an increased payment under Clause 12.2 (*Tax gross-up*); or

 

(ii)                                  wouldhave been compensated for by an increased payment under Clause 12.2 (*Tax gross-up*) but was not so compensatedsolely because one of the exclusions in paragraph (d) of 12.2 (*Tax gross-up*) applied.

 

(d)                                 AProtected Party making, or intending to make, a claim under paragraph (a) abovemust promptly notify the Facility Agent of the event which will give, or hasgiven, rise to the claim and such notice must be accompanied by reasonableparticulars of the basis for the claim, following which the Facility Agentshall notify the affected Borrower.

 

(e)                                  AProtected Party must, on receiving a payment from a Borrower under this Clause12.3, notify the Facility Agent.

 

**12.4        Tax credit**

 

If a Borrowermakes a Tax Payment and the relevant Finance Party determines that:

 

55

----

 

(a)           a Tax Credit is attributable to thatTax Payment; and

 

(b)           it has used and retained that TaxCredit,

 

the FinanceParty shall pay an amount to the relevant Borrower which that Finance Partydetermines will leave it (after that payment) in the same after-Tax position asit would have been if the Tax Payment had not been required to be made by thatBorrower.

 

**12.5        Stamp taxes**

 

Each Borrowershall pay and indemnify each Finance Party against any cost, loss or liabilitythat Finance Party incurs in relation to all stamp duty, registration or othersimilar Taxes or fees payable in connection with the entry into, performance orenforcement of any Finance Document, except for any such Tax payable inconnection with the entry into of a Transfer Certificate.

 

**12.6        Value added taxes**

 

(a)                                  Anyamount payable under a Finance Document by a Borrower is exclusive of any valueadded tax or any other Tax of a similar nature which might be chargeable inconnection with that amount. If any such Tax is chargeable, that Borrower mustpay to the Finance Party (in addition to and at the same time as paying thatamount) an amount equal to the amount of that Tax.

 

(b)                                 Wherea Finance Document requires any Party to reimburse a Finance Party for anycosts or expenses, that Party shall also at the same time pay and indemnify theFinance Party against all value added tax or any other Tax of a similar natureincurred by the Finance Party in respect of those costs or expenses but only tothe extent that the Finance Party (acting reasonably) determines that it is notentitled to credit or repayment from the relevant tax authority in respect ofthe value added tax or any other Tax of a similar nature.

 

**13           INCREASEDCOSTS**

** **

**13.1        Increased costs**

 

(a)                                  Subjectto Clause 13.3 (*Exceptions*), aBorrower shall, within three (3) Business Days of a demand by the FacilityAgent, pay for the account of a Finance Party the amount of any Increased Costsincurred by that Finance Party or its direct or indirect holding company as aresult of (i) the introduction of or any change in (or in theinterpretation, administration or application of) any law or regulation or (ii) compliancewith any law or regulation made after the date of this Agreement.

 

(b)                                 Inthis Agreement “**Increased Costs**”means:

 

(i)                                     areduction in the rate of return under a Finance Document or on a Finance Party’s(or its direct or indirect holding company’s) overall capital;

 

56

----

 

(ii)                                  anadditional or increased cost; or

 

(iii)                               areduction of any amount due and payable under any Finance Document,

 

which isincurred or suffered by a Finance Party or its direct or indirect holdingcompany but only to the extent that it is attributable to that Finance Partyhaving entered into any Finance Document, its Commitment and/or funding orperforming its obligations under any Finance Document in each case with respectto the Facilities made available to that Borrower.

 

**13.2        Increased cost claims**

 

(a)                                  AFinance Party intending to make a claim pursuant to Clause 13.1 (*Increased costs*) shall notify the FacilityAgent of the event giving rise to the claim, following which the Facility Agentshall promptly notify the relevant Borrower.

 

(b)                                 EachFinance Party shall, as soon as practicable after a demand by the FacilityAgent, provide a certificate confirming the amount of its Increased Costs.

 

**13.3        Exceptions**

 

(a)                                  Clause13.1 (*Increased costs*) does notapply to the extent any Increased Cost is:

 

(i)                                     attributableto a Tax Deduction required by law to be made by an Obligor;

 

(ii)                                  compensatedfor by Clause 12.3 (*Tax indemnity*)(or would have been compensated for under Clause 12.3 (*Tax indemnity*) but was not so compensatedsolely because the any of the exclusions in paragraph (b) of Clause 12.3 (*Tax indemnity*) applied);

 

(iii)                               compensatedfor by the payment of the Mandatory Cost; or

 

(iv)                              attributableto the wilful breach by the relevant Finance Party or its Affiliates of any lawor regulation.

 

(b)                                 Inthis Clause 13.3, a reference to a “**TaxDeduction**” has the same meaning given to the term in Clause 12.1 (*Definitions*).

 

**14           OTHERINDEMNITIES**

** **

**14.1        Currency indemnity**

 

(a)                                  Ifany sum due from an Obligor under the Finance Documents (a “**Sum**”), or any order, judgment or awardgiven or made in relation to a Sum, has to be converted from the currency (the “**First Currency**”) in which that Sum ispayable into another currency (the “**SecondCurrency**”) for the purpose of

 

(i)            making or filing a claim or proofagainst that Obligor;

 

57

----

 

(ii)                                  obtainingor enforcing an order, judgment or award in relation to any litigation orarbitration proceedings,

 

that Obligorshall as an independent obligation, within three Business Days of demand,indemnify each Finance Party to whom that Sum is due against any cost, loss orliability arising out of or as a result of the conversion including anydiscrepancy between (A) the rate of exchange used to convert that Sum fromthe First Currency into the Second Currency and (B) the rate or rates ofexchange available to that person at the time of its receipt of that Sum.

 

(b)                                 EachObligor waives any right it may have in any jurisdiction to pay any amountunder the Finance Documents in a currency or currency unit other than that inwhich it is expressed to be payable.

 

**14.2        Other indemnities**

 

Each Borrowershall, within three (3) Business Days of demand, indemnify each FinanceParty against any cost, loss or liability incurred by that Finance Party as aresult of:

 

(a)                                  theoccurrence of any Event of Default;

 

(b)                                 afailure by that Borrower to pay any amount due under a Finance Document on itsdue date, including without limitation, any cost, loss or liability arising asa result of Clause 24 (*Sharing among theFinance Parties*);

 

(c)                                  funding,or making arrangements to fund, its participation in an Advance requested bythat Borrower in a Utilisation Request but not made by reason of the operationof any one or more of the provisions of this Agreement (other than by reason ofwilful default or gross negligence by that Finance Party alone); or

 

(d)                                 anAdvance or part of an Advance not being prepaid in accordance with a notice ofprepayment given by that Borrower.

 

**14.3        Indemnity to the Agent**

 

(a)                                  EachBorrower shall, within three (3) Business Days of demand, indemnify theFacility Agent against any cost, loss or liability incurred by the FacilityAgent (acting reasonably) as a result of:

 

(i)            investigating any event which itreasonably believes is or may be a Default; or

 

(ii)                                  actingor relying on any notice, request or instruction which it reasonably believesto be genuine, correct and appropriately authorised.

 

(b)                                 EachBorrower shall, within three (3) Business Days of demand or, in the caseof costs and expenses falling within (i) below with respect to documentsin agreed form or executed at the time of execution of this Agreement, at thetime specified in the Structure Paper, indemnify the Security Agent on a full

 

58

----

 

indemnitybasis against all costs and expenses and other liabilities (including legal andout of pocket expenses and any tax or value added tax on such costs andexpenses) which the Security Agent reasonably incurs in connection with:

 

(i)                                     thepreparation, negotiation, execution and delivery of the Finance Documents (asprovided, in the case of those Finance Documents executed or in agreed form atthe time of execution of this Agreement, in the Agreed Costs Schedule andthe Structure Paper);

 

(ii)                                  theexecution or purported execution of any rights, powers or discretion inaccordance with the Finance Documents;

 

(iii)                               anypayment of stamp duty or stamp duty reserve tax or registration fees in respectof the Security Interests created under the Security Documents;

 

(iv)                              anyactual or proposed amendment or waiver or release or consent requested by thatBorrower under or in connection with the Finance Documents;

 

(v)                                 anydischarge or release of a pledge by that Borrower given in the SecurityDocuments; or

 

(vi)                              thepreservation or exercise (or attempted preservation or exercise) of any rightsunder or in connection with and the enforcement (or attempted enforcement) ofany Security Interest or any other right in the Finance Documents against thatBorrower.

 

unless suchliability or expense has resulted from the gross negligence or wilfulmisconduct of the Security Agent.

 

**15           MITIGATIONBY THE LENDERS**

** **

**15.1        Mitigation**

 

(a)                                  EachFinance Party shall, in consultation with an affected Borrower, takecommercially reasonable steps to mitigate any circumstances which arise andwhich would result in any amount becoming payable by that Borrower under orpursuant to, or cancelled pursuant to, any of Clause 12 (*Tax gross-up and indemnities*) or Clause 13(*Increased costs*) including (butnot limited to) transferring its rights and obligations under the FinanceDocuments to another Affiliate or Facility Office.

 

(b)                                 Paragraph(a) above does not in any way limit the obligations of any Obligor underthe Finance Documents.

 

**15.2        Limitation of liability**

 

(a)                                  Theaffected Borrower referred to in Clause 15.1 shall indemnify each Finance Partyfor all costs and expenses reasonably incurred by that Finance Party as aresult of steps taken by it under Clause 15.1 (*Mitigation*).

 

59

----

 

(b)                                 AFinance Party is not obliged to take any steps under Clause 15.1 (*Mitigation*) if, in the opinion of thatFinance Party (acting reasonably), to do so might be prejudicial to it.

 

**15.3        Conduct of business by a Finance Party**

 

No term ofthis Agreement will:

 

(a)                                  interferewith the right of any Finance Party to arrange its affairs (Tax or otherwise)in whatever manner it thinks fit; or

 

(b)                                 obligeany Finance Party to investigate or claim any credit, relief, remission orrepayment available to it in respect of Tax or the extent, order and manner ofany claim; or

 

(c)                                  obligeany Finance Party to disclose any information relating to its affairs (Tax orotherwise) or any computation in respect of Tax.

 

**16           COSTSAND EXPENSES**

** **

**16.1        Transaction expenses**

 

Each Borrowershall promptly on demand pay the Finance Parties the amount of all costs andexpenses (including legal and notarial fees, value added tax, stamp duty andsimilar taxes and registration fees) reasonably incurred by any of them inconnection with the negotiation, preparation, printing, execution andsyndication of:

 

(a)                                  thisAgreement and any other documents referred to in this Agreement; and

 

(b)                                 anyother Finance Documents executed after the date of this Agreement,

 

in respect ofboth (a) and (b) to the extent, in the amounts and at the timesspecified in the Structure Paper with respect to such Borrower.

 

**16.2        Amendment costs**

 

If a Borrowerrequests an amendment, discharge, waiver, release or consent, that Borrower,shall within three Business Days of demand, reimburse the Facility Agent forthe amount of all costs and expenses (including legal fees) reasonably incurredby the Facility Agent in responding to, evaluating, negotiating or complyingwith that request or requirement.

 

**16.3        Enforcement costs**

 

Each Borrowershall, within three (3) Business Days of demand, pay (pro rata on theamount of each Advance made to it) to each Finance Party on a full indemnitybasis the amount of all costs and expenses (including legal fees) incurred bythat Finance Party in connection with the enforcement of, or the preservationor exercise of any rights under, any Finance Document against that Borrower.

 

60

----

 

**SECTION 7**

**REPRESENTATIONS,UNDERTAKINGS AND EVENTS OF DEFAULT**

 

**17**                                  **REPRESENTATIONS**

 

TheRepresentations set out in this Clause 17 are made by Holding (in respect ofitself and if the representation so states its relevant Subsidiaries) on thedate of this Agreement and by Bus on the first Tranche A Advance UtilisationDate, provided that these representations, when made by Bus, will be deemedmade (a) with respect to the facts and circumstances subsisting at thedate of this Agreement and (b) with respect to the facts and circumstancessubsisting at the time of the Tranche A Advance Utilisation Date.  Any representations made in any FinanceDocument or Certificate in relation thereto by Bus and Holding (or theirrespective directors or officers) with respect to any of their respectiveSubsidiaries shall be deemed to be made strictly on the basis that Bus or, asthe case may be, Holding, (or their respective directors or officers) has madeall reasonable enquiries of the finance director and chief executive directorof Nordic and accordingly that such representations are made strictly on thebasis of the information obtained as a result of such enquiries.  All references in a Finance Document or anyCertificate in relation thereto to the awareness or belief or knowledge of Busor Holding (or their respective directors or officers) or to them (or theirrespective directors or officers) having made enquiries with respect to anymatters shall, if the matters related to any of their respective Subsidiaries,be construed accordingly.  Thisqualification is intended for the benefit of Nordic and each director of Busand Holding.

 

**17.1        Status**

 

(a)                                  Itis (and each of the Subsidiary Guarantors is) a corporation, duly incorporatedand validly existing with limited liability, in each case under the law of itsjurisdiction of incorporation.

 

(b)                                 Itand each of the Subsidiary Guarantors has the power to own its assets and carryon its business as it is being conducted.

 

(c)                                  Noadministrator, receiver, liquidator or similar official has been appointed withrespect to it or any of its assets or any of the Subsidiary Guarantors or suchSubsidiary Guarantor’s assets and no petition or proceeding for such anappointment is pending, other than Swedish moratorium proceedings in respect ofBus.

 

(d)                                 Itis acting on its own account when entering into this Agreement and drawingAdvances under this Agreement.

 

**17.2        Valid and binding obligations**

 

Each FinanceDocument to which it is a party is its legally binding, valid and, subject tothe Reservations, enforceable obligation.

 

----

 

**17.3        Non-conflict with other obligations**

 

The entry intoand performance by it of, and the transactions contemplated by, the FinanceDocuments do not and will not:

 

(a)                                  conflictwith any law or regulation applicable to it;

 

(b)                                 conflictwith its or any of the Subsidiary Guarantors’ respective constitutionaldocuments;

 

(c)                                  resultin the breach or violation of or constitute a default or termination event(however described) under any agreement or instrument (except (i) theSubordinated Notes Indenture and related documents, (ii) the Senior NotesIndenture or related documents, (iii) any other agreements or instrumentsin respect of any other arrangements with its or any of the SubsidiaryGuarantors’ creditors which include by reference, or expressly refers to, anyof the terms of the Subordinated Notes Indenture and related documents or theSenior Notes Indenture and related documents or (iv) any other agreementor instrument which by virtue of its terms would, until the date theRestructuring is completed substantially in accordance with the terms of theBinding Restructuring Agreement, but for this paragraph (iv) resulting ina representation made hereunder being untrue the provision of this sub-Clause17.3(c)) binding upon it or any of the Subsidiary Guarantors or any of its orany of the Subsidiary Guarantor’s assets; or

 

(d)                                 resultin the creation or imposition of any Security Interest upon any of its or anyof the Subsidiary Guarantors’ assets other than pursuant to the FinanceDocuments.

 

**17.4        Power and authority**

 

(a)                                  Ithas the power to enter into, perform and deliver, and has taken all necessaryaction to authorise its entry into, performance and delivery of, the FinanceDocuments to which it is or will be a party and the transactions contemplatedby those Finance Documents.

 

(b)                                 Nolimit on its powers will be exceeded as a result of the borrowings, grants ofsecurity or giving of Guarantees contemplated by the Finance Documents to whichit or any of its Subsidiaries is a party.

 

**17.5        Authorisations:**

 

(a)           All Authorisations required ordesirable:

 

(i)                                     toenable it lawfully to enter into, exercise its respective rights and complywith its obligations in the Finance Documents to which it is a party; and

 

(ii)                                  tomake the Finance Documents to which it is a party admissible in evidence in itsjurisdiction of incorporation,

 

have beenobtained or effected (as appropriate) and are in full force and effect.

 

62

----

 

(b)                                 AllAuthorisations required by it or the Subsidiary Guarantor in connection withthe carrying on by it or such Subsidiary Guarantor of its and their respectivebusiness in all material respects as it is being conducted have been obtainedor effected (as appropriate) and are in full force and effect exceptauthorisations the non-receipt or failure to be in force of which has not hadand is not reasonably likely to have a Material Adverse Effect.

 

**17.6        Governing law and enforcement**

 

(a)                                  Thechoice of English law as the governing law of the Agreement will be recognisedand enforced in its jurisdiction of incorporation.

 

(b)                                 Anyjudgment obtained in England in relation to the Agreement will be recognisedand enforced in its jurisdiction of incorporation.

 

**17.7        Deduction of Tax**

 

It is notrequired under the law of its jurisdiction of incorporation to make anydeduction for or on account of Tax from any payment it may make under anyFinance Document.

 

**17.8        No filing or stamp taxes**

 

Under the lawof its jurisdiction of incorporation it is not necessary that the FinanceDocuments be filed, recorded or enrolled with any court or other authority inthat jurisdiction or that any stamp, registration, notarisation or similar taxbe paid on or in relation to the Finance Documents or the transactionscontemplated by the Finance Documents.

 

**17.9        No default**

 

Save for anyEvent of Default, default or termination event (however described) which mayarise under any of the agreements, instruments or documents referred to inparagraphs (i), (ii), (iii) or (iv) of sub-Clause 17.3(c) above:

 

(a)                                  noEvent of Default is continuing or might reasonably be expected to result fromthe execution of, or the performance of any transaction contemplated byincluding without limitation the making of any Utilisation, any FinanceDocument; and

 

(b)                                 noother event or circumstance is outstanding which constitutes a default ortermination event (howsoever described) under any agreement or instrument whichis binding on it or any of the Subsidiary Guarantors or to which its (or any ofthe Subsidiary Guarantors) assets are subject which has had or might have aMaterial Adverse Effect

 

**17.10      No misleading information**

 

That, havingmade all reasonable enquiries of the finance director and chief executive ofNordic, and according to the results of such inquiries, (i) all informationthat has been requested by or on behalf of the Lenders (the “**Disclosed Information**”) from Bus, or as thecase may be, Holding has been disclosed to the Lenders, (ii) the

 

63

----

 

DisclosedInformation (except for financial projections) is accurate in all materialrespects, (iii) the Disclosed Information is not rendered misleading bythe omission of other information, known to Bus or Holding but not disclosedand (iv) the financial projections provided to the Lenders were made ingood faith by the directors of Nordic and are based on assumptions which thedirectors of Nordic believe to be reasonable and appropriate.

 

**17.11      No voluntary proceedings**

 

It has notcommenced a voluntary proceeding, nor has an involuntary proceeding beencommenced against it, under Chapter 11 of Title 11 of the U.S. Code or anyother applicable insolvency or moratorium legislation save for theRestructuring and the Swedish moratorium proceedings to be undertaken by Bus.

 

**17.12      Financial statements**

 

(a)                                  TheRelevant Company represents that its most recently prepared consolidatedaccounts were prepared in accordance with Applicable Accounting Principlesconsistently applied and give a true and fair view of (if audited) or fairly present(if quarterly unaudited) its consolidated or unconsolidated (as stated in suchfinancial statements) (A) financial condition as at the date to which theywere drawn up and (B) results of operations during the period covered.

 

(b)                                 Therehas been no Material Adverse Effect to the business or financial condition ofthe Relevant Company (or the business or consolidated financial condition ofthe Group taken as a whole) since the later of (i) the Tranche C AdvanceUtilisation Date and (ii) the last day of the last fiscal quarter in theRelevant Company’s latest completed fiscal year for which interim financialstatements have been made available, except as set forth in such interimfinancial statements (which, for the avoidance of doubt, include Nordic’s announcementof preliminary FY 2005 results, dated May 25, 2005).  For the avoidance of doubt, neither (A) thecompletion of the Restructuring substantially in accordance with the BindingRestructuring Agreement, or (B) the Swedish moratorium proceedings, litigationin connection with the Subordinated Notes Indenture and/or the Senior NotesIndenture (and documents in relation to those indentures) or matters incidentalthereto and the consequences thereof, shall be considered a Material AdverseEffect for the purpose of this paragraph (b).

 

(c)                                  Thefinancial statements most recently filed with the Commission under cover of Form 6-K**have been prepared in accordance with theApplicable Accounting Principles and (if audited) present a true and fair viewof or (if quarterly unaudited) fairly present the Relevant Company’s and (ifconsolidated) its Subsidiaries’ consolidated financial condition as at the dateto which they were drawn up, subject in the case of quarterly financialstatements to normal year end adjustments.

 

64

----

 

**17.13      Security Interests**

 

Except aspermitted by Clause 19.9 (*Limitation onSecurity Interests*) no Security Interest exists on the undertaking,property or assets, present or future, of it or any of the SubsidiaryGuarantors.

 

**17.14      Ownership of assets**

 

It has, andeach of the Subsidiary Guarantors has, good title to or valid leasehold orother valid right to use all its material assets to the extent required toconduct its business as it is being conducted.

 

**17.15      Intellectual Property**

 

(a)                                  Itor one or more or the Subsidiary Guarantor owns or has licensed to it orotherwise has adequate rights to use all the Intellectual Property which ismaterial to the operation of the business of the Group save to the extent thatthe same would not have a Material Adverse Effect.

 

(b)                                 Itand each of the Subsidiary Guarantor has taken all actions (including paymentof fees) necessary to maintain in full force and effect any such IntellectualProperty referred to in paragraph (a) above owned by it.

 

(c)                                  Incarrying on its business, neither it nor any member of the Group infringes anyIntellectual Property rights of any third party in any way which has had orcould reasonably be expected to have a Material Adverse Effect.

 

(d)                                 Itis not aware of any adverse circumstances relating to validity, subsistence oruse of any of its or its Subsidiaries’ Intellectual Property which reasonablybe expected to have a Material Adverse Effect.

 

**17.16      Insurances**

 

It and theSubsidiary Guarantors currently have in effect insurances meeting therequirements of Clause 19.5 (*Maintenance ofInsurance*).

 

**17.17      Financial Indebtedness**

 

Except aspermitted by Clause 19.6 (*Limitation onFinancial Indebtedness)*, it and the Subsidiary Guarantors have noFinancial Indebtedness.

 

**17.18      Tax Liabilities**

 

(a)                                  Itand each of the Subsidiary Guarantors has paid and discharged all Taxes imposedupon each of them on the day on which this representation is to be made by itunder this Agreement within the time period allowed without incurring penalties(save to the extent that (i) payment is being contested in good faith, (ii) ithas maintained adequate reserves for those Taxes and (iii) payment can belawfully withheld).

 

(b)                                 Neitherit nor any of the Subsidiary Guarantors is overdue in the filing of any Taxreturns.

 

65

----

 

(c)                                  Noclaims are being or are reasonably likely to be asserted against, and noinvestigation has been started or threatened (to the best of its knowledge andbelief) by any tax authority for assessment periods ending before the datehereof in respect of, it or any of the Subsidiary Guarantors with respect toTaxes which, would have a Material Adverse Effect.

 

**17.19      Employee matters**

 

No labourdisputes involving its employees or the employees of any of the SubsidiaryGuarantors are current and, to the best of its knowledge and belief, no formalsteps (including without limitation convening a meeting or holding a ballot)has been taken to commence a strike or other labour dispute by any thereof,except any disputes which (individually or in the aggregate) has not had andare not reasonably likely to have a Material Adverse Effect.

 

**17.20      Pension schemes and social securityobligations**

 

(a)                                  Itand each of the Subsidiary Guarantors is in substantial compliance with allapplicable laws and contracts relating to labour and social security paid andhas all fees required to be paid by it to enable it to participate in thenecessary pension schemes and employee benefit plans.

 

**17.21      No proceedings pending or threatened**

 

(a)                                  Savefor the Swedish moratorium proceedings, and litigation in connection with theSubordinated Notes Indenture or related documents, and/or the Senior NotesIndenture or related documents, no litigation, arbitration or administrativeproceedings of or before any court, arbitral body or agency, and no regulatoryenquiry involving it or any of the Subsidiary Guarantors, which, if adverselydetermined, might reasonably be expected to have a Material Adverse Effect have(to the best of its knowledge and belief) been started or threatened against itor any of the Subsidiary Guarantors.

 

(b)                                 Itis, and the Subsidiary Guarantors are, in compliance in all material respectswith all laws, regulations, statutes, judgements, orders, licences, permits andgovernmental and regulatory consents applicable to it, any of the SubsidiaryGuarantors or any of its or their assets, except for any instances of noncompliance which is not reasonably likely to have a Material Adverse Effect.

 

**17.22      Environmental**

 

(a)                                  Itand each of the Subsidiary Guarantors has performed and observed in allmaterial respects all Environmental Law, all material terms and conditions ofall Environmental Permits and all other material covenants, conditions,restrictions or agreements directly or indirectly concerned with anycontamination, pollution or waste or the release or discharge of any toxic orhazardous substance in connection with any real property which is or was at anytime owned, leased or occupied by it or any of the Subsidiary Guarantors or onwhich it or any of the Subsidiary Guarantors has conducted any activity wherefailure to do so might reasonably be expected to have a Material AdverseEffect.

 

66

----

 

(b)                                 NoEnvironmental Claim has been commenced or (to the best of its knowledge andbelief) is threatened against it or any of the Subsidiary Guarantors where thatclaim would be reasonably likely, if determined against it or such SubsidiaryGuarantor, to have a Material Adverse Effect.

 

**17.23      Centre of main interests andestablishments**

 

For thepurposes of the Council of the European Union Regulation No. 1346/2000 onInsolvency Proceedings (the “**Regulation**”),its centre of main interest (as that term is used in Article 3(1) ofthe Regulation) is situated in its jurisdiction of incorporation and it has no “establishment”(as that term is used in Article 2(h) of the Regulation) in any otherjurisdiction.

 

**17.24      Repetition**

 

(a)                                  TheRepeating Representations are deemed to be made by the relevant Borrower on thedate of each Utilisation Request for an Advance to be made to that Borrower,each Utilisation Date for an Advance to be made to that Borrower, and the firstday of each Interest Period for an Advance to be made to that Borrower.

 

(b)                                 Therepresentations contained in clause 17.12(b) (*Material Adverse Effect*) shall be repeated by the Tranche ABorrower on the Tranche A Advance Utilisation Date.

 

(c)                                  Whena representation is repeated it is applied to the circumstances existing at thetime of the repetition save to the extent expressly stated otherwise.

 

**18           INFORMATIONUNDERTAKINGS**

** **

**18.1        Provision of Financial Information**

 

(a)                                  Whetheror not it is required by the Commission, the Relevant Company shall provide tothe Facility Agent within the time periods specified in the Commission’s rules andregulations (unless otherwise noted):

 

(i)                                     within120 days after the end of its then-applicable fiscal year all annual financialstatements that would be required in a filing with the Commission on Form 20-F(including an “Operating and Financial Review and Prospects” section, and withrespect to the annual financial statements only, a report thereon by theRelevant Company’s certified independent auditors) (save for annual financialstatements in respect of fiscal year ending in February 2005 which will bedelivered immediately upon them becoming available);

 

(ii)                                  withinthe time period specified in the Commission’s rules and regulations, all quarterlyfinancial information that would be required to be contained in a filing withthe Commission on Form 10-Q if the Relevant Company were required to filethat form (including a “Management’s Discussion and Analysis of FinancialCondition and Results of Operations”, except that such information will only be

 

67

----

 

prepared inaccordance with generally accepted accounting principles in Sweden); and

 

(iii)                               allcurrent reports that would be required to be furnished to the Commission on Form 6-Kif the Relevant Company were required to furnish that form.

 

(b)                                 Ifthe Relevant Company has designated any of its Subsidiaries as UnrestrictedSubsidiaries, then the quarterly and annual financial information required bythe preceding paragraph will include a reasonably detailed presentation, eitheron the face of the financial statements or in the footnotes thereto, and inManagement’s Discussion and Analysis of Financial Condition and Results ofOperations or Operating and Financial Review and Prospects section, of thefinancial condition and results of operations of the Relevant Company and itsRestricted Subsidiaries separate from the financial condition and results ofoperations of the Unrestricted Subsidiaries of the Relevant Company.

 

(c)                                  Whetheror not required by the Commission, the Relevant Company will file a copy of allof the information and reports referred to in paragraphs (a) except forthe report specified in (a)(ii) and (b) above with the Commission forpublic availability within the time periods specified in the Commission’s rules andregulations (unless the Commission will not accept such a filing) and make suchinformation available to securities analysts and prospective investors uponrequest.

 

(d)                                 Deliveryof such reports, information and documents to the Facility Agent is forinformational purposes only and the Facility Agent’s receipt of such shall notconstitute constructive notice to the Facility Agent or any Lender of anyinformation contained therein or determinable from information containedtherein, including the Relevant Company’s compliance with any of its covenantshereunder (as to which the Facility Agent and each Lender is entitled toconclusively rely exclusively on Compliance Certificates and Officer’sCertificates).  The Facility Agent shallnot be required to review any documents submitted to it pursuant to this clause18 or assess its compliance with this Agreement or any other rule or legalrequirement.

 

**18.2        Statement by Officers as to Default;Compliance Certificates**

 

(a)                                  TheRelevant Company will deliver to the Facility Agent, within 60 days after theend of each fiscal year of the Relevant Company ending after the date hereof aCompliance Certificate signed by its principal executive officer, principalfinancial officer or principal accounting officer, stating whether or not tothe best knowledge of the signatory thereof after due enquiry, the RelevantCompany is in default in the performance and observance of any of the terms, provisionsand conditions of this Agreement, and if the Relevant Company shall be indefault, specifying all such defaults and the nature and status thereof ofwhich they may have knowledge.

 

(b)                                 TheRelevant Company shall deliver to the Facility Agent, as soon as possible andin any event within 15 days after the Relevant Company becomes aware of theoccurrence of a Default or an Event of Default, a Compliance

 

68

----

 

Certificatesetting forth the details of such Default or Event of Default, and the actionwhich the Relevant Company proposes to take with respect thereto.

 

**18.3        Auditors**

 

If theFacility Agent wishes to discuss the financial position of any member ormembers of the Group with the Auditors, the Facility Agent shall notify theRelevant Company, stating the questions or issues which the Facility Agentwishes to discuss with the Auditors, and the Relevant Company shall authoriseand instruct the Auditors (at the expense of the Relevant Company) to discuss thefinancial position of each member of the Group with the Facility Agent and todisclose to the Facility Agent for the Finance Parties any information whichthe Facility Agent may reasonably request.

 

**18.4       **“**Know yourClient**”**checks**

 

(a)           If:

 

(i)                                     theintroduction of or any change in (or in the interpretation, administration orapplication of) any law or regulation made after the date of this Agreement;

 

(ii)                                  anychange in the status of an Obligor after the date of this Agreement; or

 

(iii)                               aproposed assignment or transfer by a Lender of any of its rights andobligations under this Agreement to a party that is not a Lender prior to suchassignment or transfer,

 

obliges theFacility Agent or any Lender (or, in the case of paragraph (iii) above,any prospective new Lender) to comply with “know your customer” or similaridentification procedures in circumstances where the necessary information isnot already available to it, each Obligor shall promptly upon the request ofthe Facility Agent or any Lender supply, or procure the supply of, suchdocumentation and other evidence as is reasonably requested by the FacilityAgent (for itself or on behalf of any Lender) or any Lender (for itself or, inthe case of the event described in paragraph (iii) above, on behalf of anyprospective new Lender) in order for the Facility Agent, such Lender or, in thecase of the event described in paragraph (iii) above, any prospective newLender to carry out and be satisfied it has complied with all necessary “knowyour customer” or other similar checks under all applicable laws andregulations pursuant to the transactions contemplated in the Finance Documents.

 

(b)                                 EachLender shall promptly upon the request of the Facility Agent supply, or procurethe supply of, such documentation and other evidence as is reasonably requestedby the Facility Agent (for itself) in order for the Facility Agent to carry outand be satisfied it has complied with all necessary “know your customer” orother similar checks under all applicable laws and regulations pursuant to thetransactions contemplated in the Finance Documents.

 

69

----

 

**19**                                  **COVENANTS**

 

**19.1        Payment of Principal, Premium andInterest**

 

The RelevantCompany will duly and punctually pay the principal of (and premium, if any) andinterest and any other amounts due, and payable by it under the FinanceDocuments in accordance with the terms of the Finance Documents.

 

**19.2        Existence**

 

Subject to Article 8of the Senior Notes Indenture, the Relevant Company will do or cause to be doneall things necessary to preserve and keep in full force and effect its legalexistence, rights (charter and statutory) and franchises; provided, however,that the Relevant Company shall not be required to preserve any such right orfranchise if its board of directors in good faith shall determine that thepreservation thereof is no longer desirable in the conduct of the business ofthe Relevant Company or its Subsidiaries, as the case may be, and that the lossthereof is not disadvantageous in any material respect to the Lenders.

 

**19.3        Maintenance of Properties**

 

The RelevantCompany shall cause all properties used or useful in the conduct of itsbusiness or the business of any Restricted Subsidiary of the Relevant Companyto be maintained and kept in good condition, repair and working order andsupplied with all necessary equipment and will cause to be made all necessaryrepairs, renewals, replacements, betterments and improvements thereof, all asin the judgment of the Relevant Company may be necessary so that the businesscarried on in connection therewith may be properly and advantageously conductedat all times; provided, however, that nothing in this Clause shall prevent theRelevant Company or Nordic from discontinuing the operation or maintenance ofany of such properties if such discontinuance is, as determined by its board ofdirectors of the Relevant Company or Nordic in good faith, desirable in theconduct of its business or the business of any Restricted Subsidiary and notdisadvantageous in any material respect to the Lenders.

 

**19.4        Payment of Taxes and Other Claims**

 

The RelevantCompany shall pay or discharge or cause to be paid or discharged, before thesame shall become delinquent, (i) all taxes, assessments and governmentalcharges levied or imposed upon the Relevant Company or any of its RestrictedSubsidiaries or upon the income, profits or property of the Relevant Company orany of its Restricted Subsidiaries, and (ii) all lawful claims for labour,materials and supplies which, if unpaid, might by law become a lien upon theproperty of the Relevant Company, or any of its Restricted Subsidiaries;provided, however, that the Relevant Company shall not be required to pay ordischarge or cause to be paid or discharged any such tax, assessment, charge orclaim whose amount, applicability or validity is being contested in good faithby appropriate proceedings.

 

**19.5        Maintenance of Insurance**

 

The RelevantCompany shall, and shall cause its Restricted Subsidiaries to, keep insurancewith insurers believed by the Relevant Company to be responsible of such

 

70

----

 

type and insuch amounts as the Relevant Company reasonably believes are customary forsimilar companies.

 

**19.6        Limitation on Financial Indebtedness**

 

(a)                                  TheRelevant Company shall not, and will not permit any of its RestrictedSubsidiaries to, directly or indirectly, Incur any Financial Indebtedness(including Acquired Debt), and the Relevant Company will not issue any DisqualifiedShare Capital; provided, however, that if no Default or Event of Default willhave occurred and be continuing at the time of or as a consequence of theIncurrence of any such Financial Indebtedness or the issuance of any suchDisqualified Share Capital (or if such Event of Default does exist, such Eventof Default is cured concurrently with such Incurrence or issuance, as the casemay be), (i) the Relevant Company and any of its Restricted Subsidiariesmay incur Financial Indebtedness or issue Disqualified Share Capital, and (ii) anySubsidiary Guarantor, other than Swebus Busco AB, may incur FinancialIndebtedness if such Financial Indebtedness is (a) Financial Indebtednessrepresented by a Revolving Credit Facility, (b) Financial Indebtednessrepresented by Capital Lease Obligations, (c) Financial Indebtednessrepresented by purchase money obligations or (d) Acquired Debt, in thecase of both of (i) and (ii) if the Fixed Charge Coverage Ratio forthe Relevant Company’s most recently ended four full fiscal quarters for whichinternal financial statements are available immediately preceding the date onwhich such additional Financial Indebtedness is Incurred or such DisqualifiedShare Capital is issued would have been at least 2.0 to 1.0, determined on apro forma basis (including a pro forma application of the net proceedstherefrom), as if the additional Financial Indebtedness had been incurred, orthe Disqualified Share Capital had been issued, as the case may be, at thebeginning of such four-quarter period. In computing the Fixed Charge CoverageRatio for the purpose of this Clause (a), the Relevant Company shall useaudited financial statements for the portions of the relevant period for whichaudited financial statements are available on the date of determination andunaudited financial statements based on the books and records of the RelevantCompany for the remaining portion of such period. The Relevant Company will bepermitted to rely in good faith on the financial and other data derived from itsbooks and records that are available on the date of determination in preparingsuch unaudited financial statements. If the Relevant Company or its RestrictedSubsidiaries incurs Financial Indebtedness that, at the time of Incurrence,would in the good faith determination of the Relevant Company or its RestrictedSubsidiaries be permitted under the requirements of this Agreement, suchFinancial Indebtedness will be deemed to have been Incurred in compliance withthis Agreement notwithstanding any adjustments made in good faith to theRelevant Company’s financial statements after such Financial Indebtedness isincurred which effect the Fixed Charge Coverage Ratio for any period; provided,however, that any such adjustments will be taken into account in computing theFixed Charge Coverage Ratio in respect of any subsequent Incurrence ofFinancial Indebtedness.

 

71

----

 

(b)                                 Subjectto clauses (c) and (d) below, so long as no Default or Event ofDefault will have occurred and be continuing or would be caused thereby, Clause(a) of this clause will not prohibit the incurrence of any of thefollowing items of Financial Indebtedness (collectively, “**Permitted Debt**”):

 

(i)                                     theincurrence by Nordic of Financial Indebtedness represented by the Notes andFinancial Indebtedness of Subsidiary Guarantors (except Nordic) pursuant to theNote Guarantees;

 

(ii)                                  theincurrence by the Relevant Company and its Restricted Subsidiaries of PermittedRefinancing Indebtedness in exchange for, or the net proceeds of which are usedto refund, refinance or replace, Financial Indebtedness (other thanintercompany Financial Indebtedness between or among the Relevant Company andany of its Restricted Subsidiaries) that was permitted by this Agreement to beincurred pursuant to this Clause 19.6;

 

(iii)                               theincurrence by the Relevant Company or any Subsidiary Guarantor of intercompanyFinancial Indebtedness between or among the Relevant Company, Nordic and any ofits respective Wholly Owned Restricted Subsidiaries; provided, however that (i) ifthe Relevant Company or a Subsidiary Guarantor is the obligor of such FinancialIndebtedness, such Financial Indebtedness shall be expressly subordinated tothe prior payment in full in cash of all the Obligations in respect of theNotes; and (ii) (a) any subsequent issuance or transfer of EquityInterests that results in any such Financial Indebtedness being held by aPerson other than the Relevant Company, Nordic or a Wholly Owned RestrictedSubsidiary that is a Subsidiary Guarantor and (b) any sale or othertransfer of any such Financial Indebtedness to a Person that is not either theRelevant Company or a Wholly Owned Subsidiary that is a Subsidiary Guarantorthereof; shall be deemed, in each case, to constitute an incurrence of suchFinancial Indebtedness by the Relevant Company or such Subsidiary, as the casemay be, that was not permitted by this Clause 19.6(b)(iii) (*Limitation on Financial Indebtedness*);

 

(iv)                              theincurrence by the Relevant Company or any of its Restricted Subsidiaries ofHedging Obligations (i) that are incurred for the purpose of fixing orhedging interest rate risk with respect to any floating rate FinancialIndebtedness, or fixing or hedging foreign currency exchange rate risk withrespect to any Financial Indebtedness, in each case that is permitted by theterms of this Agreement to be outstanding or (ii) that are incurred forthe purpose of fixing or hedging fuel price risk incurred in the ordinarycourse of business provided that if, in accordance with GAAP, such incurrencemust be recorded as a liability in the balance sheet of the Relevant Company orits Restricted Subsidiaries, the aggregate liability under the HedgingObligations so recorded shall not exceed EUR 15,000,000 at any time;

 

72

----

 

(v)                                 theguarantee by the Relevant Company or Nordic of Financial Indebtedness of aRestricted Subsidiary of the Relevant Company that was permitted to be incurredby another paragraph of this Clause 19.6;

 

(vi)                              theincurrence by the Relevant Company or any Subsidiary Guarantor of additionalFinancial Indebtedness in an aggregate principal amount (or accreted value, asapplicable) at any time outstanding, including all Permitted RefinancingIndebtedness incurred to refund, refinance or replace any FinancialIndebtedness incurred pursuant to this paragraph (vi), not to exceed SEK245,000,000;

 

(vii)                           inrespect of the Relevant Company or its Restricted Subsidiaries the accrual ofinterest, the accretion or amortization of original issue discount, thecapitalization of interest, the payment of interest on any FinancialIndebtedness in the form of additional Financial Indebtedness with the sameterms as the Financial Indebtedness on which such interest accrued, and thepayment of dividends on Disqualified Share Capital in the form of additionalshares of the same class of Disqualified Share Capital, provided, in each suchcase, that the amount thereof is included in Fixed Charges of the RelevantCompany or Nordic as accrued;

 

(viii)                        theincurrence of Financial Indebtedness by the Relevant Company or any of itsRestricted Subsidiaries representing or comprising Obligations underperformance and surety bonds provided by the Relevant Company or any of itsRestricted Subsidiaries in the ordinary course of business;

 

(ix)                                theincurrence of Financial Indebtedness by the Relevant Company or any of itsRestricted Subsidiaries represented by letters of credit, bankers’ acceptances,surety bonds, performance bonds or similar instruments for the account of theRelevant Company or such Restricted Subsidiary, as the case may be, in order toprovide for security for workers’ compensation claims, payment obligations inconnection with self-insurance or similar requirements in the ordinary courseof business;

 

(x)                                   theincurrence of Financial Indebtedness by the Relevant Company or any of itsRestricted Subsidiaries arising from agreements either providing forindemnification, adjustment of purchase price, earn out or other similarobligations, in each case incurred or assumed in connection with thedisposition of any business or assets of the Relevant Company or a RestrictedSubsidiary of the Relevant Company or the disposition of a RestrictedSubsidiary, other than Guarantees of Financial Indebtedness incurred by anyPerson acquiring all or any portion of such business, assets or RestrictedSubsidiary for the purpose of financing such acquisition, provided, however,that the maximum assumable liability in respect of all such FinancialIndebtedness will at no time exceed the gross proceeds actually received by theRelevant Company and its Restricted Subsidiaries in connection with suchdisposition;

 

73

----

 

(xi)                                intragroupFinancial Indebtedness represented by the Subordinated Shareholder Loan, theNordic Inter-Company Loan, the Limited Recourse Note, the Bus-Nordic Loan andthe Intragroup Capital Contribution or such other intragroup FinancialIndebtedness as may arise as a consequence of the actions specified in theStructure Paper; and

 

(xii)                             FinancialIndebtedness owed by Bus in respect of the Subordinated Notes, as adjusted orvaried in accordance with the terms of the Subordinated Notes Indenture and/orby any order handed down by a court of competent jurisdiction.

 

(c)                                  Notwithstanding(a), and (b) above, from the date of this Agreement, (i) Holdingshall not be permitted to incur any Financial Indebtedness, save for itsUtilisation of the Tranche C Facility in accordance with the terms of thisAgreement and (ii) Bus shall not be permitted to incur any FinancialIndebtedness, save for utilisation of the Tranche A Facility and any cost andexpenses arising in connection with the Restructuring.

 

(d)                                 Ifany Non-Recourse Debt of an Unrestricted Subsidiary ceases to be Non-RecourseDebt, such event will be deemed to constitute an incurrence of FinancialIndebtedness by a Restricted Subsidiary of the Relevant Company.

 

(e)                                  Forpurposes of determining compliance with this Clause 19.6, in the event that anitem of proposed Financial Indebtedness meets the criteria of more than one ofthe categories of Permitted Debt described in Clauses (i) through (xi)above, or is entitled to be incurred pursuant to paragraph (a) of thisClause 19.6, the Relevant Company (i) will be permitted to classify suchitem of Financial Indebtedness on the date of its incurrence in any manner thatcomplies with this Clause 19.6 and (ii) may from time to time reclassifysuch item of Financial Indebtedness in any manner that complies with thisClause 19.6, in each case without duplication.

 

(f)                                    Forpurposes of determining compliance with any Swedish Kronor denominatedrestriction on the incurrence of Financial Indebtedness denominated in anothercurrency, the SEK principal amount of all Financial Indebtedness will becalculated in accordance with the best exchange rate obtainable by the RelevantCompany based on the relevant currency exchange rate in effect on the date ofsuch incurrence; provided that, if any Financial Indebtedness denominated in acurrency other than SEK is subject to a currency hedging agreement covering allprincipal, premium, if any, and interest payable on such FinancialIndebtedness, the amount of such Financial Indebtedness expressed in SEK willbe as provided in such currency hedging agreement. The principal amount of anyFinancial Indebtedness incurred to refinance other Financial Indebtedness, ifincurred in a different currency from the Financial Indebtedness beingrefinanced, will be calculated in accordance with the best exchange rateobtainable by the Relevant Company rate in effect on the date of suchrefinancing applicable to the currencies in which such respective FinancialIndebtedness is denominated.

 

74

----

 

**19.7        Limitation on Restricted Payments**

 

(a)                                  TheRelevant Company shall not, and will not cause or permit any of its RestrictedSubsidiaries to, directly or indirectly:

 

(i)                                     declareor pay any dividend or make any other payment or distribution on account of orwith respect to the Relevant Company’s or any of its Restricted Subsidiaries’Equity Interests (including, without limitation, any payment in connection withany merger or consolidation involving the Relevant Company or any of itsRestricted Subsidiaries) or to the direct or indirect holders of the RelevantCompany’s or any of its Restricted Subsidiaries’ Equity Interests in theircapacity as such (other than dividends or distributions payable in EquityInterests (other than Disqualified Share Capital) of the Relevant Company orpayable to the Relevant Company or Nordic by a Wholly Owned RestrictedSubsidiary of the Relevant Company or Nordic to another Wholly Owned RestrictedSubsidiary of the Relevant Company that is a Subsidiary Guarantor);

 

(ii)                                  purchase,redeem or otherwise acquire or retire for value (including, without limitation,in connection with any merger or consolidation involving the Relevant Companyor any of its Restricted Subsidiaries) any Equity Interests of the RelevantCompany or of any direct or indirect parent of the Relevant Company or of anyRestricted Subsidiary of the Relevant Company or of any Unrestricted Subsidiaryof the Relevant Company (other than any Equity Interests of any RestrictedSubsidiary owned by the Relevant Company or any Wholly Owned RestrictedSubsidiary of the Relevant Company that is a Subsidiary Guarantor);

 

(iii)                               makeany payment on account of or with respect to, or purchase, redeem, defease,prepay, decrease or otherwise acquire or retire for value any FinancialIndebtedness that is subordinated in right of payment to the Notes, except apayment of interest or principal at the Stated Maturity thereof; or

 

(iv)                              makeany Restricted Investment (all such payments and other actions set forth, butnot excluded from, in Clauses (i) through (iv) above beingcollectively referred to as “**RestrictedPayments**”),

 

unless, at thetime of and after giving effect to such Restricted Payment:

 

(A)                              noDefault or Event of Default will have occurred and be continuing or would occuras a consequence thereof; and

 

(B)                                theRelevant Company or any of its Restricted Subsidiaries would, at the time ofsuch Restricted Payment and after giving pro forma effect thereto as if suchRestricted Payment had been made at the beginning of the applicablefour-quarter period, have been permitted to incur at least SEK 1.0 ofadditional Financial Indebtedness pursuant to the Fixed Charge Coverage

 

75

----

 

Ratio test setforth in paragraph (a) of Clause 19.6 (*Limitationon Financial Indebtedness*); and

 

(C)                                suchRestricted Payment, together with the aggregate amount of all other RestrictedPayments made by the Relevant Company and its Restricted Subsidiaries after thedate of this Agreement (excluding Restricted Payments permitted by paragraphs(b)(ii), (b)(iii) and (b)(v) of this Clause, but including RestrictedPayments permitted by Clauses (b)(i) and (b)(iv), of this Clause, is lessthan the sum, without duplication, of:

 

(I)                                    50%of the Consolidated Net Income of the Relevant Company for the period (taken asone accounting period) from the date of this Agreement to the end of theRelevant Company’s most recently ended fiscal quarter for which financialstatements are available at the time of such Restricted Payment (or, if suchConsolidated Net Income for such period is a deficit, less 100% of suchdeficit), plus

 

(II)                                100%of the aggregate net cash proceeds received by the Relevant Company and itsSubsidiaries since the date of this Agreement as a contribution to its commonequity capital or from the issue or sale of Equity Interests of the RelevantCompany (other than Disqualified Share Capital) or from the issue or sale ofconvertible or exchangeable Disqualified Share Capital or convertible or exchangeabledebt securities of the Relevant Company that have been converted into orexchanged for such Equity Interests (other than Equity Interests (orDisqualified Share Capital or debt securities) sold to a Subsidiary of theRelevant Company) and excluding any such proceeds to the extent used to redeemNotes, plus

 

(III)                            tothe extent that any Restricted Investment that was made after the date of thisAgreement is sold for Cash Equivalents or otherwise liquidated or repaid forCash Equivalents, the lesser of (x) the cash return of capital with respect tosuch Restricted Investment (less the cost of disposition, if any) and (y) theinitial amount of such Restricted Investment.

 

(b)                                 Solong as (x) no Default or Event of Default has occurred and is continuing and(y) no notification thereof has been given to the relevant Borrower by theSecurity Agent (such notification being deemed ineffective if the Event(s) ofDefault on which it is based have been waived or cured), the precedingprovisions will not prohibit and the requirements of paragraphs (A) to (C) aboveshall not apply to:

 

76

----

 

(i)                                     thepayment of any dividend within 60 days after the date of declaration thereof,if at said date of declaration such payment would have complied with theprovisions of this Agreement ;

 

(ii)                                  paymentsof dividends or distributions in order to provide funds to pay amounts requiredto be paid by the Relevant Company or any of its Subsidiaries in connectionwith its reporting obligations under United States federal securities laws oramounts required by Bus or Holding to pay costs associated with its activitiesas a holding company, provided that such amounts have actually been incurred byBus or Holding, as the case may be, or are expected to be incurred within 7days of such payment and provided further that such amounts do not exceed anaggregate of SEK 10,000,000 in any financial year;

 

(iii)                               paymentsof dividends or distributions, or redemption of share capital, or payments or prepaymentsof amounts due or outstanding under the Subordinated Shareholder Loan, theIntragroup Capital Contribution and the Nordic Inter-Company Loan, in anaggregate amount of up to the value of all Cash Interest payments required tobe made in respect of the Tranche A Advance and the Tranche C Advances, to beapplied to the Cash Interest balance outstanding or in the repayment of theprincipal amount of the relevant Advance that represents Cash Interest that hasbeen capitalised (whether relating to the then current interest period or anyprior interest period in which Cash Interest was not paid when due), providedthat (in the case of a payment of Cash Interest) no such payment may be made bythe Relevant Company or any Restricted Subsidiary more than 7 days in advanceof the date on which Cash Interest payments on the Tranche A Advance or anyTranche C Advance are made in accordance with their terms;

 

(iv)                              theredemption, repurchase, retirement, defeasance or other acquisition of any ofits subordinated Financial Indebtedness of the Relevant Company or any of itsRestricted Subsidiary or of any Equity Interests of the Relevant Company or anyRestricted Subsidiary in exchange for, or out of the net cash proceeds of thesubstantially concurrent sale (other than to a Subsidiary of the RelevantCompany) of, Equity Interests of the Relevant Company (other than DisqualifiedShare Capital); provided that the amount of any such net cash proceeds that areutilized for any such redemption, repurchase, retirement, defeasance or otheracquisition will be excluded from (a)(iv)(C)(II) above;

 

(v)                                 thedefeasance, redemption, repurchase or other acquisition of any FinancialIndebtedness of the Relevant Company and its Restricted Subsidiaries that issubordinated in right of payment to the Notes with the net cash proceeds froman incurrence of Permitted Refinancing Indebtedness;

 

(vi)                              thedefeasance, redemption, prepayment, decrease, repurchase or acquisition of theSubordinated Shareholder Loan, the Intragroup Capital Contribution, the NordicInter-Company Loan, the Bus-Nordic

 

77

----

 

Loan and theLimited Recourse Note or the payment of any interest thereon;

 

(vii)                           therepurchase, redemption or other acquisition or retirement for value of anyEquity Interests of the Relevant Company or any Restricted Subsidiary of theRelevant Company held by (i) any member of the Relevant Company’s (or anyof its Restricted Subsidiaries’) management pursuant to any management equitysubscription agreement or stock or share option agreement in effect as of thedate of this Agreement or (ii) any employee of the Relevant Company or anyof its Restricted Subsidiaries upon the retirement of any such employee;provided that the aggregate price paid for all such repurchased, redeemed,acquired or retired Equity Interests will not exceed SEK 10,000,000 in anytwelve month period;

 

(viii)                        otherRestricted Payments in an aggregate amount not to exceed SEK 20,000,000;

 

(ix)                                thepayment of any dividends, distributions or contributions of up to 50% of FreeCash Flow in excess of the sum of SEK 100,000,000 and amounts paid in respectof the Intragroup Capital Contribution under paragraph (iii) hereof, inany given fiscal year;

 

(x)                                   anysuch further distribution by Nordic and Holding, of Excess Proceeds (as definedin Clause 19.12(d)) as may be permitted hereunder;

 

(xi)                                anypayment or distribution to be made by Nordic in respect of the IntragroupCapital Contribution;

 

(xii)                             anypayment or distribution to be made by any Restricted Subsidiary to the RelevantCompany in respect of the principal amount of the Financial Indebtednessincurred by the Relevant Company under this Agreement; and

 

(xiii)                          anypayment to Bus in respect of the Intragroup Capital Contribution for thepurpose of meeting costs and expenses incurred by Bus in defending anylitigation brought against it arising out of the action taken by it incommencing the Reorganisation (together with any other costs and expensesattributable to any delays occurring as a result of such litigation) incircumstances where:

 

(A)                              anycontingency amounts available to it for funding such costs have been exhaustedor already set aside in respect of such costs and expenses previously incurred;and

 

(B)                                Nordichas been requested, and has declined, to provide the requisite funding,

 

provided thatsuch payments shall not exceed EUR 1,000,000 less the contingency amountsreference in preceding sub-paragraph (A).

 

78

----

 

The amount ofall Restricted Payments (other than cash) will be the fair market value on thedate of the Restricted Payment of the asset(s) or securities proposed to betransferred or issued by the Relevant Company or such Restricted Subsidiary, asthe case may be, pursuant to the Restricted Payment. The fair market value ofany assets or securities that are required to be valued by this Clause will bedetermined by the board of directors of the Relevant Company, or Nordic (inrespect of any other Restricted Subsidiaries) whose resolution with respectthereto (or an Officer’s Certificate certifying such determination of the boardof directors) will be delivered to the Facility Agent. The board of directors’determination must be based upon an opinion or appraisal issued by an appraisalor investment banking firm of international standing if the fair market valueexceeds SEK 400,000,000. Not later than the date of making any RestrictedPayment in an amount in excess of SEK 40,000,000, the Relevant Company willdeliver to the Facility Agent an Officers’ Certificate stating that suchRestricted Payment is permitted and setting forth the basis upon which thecalculations required by this Clause 19.7 were computed.

 

In computingConsolidated Net Income of the Relevant Company for the purpose of the(a)(iv)(C)(I) above, the Relevant Company will use audited financial statementsfor the portions of the relevant period for which audited financial statementsare available on the date of determination and unaudited financial statementsbased on the books and records of the Relevant Company for the remainingportion of such period. The Relevant Company or any of its RestrictedSubsidiaries will be permitted to rely in good faith on the financial and otherdata derived from its books and records that are available on the date ofdetermination in preparing such unaudited financial statements. If the RelevantCompany or any of its Restricted Subsidiaries makes a Restricted Payment that,at the time of the making of it, would in the good faith determination of theRelevant Company or any of its Restricted Subsidiaries be permitted under therequirements of this Agreement, such Restricted Payment will be deemed to havebeen made in compliance with this Agreement notwithstanding any adjustmentsmade in good faith to the Relevant Company’s financial statements after suchRestricted Payment is made which effect Consolidated Net Income of the RelevantCompany for any period; provided, however, that any such adjustments will betaken into account in computing Consolidated Net Income in respect of anysubsequent Restricted Payment.

 

**19.8        Limitations on Dividends and OtherPayment Restrictions Affecting Subsidiaries**

 

(a)                                  TheRelevant Company shall not, and will not permit any of its Restricted Subsidiariesto, directly or indirectly, create or permit to exist or become effective anyencumbrance or restriction on the ability of any Subsidiary to:

 

(i)                                     paydividends or make any other distributions on its Share Capital or with respectto any other interest or participation in, or measured by, its profits orreserves, to the Relevant Company or any of the Relevant Company’s RestrictedSubsidiaries, or pay any indebtedness owed to the Relevant Company or any ofthe Relevant Company’s Restricted Subsidiaries;

 

79

----

 

(ii)                                  makeloans or advances to the Relevant Company or any of the Relevant Company’sRestricted Subsidiaries; or

 

(iii)                               transferany of its properties or assets to the Relevant Company or any of the RelevantCompany’s Restricted Subsidiaries.

 

(b)                                 However,the preceding restrictions will not apply to encumbrances or restrictionsexisting under or by reason of:

 

(i)                                     theSenior Notes Indenture, existing Financial Indebtedness, the SecurityDocuments, the Notes, the Subordinated Notes and the Senior Notes IndentureSecurity Documents;

 

(ii)                                  applicablelaw;

 

(iii)                               anyinstrument governing Financial Indebtedness or Share Capital of a Personacquired by a Relevant Company or any of its Restricted Subsidiaries as ineffect at the time of such acquisition (except to the extent such FinancialIndebtedness was incurred in connection with or in contemplation of suchacquisition), which encumbrance or restriction is not applicable to any Person,or the properties or assets of any Person, other than the Person, or theproperty or assets of the Person, so acquired, provided that, in the case ofFinancial Indebtedness, such Financial Indebtedness was permitted by the termsof this Agreement to be incurred;

 

(iv)                              customarynon-assignment provisions in leases entered into in the ordinary course ofbusiness and consistent with then current industry practices;

 

(v)                                 purchasemoney obligations for property acquired in the ordinary course of business thatimpose restrictions on the transfer or encumbrance of the property so acquired;

 

(vi)                              anyagreement for sale or other disposition of a Restricted Subsidiary thatrestricts distributions or transfers or assets by such Restricted Subsidiarypending the consummation or such sale or other disposition; and

 

(vii)                           SecurityInterests securing Financial Indebtedness otherwise permitted to be incurredpursuant to Clause 19.9 (*Limitation onSecurity Interests*) that limit the right of the Relevant Company orany of its Restricted Subsidiaries to dispose of the assets subject to suchencumbrance.

 

**19.9        Limitation on Security Interests**

 

(a)                                  TheRelevant Company shall not, and will not permit any of its RestrictedSubsidiaries to, directly or indirectly, create, incur, assume or suffer toexist any Security Interests of any kind securing Financial Indebtedness,Attributable Debt or trade payables on any property or asset now owned orhereafter acquired, except Permitted Security Interests.

 

80

----

 

(b)                                 Unlessand until the Senior Notes Trustee confirms to the Security Agent that it hastaken possession of the Collateral and that such Collateral has been perfectedunder local laws, neither the Relevant Company nor any of its Subsidiaries canincur any debt secured by pledges expressed to be senior to, or pari passuwith, the security then existing in favour of the Notes provided that thislimitation does not apply to any Security Interest created in relation to theNotes the Subordinated Shareholder Loan and provided further that thislimitation does not apply to any Permitted Security Interest falling withinparagraphs (b), (h), (j) to (n) and (q) of the definition of Permitted SecurityInterests.

 

**19.10      Limitation on Sale and LeasebackTransactions**

 

The RelevantCompany shall not, and will not permit any of its Restricted Subsidiaries to,enter into any Sale and Leaseback Transactions; provided that the RelevantCompany and its Restricted Subsidiaries may enter into a Sale and LeasebackTransaction if:

 

(a)           the Relevant Company or itsRestricted Subsidiaries could have:

 

(i)                                     incurredFinancial Indebtedness in an amount equal to the Attributable Debt relating tosuch Sale and Leaseback Transaction under the Fixed Charge Coverage Ratio testin Clause (a) of Clause 19.6 (*Limitationon Financial Indebtedness*); and

 

(ii)                                  incurreda Security Interest to secure such Financial Indebtedness pursuant to Clause19.9 (*Limitation on Security Interests*);

 

(b)                                 thegross cash proceeds of such Sale and Leaseback Transaction are at least equalto the fair market value, as determined in good faith by the board of directorsof the Relevant Company or Nordic and set forth in an Officers’ Certificatedelivered to the Facility Agent, of the property that is the subject of suchSale and Leaseback Transaction; and

 

(c)                                  thetransfer of assets in such Sale and Leaseback Transaction is permitted by, andthe Relevant Company applies the proceeds of such transaction in compliancewith Clause 19.12 (*Limitations on CertainAsset Sales*).

 

**19.11      Limitation on Transactions with Affiliatesand Related Persons**

 

(a)                                  TheRelevant Company shall not, and will not permit any of its RestrictedSubsidiaries to, make any payment to, or sell, lease, transfer or otherwisedispose of any of its properties or assets to, or purchase any property orassets from, or enter into or make or amend any transactions, contract,agreement, understanding, loan, advance or guarantee with, or for the benefitof, any Affiliate (each, an “**AffiliateTransaction**”), unless:

 

(i)                                     suchAffiliate Transaction is on terms that are no less favourable to the RelevantCompany or the relevant Restricted Subsidiary than those that would have beenobtained in a comparable transaction at such time on an arm’s length basis bythe Relevant Company or such Restricted

 

81

----

 

Subsidiarywith a Person which is not an Affiliate of the Relevant Company or suchRestricted Subsidiary; and

 

(ii)                                  theRelevant Company delivers to the Facility Agent:

 

(A)                              withrespect to any Affiliate Transaction or series of related AffiliateTransactions involving aggregate consideration in excess of SEK 100,000,000, anopinion in form and substance satisfactory to the Facility Agent (acting on theinstructions of the Majority Lenders) (acting reasonably) as to the fairness tothe Lenders of such Affiliate Transaction from a financial point of view issuedby an appraisal or investment banking firm of international standing.

 

(B)                                withrespect to any Affiliate Transaction or series of related AffiliateTransactions involving aggregate consideration in excess of SEK 10,000,000, aresolution of its board of directors, certified in an Officers’ Certificate,resolving that such Affiliate Transaction complies with this Clause and that suchAffiliate Transaction has been approved by a majority of the disinterestedmembers of its board of directors; and

 

(iii)                               NotwithstandingClauses 19.6 to 19.11 inclusive and Clause 19.12, the Relevant Company or anyof its Restricted Subsidiaries may enter into any Affiliate Transaction inconnection with the Restructuring, including, without limitation, transactionsrelated to the Notes, the Subordinated Shareholder Loan, the Limited RecourseNote, the Intragroup Capital Contribution, activities as set out in the AgreedCosts Schedule, the Structure Paper and this Agreement, without complying withthe preceding provisions.

 

(b)                                 Thefollowing items will not be deemed to be Affiliate Transactions and thereforewill not be subject to the provisions of paragraph (a) of this Clause:

 

(i)                                     reasonablefees and compensation paid to and indemnity provided on behalf of, officers,directors, employees or consultants of the Relevant Company or any RestrictedSubsidiary of the Relevant Company in the ordinary course of business andconsistent with the past practice of the Relevant Company or such RestrictedSubsidiary and reasonable fees and compensation and in respect of theManagement Services Agreement, all as determined in good faith by the RelevantCompany’s board of directors or senior management;

 

(ii)                                  transactionsexclusively between or among the Relevant Company and any of its Wholly OwnedRestricted Subsidiaries or exclusively between or among such Wholly OwnedRestricted Subsidiaries, provided such transactions are not otherwiseprohibited by this Agreement ; and

 

(iii)                               RestrictedPayments that are not “Permitted Investments” and that are permitted by Clause19.7 (*Limitation on Restricted Payments*).

 

82

----

 

**19.12      Limitation on Certain Asset Sales**

 

(a)                                  TheRelevant Company shall not, and will not permit any of its RestrictedSubsidiaries to, consummate an Asset Sale unless:

 

(i)                                     theRelevant Company or the Restricted Subsidiary, as the case may be, receivesconsideration at the time of such Asset Sale at least equal to the fair marketvalue of the assets or Equity Interests issued or sold or otherwise disposed;

 

(ii)                                  suchfair market value is determined in good faith by the Relevant Company’s orNordic’s board of directors and evidenced by a resolution of the RelevantCompany’s or its Nordic’s board of directors set forth in an Officers’Certificate delivered to the Facility Agent;

 

(iii)                               atleast 75% of the consideration therefor received by the Relevant Company or suchRestricted Subsidiary is in the form of Cash Equivalents and is received at thetime of such issuance, sale or disposition. For purposes of this provision,each of the following will be deemed to be Cash Equivalents:

 

(A)                              anyliabilities (as shown on the Relevant Company’s or such Restricted Subsidiary’smost recent balance sheet), of the Relevant Company or any RestrictedSubsidiary (other than contingent liabilities and liabilities that are by theirterms subordinated in right of payment to the Notes) that are assumed by thetransferee of any such assets pursuant to a customary novation agreement thatreleases the Relevant Company or such Restricted Subsidiary from suchliabilities;

 

(B)                                anysecurities, notes or other obligations received by the Relevant Company or anysuch Restricted Subsidiary from such transferee that are (subject to ordinarysettlement periods) converted within 30 days by the Relevant Company or suchRestricted Subsidiary into Cash Equivalents (to the extent of the CashEquivalents received in that conversion); and

 

(C)                                suchAsset Sale is made in compliance with the Security Documents or, in the case ofpledged assets, with the consent of the Security Agent as applicable.

 

(b)                                 Notwithstandingthe foregoing, the Relevant Company (or the Restricted Subsidiary, as the casemay be) may consummate an Asset Sale with respect to a bus which is thensubject to a Residual Value Guarantee provided that (a) the RelevantCompany (or the Restricted Subsidiary, as the case may be) receives considerationat the time of such Asset Sale at least equal to the then applicable SpecifiedResidual Value for such bus, (b) 100% of the consideration thereforreceived by the Relevant Company or such Restricted Subsidiary is in the formof Cash Equivalents and is received at the time of such sale or disposition and(c) such Asset Sale is made in compliance with

 

83

----

 

the SecurityDocuments or, in the case of pledged assets, with the consent of the SecurityAgent as applicable.

 

(c)                                  Within360 days after receipt of any Net Proceeds from an Asset Sale, the RelevantCompany will apply, or cause such Restricted Subsidiary to apply, such NetProceeds at its option to make an investment in properties and assets thatreplace the properties and assets that were the subject of such Asset Sale orin properties and assets that will be used in a Permitted Business (“**Replacement Assets**”). Pending the finalapplication of any such Net Proceeds, the Relevant Company may temporarily reducerevolving credit borrowings of the Relevant Company or of any of itsSubsidiaries or otherwise invest such Net Proceeds in any manner that is notprohibited by this Agreement.

 

(d)                                 AnyNet Proceeds from Asset Sales that are not applied or invested as provided inthe preceding paragraph (c) will be deemed to constitute “**Excess Proceeds**”.  When the aggregate amount of Excess Proceedsexceeds SEK10,000,000, such Excess Proceeds will be applied to the redemptionof the Notes on the 361stday after an Asset Sale (the “**Asset SalePayment Date**”) (or on the next day that is the last day of anInterest Period provided that such next day is less than ninety (90) days afterthe Asset Sale Payment Date) in accordance with Article 1014(4) ofthe Senior Notes Indenture.

 

(e)                                  AnyExcess Proceeds that are not applied towards the redemption of the Notes in themanner described in paragraph (d) above may be applied towards prepaymentof any amount then outstanding under the Facility (subject to the provisions ofsub-clause 7.11).  Any prepayment to bemade hereunder shall be made after each Borrower has served a written notice onthe Lenders of its intention to prepay the Facility 10 Business Days prior tothe date of prepayment.  If the Lendersdo not object to the Borrower’s intention to prepay the Facility in writingbefore the proposed prepayment date, the relevant Borrower will prepay theamount owing by it under the Facility on the proposed prepayment date, (or onthe next day that is the last day of an Interest Period).  If the Lenders object to the proposedprepayment in writing prior to the proposed prepayment date, then the relevantBorrower shall not be entitled to make any prepayment of the Facilities.  Upon the service of a notice or notices bythe relevant Borrower under this paragraph (e), the amount of Excess Proceedswill be reset at zero.

 

**19.13      Limitation on Sales and Issuances ofEquity Interests in Restricted Subsidiaries**

 

(a)                                  TheRelevant Company shall not, and will not permit any of its Restricted Subsidiariesto, transfer, convey, sell, lease or otherwise dispose, directly or indirectly,of any Equity Interests (other than Share Capital constituting directors’qualifying shares) in any Restricted Subsidiary of the Relevant Company to anyPerson (other than the Relevant Company or a Wholly Owned Restricted Subsidiaryof the Relevant Company, provided that any such Equity Interest is pledged tothe Security Agent pursuant to an effective and perfected security interest atthe time of such transfer, conveyance, sale, lease or other disposition),unless:

 

84

----

 

(i)                                     suchtransfer, conveyance, sale, lease or other disposition is of all the EquityInterests in such Restricted Subsidiary; and the cash Net Proceeds from suchtransfer, conveyance, sale, lease or other disposition are applied inaccordance with Clause 19.12 (*Limitation onCertain Asset Sales*),

 

(ii)                                  immediatelyafter giving effect to such transfer, conveyance, sale or other dispositionsuch Restricted Subsidiary would no longer constitute a Subsidiary or isdesignated as an Unrestricted Subsidiary, the Net Proceeds from such transfer,conveyance, sale or other disposition are applied in accordance with Clause19.12 (*Limitation on Certain Asset Sales*),and any remaining Investment in such Person would have been permitted to bemade under Clause 19.7 (*Limitation onRestricted Payments*) if made on the date of such transfer,conveyance, sale or other disposition, or

 

(iii)                               asale of the type described in the proviso to the definition of ‘**Sale and Leaseback Transaction**”.

 

(b)                                 Inaddition, the Relevant Company will not permit any Restricted Subsidiary of theRelevant Company to issue any of its Equity Interests (other than, ifnecessary, shares of its Share Capital constituting directors’ qualifyingshares) to any Person other than to the Relevant Company or a Wholly OwnedRestricted Subsidiary of the Relevant Company that is a Subsidiary Guarantor)or permit any Person (other than the Relevant Company or a Wholly OwnedRestricted Subsidiary of the Relevant Company that is a Subsidiary Guarantor)to own any Preferred Shares of any Restricted Subsidiary of the RelevantCompany.

 

**19.14      Waiver of Certain Covenants**

 

The RelevantCompany may omit in any particular instance to comply with any covenant orcondition set forth in Clauses 19.2 (*Existence*)to 19.13 (*Limitation on Sales and Issuancesof Equity Interests in Restricted Subsidiaries*) and also informationundertakings, as set out in Clause 18 if before the time for such compliancethe Majority Lenders either waive such compliance in such instance or generallywaive compliance with such covenant or condition, but no such waiver shallextend to or affect such covenant or condition except to the extent soexpressly waived, and, until such waiver shall become effective, theobligations of the Relevant Company and the duties of the Facility Agent inrespect of any such covenant or condition shall remain in full force andeffect.

 

**19.15      Designation of Restricted and UnrestrictedSubsidiaries**

 

(a)                                  Theboard of directors of the Relevant Company may designate any RestrictedSubsidiary to be an Unrestricted Subsidiary if that designation would not causea Default. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary,all outstanding Investments owned by the Relevant Company and its RestrictedSubsidiaries in the Subsidiary so designated will be deemed to be an Investmentmade as of the time of such designation and will reduce the amount availablefor Restricted Payments under paragraph (a) of Clause 19.7

 

85

----

 

(*Limitation on Restricted Payments*) orPermitted Investments, as applicable. All such outstanding Investments will bevalued at their fair market value at the time of such designation. Thatdesignation will only be permitted if such Restricted Payment would bepermitted at that time and if such Restricted Subsidiary otherwise meets thedefinition of an Unrestricted Subsidiary. The Relevant Company’s board of directorsmay redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary ifsuch redesignation would not result in a Default.

 

(b)                                 Anydesignation pursuant to this Clause 19.15 by the Relevant Company’s board ofdirectors will be evidenced to the Facility Agent by the prompt filing with theFacility Agent of a certified copy of the resolution of such board of directorsgiving effect to such designation and an Officers’ Certificate certifying thatsuch designation complied with the foregoing conditions.

 

**19.16      Permitted Activities and Amendment ofSecurity Documents**

 

The RelevantCompany shall not engage in any business activity other than, acting as adirect holding companies of its Subsidiaries, including activities beingundertaken on the date of this Agreement that are ancillary to such role. TheRelevant Company shall not Incur any material liabilities not directly relatedto such activities other than the Incurrence of Financial Indebtedness inaccordance with the terms of this Agreement.

 

The RelevantCompany will not, and will not permit any Subsidiary Guarantor to, amend any ofthe Security Documents in a manner adverse to the interests of the Lenders.

 

**19.17      Advances to Subsidiaries**

 

All advancesto Restricted Subsidiaries made by the Relevant Company or Nordic after thedate of this Agreement will be evidenced by intercompany notes or loanagreements in favour of the Relevant Company or Nordic. Each intercompany notewill be issued and each intercompany loan agreement will be executed by the relevantRestricted Subsidiary of the Relevant Company or Nordic in favour of theRelevant Company to evidence advances by the Relevant Company or Nordic andwill provide that such advances will be payable upon demand.

 

**19.18      Covenants: Overriding Exceptions**

 

Notwithstandingthe limitations set out in this clause 19, and any similar restrictions inanother Finance Document, for the purposes of the Finance Documents, theRelevant Company and any of its Subsidiaries:

 

(a)                                  shallbe permitted to take any action, incur any debt, grant any security, dispose ofany asset or claim or make any payment, transfer or transaction set out in theAgreed Costs Schedule and/or the Structure Paper, including taking allactions and steps necessary to complete and perform the same; and

 

(b)                                 shallnot be required to notify the Security Agent of any actions taken in respect ofSecurity Interests which does not affect the Security Interests held

 

86

----

 

by theSecurity Agent on behalf of the Relevant Lenders and which has been notified tothe Senior Notes Trustee.

 

**19.19      Release**

 

Withoutprejudice to the obligations of any Obligor under the Finance Documents, eachparty to this Agreement hereby irrevocably releases, waive s and discharges eachof the other parties hereto and their Affiliates and every other company in theGroup, each of those parties’ Representatives and the Released Persons from anyand all claims (other than a claim for any loss caused by fraud or wilfulmisconduct) in connection with their investment and/or shareholdings in theGroup or any securities or debt issued by the Group other than any claim forfailure to perform the obligations set out in any Finance Document, and thatany New Lender who becomes a party to this Agreement will do so subject to theterms of this Clause.  Each Affiliate ofa party to this Agreement, each member of the Group and each of those persons’Representatives and Released Persons shall be entitled to enforce this Clause19.19 directly under the Contracts (Rights of Third Parties) Act 1999.

 

**19.20      Additional documents**

 

In respect ofa Utilisation of a Facility pursuant to this Agreement the relevant Borrowershall provide the relevant documents to the Facility Agent at the time and inthe manner set out in Part II of Schedule 2 to this Agreement.

 

**19.21      Additional Lender Covenant**

 

(a)                                  EachLender (including any New Lender) undertakes to the Controlling Shareholders(as defined in the Binding Restructuring Agreement) that, in the circumstancesspecified in paragraph (b) below, it shall pay to Goldman Sachs 5/8 and toSchoyen 3/8 of all Recovered Amounts (as defined below).

 

(b)                                 Thecircumstances referred to in Paragraph (a) are:

 

(i)                                     thatBus and/or Nordic has entered into an insolvency procedure;

 

(ii)                                  thatall or part of the amounts paid to the Controlling Shareholders or theirnominees by Bus and/or Nordic in connection with the Restructuring are requiredto be repaid by any insolvency officer, court or other mandatory requirement;and

 

(iii)                               thatany payment is made to any of the Lenders or to their order in connection withsuch an insolvency procedure (a “**RecoveredAmount**”).

 

(c)                                  Theaggregate payment to be made by a Lender pursuant to paragraph (a)  shallnot in aggregate exceed the proportion borne by its aggregate Commitments tothe Total Commitments of Euro 1.6 million.

 

(d)                                 Thepayment or payments to be made by each Lender pursuant to paragraph (a) shall be made promptly on payment of any Recovered Amount.

 

87

----

 

(e)                                  EachLender (including any New Lender) undertakes to notify the Facility Agent andthe Controlling Shareholders in writing as soon as a Recovered Amount is paidto it or its order.

 

(f)                                    EachAffiliate of a party to this Agreement, each member of the Group and each ofthose persons’ Representatives and related Persons shall be entitled to enforcethis Clause 19.21 directly under the Contracts (Rights of Third Parties) Act1999.

 

(g)                                 Eachof the Controlling Shareholders shall be entitled to enforce this Clause 19.21directly against each Lender under the Contracts (Rights of Third Parties) Act1999.

 

**20           DEFAULT**

 

**20.1        Events of Default**

 

“**Event of Default**”, wherever used herein,means any one of the following events (whatever the reason for such Event ofDefault and whether it shall be voluntary or involuntary or be effected byoperation of law or pursuant to any judgment, decree or order of any court orany order, rule or regulation of any administrative or governmental body):

 

(a)                                  defaultfor 30 days in the payment when due of interest pursuant to a Finance Documentwhether or not such payment is prohibited or restricted by any applicable lawor regulation;

 

(b)                                 defaultin payment when due of the principal pursuant to a Finance Document whether ornot such payment is prohibited or restricted by any applicable law orregulation;

 

(c)                                  failureby the Relevant Company or any of its Restricted Subsidiaries to comply withthe provisions of the Finance Documents (other than (a) and (b) above)or otherwise take any action which is not permitted by or omit to take anyaction which is required by the Finance Documents, and if such failure tocomply is capable of remedy, it is not remedied within 15 Business Days of theFacility Agent serving notice to the Relevant Company, provided that theinvalidity failure to perfect or lack of priority of, (i) the secondranking charge granted by Holding over its shares in Nordic and (ii) anyencumbrance, if such invalidity or failure to perfect or lack of prioritythereof arises as a result only of the existence of a negative pledge orundertaking not to grant security rights, will not constitute an Event ofDefault under this sub-paragraph (c);

 

(d)                                 defaultunder any mortgage,  or instrument underwhich there may be issued or by which there may be secured or evidenced anyFinancial Indebtedness for money borrowed by the Relevant Company or any of itsRestricted Subsidiaries (or the payment of which is guaranteed by the RelevantCompany or any of its Restricted Subsidiaries) whether such FinancialIndebtedness or guarantee now exists, or is created after the date of thisAgreement (save for any default which may arise from a default (howeverdescribed), breach or contravention of (i) the Subordinated NotesIndenture and documents related

 

88

----

 

thereto (ii) theSenior Notes Indenture and documents related thereto (iii) any otheragreements or instruments in respect of any other arrangements which theRelevant Company or any of its Restricted Subsidiaries may enter into or mayhave entered into with its creditors under which a default (however described)arises by reference, whether expressly or otherwise, to any of the terms of theSubordinated Notes Indenture or the Senior Notes Indenture or (iv) anyother agreement or instrument which by virtue of its terms would, give rise toa default (however described) under this Clause 20.1(d)), if that default:

 

(i)                                     iscaused by a failure to pay principal of or premium, if any, on such FinancialIndebtedness prior to the expiration of the grace period provided in suchFinancial Indebtedness on the date of such default (a “**Payment Default**”); or

 

(ii)                                  resultsin the acceleration of such Financial Indebtedness prior to its stated maturity;and

 

in each case,the principal amount of any such Financial Indebtedness, together with theprincipal amount of any other such Financial Indebtedness the maturity of whichhas been so accelerated, aggregates SEK 40,000,000 or more;

 

(e)                                  failureby the Relevant Company or any of its Restricted Subsidiaries to pay judgmentsaggregating in excess of SEK 40,000,000, which judgments are not paid,discharged or stayed for a period of 60 days; and

 

(f)                                    anydefault by the Relevant Company, in the performance of its obligations underthe Security Documents (after the lapse of any applicable grace periods and thegiving of any required notice) which materially adversely affects theenforceability, validity, perfection or priority of the Security Agent’sSecurity Interests as set out in the Security Documents or which adverselyaffects the condition or value of the security, in either case taken as awhole, in any material respect, disaffirmation by the Relevant Company of itsobligations under the Security Documents or the determination in a judicialproceeding that the Security Documents are unenforceable or invalid against theRelevant Company as to a material portion of the security for any reason,provided that the invalidity, the failure to perfect, or the lack of priorityof (i) the second ranking charge (which shall be second ranking subject tothe release of the Existing Security) granted by Holding over its shares inNordic, and (ii) any encumbrance, if such invalidity or failure to perfector lack of priority thereof arises as a result only of the existence of anegative pledge or undertaking not to grant security rights, will notconstitute an Event of Default under this subparagraph (f);

 

(g)                                 theentry by a court having jurisdiction of:

 

(i)                                     adecree or order for relief in respect of the Relevant Company or any SubsidiaryGuarantor in an involuntary case or proceeding under any applicable InsolvencyLaw in connection with the insolvency of the Relevant Company or any SubsidiaryGuarantor, or

 

89

----

 

(ii)                                  adecree or order adjudging the Relevant Company or any such Subsidiary Guarantoror any Parent Company a bankrupt or insolvent under any applicable InsolvencyLaw, or appointing a custodian, receiver, liquidator, assignee, trustee,reconstructor, sequestrator or other similar official of the Relevant Companyor any such Subsidiary Guarantor of any substantial part of the property of theRelevant Company or any such Subsidiary Guarantor or ordering the winding up orliquidation of the affairs of the Relevant Company or any such SubsidiaryGuarantor, and the continuance of any such decree or order for relief or anysuch other decree or order unstayed and in effect for a period of 90consecutive days

 

PROVIDED THATcourt proceedings in Sweden in relation to the Restructuring will not give riseto an Event of Default under this subparagraph (g); or

 

(h)                                 thecommencement by the Relevant Company or any of its Subsidiary Guarantors of avoluntary case or proceeding under any applicable Insolvency Law or of anyother case or proceeding to be adjudicated a bankrupt or insolvent, or theconsent by the Relevant Company or any such Subsidiary Guarantor to the entryof a decree or order for relief in respect of the Relevant Company or any suchSubsidiary Guarantor in an involuntary case or proceeding under any applicableInsolvency Law or to the commencement of any bankruptcy or insolvency case orproceeding against the Relevant Company or any such Subsidiary Guarantor or thefiling by the Relevant Company or any such Subsidiary Guarantor of a petitionor answer or consent seeking reorganization or relief under any applicableInsolvency Law, or the consent by the Relevant Company or any such SubsidiaryGuarantor to the filing of such petition or to the appointment of or takingpossession by a custodian, receiver, liquidator, assignee, trustee,reconstructor, sequestrator or similar official of the Relevant Company or anysuch Subsidiary Guarantor or any Parent Company or of any substantial part ofthe property of the Relevant Company or any such Subsidiary Guarantor, or anassignment for the benefit of creditors generally, or the admission by theRelevant Company or any such Subsidiary Guarantor in writing of its inabilityto pay its debts generally as they become due provided that, the occurrence ofone of more of the events described in this clause in connection with theRestructuring or the Swedish moratorium proceedings shall be deemed not to bean Event of Default.

 

**20.2        Acceleration**

 

If an Event ofDefault is continuing, the Facility Agent may, and shall if so directed by theMajority Lenders, by notice to the Relevant Company do all or any of thefollowing in addition and without prejudice to any other rights or remedieswhich it or any other Finance Party may have under this Agreement or any of theother Finance Documents:

 

(a)           declare that an Event of Default hasoccurred;

 

(b)           cancel some or all of the TotalCommitments whereupon they shall immediately be cancelled;

 

90

----

 

(c)                                  declarethat all or part of the Advances, together with accrued interest, and all otheramounts accrued or outstanding under the Finance Documents be:

 

(i)                                     immediatelydue and payable, whereupon they shall become immediately due and payable;

 

(ii)                                  payableon demand by the Facility Agent (and if any such demand is subsequently madethose amounts, together with accrued interest and all other amounts accruedunder this Agreement, shall be immediately due and payable); or

 

(d)                                 exercise,or direct the Security Agent to exercise (subject to the provisions of Clause23), all or any of its or as the case may be, the Security Agent’s rights,remedies, powers or discretions under any of the Security Documents.

 

91

----

 

**SECTION 8**

**CHANGESTO PARTIES**

 

**21**                                  **CHANGES TO THE LENDERS**

 

**21.1        Assignments and transfers by the Lenders**

 

Subject tothis Clause 21 a Lender (the “**Existing Lender**”)may at any time:

 

(a)           assign any of its rights; or

 

(b)           transfer (including by way ofnovation) any of its rights and obligations,

 

under thisAgreement to another bank or financial institution or to a trust, fund or otherentity which is regularly engaged in or established (in whole or in part) forthe purpose of making, purchasing or investing in loans, securities or otherfinancial assets (the “**New Lender**”)provided that a transfer of part of a Lender’s Commitment must be in a minimumamount of at least EUR 2,000,000 or, if a Lender’s Commitment with respect to aFacility is less than that minimum amount, such lesser amount as is equal tothat Lender’s Commitment with respect to that Facility.

 

**21.2        Conditions of assignment or transfer orchange in Facility Office**

 

(a)                                  TheLenders must consult with the relevant Borrower in relation to any assignmentor transfer of rights and obligations under the Finance Documents.

 

(b)                                 Atransfer of obligations will only be effective if:

 

(i)                                     theprocedure set out in Clause 21.5 (*Procedurefor transfer*) is complied with;

 

(ii)                                  theFacility Agent receives written confirmation from the New Lender (in form andsubstance satisfactory to the Facility Agent) that the New Lender will assumethe same obligations to the other Finance Parties as it would have been underif it was an Original Lender.

 

(c)                                  Notwithstandinganything in this Clause 21, prior to the Utilisation of a Facility and providedno Event of Default has occurred or is continuing (or, if an Event of Defaulthas occurred, provided it has been cured to the satisfaction of the MajorityLenders (acting reasonably)), no Lender may transfer, assign or novate infavour of a New Lender any part of its Commitment in respect of that Facilitywithout the prior written consent of the party which is to be Borrower inrespect of that Facility.

 

**21.3        Assignment or transfer fee**

 

Unless theFacility Agent otherwise agrees, the New Lender shall, on or before the dateupon which an assignment or transfer takes effect, pay to the Facility Agent(for its own account) a fee of EUR 3,500.

 

----

 

**21.4        Limitation of responsibility of ExistingLenders**

 

(a)                                  Unlessexpressly agreed to the contrary in writing, an Existing Lender makes norepresentation or warranty and assumes no responsibility to a New Lender for:

 

(i)                                     thelegality, validity, effectiveness, adequacy or enforceability of the FinanceDocuments or any other documents or the value of any assets subject to theSecurity Documents;

 

(ii)                                  thefinancial condition of any Obligor;

 

(iii)                               theperformance and observance by any Obligor of its obligations under the FinanceDocuments or any other documents; or

 

(iv)                              theaccuracy of any statements (whether written or oral) made in or in connectionwith any Finance Document or any other document,

 

and anyrepresentations or warranties implied by law are excluded.

 

(b)           Each New Lender confirms to theExisting Lender and the other Finance Parties that it:

 

(i)                                     hasmade (and shall continue to make) its own independent investigation andassessment of the financial condition and affairs of each Obligor and itsrelated entities in connection with its participation in this Agreement and hasnot relied exclusively on any information provided to it by the Existing Lenderin connection with any Finance Document;

 

(ii)                                  willcontinue to make its own independent appraisal of the creditworthiness of eachObligor and its related entities whilst any amount is or may be outstandingunder the Finance Documents or any Commitment is in force; and

 

(iii)                               isa bank or financial institution, or a trust fund or other entity which isregularly engaged in or established (in whole or in part) for the purpose ofmaking, purchasing or investing in loan securities or other financial asset,and whose ordinary business includes participation in syndicated facilities ofthis type.

 

(c)                                  Nothingin any Finance Document obliges an Existing Lender to:

 

(i)                                     accepta re-transfer from a New Lender of any of the rights and obligations assignedor transferred under this Clause 21; or

 

(ii)                                  supportany losses directly or indirectly incurred by the New Lender by reason of thenon-performance by any Obligor of its obligations under the Finance Documentsor otherwise.

 

93

----

 

**21.5        Procedure for transfer**

 

(a)                                  Subjectto the conditions set out in Clause 21.2 (*Conditionsof assignment or transfer or change in Facility Office*) a transferis effected in accordance with paragraph (b) below when the Facility Agentexecutes an otherwise duly completed Transfer Certificate delivered to it bythe Existing Lender and the New Lender. The Facility Agent shall, subject to paragraph (b) below as soon asreasonably practicable after receipt by it of a duly completed TransferCertificate appearing on its face to comply with the terms of this Agreementand delivered in accordance with the terms of this Agreement, execute thatTransfer Certificate.

 

(b)                                 TheFacility Agent shall only be obliged to execute a Transfer Certificatedelivered to it by the Existing Lender and the New Lender upon its satisfactionwith the result of “know your client” or other checks relating to the identityof any person that it is required to carry out in relation to the transfer tosuch New Lender.

 

(c)           On the Transfer Date:

 

(i)                                     tothe extent that in the Transfer Certificate the Existing Lender seeks totransfer by novation its rights and obligations under the Finance Documents:

 

(A)                              therelevant Obligor and the Existing Lender shall be released from furtherobligations towards one another under the Finance Documents and theirrespective rights against one another under the Finance Documents shall becancelled (being the “**Discharged Rights andObligations**”);

 

(B)                                therelevant Obligor and the New Lender shall assume obligations towards oneanother and/or acquire rights against one another which differ from theDischarged Rights and Obligations only insofar as that Obligor and the NewLender have assumed and/or acquired the same in place of that Obligor and theExisting Lender;

 

(ii)                                  theFacility Agent, the Security Agent, the New Lender and other Lenders shallacquire the same rights and assume the same obligations between themselves asthey would have acquired and assumed had the New Lender been an Original Lenderwith the rights and/or obligations acquired or assumed by it as a result of thetransfer and to that extent the Facility Agent, the Security Agent, theExisting Lender and the other Lenders shall each be released from furtherobligations to each other under the Finance Documents; and

 

(iii)                               theNew Lender shall become a Party as a “Lender”.

 

(d)                                 EachParty (other than the Existing Lender and the New Lender) irrevocablyauthorises the Facility Agent to execute any duly completed TransferCertificate on its behalf.

 

94

----

 

**21.6        Sub-participations by Lenders**

 

Any Lendermay, without the consent of any Obligor, enter into with any person:

 

(a)                                  sub-participationagreements relating to this Agreement; and/or

 

(b)                                 anyother transactions under which payments are to be made by reference to thisAgreement or any Obligor.

 

Any Lendermay, without the consent of the Relevant Company or any Obligor, at any timecharge or create a Security Interest in all or any portion of its rights underany Finance Document to secure obligations of such Lender, including without limitation(i) any charge or creation of a Security Interest to secure obligations toa Federal Reserve Bank and (ii) in the case of any Lender that is a fund,any charge or creation of a security interest of all or any portion of suchLender’s rights under any Finance Document to any holders of obligations owed,or securities issued, by such Lender as security for such obligations orsecurities, or to any trustee for, or any other representative of, suchholders; provided that no such charge or creation of a security interest northe enforcement thereof shall:

 

(A)                              releasea Lender from any of its obligations hereunder or substitute any such chargeeor holder of the benefit of such security interest for such Lender as a partyhereto; or

 

(B)                                requireany payments to be made by any Obligor other than as required by the relevantFinance Document.  A copy of any noticeof charge or creation of Security Interest as envisaged in this paragraph shallbe delivered to the Facility Agent and the Facility Agent shall not be obligedto take any action in regard to such notice unless instructed to do so by therelevant Lender which has given such security.

 

**21.7        Disclosure of information**

 

(a)                                  EachFinance Party shall keep confidential any information supplied to it by or onbehalf of any Obligor in connection with the Finance Documents.  However, a Finance Party is entitled todisclose information:

 

(i)                                     whichis or becomes publicly available, other than as a result of a breach by thatFinance Party of this Clause ;

 

(ii)                                  ifrequired or, in the Finance Party’s absolute discretion, desirable inconnection with any legal or arbitration proceedings;

 

(iii)                               ifrequired to do so under any law or regulation;

 

(iv)                              toa governmental, banking, taxation or other regulatory authority;

 

(v)                                 toits professional advisers;

 

(vi)                              tothe extent allowed under paragraph (b) below; or

 

95

----

 

(vii)                           withthe agreement of the Relevant Company or the relevant Obligor.

 

(b)                                 AFinance Party may disclose to an Affiliate or any person with whom it mayenter, or has entered into, any kind of transfer, participation or otheragreement (including without limitation a transaction under which payments areto be made by reference to any of the Finance Documents in relation to thisAgreement (a “**participant**”):

 

(i)                                     acopy of any Finance Document; and

 

(ii)                                  anyinformation which that Finance Party has acquired under or in connection withany Finance Document.

 

However,before a participant may receive any confidential information, it shall agreewith the relevant Finance Party to keep that information confidential on theterms of paragraph (a) above.

 

(c)                                  ThisClause supersedes any previous confidentiality undertaking given by a FinanceParty in connection with this Agreement prior to it becoming a Party.

 

**22           CHANGESTO THE OBLIGORS**

** **

**22.1        Assignment and transfers by Obligors**

 

No Obligor mayassign any of its rights or transfer any of its rights or obligations under theFinance Documents.

 

96

----

 

**SECTION 10**

**THE FINANCE PARTIES**

 

**23****                               ROLEOF THE AGENT**

** **

**23.1****                        Appointmentof the Agents**

 

(a)                                EachFinance Party (other than each Agent) appoints each Agent to act as its agentunder and in connection with the Finance Documents.

 

(b)                               Eachother Finance Party (other than each Agent) irrevocably authorises each Agentto:

 

(i)                                   performits duties and exercise the rights, powers, authorities and discretionsspecifically given to it under or in connection with the Finance Documentstogether with any other incidental rights, powers, authorities and discretions;and

 

(ii)                                  executeeach Finance Document expressed to be executed by the relevant Agent on itsbehalf.

 

(c)                                EachFinance Party (other than the relevant Agent) confirms that the Agent hasauthority to accept on its behalf the terms of any reliance letter orengagement letter relating to due diligence reports or certificates requiredunder this Agreement provided by any third party and to bind it in the respectof such reports or letter and to sign such letters on its behalf and furtherconfirming that it accepts the terms and qualifications set out in such letter.

 

**23.2****                        Duties ofthe Agent**

 

(a)                                EachAgent shall promptly forward to a Party the original or a copy of any documentwhich is delivered to such Agent for that Party by any other Party.

 

(b)                               Exceptwhere a Finance Document specifically provides otherwise and as agreed by therelevant Agent, each Agent is not obliged to review or check the adequacy,accuracy or completeness of any document it forwards to another Party.

 

(c)                                Ifan Agent receives notice from a Party referring to this Agreement, describing aDefault and stating that the circumstance described is a Default, it shallpromptly notify the other Finance Parties. Neither Agent is obliged to monitor or enquire whether a Default hasoccurred.

 

(d)                               Ifan Agent is aware of the non-payment of any principal, interest, commitment feeor other fee payable to a Finance Party (other than such Agent) under thisAgreement it shall promptly notify the other Finance Parties.

 

(e)                                EachAgent’s duties under the Finance Documents are solely mechanical andadministrative in nature.

 

----

 

**23.3****                        Nofiduciary duties**

 

(a)                                Nothingin this Agreement constitutes any Finance Party as a trustee or fiduciary ofany person.

 

(b)                               NoAgent need hold in trust any moneys paid to it for a Party or be liable toaccount for any interest on those moneys, save as expressly provided for in theFinance Documents and as agreed by the relevant Agent.

 

(c)                                NeitherAgent shall be bound to account to any Lender for any sum or the profit elementof any sum received by it for its own account.

 

**23.4****                        Rights anddiscretions of the Agents**

 

(a)                                EachAgent may rely on:

 

(i)                                   anyrepresentation, notice or document believed by it to be genuine, correct andappropriately authorised or signed; and

 

(ii)                                  anystatement made by a director, authorised signatory or employee of any personregarding any matters which may reasonably be assumed to be within hisknowledge or within his power to verify.

 

(b)                               EachAgent may assume (unless it has received written notice to the contrary,referring specifically to the relevant provision under the Finance Documents,in its capacity as agent for the Lenders) that:

 

(i)                                   noDefault has occurred (unless it has actual knowledge of a Default arising underClause 20.1 (*Events of Default)*;

 

(ii)                                  anyright, power, authority or discretion vested in any Party or the MajorityLenders has not been exercised;

 

(iii)                               anynotice or request made by the Relevant Company (including a Utilisation Requestor Selection Notice) is made on behalf of and with the consent and knowledge ofall the Obligor.

 

(c)                                EachAgent may engage, pay for and rely on the advice or services of any lawyers,accountants, surveyors or other professional advisors, including withoutlimitation those representing another Party.

 

(d)                               EachAgent may act in relation to the Finance Documents through its personnel andagents.

 

(e)                                EachAgent may disclose to any other Party any information it reasonably believes ithas received as agent under this Agreement.

 

(f)                                  Notwithstandingany other provision of any Finance Document to the contrary, neither Agent isobliged to do or omit to do anything if it would or might in its reasonableopinion constitute a breach of any law or regulation or a breach of a fiduciaryduty or duty of confidentiality.

 

98

----

 

**23.5****                        MajorityLenders ’ and Facility Agent’s instructions**

 

(a)                                Unlessa contrary indication appears in a Finance Document, and subject to theprovisions of this Clause 23, the Facility Agent shall exercise any right,power, authority or discretion vested in it as Facility Agent in accordancewith any instructions given to it by the Majority Lenders (or, if so instructedby the Majority Lenders, refrain from exercising any right, power, authority ordiscretion vested in it as Facility Agent) and the Security Agent shallexercise any right, power, authority or discretion vested in it as SecurityAgent in accordance with any instructions given to it by the FacilityAgent.  No Agent shall be liable for anyact (or omission) if it acts (or refrains from taking any action) in accordancewith an instruction of the Majority Lenders (in the case of the Facility Agent)or of the Facility Agent (in the case of the Security Agent).

 

(b)                               Unlessa contrary indication appears in a Finance Document, any instructions given bythe Majority Lenders will be binding on all the Finance Parties.

 

(c)                                EachAgent may refrain from acting in accordance with the instructions of theMajority Lenders, the Lenders or (in the case of the Security Agent) theFacility Agent, until it has received such security as it may require for anycost, loss or liability (together with any associated VAT) which it may incur incomplying with the instructions.  Inaddition each Agent may refrain from doing anything (including disclosing anyinformation) which might, in its opinion, constitute a breach of any law orregulation or be otherwise actionable at the suit of any person, and may doanything which, in its opinion, is necessary or desirable to comply with anylaw or regulation.

 

(d)                               Inthe absence of instructions from the Majority Lenders, the Lenders, or theFacility Agent, as appropriate, each Agent may act (or refrain from takingaction) as it considers to be in the best interest of the Lenders (taken as awhole).

 

(e)                                EachAgent is not authorised to act on behalf of a Lender (without first obtainingthat Lender’s consent) in any legal or arbitration proceedings relating to anyFinance Document.

 

(f)                                  Otherthan the provisions of Clause 19.18 (*Overriding Exceptions*),the Facility Agent, in the event of an inconsistency between the terms of thisAgreement (excluding Schedule 6) and the Structure Paper, shall be required tohave reference solely to the terms of this Agreement (excluding Schedule 6).

 

**23.6****                        Responsibility**

 

No Agent isresponsible for the legality, validity, effectiveness, adequacy orenforceability of any Finance Document or any other agreement, arrangement ordocument entered into, made or executed in anticipation of or in connectionwith any Finance Document. No Agent is responsible for the adequacy, accuracyand/or completeness of any information (whether oral or written) supplied bythe Agent, an Obligor or any other person given in or in connection with anyFinance Document.

 

99

----

 

**23.7****                        Exclusionof liability**

 

(a)                                Withoutlimiting paragraph (b) below, neither Agent will be liable for any action takenby it under or in connection with any Finance Document, unless directly causedby its gross negligence or wilful misconduct.

 

(b)                               NoFinance Party (other than the relevant Agent) may take any proceedings againstany officer, employee or agent of an Agent in respect of any claim it mighthave against the Agent or in respect of any act or omission of any kind by thatofficer, employee or agent in relation to any Finance Document.  Any officer, employee or agent of an Agent mayrely on, enjoy the benefit of and enforce this Clause subject to Clause 1.3 (*Third Party Rights*) and the provisions of the Contracts(Rights of Third Parties Act) 1999.

 

(c)                                NoAgent will be liable for any delay (or any related consequences) in creditingan account with an amount required under the Finance Documents to be paid bysuch Agent if such Agent has taken all necessary steps as soon as reasonablypracticable to comply with the regulations or operating procedures of anyrecognised clearing or settlement system used by such Agent for that purpose.

 

(d)                               Nothingin this Agreement shall oblige an Agent to carry out any “know your client” orother checks in relation to the identity of any person on behalf of any Lenderand each Lender confirms to the Agents that it is solely responsible for anysuch checks it is required to carry out and that it may not rely on anystatement in relation to such checks made by any other person.

 

**23.8****                     Lenders’indemnity to the Agents**

 

Withoutlimiting the liability of any Obligor under the Finance Documents, each Lendershall (in proportion to its share of the Total Commitments or, if the TotalCommitments are then zero, to its share of the Total Commitments immediatelyprior to their reduction to zero) indemnify the Agents, within three BusinessDays of demand, against any cost, loss or liability incurred by either of theAgents (otherwise than by reason of such Agent’s gross negligence or wilfulmisconduct) in acting as Agent under the Finance Documents (unless such Agenthas been reimbursed by an Obligor pursuant to a Finance Document).  For the avoidance of doubt, where eitherAgent makes a demand against a Lender pursuant to this Clause 23.8, that Lendershall thereafter remain liable under that demand for the indemnity undertakenin this Clause 23.8, notwithstanding any subsequent transfer of that Lender’sCommitment, or part thereof, pursuant to Clause 21.1 (*Assignments and Transfers by the Lenders*).

 

**23.9****                     Resignationof an Agent**

 

(a)                                EachAgent may resign and appoint one of its Affiliates as successor by givingnotice to the Lenders and the Relevant Company.

 

(b)                               Alternativelyeach Agent may resign by giving notice to the Lenders and the Relevant Company,in which case the Majority Lenders may appoint a successor Agent.

 

100

----

 

(c)                                Ifthe Majority Lenders have not appointed a successor Agent in accordance withparagraph (b) above within thirty (30) days after notice of resignation wasgiven, the Agent (after consultation with the Relevant Company) may appoint asuccessor Agent.

 

(d)                               Theretiring Agent shall, at its own cost, make available to the successor Agentsuch documents and records and provide such assistance as the successor Agentmay reasonably request for the purposes of performing its functions as Agentunder the Finance Documents.

 

(e)                                Theresignation of an Agent and the appointment of any successor Agent will bothbecome effective only when the successor Agent notifies all the Parties that itaccepts its appointment and, in the case of the Security Agent, the FacilityAgent confirms that it is satisfied that the Security Documents (and anyrelated documentation) have been transferred to or into (and where requiredregistered in) the name of the proposed successor Security Agent.  On the conditions to appoint being satisfied,the successor Agent will succeed to the position of the  Agent and the term “Facility Agent “ or“Security Agent” as applicable will mean the successor Agent.

 

(f)                                  Uponits resignation becoming effective, this Clause will continue to benefit theretiring Agent in respect of any action taken or not taken by it in connectionwith the Finance Documents while it was an Agent, and, subject to paragraph (d)above, it will have no further obligations as Agent under any Finance Document.

 

(g)                               TheMajority Lenders or any Borrower may, by notice to an Agent, require it toresign under paragraph (b) above.

 

(h)                               TheObligor shall, at their own cost, take such action and execute such documentsas is required by the Security Agent so that the Security Documents provide foreffective and perfected security in favour of any successor Security Agent.

 

**23.10****              Security Agent**

 

(a)                                TheSecurity Agent shall hold the security constituted by the Security Documents tothe extent required by any applicable local law as agent for the FinanceParties in accordance with the Finance Documents.

 

(b)                               TheSecurity Agent shall not be liable for any failure, omission, or defect inregistering, protecting or perfecting the security constituted by any SecurityDocument or any security created thereby.

 

(c)                                TheSecurity Agent has no obligation to enquire into or check the title which anyObligor may have to any property over which security is intended to be createdby any Security Documents.

 

(d)                               TheSecurity Agent is not under any obligation to hold any title deeds, SecurityDocuments, share certificates or any other documents in connection with theproperty charged by any Security Document or any other such

 

101

----

 

security inits own possession or to take any steps to protect or preserve the same.  The Security Agent may permit the relevantObligor, any bank providing safe custody services or any professional adviserof the Security Agent to retain all such title deeds, Security Documents, sharecertificates and other documents in its possession.

 

(e)                                Allamounts received by the Security Agent under the Finance Documents may be:

 

(i)                                   investedin any investment for the time being authorised by English law for the investmentby trustees of trust money or in any other investments which may be selected bythe Security Agent with the consent of the Majority Lenders; or

 

(ii)                                  placedon deposit at such bank or institution (including any Agent or Lender) and uponsuch terms as the Security Agent may think fit. Any and all such monies and all interest thereon shall be paid over tothe Facility Agent forthwith upon demand by the Facility Agent.

 

(f)                                  EachFinance Party other than the Facility Agent confirms its approval of theSecurity Documents and authorises and directs the Security Agent (by itself orby such person(s) as it may nominate) to execute and enforce the same astrustee (or agent) or as otherwise provided (and whether or not expressly inthe Lenders’ names) on its behalf.

 

(g)                               TheSecurity Agent shall not be required to direct that any amounts be paiddirectly to it with respect to or under any asset subject to the SecurityInterests, unless the Security Agent so agrees in its discretion.

 

(h)                               TheSecurity Agent shall not be under any obligation to insure any part of theproperty subject to the Security Interests, to require any other person tomaintain any insurance.  The SecurityAgent shall not be responsible for any loss which may be suffered by any personas a result of the lack of or inadequacy of any insurance.

 

(i)                                   TheSecurity Agent shall not accept responsibility or be liable for any shortfallwhich arises on the enforcement of security and shall not have anyresponsibility as regards any deficiency or additional payment which mightarise because the Security Agent is subject to any tax in respect of any partof the security or income therefrom or proceeds thereof.

 

(j)                                   TheSecurity Agent shall not accept responsibility or be liable for any decline inthe value or a loss realised upon sale or other disposition made pursuant toany of the Finance Documents of all or any part of the property subject to thesecurity.

 

(k)                                TheSecurity Agent shall not be liable to account to any Finance Party or any otherperson for anything except sums actually received by the Security Agent and anysums so received by the Security Agent shall, subject to the Security Agent’srights to indemnity and other rights under this Agreement, be paid to theFacility Agent.

 

102

----

 

**23.11****                 Confidentiality**

 

(a)                                Inacting as agent for the Finance Parties, each Agent shall be regarded as actingthrough its agency division which shall be treated as a separate entity fromany other of its divisions or departments.

 

(b)                               Ifinformation is received by another division or department of any Agent, it maybe treated as confidential to that division or department and the Agent shallnot be deemed to have notice of it.

 

(c)                                EachObligor irrevocably authorises each Agent to disclose to the other FinanceParties any information which, in its opinion is received by it in its capacityas an Agent.

 

**23.12****                 Relationship withthe Lenders**

 

(a)                                TheFacility Agent may treat each Lender as a Lender, entitled to payments underthis Agreement and acting through its Facility Office unless it has receivednot less than five Business Days prior notice from that Lender to the contraryin accordance with the terms of this Agreement.

 

(b)                               EachLender shall supply the Facility Agent with any information required by theAgent in order to calculate the Mandatory Cost in accordance with Schedule 4 (*Mandatory Cost formulae*).

 

**23.13****                 Credit appraisalby the Lenders**

 

Withoutaffecting the responsibility of any Obligor for information supplied by it oron its behalf in connection with any Finance Document, each Lender confirms tothe Agents that it has been, and will continue to be, solely responsible formaking its own independent appraisal and investigation of all risks arising underor in connection with any Finance Document including but not limited to:

 

(a)                                thefinancial condition, status and nature of each member of the Group;

 

(b)                               thelegality, validity, effectiveness, adequacy or enforceability of any FinanceDocument and any other agreement, arrangement or document entered into, made orexecuted in anticipation of, under or in connection with any Finance Document;

 

(c)                                whetherthat Lender has recourse, and the nature and extent of that recourse, againstany Party or any of its respective assets under or in connection with anyFinance Document, the transactions contemplated by the Finance Documents or anyother agreement, arrangement or document entered into, made or executed inanticipation of, under or in connection with any Finance Document; and

 

In addition,each Lender confirms that it has not relied exclusively on any informationprovided to it by any Agent in connection with any Finance Document.

 

103

----

 

**23.14****              Deduction fromamounts payable by the Agent**

 

If any Partyowes an amount to the Agent under the Finance Documents the Agent may, aftergiving notice to that Party, deduct an amount not exceeding that amount fromany payment to that Party which the Agent would otherwise be obliged to makeunder the Finance Documents and apply the amount deducted in or towardssatisfaction of the amount owed.  For thepurposes of the Finance Documents that Party shall be regarded as havingreceived any amount so deducted.

 

**23.15****              Notice Period**

 

Where thisAgreement specifies a minimum period of notice to be given to an Agent, theAgent may, at its discretion, accept a shorter notice period.

 

**23.16****              Costs and Expenses**

 

Any amountpayable to an Agent under Clause 14.3 (*Indemnityto the Agents*), Clause 16 (*Costsand expenses*) and Clause 23.8 (*Lenders’indemnity to the Agents*) shall include the reasonable cost ofutilising the Agent’s management time or other resources and will be calculatedon the basis of such reasonable daily or hourly rates as the Agent may notifyto the Relevant Company and the Lenders, and is in addition to any fee paid orpayable to the Agents under Clause 11 (*Fees*).

 

**24****                               SHARINGAMONG THE FINANCE PARTIES **

** **

**24.1****                        Paymentsto Finance Parties**

 

If a FinanceParty (a “**Recovering Finance Party**”)receives or recovers any amount from an Obligor other than in accordance withClause 25 (*Payment mechanics*) andapplies that amount to a payment due under the Finance Documents then:

 

(a)                                theRecovering Finance Party shall, within three (3) Business Days, notify detailsof the receipt or recovery, to the Facility Agent;

 

(b)                               theFacility Agent shall determine whether the receipt or recovery is in excess ofthe amount the Recovering Finance Party would have been paid had the receipt orrecovery been received or made by the Facility Agent and distributed inaccordance with Clause 25 (*Payment mechanics*),without taking account of any Tax which would be imposed on the Facility Agentin relation to the receipt, recovery or distribution; and

 

(c)                                theRecovering Finance Party shall, within three (3) Business Days of demand by theFacility Agent, pay to the Facility Agent an amount (the “**SharingPayment**”) equal to such receipt or recovery less any amount whichthe Facility Agent determines may be retained by the Recovering Finance Partyas its share of any payment to be made, in accordance with Clause 25.5 (*Partial payments*).

 

104

----

 

**24.2****                     Redistributionof payments**

 

The FacilityAgent shall treat the Sharing Payment as if it had been paid by the relevantObligor and distribute it between the Finance Parties (other than theRecovering Finance Party) in accordance with Clause 25.5 (*Partial payments*).

 

**24.3****                     RecoveringFinance Party’s rights**

 

(a)                                Ona distribution by the Facility Agent under Clause 24.2 (*Redistributionof payments*), the Recovering Finance Party will be subrogated to therights of the Finance Parties which have shared in the redistribution.

 

(b)                               Ifand to the extent that the Recovering Finance Party is not able to rely on itsrights under paragraph (a) above, the relevant Obligor shall be liable to theRecovering Finance Party for a debt equal to the Sharing Payment which isimmediately due and payable.

 

**24.4****                     Reversal ofredistribution**

 

If any part ofthe Sharing Payment received or recovered by a Recovering Finance Party becomesrepayable and is repaid by that Recovering Finance Party, then:

 

(a)                                eachFinance Party which has received a share of the relevant Sharing Paymentpursuant to Clause 24.2 (*Redistribution of payments*)shall, upon request of the Facility Agent, pay to the Facility Agent foraccount of that Recovering Finance Party an amount equal to the appropriatepart of its share of the Sharing Payment (together with an amount as isnecessary to reimburse that Recovering Finance Party for its proportion of anyinterest on the Sharing Payment which that Recovering Finance Party is requiredto pay); and

 

(b)                                 thatRecovering Finance Party’s rights of subrogation in respect of any reimbursementshall be cancelled and the relevant Obligor will be liable to the reimbursingFinance Party for the amount so reimbursed.

 

**24.5****                        Exceptions**

 

Notwithstandingany other term of this Clause 24, a Recovering Finance Party need not make aSharing Payment to the extent that:

 

(a)                                itwould not, after the payment, have a valid claim against the relevant Obligorin the amount of the Sharing Payment; or

 

(b)                               itwould be sharing with another Finance Party any amount which the RecoveringFinance Party has received or recovered as a result of legal or arbitrationproceedings, where:

 

(i)                                   theRecovering Finance Party notified the Facility Agent of those proceedings; and

 

(ii)                                  theother Finance Party had an opportunity to participate in those proceedings butdid not do so or did not take separate legal or

 

105

----

 

arbitrationproceedings as soon as reasonably practicable after receiving notice of them.

 

106

----

 

**SECTION11**

**ADMINISTRATION**

 

**25****                               PAYMENTMECHANICS**

** **

**25.1****                     Paymentsto the Facility Agents**

 

(a)                                Oneach date on which an Obligor or a Lender is required to make a payment under aFinance Document, that Obligor or Lender shall make the same available to theFacility Agent (unless a contrary indication appears in a Finance Document) forvalue on the due date at the time and in such funds specified by the FacilityAgent as being customary at the time for settlement of transactions in therelevant currency in the place of payment.

 

(b)                               Paymentshall be made to such account in the principal financial centre of the countryof that currency (or, in relation to Euro, in a principal financial centre in aParticipating Member State or London) with such bank as such Facility Agentspecifies.

 

(c)                                Eachparty to this Agreement acknowledges that any payment received by the FacilityAgent after 3pm (Luxembourg time) on any Business Day shall not be processeduntil the following Business Day. Notwithstanding the provisions of this paragraph (c), receipt of paymentfrom the Borrower by the Facility Agent shall at the time and to the extent ofsuch receipt, discharge the Borrower’s obligations to make such payment underthis Agreement.

 

**25.2****                        Distributionsby the Agents**

 

Each payment receivedby an Agent under the Finance Documents for another Party shall, subject toClause 25.3 (*Distributions to an Obligor*),Clause 25.4 (*Clawback*), andClause 23.14 (*Deduction from amounts payableby the Agent*) and less any amounts deductible in respect of anyunpaid fees, costs and expenses of the Agents under the Finance Documents, bemade available by such Agent as soon as practicable after receipt to the Partyentitled to receive payment in accordance with this Agreement (in the case of aLender, for the account of its Facility Office), to such account as that Partymay notify to such Agent for this purpose by not less than five Business Days’notice with a bank in the principal financial centre of the country of thatcurrency (or, in relation to Euro, in the principal financial centre of aParticipating Member State or London).

 

**25.3****                     Distributionsto an Obligor**

 

An Agent may(with the consent of the Obligor or in accordance with Clause 26 (*Set-off*)) apply any amount received by itfor that Obligor in or towards payment of any amount due from that Obligorunder the Finance Documents or in or towards purchase of any amount of anycurrency to be so applied.

 

----

 

**25.4****                     Clawback**

 

(a)                                Wherea sum is to be paid to an Agent under the Finance Documents for another Party,the Agent is not obliged to pay that sum to that other Party (or to enter intoor perform any related exchange contract) until it has been able to establishto its satisfaction that it has actually received that sum.

 

(b)                               Ifan Agent pays an amount to another Party and it proves to be the case that theAgent had not actually received that amount, then the Party to whom that amount(or the proceeds of any related exchange contract) was paid by the Agent shallon demand refund the same to the Agent together with interest on that amountfrom the date of payment to the date of receipt by the Agent, calculated by theAgent to reflect its cost of funds,

 

**25.5****                     Partialpayments**

 

(a)                                Ifan Agent receives a payment that is insufficient to discharge all the amountsthen due and payable by an Obligor under the Finance Documents, the Agent shallapply that payment towards the obligations of that Obligor under the FinanceDocuments in the following order:

 

(i)                                   first,in or towards payment pro rata of any unpaid fees, costs and expenses of theAgents under the Finance Documents;

 

(ii)                                  secondly,in or towards payment pro rata of any accrued interest, fee, commission orindemnity due but unpaid under this Agreement;

 

(iii)                               thirdly,in or towards payment pro rata of any principal due but unpaid under thisAgreement; and

 

(iv)                              fourthly,in or towards payment pro rata of any other sum due but unpaid under theFinance Documents.

 

(b)                               TheFacility Agent shall, if so directed by the Majority Lenders, vary the order setout in paragraphs (a)(ii) to (iv) above.

 

(c)                                Paragraphs(a) and (b) above will override any appropriation made by an Obligor.

 

**25.6****                     No set-off byObligor**

 

All paymentsto be made by an Obligor under the Finance Documents shall be calculated and bemade without (and free and clear of any deduction for) set-off or counterclaim.

 

**25.7****                     Business Days**

 

(a)                                Anypayment under the Finance Documents which is due to be made on a day that isnot a Business Day shall be made on the next Business Day in the same calendarmonth (if there is one) or the preceding Business Day (if there is not).

 

108

----

 

(b)                               Duringany extension of the due date for payment of any principal or Unpaid Sum underthis Agreement interest is payable on the principal or Unpaid Sum at the ratepayable on the original due date.

 

**25.8****                     Currency ofaccount**

 

(a)                                Subjectto paragraphs (b) to (f) below, the Euro is the currency of account and paymentfor any sum due from an Obligor under any Finance Document.

 

(b)                               Apayment or repayment of an Advance or Unpaid Sum or a part of an Advance orUnpaid Sum shall be made in the currency in which that Advance or Unpaid Sum isdenominated on its due date.

 

(c)                                Eachpayment of interest shall be made in the currency in which the sum in respectof which the interest is payable was denominated when that interest accrued.

 

(d)                               Eachpayment in respect of costs, expenses, Taxes and the like shall be made in thecurrency in which the costs, expenses or Taxes are incurred.

 

(e)                                Anyamount (other than of principal and/or interest) calculated by reference to orpayable in respect of any other amount shall be payable in the currency inwhich that other amount is denominated at the time of payment.

 

**25.9****                     Timing of payments**

 

If a FinanceDocument does not provide for when a particular payment is due, that paymentwill be due within three Business Days of demand the Finance Parties.

 

**25.10****              Change of currency**

 

(a)                                Unlessotherwise prohibited by law, if more than one currency or currency unit are atthe same time recognised by the central bank of any country as the lawfulcurrency of that country, then:

 

(i)                                   anyreference in the Finance Documents to, and any obligations arising under theFinance Documents in, the currency of that country shall be translated into, orpaid in, the currency or currency unit of that country designated by theFacility Agent (after consultation with the Relevant Company; and

 

(ii)                                  anytranslation from one currency or currency unit to another shall be at theofficial rate of exchange recognised by the central bank for the conversion ofthat currency or currency unit into the other, rounded up or down by theFacility Agent (acting reasonably).

 

(b)                               Ifa change in any currency of a country occurs, this Agreement will, to theextent the Facility Agent (acting reasonably and after consultation with theRelevant Company) specifies to be necessary, be amended to comply with anygenerally accepted conventions and market practice in the Relevant InterbankMarket and otherwise to reflect the change in currency.

 

109

----

 

**26**                                  **SET-OFF**

 

A FinanceParty may set off any matured obligation owed to it by an Obligor under theFinance Documents (to the extent beneficially owned by that Finance Party)against any obligation (whether or not Matured) owed by that Finance Party tothat Obligor, regardless of the place of payment, booking branch or currency ofeither obligation, and shall provide notice thereof to the RelevantCompany.  If the obligations are indifferent currencies, the Finance Party may convert either obligation at amarket rate of exchange in its usual course of business for the purpose of thesetoff.

 

**27**                                  **NOTICES**

 

**27.1****                     Communicationsin writing**

 

Any communicationto be made under or in connection with the Finance Documents shall be made inwriting and, unless otherwise stated, may be made by fax or letter.

 

**27.2****                     Addresses**

 

The addressand fax number (and the department or officer, if any, for whose attention thecommunication is to be made) of each Party for any communication or document tobe made or delivered under or in connection with the Finance Documents is:

 

(a)                                inthe case of the Relevant Company, that identified with its name below;

 

(b)                               inthe case of each Lender or the Relevant Company, that notified in writing tothe Facility Agent on or prior to the date on which it becomes a Party; and

 

(c)                                inthe case of the Facility Agent, that identified with its name below,

 

or anysubstitute address, fax number or department or officer as the Party may notifyto the Facility Agent (or the Facility Agent may notify to the other Parties,if a change is made by the Facility Agent) by not less than five Business Days’notice.

 

**27.3****                     Delivery**

 

(a)                                Anycommunication or document made or delivered by one person to another under orin connection with the Finance Documents will only be effective:

 

(i)                                   ifby way of fax, when received in legible form; or

 

(ii)                                ifby way of letter, when it has been left at the relevant address or five (5)Business Days after being deposited in the post postage prepaid in a correctlyaddressed envelope;

 

and, if aparticular department or officer is specified as part of its address detailsprovided under Clause 27.2 (*Addresses*),if addressed to that department or officer.

 

110

----

 

(b)                               Acommunication given under paragraph (a) above but received on a nonwaiting dayor after business hours in the place of receipt will only be deemed to be givenon the next working day in that place.

 

(c)                                Anycommunication or document to be made or delivered to an Agent will be effectiveonly when actually received by the Agent and then only if it is expresslymarked for the attention of the department or officer identified with the Agent‘s signature below (or any substitute department or officer as the Agent shallspecify for this purpose).

 

(d)                               Allnotices from or to an Obligor shall be sent through the Facility Agent.

 

**27.4****                     Obligor**

 

(a)                                Allformal communications under the Finance Documents to or from an Obligor shallbe sent through the Facility Agent.

 

(b)                               Anycommunication given to the Relevant Company in connection with a FinanceDocument will be deemed to have been given also to the other Obligor.

 

(c)                                EachAgent may assume that any communication made by the Relevant Company is madewith the consent of each Obligor.

 

**27.5****                     Notificationof address and fax number**

 

Promptly uponreceipt of notification of an address and fax number or change of address orfax number pursuant to Clause 27.2 (*Addresses*)or changing its own address or fax number, the Facility Agent shall notify theother Parties.

 

**27.6****                     Electroniccommunication**

 

(a)                                Anycommunication to be made between an Agent and a Lender under or in connectionwith the Finance Documents may be made by electronic mail or other electronicmeans, if the Facility Agent and the relevant Lender:

 

(i)                                   agreethat, unless and until notified to the contrary, this is to be an accepted formof communication;

 

(ii)                                notifyeach other in writing of their electronic mail address and/or any otherinformation required to enable the sending and receipt of information by thatmeans; and

 

(iii)                             notifyeach other of any change to their address or any other such information suppliedby them.

 

(b)                               Anyelectronic communication made between an Agent and a Lender will be effectiveonly when actually received in readable form and in the case of any electroniccommunication made by a Lender to an Agent only if it is addressed in such amanner as an Agent shall specify for this purpose.

 

111

----

 

**27.7****                     Englishlanguage**

 

(a)                                Anynotice given under or in connection with any Finance Document must be inEnglish.

 

(b)                               Allother documents provided under or in connection with any Finance Document mustbe:

 

(i)                                   inEnglish; or

 

(ii)                                ifnot in English, and if so required by the Facility Agent, accompanied by acertified English translation and, in this case, the English translation willprevail unless the document is a constitutional, statutory or other officialdocument.

 

**27.8****                     Use ofWebsites**

 

(a)                                TheRelevant Company may satisfy its obligation under this Agreement to deliver anyinformation in relation to those Lenders ( the “**Website Lenders**”) who accept this method of communication byposting this information onto an electronic website designated by the RelevantCompany and the Facility Agent (the “**DesignatedWebsite**”) if:

 

(i)                                   theFacility Agent expressly agrees (after consultation with each of the Lenders)that it will accept communication of the information by this method;

 

(ii)                                boththe Relevant Company and the Facility Agent are aware of the address of and anyrelevant password specifications for the Designated Website; and

 

(iii)                             theinformation is in a format previously agreed between the Relevant Company andthe Facility Agent.

 

If any Lender(a “**Paper Form Lender**”) does notagree to the delivery of information electronically then the Facility Agentshall notify the Relevant Company accordingly and the Relevant Company shallsupply the information to the Facility Agent (in sufficient copies for eachPaper Form Lender) in paper form.  In anyevent the Relevant Company shall supply the Facility Agent with at least onecopy in paper form of any information required to be provided by it.

 

(b)                               TheFacility Agent shall supply each Website Lender with the address of and anyrelevant password specifications for the Designated Website followingdesignation of that website by the Relevant Company and the Facility Agent.

 

(c)                                TheRelevant Company shall promptly upon becoming aware of its occurrence notifythe Facility Agent if:

 

(i)                                   theDesignated Website cannot be accessed due to technical failure;

 

(ii)                                  thepassword specifications for the Designated Website change;

 

112

----

 

(iii)                             anynew information which is required to be provided under this Agreement is postedonto the Designated Website;

 

(iv)                            anyexisting information which has been provided under this Agreement and postedonto the Designated Website is amended; or

 

(v)                               theRelevant Company becomes aware that the Designated Website or any informationposted onto the Designated Website is or has been infected by any electronicvirus or similar software.

 

If theRelevant Company notifies the Facility Agent under paragraph (c)(i) orparagraph (c)(v) above, all information to be provided by the Relevant Companyunder this Agreement after the date of that notice shall be supplied in paperform unless and until the Facility Agent and each Website Lender is satisfiedthat the circumstances giving rise to the notification are no longercontinuing.

 

(d)                               AnyWebsite Lender may request, through the Facility Agent, one paper copy of anyinformation required to be provided under this Agreement which is posted ontothe Designated Website.  The RelevantCompany shall comply with any such request within ten Business Days.

 

**28****                               CALCULATIONSAND CERTIFICATES**

** **

**28.1****                     Accounts**

 

In anylitigation or arbitration proceedings arising out of or in connection with aFinance Document, the entries made in the accounts maintained by a FinanceParty are prima facie evidence of the matters to which they relate.

 

**28.2****                     Certificatesand Determinations**

 

Anycertification or determination by a Finance Party of a rate or amount under anyFinance Document is, in the absence of manifest error, conclusive evidence ofthe matters to which it relates.

 

**28.3****                     Day countconvention**

 

Any interest,commission or fee accruing under a Finance Document will accrue from day to dayand is calculated on the basis of the actual number of days elapsed and a yearof 360 days or, in any case where the practice in the Relevant Interbank Marketdiffers, in accordance with that market practice as determined by the FacilityAgent.

 

**29**                                  **PARTIAL INVALIDITY**

 

If, at anytime, any provision of the Finance Documents is or becomes illegal, invalid orunenforceable in any respect under any law of any jurisdiction, neither thelegality, validity or enforceability of the remaining provisions nor thelegality, validity or enforceability of such provision under the law of anyother jurisdiction will in any way be affected or impaired.

 

113

----

 

**30**                                  **REMEDIES AND WAIVERS**

 

No failure toexercise, nor any delay in exercising, on the part of any Finance Party, anyright or remedy under the Finance Documents shall operate as a waiver, norshall any single or partial exercise of any right or remedy prevent any furtheror other exercise or the exercise of any other right or remedy.  The rights and remedies provided in thisAgreement are cumulative and not exclusive of any rights or remedies providedby law.

 

**31****                               AMENDMENTSAND WAIVERS**

** **

**31.1****                     Requiredconsents**

 

(a)                                Subjectto Clause 31.2 (*Exceptions*) any term of theFinance Documents may be amended or waived only with the consent of theMajority Lenders and the Obligor and any such amendment or waiver will bebinding on all Parties.

 

(b)                               TheFacility Agent may effect, on behalf of any Finance Party, any amendment orwaiver permitted by this Clause.

 

(c)                                TheFacility Agent shall promptly notify the other Parties of any amendments orwaiver effected by it under paragraph (b) above

 

**31.2****                     Exceptions**

 

(a)                                Anamendment or waiver that has the effect of changing or which relates to:

 

(i)                                   thedefinition of “Majority Lenders”, “Majority Tranche A Lenders” or “MajorityTranche C Lenders” in Clause 1.1 (*Definitions*);

 

(ii)                                anextension to the date of payment of any amount under the Finance Documents;

 

(iii)                             areduction in the Cash Margin or the Compound Margin or a reduction in theamount of any payment of principal, interest, fees, commission or other amountpayable to a Lender under the Finance Documents;

 

(iv)                            anincrease in or an extension of any Commitment;

 

(v)                               achange to either of the Borrowers;

 

(vi)                            anyprovision which expressly requires the consent of all the Lenders;

 

(vii)                         Clause 2.2(*Finance Parties’ rights and obligations*),Clause 21 (*Changes to the Lenders*)or this Clause 31;

 

(viii)                      unlessprovided for in the Finance Documents or pursuant to the enforcement of therelevant security, a release of security over any assets granted under theSecurity Documents;

 

shall not bemade without the prior consent of all the Lenders.

 

114

----

 

(b)                               Anamendment or waiver which relates to the rights or obligations of an Agent maynot be effected without the prior written consent of that Agent.

 

**31.3****                     Amendment tocorrect Manifest Error**

 

The FacilityAgent may agree with the Relevant Company (acting on behalf of each of theObligors) any amendment to or the modification of the provisions of any of theFinance’ Documents or any schedule thereto, which is necessary to correct amanifest error or to make an amendment which is administerial, technical orotherwise minor in nature and the Obligors and the Finance Parties will bebound by any such amendment or modification.

 

**32**                                  **COUNTERPARTS**

 

Each FinanceDocument may be executed in any number of counterparts, and this has the sameeffect as if the signatures on the counterparts were on a single copy of theFinance Document.

 

115

----

 

**SECTION12**

**GOVERNINGLAW AND ENFORCEMENT**

 

**33**                                  **GOVERNING LAW**

 

This Agreementis governed by English Law.

 

**34****                               ENFORCEMENT **

** **

**34.1****                     Jurisdiction**

 

(a)                                Thecourts of England have exclusive jurisdiction to settle any dispute arising outof or in connection with this Agreement (including a dispute regarding theexistence, validity or termination of this Agreement) (a “**Dispute**”).

 

(b)                               TheParties agree that the courts of England are the most appropriate andconvenient courts to settle Disputes and accordingly no Party will argue to thecontrary.

 

(c)                                ThisClause 34.1 is for the benefit of the Finance Parties only.  As a result, no Finance Party shall beprevented from taking proceedings relating to a Dispute in any other courtswith jurisdiction.  To the extent allowedby law, the Finance Parties may take concurrent proceedings in any number ofjurisdictions.

 

**34.2****                     Service ofprocess**

 

Withoutprejudice to any other mode of service allowed under any relevant law, eachObligor (other than an Obligor incorporated in England and Wales):

 

(i)                                   irrevocablyappoints Clifford Chance Secretaries Limited as its agent for service ofprocess in relation to any proceedings before the English courts in connectionwith any Finance Document; and

 

(ii)                                agreesthat failure by a process agent to notify the relevant Obligor of the processwill not invalidate the proceedings concerned.

 

**34.3****                     Waiver oftrial by jury**

 

Each Partywaives any right it may have to a jury trial of any claim or cause of action inconnection with or arising out of any Finance Document or any transactioncontemplated by any Finance Document. This Agreement may be filed as a written consent to trial by court.

 

----

 

**SCHEDULE 1**

**THEORIGINAL PARTIES**

 

**PartI**

**The Borrowers**

 
| **Name  of Borrower**           | ** ** | **Registration number (or equivalent,  if   any)** |
|---------------------------------|------------|----------------------------------------------------|
|                            |       |                                               |
| Concordia Bus AB                |       | 556576-4569                                        |
|                            |       |                                               |
| Concordia Bus Nordic Holding AB |       | 556028-1122                                        |

 

----

 

**Part II**

**TheOriginal Lenders**

 

Amounts in Euros

 
| **Name of Original**                     | ** ** | ** **     | ** ** | ** **     | ** ** |
|------------------------------------------|------------|----------------|------------|----------------|------------|
| **Lender**                               | ** ** | **Tranche A**  | ** ** | **Tranche C**  | ** ** |
| BlueBay High Yield (Master) Fund Limited |       | 14,000,000     |       | 7,800,000      |       |
|                                     |       |           |       |           |       |
| Bear Stearns Bank plc                    |       | 9,000,000      |       | 5,000,000      |       |
|                                     |       |           |       |           |       |
| Lone Star International Finance Ltd.     |       | 7,000,000      |       | 3,900,000      |       |
|                                     |       |           |       |           |       |
| Hillside Apex Fund Limited               |       | 6,500,000      |       | 3,600,000      |       |
|                                     |       |           |       |           |       |
| Credit Suisse First Boston International |       | 8,500,000      |       | 4,700,000      |       |
|                                     |       |           |       |           |       |
| **Total**                                | ** ** | **45,000,000** | ** ** | **25,000,000** | ** ** |

 

Each Original Lender undertakes suchCommitments as are set out below the name of that Original Lender on therelevant signature page hereto.

 

118

----

 

**SCHEDULE 2**

**CONDITIONSPRECEDENT**

 

**Part IA**

**Conditions precedent to initial Utilisationof Tranche A**

 

1              Concordia Bus AB

 

1.1           Receiptby the Facility Agent of a copy of each of the following documents insubstantially the form submitted to the Lenders prior to the signing of thisAgreement signed on behalf of the relevant parties where appropriate:

 

(a)   Acertificate from a director of Bus substantially in the form submitted to theLenders prior to the signing of this Agreement confirming that each of the followingdocuments they provided at the time when Tranche C was utilised, in relationto:

 

(i)    theconstitutional documents of Bus ; and

 

(ii)   thespecimen of the signature of each authorised person; and

 

remaincorrect, valid, complete and in full force as at the date on which Tranche A isto be utilised and confirming that any borrowing under Tranche A would notcause any borrowing, guaranteeing or similar limit binding on Bus to beexceeded.

 

(b)   Aresolution of the board of directors of Bus:

 

(i)    approvingthe utilisation of Tranche A in accordance with the terms of this Agreement;and

 

(ii)   authorisingany two directors, or a director and secretary, on its behalf, to sign and/ordespatch all documents and notices (including, if relevant, any UtilisationRequest) to be signed and/or despatched by it under or in connection with theFinance Documents to which it is a party.

 

2              Security Documents

 

2.1           Receiptby the Facility Agent of a copy of each of the following Security Documents,each signed on behalf of Bus, in substantially the form submitted to theLenders prior to the signing of this Agreement:

 

(a)           apledge agreement entered into by Bus over its Share Capital in Holding infavour of the Security Agent on behalf of the Tranche A Lenders substantiallyin the form submitted to the Lenders prior to the signing of this Agreement;and

 

(b)           Afirst ranking pledge agreement, entered into by Bus of the Intra-Group CapitalContribution in favour of the Security Agent on behalf of the Tranche ALenders; and

 

119

----

 

(c)           afirst ranking pledge agreement by Bus of the Subordinated Shareholder Loan infavour of the Security Agent on behalf of the Tranche A Lenders.

 

3              Other Documentsrespect of the Tranche A Facility

 

3.1           Receiptby the Facility Agent of the share register of Holding indicating that all ofthe Share Capital in Holding has been pledged to the Security Agent on behalfof the Tranche A Lenders.

 

3.2           Alegal opinion of Cadwalader Wickersham & Taft LLP, legal advisers to theLenders in England which is in a form satisfactory to the Lenders and which issubstantially in the form distributed to the Original Lenders prior to signingthis Agreement.

 

3.3           Alegal opinion of Advokatfirman Lindahl Swedish legal advisers to the Holding inthe relevant jurisdiction which is in a form satisfactory to the Lenders andwhich is substantially in the form distributed to the Original Lenders prior tosigning this Agreement.

 

120

----

 

**PartIB**

**[Reserved]**

 

121

----

 

**PartIC**

**Conditions precedent to initial Utilisationof Tranche C**

 

1              Concordia Bus NordicHolding AB

 

1.1           Receipt by the FacilityAgent of a copy of each of the following documents, substantially in the formsubmitted to the Lenders prior to the signing of this Agreement  signed on behalf of the relevant partieswhere appropriate:

 

(a)           The constitutionaldocuments of Bus and Holding.

 

(b)           Resolutions of the boardof directors of Bus and Holding:

 

(i)            approving the terms of,and the transactions contemplated by, the Finance Documents to which it is aparty and resolving that it execute the Finance Documents to which it is aparty;

 

(ii)           authorising any directorto execute the Finance Documents to which it is a party on its behalf; and

 

(iii)          authorisingany two directors, or a director and secretary, on its behalf, to sign and/ordespatch all documents and notices (including, if relevant, any UtilisationRequest) to be signed and/or despatched by it under or in connection with theFinance Documents to which it is a party.

 

(c)           A specimen of thesignature of each person authorised by the resolutions referred to in paragraph(b) above.

 

(d)           A certificate of adirector of Holding in substantially in the form submitted to the Lenders priorto the signing of this Agreement confirming that:

 

(i)            any borrowing underTranche C would not cause any borrowing, guaranteeing or similar binding limiton it to be exceeded;

 

(ii)           each document relatingto it specified in paragraph (a) and (b) this Clause 1 of Part 1C of Schedule 2is correct, complete and in full force and effect as at a date no earlier thanthe date of this Agreement.

 

(e)           A certificate of adirector of Bus confirming that each document relating to it specified inparagraph (a) and (b) of this Clause 1 of Part IC of Schedule 2 is correct,complete and in full force and effect as at a date no earlier than the date ofthis Agreement.

 

122

----

 

2              Security Documents

 

2.1           Receipt by the FacilityAgent of a copy of each of the following Security Documents, in substantiallythe form submitted to the Lenders prior to the signing of this Agreement :

 

(a)           A first ranking pledgeagreement, entered into by Holding of the Subordinated Shareholder Loan infavour of the Security Agent on behalf of the Tranche C Lenders signed onbehalf of Holding;

 

(b)           A first ranking pledgeagreement, entered into by Holding of the Intra-Group Capital Contribution infavour of the Security Agent on behalf of the Tranche C Lenders signed onbehalf of Holding; and

 

(c)           A first ranking pledgeagreement, entered into by Holding of the SSL Account signed on behalf ofHolding.

 

3              Other documents andevidence

 

3.1           Alegal opinion of Cadwalader Wickersham & Taft LLP, legal advisers to theLenders in England which is in a form satisfactory to the Lenders and which issubstantially in the form distributed to the Original Lenders prior to signingthis Agreement.

 

3.2           Alegal opinion of Advokatfirman Lindahl Swedish legal advisers to the Holding inthe relevant jurisdiction which is in a form satisfactory to the Lenders andwhich is substantially in the form distributed to the Original Lenders prior tosigning this Agreement.

 

3.3           Receiptby the Facility Agent of a copy of each of the following documents,substantially in the form submitted to the Lenders prior to the signing of thisAgreement :

 

(a)   Thefollowing agreements:

 

(i)            the BindingRestructuring Agreement substantially in the form submitted to the Lendersprior to the signing of this Agreement, signed on behalf of each of theBorrowers, Nordic, each of the Senior Group (as defined therein) and each ofthe Controlling Shareholders (as defined therein);

 

(ii)           the transfer agreementand Limited Recourse Note substantially in the form submitted to the Lendersprior to the signing of this Agreement between Bus and Holding, whereby Bustransfers to Holding the Subordinated Shareholder Loan and all rights appurtenantthereto; and

 

(iii)          thetransfer agreement substantially in the form submitted to the Lenders prior tothe signing of this Agreement between Bus and Holding, whereby Bus transfers toHolding part of the Intra-Group Capital Contribution and all rights appurtenantthereto.

 

(b)   Writtenevidence substantially in the form submitted to the Lenders prior to thesigning of this Agreement that any process agents referred to in Clause 34.2 (*Service of process),* if not Holding, hasaccepted its appointment.

 

123

----

 

(c)   Aschedule designating Unrestricted Subsidiaries, including all relevantOfficer’s Certificate and Board Meeting Minutes, substantially in the formsubmitted to the Lenders prior to the signing of this Agreement.

 

(d)   TheFees Letter signed on behalf of the Tranche A Borrower and the Tranche CBorrower.

 

(e)   TheFacility Agent fee letter, signed on behalf of the Tranche A Borrower and theTranche C Borrower.

 

124

----

 

**SCHEDULE3**

**REQUESTS**

 

**FORMOF UTILISATION REQUEST**

 

From:  [Concordia Bus AB/Concordia Bus NordicHolding AB] 

 

To:  Deutsche Bank Luxembourg, S.A. as FacilityAgent 

 

Dated:

 

**MezzanineFacility Agreement**

 

**dated [********•****]****(**the****“**Agreement**”**)**

 

1.             We refer to theAgreement.  This is a UtilisationRequest.  Terms defined in the Agreementhave the same meaning in this Utilisation Request unless given a differentmeaning in this Utilisation Request.

 

We wish to borrow an Advance to be issued onthe following terms:

 
| Tranche Facility to be utilised: |   | [          ]                                                             |
|----------------------------------|--------|----------------------------------------------------------------------------------------------------------------------------|
|                             |   |                                                                                                                       |
| Proposed Utilisation Date: Day)  |   | [          ] (or,  if that is not a Business Day, the next Business Day) |
|                             |   |                                                                                                                       |
| Amount:                          |   | [          ] or, if  less, the Available Facility:                       |
|                             |   | [                                                                                                                          | ] |
|                             |   |                                                                                                                       |
| First Interest Period:           |   | [          ]                                                             |

 

We confirm that each condition precedentunder the Agreement which must be satisfied on the date of this UtilisationRequest is so satisfied on the date of this Utilisation Request.

 

The proceedsof this Advance should be credited to [account]. 

 

ThisUtilisation Request is irrevocable. 

 

Yoursfaithfully

 
|                                                |   |
|-----------------------------------------------------|--------|
|                                                |
| authorised signatory for                            |
| [Concordia Bus AB/Concordia Bus Nordic  Holding AB] |

 

125

----

 

**SCHEDULE4**

**MANDATORYCOST FORMULAE**

 

1.             The Mandatory Cost isan addition to the interest rate to compensate Lenders for the cost ofcompliance with (a) the requirements of the Bank of England and/or theFinancial Services Authority (or, in either case, any other authority whichreplaces all or any of its functions) or (b) the requirements of the EuropeanCentral Bank.

 

On the first day of each Interest Period (oras soon as possible thereafter) the Agent shall calculate, as a percentagerate, a rate (the “Additional Cost Rate”) for each Lender, in accordance withthe paragraphs set out below.  TheMandatory Cost will be calculated by the Agent as a weighted average of theLenders’ Additional Cost Rates (weighted in proportion to the percentageparticipation of each Lender in the relevant Advance) and will be expressed asa percentage rate per annum.

 

The Additional Cost Rate for any Lenderlending from a Facility Office in a Participating Member State will be thepercentage notified by that Lender to the Agent.  This percentage will be certified by thatLender in its notice to the Agent to be its reasonable determination of thecost (expressed as a percentage of that Lender’s participation in all Advancesmade from that Facility Office) of complying with the minimum reserverequirements of the European Central Bank in respect of loans made from thatFacility Office.

 

The Additional Cost Rate for any Lenderlending from a Facility Office in the United Kingdom will be calculated by theAgent as follows:

 

in relation to a sterling Advance:

 

AB+C(B-D)+Ex0.01  per cent. perannum

100-(A+C)

 

in relation to a Advance in any currencyother than sterling:

 

Ex 0.01  percent. per annum.

  300

 

Where:

 

(A)          isthe percentage of Eligible Liabilities (assuming these to be in excess of anystated minimum) which that Lender is from time to time required to maintain asan interest free cash ratio deposit with the Bank of England.  to comply with cash ratio requirements.

 

(B)           isthe percentage rate of interest (excluding the Margin and the Mandatory Costand, if the Advance is an Unpaid Sum, the additional rate of interest specifiedin paragraph (a) of 8.5 (*Default interest*))payable for the relevant Interest Period on the Advance.

 

----

 

(C)           isthe percentage (if any) of Eligible Liabilities which that Lender is requiredfrom time to time to maintain as interest bearing Special Deposits with theBank of England.

 

(D)          isthe percentage rate per annum payable by the Bank of England to the Lenders oninterest bearing Special Deposits.

 

(E)           isdesigned to compensate Lenders for amounts payable under the Fees Rules and iscalculated by the Facility Agent as being the average of the most recent ratesof charge supplied by the Reference Banks to the Agent pursuant to paragraph 7below and expressed in pounds per £1,000,000.

 

For the purposes of this Schedule:

 

“**EligibleLiabilities**” and “**Special Deposits**”have the meanings given to them from time to time under or pursuant to the Bankof England Act 1998 or (as may be appropriate) by the Bank of England;

 

“**FeeTariffs**” means the fee tariffs specified in the Fees Rules under theactivity group A.I Deposit acceptors (ignoring any minimum fee or zero ratedfee required pursuant to the Fees Rules but taking into account any applicablediscount rate); and

 

“**TariffBase**” has the meaning given to it in, and will be calculated inaccordance with, the Fees Rules.

 

“**Fees Rules**”means the rules on periodic fees contained in the FSA Supervision Manual orsuch other law or regulation as may be in force from time to time in respect ofthe payment of fees for the acceptance of deposits;

 

In application of the above formulae, A, B, Cand D will be included in the formulae as Percentages (i.e. 5 per cent. will beincluded in the formula as 5 and not as 0.05). A negative result obtained by subtracting D from B shall be taken aszero.  The resulting figures shall berounded to four decimal places.

 

If requested by the Facility Agent, eachReference Bank shall, as soon as practicable after publication by the FinancialServices Authority, supply to the Lenders, the rate of charge payable by thatReference Bank to the Financial Services Authority pursuant to the Fees Rulesin respect of the relevant financial year of the Financial Services Authority(calculated for this purpose by that Reference Bank as being the average of theFee Tariffs applicable to that Reference Bank for that financial year) andexpressed in pounds per £1,000,000 of the Tariff Base of that Reference Bank.

 

Each Lender shall supply any informationrequired by the Agent for the purpose of calculating its Additional CostRate.  In particular, but withoutlimitation, each Lender shall supply the following information on or prior tothe date on which it becomes a Lender:

 

(a)           thejurisdiction of its Facility Office; and

 

(b)           anyother information that the Facility Agent may reasonably require for suchpurpose.

 

Each Lender shall promptly notify theFacility Agent of any change to the information provided by it pursuant to thisparagraph.

 

127

----

 

The percentages of each Lender for thepurpose of A and C above and the rates of charge of each Reference Bank for thepurpose of E above shall be determined by the Agent based upon the informationsupplied to it pursuant to paragraphs 7 and 8 above and on the assumption that,unless a Lender notifies the Facility Agent to the contrary, each Lender’sobligations in relation to cash ratio deposits and Special Deposits are thesame as those of a typical bank from its jurisdiction of incorporation with a FacilityOffice in the same jurisdiction as its Facility Office.

 

The Facility Agent shall have no liability toany person if such determination results in an Additional Cost Rate which overor under compensates any Lender and shall be entitled to assume that theinformation provided by any Lender or Reference Bank pursuant to paragraphs 3,7 and 8 above is true and correct in all respects.

 

The Facility Agent shall distribute theadditional amounts received as a result of the Mandatory Cost to the Lenders onthe basis of the Additional Cost Rate for each Lender based on the informationprovided by each Lender and each Reference Bank pursuant to paragraphs 3, 7 and8 above.

 

Any determination by the Facility Agentpursuant to this Schedule in relation to a formula, the Mandatory Cost, anAdditional Cost Rate or any amount payable to a Lender shall, in the absence ofmanifest error, be conclusive and binding on all Parties.

 

The Facility Agent may from time to time,after consultation with the Relevant Company and the Lenders, determine andnotify to all Parties any amendments which are required to be made to thisSchedule in order to comply with any change in law, regulation or anyrequirements from time to time imposed by the Bank of England, the Financial ServicesAuthority or the European Central Bank (or, in any case, any other authoritywhich replaces all or any of its functions) and any such determination shall,in the absence of manifest error, be conclusive and binding on all Parties.

 

128

----

 

**SCHEDULE5**

**FORM OF TRANSFER CERTIFICATE**

 

To: Deutsche Bank Luxembourg, S.A. asFacility Agent

 

From: [TheExisting Lender] (the “**Existing Lender**”)and [The New Lender] (the “**New Lender**”)

 

Dated:

 

**MezzanineFacility Agreement**

 

**dated[ • ] (the “**Agreement**”)**

 

1.             We refer to theAgreement.  This is a TransferCertificate.  Terms defined in theAgreement have the same meaning in this Transfer Certificate unless given adifferent meaning in this Transfer Certificate.

 

We refer to Clause 21.5 (*Procedure for transfer*):

 

The Existing Lender and the New Lender agreeto the Existing Lender transferring to the New Lender by novation all or partof the Existing Lender’s Commitment, rights and obligations referred to in theSchedule in accordance with Clause 21.5 (*Procedurefor transfer*).

 

The proposed Transfer Date is [ • ].  From the Transfer Date, the New Lender willbe bound by the Finance Documents as a Lender and will become party to theMezzanine Facility Agreement.

 

From the Transfer Date, the New Lender willbe bound by the Binding Restructuring Agreement.

 

The Facility Office and address, fax numberand attention details for notices of the New Lender for the purposes of Clause27.2 (*Addresses*) are set out inthe Schedule.  The New Lender expresslyacknowledges the limitations on the Existing Lender’s obligations set out inparagraph (c) of Clause 21.4 (*Limitation ofresponsibility of Existing Lenders*).

 

This Transfer Certificate may be executed inany number of counterparts and this has the same effect as if the signatures onthe counterparts were on a single copy of this Transfer Certificate.

 

This Transfer Certificate is governed byEnglish law and the courts of England have jurisdiction to settle all disputeswhich arise out of, or are connected with, this Transfer Certificate, itsnegotiation or the consequences of its nullity.

 

129

----

 

**THESCHEDULE**

 

**COMMITMENTRIGHTS AND OBLIGATIONS TO BE TRANSFERRED**

 

[insertrelevant details]

 

[Facility Office address, fax number and attention details for noticesand account details for payments,]

 

[ExistingLender]                                                         [NewLender]

 

By:                                                                                 By:

 

This Transfer Certificate is accepted by theFacility Agent and the Transfer Date is confirmed as [ **• **]. 

 

Facility Agent

 

**DEUTSCHE BANK LUXEMBOURG S.A.**

 

By:

 

130

----

 

**SCHEDULE6**

**STRUCTUREPAPER**

 

[INSERT]

 

----

 

**SCHEDULE7**

**SECURITY AGENT: FORM OF ACCOUNT AUTHORISATION**

 

To:          ÖstgötaEnskilda Bank, Danske Bank A/S Danmark, Sverige Filial,  

                KungsholmenFöretag 

                Box12129 

                Fleminggatan20 

                S-10224 Stockholm 

                Sweden

 

From:  Citicorp Trustee Company Limited, as SecurityAgent 

 

Dated:  

 

Dear Sirs,

 

**Pledgeover Account Number EUR 1345-01-11647 (the “Account”)**

**heldby Concordia Bus Nordic Holding AB (“Holding”)**

**dated    July 2005**

 

1.             We refer to thepledge over the Account (the “**Pledge**”).  In our role as Security Agent with respect toa Mezzanine Facility Agreement entered into by Holding (the “**Agreement**”), we are pledgee under thePledge.

 

2.             You have been givenan irrevocable instruction by Holding not to allow any withdrawal from theAccount except on our written instruction. This letter is a payment instructionand account authorisation.  It remains validuntil further notice.

 

3.             “**Interest Payment Dates**” under the Agreementare 15 December and 15 June in each year. An Interest Payment Date may be changed, in which case the FacilityAgent will notify you of the new Interest Payment Date.  Each “**InterestPeriod**” is the period commencing on an Interest Payment Date andterminating on the date which is the day before the next Interest Payment Date.

 

4.             The “**Facility Agent**” is Deutsche BankLuxembourg S.A., as Facility Agent under the Agreement.  We understand that the Facility Agent shall,from time to time, and on or prior to each Interest Payment Date, send to you anotice an “**Interest Payment Notice**”which, inter alia, shall set out the amount of Cash Interest due under theAgreement plus amounts in respect of taxes and Increased Costs thereon.

 

5.             Subject to paragraph7 below, we hereby instruct you to make payment from the Account in accordancewith the terms of each notice you receive from the Facility Agent.

 

6.             We understand thatfrom time to time the Facility Agent shall send to you a notice (a “**Repayment Notice**”).  The payment instructions contained in anyRepayment Notice shall apply in precedence over any Interest Payment Notice.

 

132

----

 

7.             We are notresponsible for the provision of, or content or timing of any Interest PaymentNotice or Repayment Notice.

 

8.             We acknowledge thatyou, as Account Bank, shall have no responsibility for verifying the signingauthority or signature of any person signing on behalf of the Security Agent orthe Facility Agent.

 

9.             Save as directed bythe Facility Agent no payment from the Account shall be made.

 

Yours faithfully

 
|                     |   |
|--------------------------|--------|
|                     |
| authorised signatory for |

Citicorp Trustee Company Limited, as SecurityAgent

 

 

Given by theSecurity Agent on the

instruction ofDeutsche Bank Luxembourg S.A., as Facility Agent, 

acting on theinstruction and authority of the Lenders

 

 
|                     |   |
|--------------------------|--------|
|                     |
| authorised signatory for |

Deutsche Bank Luxembourg S.A., as FacilityAgent

 

133

----

 

**SCHEDULE8**

**FORM OF COMPLIANCE CERTIFICATE**

 

To: Deutsche Bank Luxembourg, S.A. as Facility Agent

 

From:  [Concordia Bus AB] / [Concordia Bus NordicHolding AB] 

 

Dated:  

 

Dear Sirs,

 

**MezzanineFacility Agreement**

 

**dated         July 2005 (the**“**Agreement**”**)**

 

We refer to the Agreement.  This is a Compliance Certificate.  Terms defined in the Agreement have the samemeaning when used in this Compliance Certificate unless given a differentmeaning in this Compliance Certificate.

 

[We confirm that to the best knowledge of thesignatories below and after due enquiry, [Concordia Bus AB] / [Concordia BusNordic Holding AB] is [not] in default in the performance and observance of anyof the terms, provisions and conditions of the Agreement.]*

 

Signed:

 

 

Principalexecutive officer, principal financial officer or principal accounting officerof

[Concordia BusAB] / [Concordia Bus Nordic Holding AB] 

[*insert applicable certification language*]

 

 

----

* State default and nature and status thereofif a default has occurred.

 

134

----

 

 

**SCHEDULE9 – FORMS OF PAYMENT NOTICE**

 

**Part I**

**SSL Account**

**InterestPayment Notice**

 

To:          ÖstgötaEnskilda Bank, Danske Bank A/S Danmark, Sverige Filial,  

                KungsholmenFöretag 

                Box12129 

                Fleminggatan20 

                S-10224 Stockholm 

                Sweden

 

From:  Deutsche Bank Luxembourg S.A., as FacilityAgent 

 

Dated:  

 

Dear Sirs,

 

**AccountNumber EUR 1345-01-11647 (the “Account”) held by Concordia Bus Nordic Holding AB (“Holding”)**

 

**InterestPayment Notice**

 

1              We refer to theAccount Authorisation given by Citicorp Trustee Company Limited, as SecurityAgent with respect to the Account.  Weare the Facility Agent under the Mezzanine Facility Agreement entered into byHolding (the “Agreement”), as identified in the Account Authorisation.

 

2              In the AccountAuthorisation, the Security Agent informed you that, from time to time, wewould provide you with instructions on making payment from the Account.  This is such an instruction.

 

3              [ *date* ] is the next Interest Payment Dateunder the Agreement.  From that date anduntil further notice, you shall apply any funds held or received to the creditof the Account as follows:

 

(i)            *first*, in payment to our bank account,held in the name of Deutsche Bank Luxembourg S.A. at Deutsche Bank AG,Frankfurt, Account Number 100 9380 999 0000 (Swift : DEUTDEFF), with paymentreference “Concordia Bus Mezzanine Facility”, until the total amount of thefunds so paid during that Interest Period is equal to EUR [ • ], being the amount of CashInterest due to the Facility Agent under the Agreement on the Interest PaymentDate; and

 

(ii)           *second*, after the sum specified inparagraph (i) above has been paid to the relevant account, in payment of thebalance to the bank account in

 

135

----

 

the name ofConcordia Bus AB, number 3144-7810120 SEK (SWIFT code: NDEASESS) held at NordeaBank AB.

 

4              You shall not makeany payment from the Account from the time you receive this notice until theInterest Payment Date.

 

5              This InterestPayment Notice may be revoked or varied at any time by further written noticefrom us.

 

6              We acknowledge thatyou, as Account Bank, shall have no responsibility for verifying the signingauthority or signature of any person signing on behalf of the Security Agent orthe Facility Agent.

 

Given by the Facility Agent acting on theinstruction and authority of the Lenders

 
|                     |   |
|--------------------------|--------|
|                     |
| authorised signatory for |

Deutsche Bank Luxembourg S.A., as FacilityAgent

 

136

----

 

**Part II SSL Account**

 

**Prepayment / Repayment Notice**

 

To:          ÖstgötaEnskilda Bank, Danske Bank A/S Danmark, Sverige Filial,  

                KungsholmenFöretag                 Box12129                 Fleminggatan20                 S-10224 Stockholm 

                Sweden

 

From:  Deutsche Bank Luxembourg S.A., as FacilityAgent 

 

Dated:  

 

Dear Sirs,

 

**AccountNumber EUR 1345-01-11647 (the “Account”)**

**heldby Concordia Bus Nordic Holding AB (“Holding”)**

 

**Prepayment/ Repayment Notice**

 

1              We refer to theAccount Authorisation given by Citicorp Trustee Company Limited, as SecurityAgent with respect to the Account.  Weare the Facility Agent under the Mezzanine Facility Agreement entered into byHolding (the “**Agreement**“), asidentified in the Account Authorisation.

 

2              In the AccountAuthorisation, the Security Agent informed you that, from time to time, wewould provide you with Instructions on making payment from the Account.  This is such an instruction.

 

3              This RepaymentNotice revokes any Interest Payment Notice or other instruction you havereceived from us as Facility Agent.  Youshall not make any payment from the Account except in accordance with thisRepayment Notice. This Repayment Notice remains valid until further notice.

 

4              [Bus / Holding] hasnotified us that on [ *date* ] (the“**Repayment Date**”), a prepaymentwill be made in respect of the Tranche [• ] Facility, as defined in the Agreement.  As soon as a payment is received to thecredit of the Account, you shall apply any funds held or received to the creditof the Account as follows:

 

(i)            *first*,in payment to our bank account, held in the name of Deutsche Bank LuxembourgS.A. at Deutsche Bank AG, Frankfurt, Account Number 100 9380 999 0000 (Swift :DEUTDEFF), with payment reference “Concordia Bus Mezzanine Facility”, until thetotal amount of the funds so paid is equal to EUR [·], being the total amount of principal andinterest to be paid on that Advance, including accrued but

 

137

----

 

unpaidinterest, Compound Interest, unpaid Cash Interest which has accrued to theprincipal amount of the Advance, outstanding on the Tranche C [or A] Facilityon the Repayment Date and any amount which the Borrower has notified theFacility Agent will be paid on that Interest Payment Date in accordance withClause 8.7 of the Agreement together with taxes and Increased Costs; and

 

(ii)           *second*, after the sum specified inparagraph (i) above has been paid to the relevant account, in payment of thebalance to the bank account in the name of Concordia Bus AB, number3144-7810120 SEK (SWIFT code: NDEASESS) held at Nordea Bank AB.

 

5              This RepaymentNotice may be revoked or varied at any time by further written notice from us.

 

6              We acknowledge thatyou, as Account Bank, shall have no responsibility for verifying the signingauthority or signature of any person signing on behalf of the Security Agent orthe Facility Agent.

 

Given by the Facility Agent acting on theinstruction and authority of the Lenders

 
|                     |   |
|--------------------------|--------|
|                     |
| authorised signatory for |

Deutsche Bank Luxembourg S.A., as FacilityAgent

 

138

----

 

SIGNATURES

 

 

**THEBORROWERS**

**ConcordiaBus AB**

 

 
| By: | /s/ HARALD AERNKVAERN |   |
|-----|-----------------------|--------|

 

 
| By: | /s/ STEVEN SHER |   |
|-----|-----------------|--------|

 
| Address: |   | c/o Solna  Strandväg 78 |
|----------|--------|------------------------------|
|     |   | SE-171 54  Solna             |
|     |   |                         |
| Fax:     |   |                         |

 

**Concordia Bus Nordic Holding AB**

 

 
| By: | /s/ HARALD AERNKVAERN |   |
|-----|-----------------------|--------|

 

 
| By: | /s/ STEVEN SHER |   |
|-----|-----------------|--------|

 
| Address: |   | c/o Solna  Strandväg 78  |
|----------|--------|------------------------------------|
|     |   | SE-171 54  Solna                   |
|     |   |                               |
| Fax:     |   |                               |

 

 

**THE FACILITY AGENT**

**DEUTSCHE BANK LUXEMBOURG S.A.**

 

 
| By: | /s/ BANU OZKUTAN |   |
|-----|------------------|--------|

 

----

 
| By: | /s/ FRANZ-JOSEF EWERHARD |   |
|-----|--------------------------|--------|

 
| Address: |   | 2 Boulevard  Konrad Adenauer |
|----------|--------|------------------------------|
|     |   | L-1115  Luxembourg           |
| Fax:     |   | +352 421 22  287             |

 

 

**THE SECURITY AGENT**

**CITICORP TRUSTEE COMPANY LIMITED**

 

 
| By: | /s/ JILLIAN HAMBLIN |   |
|-----|---------------------|--------|

 

 

 
| Address: |   | Global  Transaction Services        |
|----------|--------|-------------------------------------|
|     |   | 14th  Floor, Citigroup Centre  |
|     |   | Canada  Square, Canary Wharf        |
|     |   | London, E14  5LB                    |

 

Email address: jillian.hamblin@citigroup.com

 

Fax: +44 (0) 20 7500 5877

 

140

----

 

MezzanineFacility Agreement

 

**THE LENDERS**

 

**For and on behalf of**

 
| Lender’s  name:    |   | Bear Stearns  Bank plc    |
|-------------------------|--------|---------------------------|
|                    |   |                      |
| Lender’s  address: |   | Block 8,  Harcourt Centre |
|                    |   | Charlotte  Way            |
|                    |   | Dublin 2                  |
|                    |   | Ireland                   |

 

 
| Signature: | /s/ NIAMH WALSH |   |
|------------|-----------------|--------|

 

Title:               JOINT CHIEF EXECUTIVE OFFICER 

 

Email address:mpaget@bear.com 

 

Direct Line :+44 (0) 20 7516 5492

 

----

 

**THE LENDERS**

 

 

**For and on behalf of**

 
| Lender’s  name:    |             | The BlueBay  High Yield (Master) Fund Limited |
|-------------------------|------------------|-----------------------------------------------|
|                    |             |                                          |
| Lender’s  address: |             | Times Place                                   |
|                    |             | 45 Pall Mall                                  |
|                    |             | London                                        |
|                    |             | SW1Y 5JG  (Administrative address)            |
|                    |             |                                          |
|                    |             |                                          |
| Signature:              | /s/ HUGH  WILLIS |                                          |
|                    |             |
| Title:                  | DIRECTOR         |
|                         |                  |                                               |  |  |

 

Email address: ggermano@bluebayinvest.com

 

Direct Line : +44 (0) 20 7389 3740

 

----

 

**THE LENDERS**

 

**For and on behalf of**

 
| Lender’s  name:    |                | Lone Star  International Finance Ltd. |
|-------------------------|---------------------|---------------------------------------|
|                    |                |                                  |
| Lender’s  address: |                | HSBC House,  Harcourt Centre          |
|                    |                | Harcourt  Street                      |
|                    |                | Dublin 2                              |
|                    |                | Ireland                               |
|                    |                |                                  |
|                    |                |                                  |
| Signature:              | /s/ EILEEN  RONAYN  |                                  |
| Title:                  | ALTERNATE  DIRECTOR |
|                         |                     |                                       |  |  |

 

Email address:jhennessy@hudson-advisers.com 

 

Direct Line :+ 353 1 478 8600

 

----

 

**THE LENDERS**

 

 

**For and on behalf of**

 
| Lender’s  name:    |                | Hillside  Apex Fund Limited                      |
|-------------------------|---------------------|--------------------------------------------------|
|                    |                |                                             |
| Lender’s  address: |                | c/o Appleby  Corporate Services (Cayman) Lmiited |
|                    |                | Clifton  House, 75 Fort Street                   |
|                    |                | PO Box 1350  GT                                  |
|                    |                | Grand Cayman                                     |
|                    |                | Cayman  Islands                                  |
|                    |                |                                             |
| Signature:              | /s/ DOUGLAS  MACKAY |                                             |
|                    |                |
| Title:                  | ALTERNATE  DIRECTOR |
|                         |                     |                                                  |  |  |

 
| Email address: |   | lgaudino@thamesriver.co.uk /  ccurrington@thamesriver.co.uk |
|----------------|--------|-------------------------------------------------------------|
|           |   |                                                        |
| Direct Line:   |   | 020 7360 1305 / 020 7360 1248                               |

 

----

 

**THE LENDERS**

 

 

**For and on behalf of**

 
| Lender’s  name:    |             | Credit  Suisse First Boston International |
|-------------------------|------------------|-------------------------------------------|
|                    |             |                                      |
| Lender’s  address: |             | One Cabot  Square                         |
|                    |             | London                                    |
|                    |             | E14 4QJ                                   |
|                    |             |                                      |
| Signature:              | /s/ EMMA  BALAAM |                                      |
|                    |             |
| Title:                  |             |
|                         |                  |                                           |  |  |

 

 

Email address:joseph.tierney@csfb.com 

 

Direct Line:+44 (0) 20 7888 6601

 

----