**Exhibit 4.5**

 

CONFORMED COPY

 

**ConcordiaBus Nordic AB (publ)**

 

**9.125%Senior Secured Notes due August 1, 2009**

 

**PurchaseAgreement**

 

July 28, 2005 

 

To : 

Avenue Europe Management LLP 

Bear, Stearns & Co. Inc. 

The Bluebay High Yield (Master) Fund 

Lone Star International Finance Limited 

Thames River Traditional Fund s plc – 

High Income Fund 

Hillside Apex Fund Limited 

Fidelity Investments International 

Fidelity Investment Services Limited 

Nimbus Limited

 

Ladies and Gentlemen:

 

1.                                       Concordia Bus Nordic AB (publ),a corporation incorporated under the laws of Sweden (the “**Company**”), proposes that:

 

(a)                                  At the request of the Company, the purchasers listed in Schedule IAbelow (the “**Purchasers**”) willcause Nimbus Limited (“**BidCo**”), acompany incorporated under the laws of Jersey, to tender (the “**Tender Offer**”) for up to €76,867,000 of theCompany’s €130,000,000 9.125% Senior Secured Notes due August 1, 2009 (the“**Senior Notes**”)) and upon theclosing of the Tender Offer jointly and severally, provide BidCo or procure theprovision to BidCo with sufficient funds to enable it to purchase all of thoseSenior Notes that are validly tendered and not withdrawn, at the Tender OfferPrice or the Alternate Tender Offer Price (each as hereinafter defined),subject to the terms and conditions stated herein and in the manner, at thetime and otherwise in compliance with the Tender Offer;

 

(b)                                 upon a Change of Control Offer (as defined in the indentureto the Senior Notes (the “**Senior NotesIndenture**”)) being required as a result of the exchange of the€160,000,000 11% Senior Subordinated Notes due February 2010 issued byConcordia Bus AB (“**Bus**”) forordinary shares of Bus (the “**Restructuring**”)then, subject to the terms and conditions stated herein and in accordance withthe Senior Notes Indenture, the Company shall assign to BidCo the obligation toconduct, on the Company’s behalf, a Change of Control Offer in the manner, atthe times and otherwise in compliance with the Senior Notes Indenture and uponthe closing of the Change of Control Offer the Purchasers agree jointly andseverally to provide BidCo or procure the provision to BidCo with sufficientfunds to enable it to purchase at 101% of the aggregate principal amount ofSenior Notes that are put to it under the Change of Control Offer plus allaccrued but unpaid interest thereon up to (and including) the day immediatelypreceding the settlement date for the Change of Control Offer (the “**Change of Control Offer Settlement Date**”);and

 

(c)                                  the price payable in the Tender Offer is either: (x) in theevent that the consent fee (the “**Consent Fee**”)for the consent solicitation commenced by the Company on March

 

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16, 2005, as extended from time to time and asamended and restated on or about the date hereof (as amended and restated the “**Revised Consent Solicitation**”) has beenpaid by the Company in accordance with the terms and conditions of the RevisedConsent Solicitation, a price equivalent to the face amount of the Senior Notesacquired under the Tender Offer plus any accrued and unpaid interest thereon upto (and including) the day immediately preceding the settlement date (the “**Tender Offer Settlement Date**”) of theTender Offer (the “**Tender Offer Price**”)or (y) in the event that the Consent Fee has not been paid, by the Company,within two business days of the date on which the Consent Solicitation closes,a price equivalent to 104% of the principal amount of the Senior Notes acquiredunder the Tender Offer plus any accrued and unpaid interest thereon up to (andincluding) the day immediately 

preceding the Tender Offer Settlement Date (the “**Alternate Tender Office Price**”).

 

2.                                       Upon BidCo closing the Tender Offer (the “**Tender Offer Closing Date**”), the Purchasershereby agree, jointly and severally, to provide BidCo or procure the provisionto BidCo with sufficient funds to enable it to purchase all Senior Notes thatare validly tendered and not withdrawn (the “**TenderedNotes**”), up to a maximum of €76,867,000 of the outstanding SeniorNotes at the Tender Office Price or the Alternate Tender Office Price (the “**Tender Offer Commitment**” which, togetherwith the Change of Control Purchase Commitment shall be hereinafter referred toas the “**Purchase Commitment**”).

 

 

3.                                       Subject tothe terms and conditions herein, in the Senior Notes Indenture and in theTender Offer, the Company hereby assigns to BidCo the obligation to conduct theChange of Control Offer occasioned by the Restructuring and BidCo hereby agreesto make such Change of Control Offer. Upon the closure of the Change of ControlOffer (the “**Change of Control Offer ClosingDate**”), the Purchasers agree, severally and not jointly, to provideBidCo or procure the provision to BidCo with sufficient funds to enable it topurchase all Senior Notes that (i) have not been voted in favor of theConsent Solicitation and (ii) have not been purchased by BidCo under theterms of the Tender Offer and (iii) are put to them (the “**Change of Control Notes**”), up to a maximumamount of €10,217,000 of the outstanding Senior Notes, at a purchase price of101% of the principal amount thereof, plus accrued but unpaid interest up to(and including) the day immediately preceding the Change of Control OfferSettlement Date (the “**Change of ControlPurchase Commitment**”). For theavoidance of doubt, BidCo shall, in no circumstances, be required to purchase,in aggregate, more than €76,867,000 of the outstanding Senior Notes. TheTendered Notes and Change of Control Notes are hereinafter referred to as the “**Securities**”.

 

4.                                       For the benefit of thePurchasers and Bidco, in respect of their obligations relating to the Change ofControl Offer (and not in respect of their obligations relating to the TenderOffer), the Company and the Guarantors on the date hereof and will on the dateon which the Change of Control Offer is commenced (the “**Change of Control Offer Launch Date**”)represent and warrant to, and agree with, each of the Purchasers and BidCo asfollows:

 

(a)                                  Neither Concordia Bus Nordic Holding AB (“**Holding**”), the Company nor any of itssubsidiaries taken as a whole has sustained since the last day of the lastfiscal quarter in the Company’s latest completed fiscal year for which interimfinancial statements have been made available, any material loss orinterference with its business from fire, explosion, flood or other calamity,whether or not covered by insurance, or from any labor

 

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dispute or court of governmental action, order or decree; andthere has not been any change in the capital stock or long-term of Holding, theCompany or any of its subsidiaries or any material adverse change, or anydevelopment involving a prospective material adverse change, in or affectingthe general affairs, management, financial position, shareholders’ equity orresults of operations of Holding, the Company and its subsidiaries taken as awhole;

 

(b)                                 Each of the Company and the Guarantors has all requisitecorporate power and authority to enter into this Agreement; and this Agreementhas been duly and validly authorized, executed and delivered by the Company andthe Guarantors;

 

(c)                                  the supplemental indenture described in the Revised ConsentSolicitation (the “**Supplemental Indenture**”)has been duly authorised and, when executed and delivered by the Company andthe Guarantors, will have been duly executed and delivered and (assuming dueauthorisation, execution and delivery by the Trustee and receipt by the Companyof the Required Consents (as defined in the Revised Consent Solicitationstatement)) will have been adopted in a manner consistent with the requirementsof the Senior Notes Indenture and will constitute (as will the Senior NotesIndenture, thereby amended) a valid and legally binding obligation of theCompany and the Guarantors, enforceable against the Company and the Guarantorsin accordance with its terms, subject, as to enforcement, to bankruptcy,insolvency, reorganization and other laws of general applicability relating to oraffecting creditors’ rights and to general equity principles (whetherenforcement is sought in a proceeding in equity or at law);

 

(d)                                 None of the transactions contemplated by this Agreement willviolate or result in a violation by Holding, the Company or any of itssubsidiaries, or to the Company’s knowledge, by anyone else of Section 7of the United States Securities and Exchange Act of 1934, as amended (the “**Exchange Act**”), or any regulationpromulgated thereunder, including, without limitation, Regulations T, U, and Xof the Board of Governors of the Federal Reserve System of the United States;

 

                                                (e)                                  The consummation of the transactions contemplated herein willnot: (i) conflict with or result in a breach or violation of any of theterms or provisions of, or constitute a default under, any indenture, mortgage,charge, deed of trust, loan agreement, guarantee, lease or other agreement orinstrument to which Holding, the Company or any of its subsidiaries is a partyor by which Holding, the Company or any of its subsidiaries is bound or towhich any of the properties or assets or Holding, the Company or any of itssubsidiaries is subject; (ii) result in any violation of the provisions ofthe constitutive documents of Holding, the Company or any of its subsidiariesor any statute; (iii) result in the imposition or creation of (or theobligation to create or impose) a lien under any agreement or instrument (otherthan pursuant to the terms of the Indenture and the Security Documents) towhich Holding, the Company or any of its subsidiaries is a party or by whichHolding, the Company or any of its subsidiaries is a party or by which Holding,the Company or any of its subsidiaries or their respective property is bound; (iv) resultin any violation of any order, rule or regulation of any court, centralbank, stock exchange or governmental or quasi-governmental agency or body (“**Governmental Agency**”) having jurisdictionover Holding, the Company or any of its subsidiaries or any of theirproperties; (v) result in the suspension, termination or revocation of anygovernmental authorization, approval, consent or license (“**Governmental Authorization**”) of or with anyGovernmental Agency held or previously obtained by or on behalf of Holding, theCompany or any of its subsidiaries; or (vi) require any GovernmentalAuthorizations;

 

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(f)                                    The audited and unaudited consolidated financial statementsof the Company and its subsidiaries filed with the United States Securities andExchange Commission and “**SEC**”) andpresented fairly and accurately the financial position of the Company and itssubsidiaries at their respective dates and the results of the operations of theCompany and its subsidiaries for the periods covered thereby, and (ii) havebeen (save insofar as may be expressly stated therein) prepared in accordancewith accounting principles generally accepted in Sweden and pursuant to therelevant laws of Sweden in force at the time of preparation of such financialstatements and which have been consistently applied; and

 

(g)                                 each of the representations and warranties, made at the dateof issuance of, and in relation to, the Senior Notes pursuant to that certainpurchase agreement dated January 16, 2004 was true and accurate in allmaterial respects as at the date of the original Purchase Agreement.

 

5.                                       The Company and each Guarantor hereby agrees that it willco-operate with and actively assist each Purchaser that is or may be consideredan “Affiliate” of the Company that proposes to offer some or all of itsSecurities for sale. The Company and each Guarantor hereby agree that it willenter into a registration rights agreement with BidCo and the Purchasersproviding for two (2) customary demand registration rights as well as incidentalregistration rights for the benefit of Bidco and the Purchasers, subject tostandard terms and conditions of registration rights agreement generally. Thisassistance will also include but not be limited to making all such regulatoryfilings and effecting all such registrations with securities regulators thatare reasonably requested by any Purchaser to permit ready distribution ofSecurities held by such Purchaser.

 

6.                                       The Purchasers shall cause BidCo to purchase all those SeniorNotes validly tendered and not withdrawn in each of the Tender Offer and theChange of Control Offer upon the terms and subject to the conditions specifiedin the documents pertaining to the Tender Offer or the Change of Control Offer,as applicable.

 

7.                                       For the benefit of BidCo and the Purchasers in respect oftheir obligations relating to the Change of Control Offer (but not in respectof their obligations relating to the Tender Offer), the Company and theGuarantors, jointly and severally, agree with BidCo and each of the Purchasers:

 

(a)                                  That the claims of the holders of the Securities rank atleast *pari passu* with the claimsof all other unsubordinated unsecured creditors of the Company, present andfuture (except for such claims which may be mandatorily preferred from time totime under applicable Swedish laws); and the claims of the holders of theSecurities under the guarantees in respect thereto, rank at least *pari passu* with the claims of all otherunsubordinated unsecured creditors of the respective Guarantors thereunder,present and future (except for such claims which may be mandatorily preferredfrom time to time under applicable laws);

 

(b)                                 Promptly from time to time to take such action as thePurchasers may reasonably request to qualify the Securities for offering andsale under the securities laws of such jurisdictions as the Purchasers mayrequest and to comply with such laws so as to permit the continuance of salesand dealings therein in such jurisdictions for as long as may be necessary tocomplete the distribution of the Securities, provided that in connectiontherewith the Company shall not be required to qualify as a foreign corporationor to file a general consent to service of process in any jurisdiction;

 

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(c)                                  Not to be or become, at any time prior to the expiration ofthree years after the completion of the Change of Control Offer, an open-endinvestment company, unit investment trust, closed-end investment company orface-amount certificate company that is or is required to be registered under Section 8of the Investment Company Act;

 

(d)                                 To comply with the reporting obligations provided for in section 1019of the Senior Notes Indenture;

 

(e)                                  To ensure that the Company remains an SEC reporting companyand to furnish, at any time when the Company is not exempt from registrationunder Section 12(b) of the Exchange Act nor subject to Section 13or 15(d) of the Exchange Act, for the benefit of holders from time to timeof Securities, at the Company’s expense, upon request, to holders of Securitiesand prospective purchasers of securities information satisfying therequirements of subsection (d)(4)(i) of Rule 144A under theSecurities Act of 1933, as amended (the “**Act**”);

 

(f)                                    During a period of three years from the date of thisAgreement, to furnish to the Purchasers such additional information concerningthe business and financial condition of the Company and the Guarantors as anyPurchaser may from time to time reasonably request (such financial statementsto be on a consolidated basis to the extent the accounts of the Company and itssubsidiaries are consolidated in reports furnished to its shareholdersgenerally or to the SEC);

 

(g)                                 Not to (and to cause its subsidiaries not to) take, directlyor indirectly, any action which is designed to or which constitutes or whichmight reasonably be expected to cause or result in a violation of Regulation Munder the Act or any other laws, rules or regulation in any jurisdictionrelating to stabilization or manipulation of the price of any security of theCompany or any Guarantor to facilitate the sale or resale of the Securities;

 

(h)                                 During the period of two years after the completion of theChange of Control Offer, the Company will not resell any of the Securitieswhich constitute “restricted securities” under Rule 144 that have beenreacquired by it;

 

(i)                                     Neither the Company, nor any person (other than BidCo and thePurchasers) acting on its or their behalf will offer or sell the Securities bymeans of any general solicitation or general advertising within the meaning of Rule 502(c) underthe Act or, with respect to Securities sold outside the United States tonon-U.S. persons (as defined in Rule 902 under the Act), by means of anydirected selling efforts within the meaning of Rule 902 under the Act;

 

(j)                                     Not to distribute, or cause to be distributed any offeringmaterial relating to the Securities in contravention of securities laws in therelevant local jurisdiction;

 

(k)                                  To pay any amounts due as a result of any value added taxes (“**VAT**”) payable by the Purchasers in respectof commissions (whether or not paid as discounts), fees or expenses payable orreimbursable by the Company pursuant to this Agreement;

 

(l)                                     To provide to BidCo and the Purchasers information reasonablyrequested by them in connection with their making of the change of ControlOffer, which information shall be accurate in all material respects; and

 

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(m)                               The Company shall pay, on the Revised Consent Solicitationsettlement date, the Consent Fee then due and payable in accordance with theterms and subject to the conditions of the Revised Consent Solicitation.

 

8.                                       For the benefitof BidCo and the Purchasers in respect of their obligations relating to the TenderOffer (but not in respect of their obligations relating to the Change ofControl Offer), the Company and the Guarantors, jointly and severally, agreewith BidCo and each of the Purchasers that:

 

(a)                                  on the first date on which Nordic receives funds drawn byHolding under the Mezzanine Facility or on the date hereof, whichever is later,the Company shall set aside the sum equal to the Consent Fee of €5,200,000.

 

(b)                                 In the event that BidCo on behalf of the Purchasers isobligated to pay the Alternate Tender Offer Price, as a result of the Company’sfailure to pay the Consent Fee in accordance with the terms and subject to theconditions of the Revised Consent Solicitation, the Company hereby agrees topay to BidCo, on demand, the sum of €5,200,000. BidCo will apply such funds:

 
| (i)    |   | to pay an amount equal to 4% of the principal amount of all  Senior Notes validly tendered and not withdrawn in the Tender Offer prior to  the expiry date; and                                                        |
|--------|--------|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |   |                                                                                                                                                                                                                   |
| (ii)   |   | to pay the Consent Fee to all Senior Noteholders that have  validly given and not withdrawn their consents under the Revised Consent  Solicitation and which have not tendered their Senior Notes in the Tender Offer. |

 

(c)                                  On the dateon which Tranche A of the Mezzanine Facility is first drawn, the Company shallset aside an amount equal to 1% of the aggregate principal amount of SeniorNotes that could be validly tendered in the Change of Control Offer (the “**Change of Control Premium**”) and shall paysuch funds to BidCo in accordance with Clause 9 below.

 

9.                                       In addition toits obligations under Clause 8 above the Company covenants and agrees with eachof the Purchasers and BidCo that the Company will pay or cause to be paid thefollowing: (i) with the consent of BidCo, to each Purchaser, pro-rata toits Tender Offer Commitment detailed in Schedule IA on the first date onwhich Nordic receives funds drawn by Holding under the Mezzanine facility towhich Holding is a party (the “**MezzanineFacility**”) or on the date hereof, whichever is later, a commitmentfee in the amount of €776,778 (ii) to BidCo on the Tender Offer SettlementDate and the Change of Control Offer Settlement Date,  as applicable, a funding fee equal to 2% ofthe aggregate principal amount of the Senior Notes plus accrued but unpaidinterest thereon up to (and including) the day immediately preceding the TenderOffer Settlement Date or the Change of Control Offer Settlement Date, purchasedby BidCo pursuant to the Tender Offer or the Change of Control Offer, asapplicable, provided that no funding fee shall be paid with respect to theChange of Control Premium; (iii) to BidCo on the date which falls onebusiness day prior to the date on which BidCo purchases Senior Notes pursuantto the Change of Control Offer, the Change of Control Premium; (iv) thefees, disbursements and expenses of the Company’s counsel (including its U.S.,Swedish, Finnish and Norwegian counsels) and accountants in connection with theTender Offer or any Change of Control Offer; (v) the cost of printing orproducing this Agreement, all documents relating to either the Tender Offer orthe Change of Control 

 

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Offer (including anycompilations thereof) and all other documents in connection with the exerciseof the Tender Offer or any Change of Control Offer; (vi) all out-of-pocketexpenses (including all fees, disbursements and expenses of U.S. and Swedishcounsel to the Purchasers) incurred by the Purchasers and/or BidCo inconnection with the transactions contemplated hereby, including but not limitedto all costs and expenses incurred by the Purchasers in the creation andformation of BidCo; (vii) all costs and expenses incurred by BidCo and thePurchasers in relation to the Tender Offer and the Change of Control Offer,including but not limited to incorporation costs, corporate service anddirector service costs and any legal costs incurred in relation to establishingBidCo up to a maximum of £40,000; (viii) all costs and expenses of LucidIssuer Services Limited, incurred in relation to the Tender Offer and theChange of Control Offer and (ix) all other costs and expenses incidentalto the performance of the obligations hereunder which are not otherwisespecifically provided for in this Section. It is understood, however, that,except as provided in this Section, the Purchasers will pay all of their owncosts and expenses, transfer taxes on resale of any of the Securities by them,and any advertising expenses, connected with any offers they may make. Allpayments hereunder shall be made without any set-off or counterclaim and freeand clear of any withholding or deduction of or on account of applicable taxsave as may be required by law. If the Company is required by law to make anydeduction or withholding from any sum payable hereunder, the sum in respect ofwhich the deduction or withholding is required to be made shall be increased tothe extent necessary to ensure that BidCo and each Purchaser and its affiliatesreceive and retain a net sum equal to that which it would have received had nosuch deduction or withholding been required to be made.

 

10.                                 All payments to be made hereunder shall be made on demand(unless otherwise specified) and in immediately available freely transferablefunds and in the currency of invoice to such account with such bank in theprincipal financial centre of the currency of invoice as the recipient shallnotify to the payer.

 

11.                                 The fees and amounts representing the reimbursement ofexpenses which are payable hereunder shall be payable, in whole or in part, toany of the affiliates of any Purchaser in the event such Purchaser so directsthe Company prior to the payment of the fees and amounts in question. In theabsence of any other direction, all fees and amounts payable hereunder shall bepayable to each Purchaser to such account as each respective Purchaser shallpreviously have requested.

 

12.                                 All fees and other amounts payable hereunder are exclusive ofany VAT or other equivalent or similar tax, which shall also be payable by theCompany if applicable.

 

13.                                 The obligations of the Purchasers and BidCo hereunder withrespect to the Change of Control Offer, but not the Tender Offer, shall besubject, in their discretion, to the condition that all representations andwarranties and other statements of the Company and the Guarantors herein are,at and as of the date hereof and at the Change of Control Offer Launch Date,true and correct and to the condition that the Company and Guarantors shallhave performed all of their respective obligations hereunder with respect tothe Change of Control Offer, but not the Tender Offer, theretofore to beperformed, and to the following additional conditions:

 

(a)                                  Clifford Chance, U.S.counsel for the Company, Advokatfirman Lindahl KB, Swedish counsel for thePurchasers and the Company, Bugge, Arentz-Hansen & Rasmussen, 

 

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Norwegian counsel for the Company and thePurchasers, and Hannes Snellman, Attorneys at Law Ltd., Finnish counsel for theCompany and the Purchasers, each shall have furnished to the Purchasers theirwritten opinion, in the same form and substance as that which was given uponthe issuance of the Senior Notes, save to the extent that such opinion shall beaddressed to each Purchaser and BidCo, dated the Change of Control Offer LaunchDate and shall further confirm as of the date hereof the following matters:

 

(A)                              Each of the Company and the Guarantors has all requisitepower and authority to enter into this Agreement and this Agreement has beenduly authorized, executed and delivered by the Company and the Guarantors;

 

(B)                                No Governmental Authorization is required for theconsummation by the Company or the Guarantors of the transactions contemplatedby this Agreement, or the Change of Control Offer;

 

(C)                                Under the laws of the State of New York relating to personaljurisdiction, each of the Company and the Guarantors have, pursuant to Section 17of this Agreement, (i) validly and irrevocably submitted to the personaljurisdiction of any state or federal court located in the Borough of Manhattan,The City of New York, New York (each a “**NewYork Court**”) in any action arising out of or relating to thisAgreement or the Change of Control Offer, respectively, or the transactionscontemplated hereby or thereby, (ii) validly and irrevocably waived anyobjection to the venue of a proceeding in any such court, and (iii) validlyand irrevocably appointed the Authorized Agent (as defined herein) as itsauthorized agent for the purpose described in Section 20 hereof; andservice of process effected on such agent in the manner set forth in Section 20hereof will be effective to confer valid personal jurisdiction over the Companyor the Guarantors, as the case may be, with respect to this Agreement anddocuments relating to the Change of Control Offer;

 

(D)                               The agreement of each of the Company and the Guarantors (asapplicable) to the choice of law provisions set forth in Section 24hereof, will be recognized by the courts of its jurisdiction of incorporation;each of the Company and the Guarantors can sue and be sued in its own nameunder the laws of its jurisdiction of incorporation; the irrevocable submissionof each of the Company and the Guarantors to the non-exclusive jurisdiction ofa New York Court, the waiver by each of the Company and the Guarantors of anyobjection to the venue of a proceeding of a New York Court and the agreement ofeach of the Company and the Guarantors that this Agreement and documentsrelating to the Change of Control Offer shall each be governed by and construedin accordance with the laws of the State of New York are legal, valid andbinding, insofar as the laws of the respective jurisdictions of the Company andthe Guarantors are concerned; service of process effected in the manner setforth in Section 20 hereof will be effective to confer valid personaljurisdiction over each of the Company and the Guarantors (as applicable),insofar as the laws of its jurisdiction of incorporation are concerned; andjudgment obtained in a New York Court arising out of or in relation to theobligations of the Company and the Guarantors (as applicable) under thisAgreement, documents relating to the Change of Control Offer or the SeniorNotes Indenture would be enforceable against the Company and the Guarantors, asthe case may be, in the courts of their respective jurisdictions ofincorporation;

 

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(E)                                 Neither the Company, nor any of the Guarantors (asapplicable), is entitled to any immunity on the basis of sovereignty orotherwise in respect of its obligations under this Agreement or the documentsrelating to the Change of Control Offer and could not successfully interposeany such immunity as a defense to any suit or action brought or maintained inrespect of its obligations under this Agreement, documents relating to theChange of Control Offer and the waiver by each of the Company and theGuarantors of immunity to jurisdiction (including the waiver of sovereignimmunity to which the Company or such Guarantor may become entitled subsequentto the date of this Agreement) and immunity to pre-judgment attachment,post-judgment attachment and execution in any suit, action or proceedingagainst it arising out of or based on this Agreement, documents relating to theChange of Control Offer is a valid and binding obligation of the Company underSwedish law and each of the Guarantors under the laws of the jurisdiction ofits organization;

 

(F)                                 To the best of such counsel’s knowledge, there are no legalor governmental proceedings pending to which Holding, the Company or any of itssubsidiaries or Bus is a party or of which any property of Holding, the Companyor any of its subsidiaries or Bus is the subject which, if determined adverselyto Holding, the Company, any of its subsidiaries or Bus, as the case may be,would individually or in the aggregate have a material adverse effect on thecurrent or future consolidated financial position, business prospects,shareholders’ equity or results of operations of Holding, the Company and itssubsidiaries; and, to the best of such counsel’s knowledge, no such proceedingsare threatened or contemplated by governmental authorities or threatened byothers; and

 

(G)                                None of Holding, the Company or any of its subsidiaries is inviolation of its constitutive documents or in default in the performance orobservance of any material obligation, covenant or condition contained in anyindenture, mortgage, charge, deed of trust, loan agreement, guarantee, lease orother agreement or instrument to which it is a party or by which it or any ofits properties may be bound; and Bus is not in violation of its constitutivedocuments or (other than such defaults as arise under the indenture under whichthe €160,000,000 11% Senior Subordinated Notes were issued by Concordia Bus AB)in default in the performance or observance of any material obligation,covenant or condition contained in any indenture, mortgage, charge, deed oftrust, loan agreement, guarantee, lease or other agreement or instrument towhich it is a party or by which it or any of its properties may be bound;

 

(H)                               The Supplemental Indenture has been duly authorised and, whenexecuted and delivered by the Company and the Guarantors, will have been dulyexecuted and delivered and (assuming due authorisation, execution and deliveryby the Trustee and receipt by the Company of the Required Consents (as definedin the Revised Consent Solicitation statement)) will have been adopted in amanner consistent with the requirements of the Senior Notes Indenture and willconstitute (as will the Senior Notes Indenture, thereby amended) a valid andlegally binding obligation of the Company and the Guarantors, enforceableagainst the Company and the Guarantors in accordance with its terms, subject,as to enforcement, to bankruptcy, insolvency, reorganization and other laws ofgeneral applicability relating to or affecting creditors’ rights and to generalequity principles (whether enforcement is sought in a proceeding in equity orat law);

 

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(b)                                 The Restructuring shall have closed in accordance with theRestructuring Agreement;

 

(c)                                  The Company shall have furnished or caused to be furnished toBidCo and the Purchasers, for the benefit of BidCo and the Purchasers inrespect of their obligations relating to the Change of Control Offer (and notin respect of their obligations relating to the Tender Offer), on the Change ofControl Offer Launch Date certificates of its officers satisfactory to BidCoand the Purchasers as to the accuracy of the Company’s representations andwarranties herein at the date hereof and at and as of the Change of ControlOffer Launch Date, as to the performance by it of all of its obligationshereunder to be performed at or prior to the Change of Control Offer LaunchDate, as to the matters set forth in subsection (a) of this Section andas to such other matters as the Purchasers may reasonably request;

 

(d)                                 No default (actual or potential) under the Senior Notes whichhas not otherwise been cured or waived; and

 

(e)                                  Satisfaction of all appropriate corporate conditionsprecedent (i.e. due incorporation and good standing; due authorisation) inrespect of the Company and each Guarantor.

 

14.                                 The commitments of the Purchasers hereunder are joint andseveral and any defaulting Purchaser shall be liable to the non-defaultingPurchasers and the Company, but not to any other party hereto, for not fundingor procuring the funding of its respective commitment under Schedule IA ofthis Agreement when such commitment is due to be funded.

 

15.                                 The respective agreements, representations, warranties andother statements of the Company, the Guarantors and the several Purchasers, asset forth in this Agreement or made by or on behalf of them, respectively,pursuant to this Agreement, shall remain in full force and effect, regardlessof any investigation (or any statement as to the results thereof) made by or onbehalf of any Purchaser or any controlling person of any Purchaser, or theCompany or any Guarantor any officer or director or controlling person of theCompany or any Guarantor, and shall survive purchase of and payment for theSecurities.

 

16.                                 The Company confirms that it has been informed of theexistence of the informational guidance published by the Financial ServicesAuthority in relation to stabilization.

 

17.                                 All statements, requests, notices and agreements hereundershall be in writing, and if to BidCo or the Purchasers shall be delivered orsent to BidCo and each Purchaser by mail, telex or facsimile transmission atBidCo’s, or such Purchaser’s respective address and email address, set outunder its signature hereto, with a copy to Cadwalader, Wickersham &Taft LLP, 265 Strand, London WC2R 1BH, for the attention of Richard L. Nevins;and if to the Company shall be delivered or sent by mail, telex or facsimiletransmission to c/o Solna Strandväg 78, SE-171 Solna, Sweden, if to BidCo toNimbus Limited, Whiteley Chambers, Don Street, St. Helier, Jersey, Attn:Corporate Services and if to any Guarantor shall be delivered or sent by mail,telex or facsimile transmission to such Guarantor care of the Company at suchaddress of the Company. Any such statements, requests, notices or agreementsshall take effect upon receipt thereof.

 

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18.                                 This Agreement shall be binding upon, and inure solely to thebenefit of, BidCo the Purchasers, the Company and the Guarantors and, to theextent provided in Section 13 hereof, the officers and directors of theCompany and each person who controls the Company, or the officers and directorsof BidCo and each Purchaser and each person who controls BidCo or any Purchaseras the case may be, and their respective heirs, executors, administrators,successors and assigns, and no other person shall acquire or have any rightunder or by virtue of this Agreement. No purchaser of any of the Securitiesfrom BidCo or a Purchaser shall be deemed a successor or assign by reasonmerely of such purchase.

 

19.                                 (a)                                  Notwithstanding any other provision of this Agreement, BidCoshall be liable for any claim of any person under or in connection with thisAgreement only if and to the extent that BidCo has assets available for thepurpose of paying such claim, and to the extent that any such claim exceeds theassets of BidCo available for the purpose of paying such claim, that claimshall be extinguished.

 

(b)                                 Each party to this Agreement agrees that it shall notinstitute against, or join any person in instituting against, BidCo anybankruptcy, reorganisation, arrangement, insolvency or liquidation proceeding,or other proceeding under any bankruptcy or similar law of any jurisdiction,for one year and a day after the Change of Control Settlement Date.

 

(c)                                  The obligations of BidCo under this Agreement are solely thecorporate obligations of BidCo.  Norecourse shall be had for the payment of any amount owing by BidCo under or inconnection with this Agreement against any agent, employee, officer, directoror shareholder of BidCo.

 

(d)                                 The terms of this clause 19shall survive termination of this Agreement.

 

20.                                 Each of the Company irrevocably (i) agrees that anylegal suit, action or proceeding against it may be brought by BidCo or anyPurchaser, or by any officer or director of BidCo or any Purchaser or anyperson who controls BidCo or any Purchaser, arising out of or based upon thisAgreement or the transactions contemplated hereby may be instituted in any New YorkCourt, (ii) waives, to the fullest extent it may effectively do so, anyobjection which it may now or hereafter have to the laying of venue of any suchproceeding and (iii) submits to the non-exclusive jurisdiction of suchcourts in any such suit, action or proceeding. Each of the Company and theGuarantors irrevocably waives any immunity to jurisdiction to which it mayotherwise be entitled or become entitled (including sovereign immunity,immunity to pre-judgment attachment, post-judgment attachment and execution) inany legal suit, action or proceeding against it arising out of or based on thisAgreement or the transactions contemplated hereby which is instituted in anyNew York Court or in any competent court in Sweden. Each of the Company and theGuarantors has appointed CT Corporation System, New York, New York, as itauthorized agent (the “**Authorized Agent**”)upon whom process may be served in any such action arising out of or based onthis Agreement or the transactions contemplated hereby which may be institutedin any New York Court by BidCo or any Purchaser, or by any officer or directorof BidCo or any Purchaser or any person who controls BidCo or any Purchaser,expressly consents to the jurisdiction of any such court in respect of any suchaction, and waives any other requirements of or objections to personaljurisdiction with respect thereto. Such appointments shall be irrevocable. Eachof the Company and the Guarantors represents and warrants that the AuthorizedAgent has agreed to act as such agent for service of process and agrees to takeany and all action, including the filing of any and all documents andinstruments, that may be necessary to continue such

 

11

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appointment in full force and effect as aforesaid. Service ofprocess upon the Authorized Agent and written notice of such service to theCompany or a Guarantor, as the case may be, shall be deemed, in every respect,effective service of process upon the Company or such Guarantor, as the casemay be.

 

21.                                 In respect of any judgment or order given or made for anyamount due hereunder that is expressed and paid in a currency (the “**judgment currency**”) other than Euro, theCompany and the Guarantors (if the Company or any Guarantor is the obligor forsuch amount) will, jointly and severally, indemnify BidCo and each Purchaseragainst any loss incurred by BidCo or such Purchaser as a result of anyvariation as between (i) the rate of exchange at which the United Statesdollar amount is converted into the judgment currency for the purpose of suchjudgment or order and (ii) the rate of exchange at which BidCo or suchPurchaser is able to purchase Euro with the amount of judgment currencyactually received by BidCo or such Purchaser. The foregoing indemnity shallconstitute a separate and independent obligation of the Company and theGuarantors and shall continue in full force and effect notwithstanding any suchjudgment or order as aforesaid. The term “**rateof exchange**” shall include any premiums and costs of exchangepayable in connection with the purchase of or conversion into Euro.

 

22.                                 Time shall be of the essence of this Agreement.

 

23.                                 The provisions of this Agreement supersede all prior oraland/or written understandings and previous versions of the fees letter dated July 21,2005 (the “**Fees Letter**”) andcomprises the entire agreement (in respect of matters referred to herein)between the Company, BidCo and the Purchasers and in case of inconsistencies orconflicts between the provisions of the Fees Letter and this Agreement, theprovisions of this Agreement shall prevail.

 

24.                                 This Agreement shall be governed by and construed inaccordance with the laws of the State of New York.

 

25.                                 This Agreement may be executed by any one or more of the partieshereto in any number of counterparts, each of which shall be deemed to be anoriginal, but all such respective counterparts shall together constitute oneand the same instrument.

 

If the foregoing is in accordance with your understanding, please sign andreturn to the Company nine (9) counterparts hereof, and upon youracceptance hereof, on behalf of each of the Purchasers, this letter and suchacceptance hereof shall constitute a binding agreement between each of thePurchasers, the Company and the Guarantors.

 

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|   | Very truly yours,                                       |
|--------|---------------------------------------------------------|
|   | ** **                                              |
|   | **Concordia Bus Nordic AB (publ)**                      |
|   |                                                    |
|   | By: RAGNAR NORBÄCK                                 |
|   | Title: CHIEF OPERATING OFFICER                          |
|   |                                                    |
|   | By: PER SKÄRGÅRD                              |
|   | Title: CHIEF FINANCIAL OFFICER                          |
|   |                                                    |
|   | **Concordia Bus Nordic Holding AB**                     |
|   |                                                    |
|   | By: FRODE LARSEN                                        |
|   | Title:                                                  |
|   |                                                    |
|   | **Nimbus Limited**                                      |
|   |                                                    |
|   | By: SIMON WILLIAM MACKENZIE                             |
|   | Title: DIRECTOR                                         |
|   |                                                    |
|   | **Swebus Busco AB**                                     |
|   |                                                    |
|   | By: RAGNAR NORBÄCK                                 |
|   | Title: DIRECTOR                                         |
|   |                                                    |
|   | By: MATHIAS CRONA                                       |
|   | Title: DIRECTOR                                         |
|   |                                                    |
|   | **Swebus Express Bus AB**                               |
|   |                                                    |
|   | By: RAGNAR NORBÄCK                                 |
|   | Title: DIRECTOR                                         |
|   |                                                    |
|   | By: PER SKÄRGÅRD                              |
|   | Title: DIRECTOR                                         |
|   |                                                    |
|   | **Interbus AB**                                         |
|   |                                                    |
|   | By: RAGNAR NORBÄCK                                 |
|   | Title: DIRECTOR                                         |
|   |                                                    |
|   | By: PER SKÄRGÅRD                              |
|   | Title: DIRECTOR                                         |
|   |                                                    |
|   | **Ingeni&qout;r M.O. Sch&qout;yens  Bilcentraler   AS** |
|   |                                                    |
|   | By: RAGNAR NORBÄCK                                 |

 

13

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|   | Title: DIRECTOR                         |
|--------|-----------------------------------------|
|   |                                    |
|   | By: PER SKÄRGÅRD              |
|   | Title: DIRECTOR                         |
|   |                                    |
|   | **Concordia Bus Finland Oy Ab**         |
|   |                                    |
|   | By: PER SKÄRGÅRD              |
|   | Title: DIRECTOR                         |
|   |                                    |
|   | By: RAGNAR NORBÄCK                 |
|   | Title: DIRECTOR                         |
|   |                                    |
|   | **Swebus Fastigheter AB**               |
|   |                                    |
|   | By: PER SKÄRGÅRD              |
|   | Title: DIRECTOR                         |
|   |                                    |
|   | By: RAGNAR NORBÄCK                 |
|   | Title: DIRECTOR                         |
|   |                                    |
|   | **Alpus AB**                            |
|   |                                    |
|   | By: PER SKÄRGÅRD              |
|   | Title: DIRECTOR                         |
|   |                                    |
|   | By: RAGNAR NORBÄCK                 |
|   | Title: DIRECTOR                         |
|   |                                    |
|   | **Enkoping-Balsta Fastighetsbolag  AB** |
|   |                                    |
|   | By: PER SKÄRGÅRD              |
|   | Title: DIRECTOR                         |
|   |                                    |
|   | By: RAGNAR NORBÄCK                 |
|   | Title: DIRECTOR                         |
|   |                                    |
|   | **Malmfaltens Omnibus AB**              |
|   |                                    |
|   | By: PER SKÄRGÅRD              |
|   | Title: DIRECTOR                         |
|   |                                    |
|   | By:  RAGNAR NORBÄCK                |
|   | Title:  DIRECTOR                        |

 

14

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**Swebus AB**

 

By: RAGNAR NORBÄCK 

Title: DIRECTOR

 

By:PER SKÄRGÅRD 

Title:CHIEF FINANCIAL OFFICER

 

**Accepted as of the date hereof:**

**Purchaser’s Name: AVENUE EUROPEMANAGEMENT LLP**

 

Purchaser’s Address: 

25 Knightsbridge 

London 

SW1X 7RZ

 

By: SONIA GARDNER

 

Contact Person: Sam Perlman 

Email Address:sperlman@avenuecapital.com 

Direct Telephone: +44 (0) 20 7245 1888

 

**Purchaser’s Name: BEAR, STEARNS &CO. INC.**

 

Purchaser’s Address: 

383 Madison Avenue 

New York 

New York 10179

 

By: GREGORY A. HANLEY 

Title: SENIOR MANAGING DIRECTOR

 

Contact Person: Bryan Shapiro/Mike Paget 

Email Address: bshapiro@bear.com/mpaget@bear.com 

Direct Telephone: +44 (0) 20 7516 5492

 

**Purchaser’s Name: THE BLUEBAY HIGHYIELD (MASTER) FUND**

 

Purchaser’s Address: 

BlueBay Asset Management Limited 

Times Place 

45 Pall Mall 

London 

SW1Y 5JG

 

By: GINA J. GERMANO 

Title: PORTFOLIO MANAGER

 

Contact Person: 

 

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Email Address: Direct Telephone:

 

**Purchaser’s Name: LONE STARINTERNATIONAL FINANCE LTD**

 

Purchaser’s Address: 

HSBC House 

Harcourt Centre 

Harcourt Street 

Dublin 2

 

By: EILEEN RONAYNE 

Title: ALTERNATE DIRECTOR FOR J HENNESSY

 

Contact Person: Eileen Ronayne 

Email Address:eronayne@hudson-advisors.com 

Direct Telephone: + 353 1 4788604

 

**Purchaser’s Name: HILLSIDE APEXFUND LIMITED**

 

Purchaser’sAddress: 

c/oAppleby Corporate Services (Cayman) Limited 

CliftonHouse 

75Fort Street

P.O. Box 1350 GT

Grand Cayman 

Cayman Islands

 

By: ROBERT KING 

Title: DIRECTOR

 

Contact Person: Chris Currington/Michael Mabbutt 

Email Address: ccurrington@thamesriver.co.uk/mmabbutt@thamesriver.co.uk

Direct Telephone: +44 (0) 20 7360 1248/ +44 (0) 207360 1245

 

**Purchaser’s Name: THAMES RIVERTRADITIONAL FUND PLC (HIGH INCOME FUND)**

 

Purchaser’s Address: 

IFSC House 

International Financial Services Centre 

Dublin 1 

Ireland

 

By: DAVID HAMMOND 

Title: DIRECTOR

 

ContactPerson: Chris Currington/Michael Mabbutt 

EmailAddress: ccurrington@thamesriver.co.uk/mmabbutt@thamesriver.co.uk 

DirectTelephone: +44 (0) 20 7360 1248/ +44 (0) 20 7360 1245

 

16

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**Purchaser’s Name: FIDELITYINVESTMENT FUNDS ICVC – FIDELITY EXTRA INCOME FUND**

 

Purchaser’s Address: 

Oakhill House 

130 Tonbridge Road 

Hildenborough 

Tonbridge 

Kent 

TN11 9DZ

 
| By:             | /s/ RICHARD WAISTCOAT |   |
|-----------------|-----------------------|--------|
| Title: DIRECTOR |

 

Contact Person: 

Email Address: 

Direct Telephone:

 

**Purchaser’s Name: FIDELITY FUNDSSICAV – EUROPEAN HIGH YIELD**

 

Purchaser’s Address: 

Oakhill House 

130 Tonbridge Road 

Hildenborough 

Tonbridge 

Kent 

TN11 9DZ

 
| By:             | /s/ RICHARD WAISTCOAT |   |
|-----------------|-----------------------|--------|
| Title: DIRECTOR |

 

ContactPerson: 

EmailAddress: 

DirectTelephone:

 

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**SCHEDULE IA**

 

18

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**ANNEX I**

 

1                                          The Securities have not been registeredunder the Act and may not be offered or sold within the United States or to, orfor the account or benefit of, U.S. persons except in accordance withRegulation S under the Act or pursuant to an exemption from the registrationrequirements of the Act. Each Purchaser represents that it will offer and sellthe Securities as part of their distribution at any time, only in accordancewith Rule 903 of Regulation S or Rule 144A. Accordingly, eachPurchaser agrees that neither it, its affiliates nor any persons acting on itsor their behalf has engaged or will engage in any directed selling efforts withrespect to the Securities, and it and they have complied and will comply withthe offering restrictions requirement of Regulation S. Each Purchaser agreesthat, at or prior to confirmation of sale of Securities (other than a salepursuant to Rule 144A), it will have sent to each distributor, dealer orperson receiving a selling concession, fee or other remuneration that purchasesSecurities from it during the restricted period a confirmation or notice tosubstantially the following effect:

 

“TheSecurities covered hereby have not been registered under the U.S. SecuritiesAct of 1933 (the “Securities Act”) and may not be offered and sold within theUnited States or to, or for the account or benefit of, U.S. persons (i) aspart of their distribution at any time or (ii) otherwise until 40 daysafter the later of the commencement of the offering and the closing date,except in either case in accordance with Regulation S (or Rule 144A ifavailable) under the Securities Act. Terms used above have the meaning given tothem by Regulation S.”

 

Terms used in thisparagraph have the meanings given to them by Regulation S.

 

2                                          Each Purchaser agrees thatit will not offer or sell any of the Securities to persons in the UnitedKingdom except to persons whose ordinary activities involve them in acquiring,holding, managing or disposing of investments (as principal or agent) for thepurposes of their businesses or otherwise in circumstances which have notresulted and will not result in an offer to the public in the United Kingdomwithin the meaning of the Public Offers of Securities Regulations 1995 (asamended).

 

Each Purchaser agrees that (a) it hasonly communicated or caused to be communicated and will only communicate orcause to be communicated any invitation or inducement to engage in investmentactivity (within the meaning of section 21 of the Financial Services andMarkets Act 2000 (the “FSMA”)) received by it in connection with the issue orsale of any Securities in circumstances in which section 21 (1) ofthe FSMA does not apply to the Issuer, and (b) it has complied and willcomply with all applicable provisions of the FSMA with respect to anything doneby it in relation to the Securities in, from or otherwise involving the UnitedKingdom.

 

3                                          Each Purchaseragrees that it will not offer, sell or deliver any of the Securities in anyjurisdiction outside the United States except under circumstances that willresult in compliance with the applicable laws thereof, and that it will take atits own expense whatever action is required to permit its purchase and resaleof the Securities in such jurisdictions.

 

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EachPurchaser understands that no action has been taken to permit a public offeringin any jurisdiction outside the United States where action would be requiredfor such purpose.

 

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