SALE AND ASSIGNMENT AGREEMENT AND LIMITED RECOURSE NOTE
Exhibit 4.11
CONFORMED COPY
AND LIMITED RECOURSE NOTE
1. Parties
1.1 Concordia Bus AB (publ) (“Bus”), 556576-4569, a public company incorporated under Swedish law;
1.2 Concordia Bus Nordic Holding AB (“Holding”), 556028-1122, a private company incorporated under Swedish law; and
1.3 Concordia Bus Nordic AB (publ) (“Nordic”), 556031-8569, a public company incorporated under Swedish law.
2. Background
2.1 Concordia owns 100 percent of the shares in Holding and Holding owns 100 percent of the shares in Nordic.
2.2 Pursuant to a loan agreement dated 27 February 2002, as amended and restated on 22 January 2004 (the “Loan Agreement”) Bus has extended to Nordic a senior subordinated loan of SEK 501,299,922 (the “Loan”) the outstanding amount of which, together with all accrued but unpaid interest, is SEK 166,927,467 at the date hereof (the “Outstanding Amount”) (which as of July 15 2005 corresponds to approximately Euro 17,758,241).
2.3 As part of a refinancing of the Bus group, in part under a mezzanine facility agreement (the “Mezzanine Facility Agreement”) entered into on or about the dated hereof, Bus has resolved to sell and assign the Loan to Holding.
3. Amendments
In connection with the sale and assignment entered into pursuant to this Agreement, the Loan Agreement has been amended and restated on the date hereof in the form attached hereto as Appendix 1.
4. Sale and Assignment
Bus hereby sells and assigns all its rights under the Loan to Holding and Holding hereby assumes all such rights, subject to the terms and conditions set out herein. The sale and assignment shall be effective as of the date of this Agreement.
5. Consideration
5.1 As consideration for the sale and assignment pursuant to section 4 above, Holding shall pay to Bus, subject to the limitations set out in section 6 below, the Net Amount (as defined below) of all Nordic Payments (as defined below).
5.2 As security for Holding’s obligation to pay the Consideration, subject to the limitations set out in Clause 6 below, Holding shall grant a second ranking pledge of the Loan in favour of Bus, subject to the First Pledge (as defined below).
6. Limited Recourse
6.1 Notwithstanding any provision of this Agreement or in any other agreement between Bus and Holding, Bus agrees that the obligation of Holding and its successors under this Agreement, shall be limited to the payment of the Net Amount (as defined below) of each Nordic Payment (as defined below), and in each case to the extent that such Net Amount of a Nordic payment is available to Holding.
6.2 For the purposes of this Agreement, the term “Nordic Payments” means each payment made by Nordic from time to time to Holding under the Loan Agreement in accordance with its terms (as amended and restated), and the term “Net Amount” means, at any time, the amount of each such Nordic
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Payment to the extent not required to be applied by Holding in payment of amounts due under the Tranche C Facility (as defined in the Mezzanine Facility Agreement) in accordance with the Mezzanine Facility Agreement on or about the date such Nordic Payment is to be made. The term “First Pledge” means the first ranking pledge of the Loan made by Holding in favour of the Security Agent to secure the fulfilment by Holding of its obligations under Tranche C of the Mezzanine Facility.
6.3 The limitation of Holding’s payment obligations under this section 6 shall apply irrespective of the Loan Agreement (as amended and restated) being fully complied with or being prematurely terminated and irrespective of whether Holding’s payment obligation is based on a court decision or otherwise.
6.4 Holding’s obligations under this Agreement shall be limited to the Net Amount of Nordic Payments and Holding shall not be obliged to pay any interest on overdue payments.
6.5 On and with effect from the date on which Bus submits a Utilisations Request in respect of the Tranche A Facility, Holding hereby sells and assigns all its rights under the Loan Agreement to Bus and Bus hereby assumes all such rights, subject to the terms and conditions set out herein. All references in the Loan Agreement to the Lender shall thereafter be construed as references to Bus. Upon such re-transfer, Holding’s obligation under this Agreement shall be discharged in full and Holding shall have no further obligations hereunder.
7. Confirmation
7.1 Nordic hereby confirms that it has been duly notified of the sales and assignments in this Agreement and that all future payments under the Loan (including all accrued interest) will be paid to Holding or in accordance with the instructions of Holding and, upon the re-transfer in accordance with clause 6.5, to Bus or in accordance with Bus´ instructions.
8. Governing law
8.1 This Agreement shall be governed by Swedish law.
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This document has been executed in three identical copies of which the parties have taken one each.
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Date: July 18, 2005 |
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CONCORDIA BUS AB (PUBL) |
CONCORDIA BUS NORDIC HOLDING AB |
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/s/ XXXXX XXXXXX |
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/s/ XXXXX XXXXXX |
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CONCORDIA BUS NORDIC AB (PUBL) |
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XXXXXX XXXXXXX |
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Appendix 1
[copy of amended and restated loan agreement]
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