Exhibit 4.1.1


 


GUARANTEE


 


 


dated [                 ]
2008


 


 


created
by


 


 


OPEN JOINT-STOCK COMPANY “WIMM-BILL-DANN”


 


as
Guarantor


 


 


in
favour of


 


 


ING
BANK N.V., LONDON BRANCH 


as
Agent


 


 


Ref: L-149937


 





 


Linklaters LLP


 

















 


CONTENTS


 


	
  1.

  	
  Definitions and interpretation

  	
  1

  
	
  2.

  	
  Guarantee and indemnity

  	
  2

  
	
  3.

  	
  Interest

  	
  4

  
	
  4.

  	
  Tax gross-up and indemnities

  	
  5

  
	
  5.

  	
  Other indemnities

  	
  6

  
	
  6.

  	
  Enforcement Costs

  	
  6

  
	
  7.

  	
  Representations

  	
  7

  
	
  8.

  	
  Information undertakings

  	
  11

  
	
  9.

  	
  General undertakings

  	
  12

  
	
  10.

  	
  Assignment

  	
  14

  
	
  11.

  	
  Incorporation of terms

  	
  15

  
	
  12.

  	
  Governing law

  	
  15

  
	
  13.

  	
  Enforcement

  	
  15

  



 


i

















 


THIS DEED OF GUARANTEE is dated [                ]
2008 and made between:


 


(1)        OPEN JOINT-STOCK COMPANY
“WIMM-BILL-DANN” (the “Guarantor”); and


 


(2)        ING BANK N.V., LONDON BRANCH
as agent of the other Finance Parties (the “Agent”).


 


BACKGROUND


 


(A)        The
Guarantor is entering into this Deed in connection with the Finance Documents.


 


(B)        The Agent
and the Guarantor intend this document to take effect as a deed (even though
the Agent only executes it under hand).


 


(C)       The Agent is entering into this
Deed on behalf of, and for the benefit of, the Finance Parties.


 


IT IS AGREED as follows:


 


1.           DEFINITIONS AND INTERPRETATION


 


1.1         Definitions and Construction


 


(a)         Unless a
contrary indication appears, a term defined in the Facility Agreement has the
same meaning in this Deed. In addition, in this Deed:


 


“Borrower”
means Open Joint Stock Company “Wimm-Bill-Dann Foods”.


 


“Facility Agreement” means the USD 250,000,00
facility agreement dated on or about the date of this Deed between the
Borrower, ABN AMRO Bank N.V., CALYON and ING Bank N.V. as mandated lead
arrangers, the Lenders (as defined therein) and the Agent.


 


“Party”
means a party to this Deed.


 


“Repeating
Representations” means each of the representations set out in
Clauses 7.1 (Status) to 7.6 (Governing law and enforcement), 7.9 (No default)
to 7.13 (No proceedings pending or threatened)
and 7.17 (Taxes).


 


(b)         Any
reference in this Deed to a “Finance Document”
or any other agreement or instrument is a reference to that Finance Document or
other agreement or instrument as amended, novated, supplemented, extended,
restated (however fundamentally and whether or not more onerously) or replaced
and includes any change in the purpose of, any extension of or any increase in
any facility or the addition of any new facility under that Finance Document or
other agreement or instrument.


 


(c)         The
principles of construction set out in clause 1.2 (Construction)
of the Facility Agreement shall have effect as if set out in this Deed.


 


1.2         Clauses


 


In this Deed any
reference to a “Clause” or a “Schedule” is, unless the context otherwise
requires, a reference to a Clause of or a Schedule to this Deed.


 


1

















 


1.3       Third Party
Rights


 


Subject to the remaining
provisions of this Clause, a person who is not a Party has no right under the
Contracts (Rights of Third Parties) Act 1999 (the “Third
Parties Act”) to enforce or to enjoy the benefit of any term of this
Deed. The Finance Parties through the Agent may enforce and rely on the terms
of this Deed in accordance with the terms of this Deed and the Third Parties
Act as if they were parties to this Deed.


 


1.4         Company as agent


 


The Guarantor authorises and instructs the Borrower to sign,
despatch and/or receive as its agent all documents and notices to be signed,
dispatched and/or received by the Guarantor, and to take as its agent any other
action necessary or desirable, under or in connection with the Finance
Documents.


 


2.           GUARANTEE AND INDEMNITY


 


2.1         Guarantee and indemnity


 


The Guarantor
irrevocably and unconditionally:


 


(a)            guarantees
to each Finance Party punctual performance by each Obligor of all of that
Obligor’s obligations under the Finance Documents;


 


(b)            undertakes
with each Finance Party that whenever another Obligor does not pay any amount
when due under or in connection with any Finance Document, the Guarantor shall
immediately on demand pay that amount as if it was the principal obligor; and


 


(c)            agrees
with each Finance Party that if, for any reason, any amount claimed by a
Finance Party under this Clause 2 is not recoverable on the basis of a
guarantee, it will be liable to indemnify that Finance Party against any cost, loss
or liability it incurs as a result of any Obligor not paying any amount when
due under or in connection with any Finance Document.  The amount payable by the Guarantor under
this indemnity will not exceed the amount it would have had to pay under this
Clause 2 if the amount claimed had been recoverable on the basis of a
guarantee.


 


2.2         Continuing guarantee


 


This guarantee is a continuing guarantee and will extend to
the ultimate balance of sums payable by any Obligor under the Finance
Documents, regardless of any intermediate payment or discharge in whole or in
part.


 


2.3         Reinstatement


 


If as a result of insolvency or any similar event:


 


(a)            any
payment by an Obligor is avoided, reduced or must be restored; or


 


(b)            any
discharge or arrangement (whether in respect of the obligations of an Obligor
or any security for those obligations or otherwise) is made in whole or in part
on the basis of any payment, security or other thing which is avoided, reduced
or must be restored:


 


(i)           the
liability of the Guarantor shall continue or be reinstated as if the payment,
discharge, avoidance, arrangement or reduction had not occurred; and


 


2

















 


(ii)          each
Finance Party shall be entitled to recover the value or amount of that security
or payment from the Guarantor, as if the payment, discharge, avoidance or
reduction had not occurred.


 


2.4         Waiver of defences


 


The obligations of the
Guarantor under this Clause 2 will not be affected by any act, omission, matter
or thing which, but for this Clause, would reduce, release or prejudice any of
its obligations under this Clause 2 (without limitation and whether or not
known to it or any Finance Party) including:


 


(a)            any
time, waiver or consent granted to, or composition with, any Obligor or any
other person;


 


(b)            the
release of any Obligor or any other person under the terms of any composition
or arrangement with any creditor of any member of the Group;


 


(c)            the
taking, variation, compromise, exchange, renewal or release of, or refusal or
neglect to perfect, take up or enforce, any rights against, or security over
assets of, any Obligor or any other person or any non-presentation or
non-observance of any formality or other requirement in respect of any
instrument or any failure to realise the full value of any security;


 


(d)            any
incapacity or lack of power, authority or legal personality of or dissolution
or change in the members or status of any Obligor or any other person;


 


(e)            any amendment, novation, supplement, extension,
restatement (however fundamental and whether or not more onerous) or
replacement of any Finance Document or any other document or security including
any change in the purpose of, any extension of or any increase in any facility
or the addition of any new facility under any Finance Document or other
document or security;


 


(f)             any
unenforceability, illegality or invalidity of any obligation of any person
under any Finance Document or any other document or security; or


 


(g)            any
insolvency or similar proceedings.


 


2.5         Immediate recourse


 


The Guarantor waives any right it may have of first
requiring any Finance Party (or any trustee or agent on its behalf) to proceed
against or enforce any other rights or security or claim payment from any
person before claiming from the Guarantor under this Clause 2.  This waiver applies irrespective of any law
or any provision of a Finance Document to the contrary.


 


2.6         Appropriations


 


Until all amounts which may be or become payable by the
Borrower under or in connection with the Finance Documents have been
irrevocably paid in full, each Finance Party (or any trustee or agent on its
behalf) may:


 


(a)            refrain
from applying or enforcing any other moneys, security or rights held or
received by that Finance Party (or any trustee or agent on its behalf) in
respect of those amounts, or apply and enforce the same in such manner and
order as it sees fit (whether against 


 


3

















 


those amounts or otherwise) and the Guarantor shall
not be entitled to the benefit of the same; and


 


(b)            hold
in an interest-bearing suspense account any moneys received from the Guarantor
or on account of the Guarantor’s liability under this Clause 2.


 


2.7         Deferral of Guarantor’s
rights


 


Until all amounts which may be or become payable
by the Obligors under or in connection with the Finance Documents have been
irrevocably paid in full and unless the Agent otherwise directs, the Guarantor
will not exercise any rights which it may have by reason of performance by it
of its obligations under the Finance Documents:


 


(a)            to be
indemnified by an Obligor;


 


(b)            to
claim any contribution from any other guarantor of the Borrower’s obligations
under the Finance Documents; and/or


 


(c)            to
take the benefit (in whole or in part and whether by way of subrogation or
otherwise) of any rights of the Finance Parties under the Finance Documents or
of any other guarantee or security taken pursuant to, or in connection with,
the Finance Documents by any Finance Party.


 


If the Guarantor receives any benefit, payment or
distribution in relation to such rights it shall hold that benefit, payment or
distribution to the extent necessary to enable all amounts which may be or
become payable to the Finance Parties by the Obligors under or in connection
with the Finance Documents to be repaid in full on trust for the Finance
Parties and shall promptly pay or transfer the same to the Agent or as the
Agent may direct for application in accordance with Clause 27 (Payment mechanics) of the Facility Agreement.


 


2.8         Additional security


 


This guarantee is in addition to and is not in any way
prejudiced by any other guarantee or security now or subsequently held by any
Finance Party.


 


3.           INTEREST


 


3.1         Default interest


 


If the Guarantor fails to pay any amount payable by it under
this Deed on its due date, interest shall accrue on the overdue amount from the
due date up to the date of actual payment (both before and after judgment) at a
rate which is the sum of 2 per cent and the rate which would have been payable
under the Facility Agreement if the overdue amount had, during the period of
non-payment, constituted a Loan in the currency of the overdue amount for
successive Interest Periods, each of a duration selected by the Agent (acting
reasonably). Any interest accruing under this Clause 3.1 shall be immediately
payable by the Guarantor on demand by the Agent.


 


3.2         Compounding


 


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


 


4

















 


4.           TAX GROSS-UP AND INDEMNITIES


 


4.1         Tax gross-up


 


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


 


(b)         The
Guarantor shall promptly upon becoming aware that it must make a Tax Deduction
(or that there is any change in the rate or the basis of a Tax Deduction)
notify the Agent accordingly.  Similarly,
the Agent shall notify the Guarantor on becoming so aware in respect of a
payment payable to it or any Finance Party.


 


(c)         If a Tax
Deduction is required by law to be made by the Guarantor, the amount of the
payment due from the Guarantor shall be increased to an amount which (after
making any Tax Deduction) leaves an amount equal to the payment which would
have been due if no Tax Deduction had been required.


 


(d)         If the
Guarantor is required to make a Tax Deduction, the Guarantor shall make that
Tax Deduction and any payment required in connection with that Tax Deduction
within the time allowed and in the minimum amount required by law.


 


(e)         Within
30 days of making either a Tax Deduction or any payment required in connection
with that Tax Deduction, the Guarantor shall deliver to the Agent evidence
reasonably satisfactory to the Agent that the Tax Deduction has been made or
(as applicable) any appropriate payment paid to the relevant taxing authority.


 


4.2         Stamp taxes


 


The Guarantor shall pay and, within three Business Days of
demand, indemnify each Finance Party against any cost, loss or liability that
Finance Party incurs in relation to all stamp duty, registration and other
similar Taxes payable in respect of this Deed.


 


4.3         Value added tax


 


(a)         All
amounts set out, or expressed to be payable under a Finance Document by any
party to a Finance Document which (in whole or in part) constitute the
consideration for VAT purposes shall be deemed to be exclusive of any VAT which
is chargeable on such supply, and accordingly, subject to paragraph (c) below,
if VAT is chargeable on any supply made by any Finance Party to any party under
a Finance Document, that party shall pay to the Finance Party (in addition to
and at the same time as paying the consideration) an amount equal to the amount
of the VAT (and such Finance Party shall promptly provide an appropriate VAT
invoice to such party).


 


(b)         If VAT
is chargeable on any supply made by any Finance Party (the “Supplier”) to any other Finance Party (the “Recipient”) under a Finance Document, and
any party to a Finance Document (the “Relevant
Party”) is required by the terms of any Finance Document to pay an
amount equal to the consideration for such supply to the Supplier (rather than
being required to reimburse the Recipient in respect of that consideration),
such party shall also pay to the Supplier (in addition to and at the same time
as paying such amount) an amount equal to the amount of such VAT. The Recipient
will promptly pay to the Relevant Party an amount equal to any credit or
repayment from the relevant tax authority which it reasonably determines
relates to the VAT chargeable on that supply.


 


5

















 


Where a Finance Document requires any party thereto to
reimburse a Finance Party for any costs or expenses, that party shall also at
the same time pay and indemnify the Finance Party against all VAT incurred by
the Finance Party in respect of the costs or expenses to the extent that the
Finance Party reasonably determines that neither it nor any other member of any
group of which it is a member for VAT purposes is entitled to credit or
repayment from the relevant tax authority in respect of the VAT.


 


5.           OTHER INDEMNITIES


 


5.1         Currency indemnity


 


(a)         If any
sum due from the Guarantor under the Finance Documents (a “Sum”),
or any order, judgment or award given or made in relation to a Sum, has to be
converted from the currency (the “First Currency”)
in which that Sum is payable into another currency (the “Second
Currency”) for the purpose of:


 


(i)             making or filing a claim
or proof against the Guarantor;


 


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


 


the Guarantor shall as
an independent obligation, within five Business Days of demand, indemnify each
Finance Party to which that Sum is due against any cost, loss or liability
arising out of or as a result of the conversion including any discrepancy
between (A) the rate of exchange used to convert that Sum from the First Currency
into the Second Currency and (B) the rate or rates of exchange available
to that person at the time of its receipt of that Sum.


 


(b)         The
Guarantor waives any right it may have in any jurisdiction to pay any amount
under the Finance Documents in a currency or currency unit other than that in
which it is expressed to be payable.


 


5.2         Indemnities separate


 


Each indemnity in each Finance Document shall:


 


(a)            constitute
a separate and independent obligation from the other obligations in that or any
other Finance Document;


 


(b)            give
rise to a separate and independent cause of action;


 


(c)            apply
irrespective of any indulgence granted by any Finance Party;


 


(d)            continue
in full force and effect despite any judgment, order, claim or proof for a
liquidated amount in respect of any sum due under any Finance Document or any
other judgment or order; and


 


(e)            apply
whether or not any claim under it relates to any matter disclosed by the
Guarantor or otherwise known to any Finance Party.


 


6.           ENFORCEMENT COSTS


 


To the extent not paid by the Borrower, the Guarantor shall,
within five Business Days of demand, pay the Agent the amount of all costs and
expenses (including legal fees) incurred by 


 


6

















 


the Agent in connection with the enforcement of, or the
preservation of any rights under, any Finance Document.


 


7.           REPRESENTATIONS


 


The Guarantor makes the representations and warranties set
out in this Clause 7 to each Finance Party on the date of this Deed.


 


7.1         Status


 


(a)         It is an
open joint stock company, duly incorporated and validly existing under the laws
of the Russian Federation.


 


(b)         It and
each of its Subsidiaries has the power to own its assets and carry on its
business as it is being conducted.


 


7.2         Binding obligations


 


The obligations expressed to be assumed by it in this Deed
are, subject to any Reservations, legal, valid, binding and enforceable.


 


7.3         Non-conflict with other obligations


 


The entry into and
performance by it of, and the transactions contemplated by, this Deed do not
and will not conflict with:


 


(a)            any
law or regulation applicable to it;


 


(b)            its
or any of its Subsidiaries’ constitutional or other internal documents; or


 


(c)            any
agreement or instrument binding upon it or any of its Subsidiaries or any of
its or any of its Subsidiaries’ assets,


 


nor result in the existence of, or oblige it to create, any
Security over any of its or its Subsidiaries’ assets. For the avoidance for
doubt and without limiting the generality of the foregoing, guaranteeing the
Total Commitments will not cause any guaranteeing limit binding upon it to be
exceeded nor will such guaranteeing or the entry into this Deed oblige it to
enter into any subordination agreement in respect thereof.


 


7.4         Power and authority


 


(a)         It has the
power to enter into, perform and deliver, and has taken all necessary action to
authorise its entry into, performance and delivery of, this Deed and the
transactions contemplated thereby.


 


(b)         Without
limiting the generality of paragraph (a) above, this Deed, and the
transactions contemplated thereunder, does not or will not constitute a major
transaction or an interested party transaction for it under applicable Russian
law, except where requisite corporate approvals authorising all major
transactions and all interested party transactions have been obtained by it
with respect to this Deed.


 


7.5         Validity and admissibility in evidence


 


All Authorisations required or desirable:


 


7

















 


(a)            to enable it lawfully to
enter into, exercise its rights and comply with its obligations under this
Deed; and


 


(b)            to make this Deed
admissible in evidence in its jurisdiction of incorporation,


 


have been (or will be when required by applicable law or
regulation) obtained or effected and are (or will be at the time required by
applicable law or regulation) in full force and effect.


 


7.6         Governing law and enforcement


 


(a)         Subject
to any Reservations, the choice of English law as the governing law of this
Deed will be recognised and enforced in its jurisdiction of incorporation.


 


(b)         Subject
to any Reservations, any arbitration award obtained in England in relation to
this Deed will be recognised and enforced in its jurisdiction of incorporation.


 


7.7         Deduction of Tax


 


It is not required to make any deduction for or on account
of Tax from any payment it may make under this Deed.


 


7.8         No filing or stamp taxes


 


Under the law of its jurisdiction of incorporation it is not
necessary that this Deed be filed, recorded or enrolled with any court or other
authority in that jurisdiction or that any stamp, registration or similar tax
be paid on or in relation to this Deed or the transactions contemplated thereby.


 


7.9         No default


 


(a)         No
Default is continuing or might reasonably be expected to result from the making
of any Utilisation.


 


(b)         No other
event or circumstance is outstanding which constitutes a default under any
other agreement or instrument which is binding on it or any of its Subsidiaries
or to which its (or any of its Subsidiaries’) assets are subject which might
have a Material Adverse Effect.


 


7.10       No misleading information


 


(a)         Any
factual information provided by or on behalf of it in writing in connection
with any Finance Document (including, without limitation, the Agreed Reorganisation
Memorandum) was true and accurate in all material respects as at the date it
was provided or as at the date (if any) at which it is stated.


 


(b)         Any
financial projections contained in any written information provided by or on
behalf of it to any Finance Party in connection with any Finance Document have
been prepared on the basis of recent historical information and on the basis of
reasonable assumptions.


 


(c)         Nothing
has occurred or been omitted from any written information (including, without
limitation, the Agreed Reorganisation Memorandum) provided by it to any Finance
Party in connection with any Finance Document that results in the information
referred to in paragraphs (a) and (b) above being untrue or
misleading in any material respect.


 


7.11       Financial statements


 


(a)         Its
Original Financial Statements were prepared in accordance with RAS consistently
applied.


 


8

















 


(b)         Its
Original Financial Statements represent its financial condition and operations
as at the end of and for the relevant financial period.


 


(c)         It has
not incurred any material liabilities since the date of its Original Financial
Statements or its most recent financial statements delivered pursuant to Clause
8.1 (Financial statements) (whichever is
later), which were not disclosed to the Agent in writing.


 


(d)         There
has been no material adverse change in its business or financial condition
since the date of its Original Financial Statements.


 


7.12       Pari passu ranking


 


Its payment obligations under this Deed rank at least pari passu with the claims of all its other unsecured and
unsubordinated creditors, except for obligations mandatorily preferred by law
applying to companies generally.


 


7.13       No proceedings pending or threatened


 


Save as fully, fairly and specifically disclosed to the
Agent in writing prior to the date of this Deed and except for any frivolous or
vexatious proceedings which are being contested in good faith and with
appropriate action and which are discharged, stayed or dismissed within 30 days
from commencement, no litigation, arbitration or administrative proceedings of
or before any court, arbitral body or agency (including any arising from or
relating to Environmental Law) have been started or threatened against it or any
of its Subsidiaries.


 


7.14       Title


 


It
and each of its Subsidiaries has good and marketable title to, or valid leases
or licences of, or is otherwise entitled to use, all material assets necessary
for the conduct of its business as it is being, and is proposed to be,
conducted.


 


7.15       Environmental Laws and Environmental Licences


 


Except as fully, fairly and specifically disclosed to the
Agent in writing prior to the date of this Agreement, it and each of its
Subsidiaries has:


 


(a)            complied
with all Environmental Laws to which it may be subject;


 


(b)            obtained
all Environmental Licences required or desirable in connection with its
business; and


 


(c)            complied
with the terms of those Environmental Licences.


 


7.16       Environmental releases


 


No:


 


(a)            property
currently or previously owned, leased, occupied or controlled by it or any of
its Subsidiaries (including any offsite waste management or disposal location
utilised by it or any of its Subsidiaries) is contaminated with any Hazardous
Substance; and


 


(b)            discharge,
release, leaching, migration or escape of any Hazardous Substance into the
Environment has occurred or is occurring on, under or from that property.


 


9

















 


7.17       Taxes


 


(a)         It and
each of its Subsidiaries are not materially overdue in filing any income tax
returns and all other material tax returns which are required to be filed in
all jurisdictions.


 


(b)         It and
each of its Subsidiaries have duly paid when due all Taxes required to be paid
by it other than any Taxes:


 


(i)             that are being contested by it in good faith
and in accordance with the relevant procedures, for which adequate reserves are
being maintained in accordance with GAAP and where payment can be lawfully
withheld and will not result in the imposition of any penalty nor in any
attachment or freezing of its assets; or


 


(ii)            the non-payment of which is not likely to have
a Material Adverse Effect.


 


7.18       Pensions, undisclosed
liabilities


 


(a)         Neither
it nor any of its Subsidiaries have any material liability in respect of any
pension scheme or otherwise and there are no circumstances which would give
rise to such a liability.


 


(b)         It and each of its Subsidiaries is in compliance with all applicable
laws and contracts relating to and the governing provisions of the pension
schemes maintained by or for its or any of its Subsidiaries’ benefit or for the
benefit of any of its or its Subsidiaries’ employees.


 


7.19       Immunity


 


(a)         The
execution and delivery of this Deed by it constitutes, and the exercise by it of
its rights and performance of its obligations under this Deed will constitute,
private and commercial acts performed for private and commercial purposes.


 


(b)         It will
not be entitled to claim immunity from suit, execution, attachment or other
legal process in any proceedings taken in any jurisdiction in relation to this
Deed.


 


7.20       Solvency


 


(a)         It
is not insolvent or unable to pay its debts (including subordinated and
contingent debts), nor could it be deemed by a court to be unable to pay its
debts within the meaning of the law of the jurisdiction in which it is
incorporated nor, in any such case, will it become so in consequence of
entering into this Deed, and/or performing any transaction contemplated by this
Deed.


 


(b)         It
has not taken any corporate action nor have any legal proceedings or other
procedure or step been taken, started or threatened in relation to anything
referred to in Clause 21.8 (Insolvency
proceedings) of the Facility Agreement.


 


7.21       No Security


 


No Security exists over all or any of its (or any of its
Subsidiaries’) assets other than Permitted Security.


 


7.22       Repetition


 


The Repeating Representations are deemed to be made by the
Guarantor by reference to the facts and circumstances then existing on the date
of each Utilisation Request, the date on which the Agreed Reorganisation is
completed and the first day of each Interest Period.


 


10
















 


8.           INFORMATION UNDERTAKINGS


 


The undertakings in this Clause 8 remain in force from the
date of this Deed for so long as any amount is outstanding under the Finance
Documents or any Commitment is in force.


 


8.1         Financial
statements


 


The Guarantor shall supply to the Agent in sufficient copies
for all the Lenders:


 


(a)            as soon as the same become available but in any event within 180
days after the end of its financial years, its audited financial statements for
that financial year prepared in accordance with RAS;


 


(b)                                  as soon as the same become available but in any event within 95 days
after the end of each of its financial years, its unaudited financial
statements for that financial year prepared in accordance with RAS;


 


(c)            as soon as the same become available, but in any event within 35
days after the end of each quarter of each of its financial years, its
financial statements for that financial quarter prepared in accordance with
RAS; and


 


8.2         Requirements
as to financial statements


 


(a)         Each set
of financial statements delivered by the Guarantor pursuant to Clause 8.1 (Financial statements) shall be certified by the general
director and the chief accountant of the Guarantor as fairly representing its
financial condition and operations as at the end of and for the period in
relation to which those financial statements were drawn up.


 


(b)         The
Guarantor shall procure that each set of its financial statements delivered
pursuant to Clause 8.1 (Financial statements)
is prepared using RAS, accounting practices and financial reference periods
consistent with those applied in the preparation of its Original Financial
Statements unless, in relation to any set of financial statements, it notifies
the Agent that there has been a change in RAS, the accounting practices or
reference periods and its auditors deliver to the Agent:


 


(i)             a
description of any change necessary for those financial statements to reflect
RAS, accounting practices and reference periods upon which its Original
Financial Statements were prepared; and


 


(ii)            sufficient
information, in form and substance as may be reasonably required by the Agent,
to enable the Lenders to determine whether Clause 19 (Financial
covenants) of the Facility Agreement has been complied with and make
an accurate comparison between the financial position indicated in those
financial statements and its Original Financial Statements.


 


Any reference in this Deed to those financial statements
shall be construed as a reference to those financial statements as adjusted to
reflect the basis upon which the Original Financial Statements were prepared.


 


8.3         Information:
miscellaneous


 


The Guarantor shall supply to the Agent (in sufficient
copies for all the Lenders, if the Agent so requests):


 


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(a)                                 all documents dispatched by the Guarantor to its shareholders (or
any class of them) or its creditors generally at the same time as they are
dispatched;


 


(b)                                promptly upon becoming aware of them, the details of any litigation,
arbitration or administrative proceedings which are current, threatened or
pending against it or any of its Subsidiaries and which is reasonably likely to
be adversely determined and, if adversely determined, could reasonably be
expected to have a Material Adverse Effect;


 


(c)                                 promptly, such further information regarding its or any of its
Subsidiaries’ financial condition, business and operations as any Finance Party
(through the Agent) may reasonably request.


 


8.4         Notification
of default


 


The Guarantor shall notify the Agent of any Default (and the
steps, if any, being taken to remedy it) promptly upon becoming aware of its
occurrence (unless the Guarantor is aware that a notification has already been
provided by another Obligor).


 


9.           GENERAL UNDERTAKINGS


 


The undertakings in this Clause 9 remain in force from the
date of this Deed for so long as any amount is outstanding under this Deed or
any Commitment is in force.


 


9.1         Authorisations


 


The
Guarantor shall promptly:


 


(a)            obtain,
comply with and do all that is necessary to maintain in full force and effect;
and


 


(b)           supply
certified copies to the Agent of


 


any Authorisation required under any law or regulation of
its jurisdiction of incorporation to enable it to perform its obligations under
this Deed and to ensure the legality, validity, enforceability or admissibility
in evidence in its jurisdiction of incorporation of this Deed.


 


9.2         Compliance
with laws


 


The Guarantor shall comply in all respects with all laws to
which it may be subject, if failure so to comply is reasonably likely to impair
its ability to perform its obligations under this Deed.


 


9.3         Negative
pledge


 


The
Guarantor shall not create or permit to subsist any Security over any of its
assets other than Permitted Security.


 


9.4         Disposals


 


The
Guarantor shall not, and shall procure that none of its Subsidiaries will,
enter into a single transaction or a series of transactions (whether related or
not and whether voluntary or involuntary) to sell, lease, transfer or otherwise
dispose of any asset other than a Permitted Disposal.


 


9.5         Reorganisation


 


The
Guarantor shall not (and shall ensure that none of its Subsidiaries will) enter
into or become subject to any consolidation or reorganisation, whether by way
of merger (sliyaniye obschestva),
company accession (prisoedinyeniye
obschestva), company division (razdelyeniye
obschestva), 


 


12

















 


company
separation (vydelyeniye obschestva),
company transformation (preobrazovaniye
obschestva), company liquidation (likvidatsiya
obschestva) or any other company reorganisation (reorganizatsiya obschestva) (as these
terms are construed by applicable Russian law) or otherwise, or any analogous
transaction in any jurisdiction, other than the Agreed Reorganisation, in each
case, without the prior consent of the Agent.


 


9.6         Acquisitions


 


Save with the prior written consent of the Agent, the
Guarantor shall not (and shall ensure that none of its Subsidiaries will) make
any Acquisition, other than an Acquisition of a business or going concern with business operations substantially
similar to the general nature of the business of the Group, provided that:


 


(a)            the
aggregate Acquisition Costs in any financial year do not exceed 25 per cent. of
the Total Assets of the Group for such financial year as construed by reference
to the consolidated financial statements of the Borrower delivered under
paragraph (a) of Clause 18.1 (Financial statements)
of the Facility Agreement;


 


(b)           such Acquisition is made at fair market
value; and


 


(c)           no
Default is continuing or would result from the proposed Acquisition.


 


9.7         Change
of business


 


The Guarantor shall procure that no change is made to the
general nature of its or any of its Subsidiaries’ business as a whole from that
carried on at the date of this Deed.


 


9.8         Insurance


 


The
Guarantor shall, and shall procure that each of its Subsidiaries will, maintain
insurances on and in relation to its business and assets with reputable
underwriters or insurance companies.


 


9.9         Environmental
undertakings


 


The
Guarantor shall, and shall procure that each of its Subsidiaries will:


 


(a)           comply
with all Environmental Laws to which it may be subject;


 


(b)           obtain
all Environmental Licences required or desirable in connection with its
business; and


 


(c)           comply
with the terms of all those Environmental Licences.


 


9.10       Environmental
claims


 


The
Guarantor shall, and shall procure that each of its Subsidiaries will, promptly
notify the Agent of any claim, notice or other communication received by it in
respect of any actual or alleged breach of or liability under Environmental
Law.


 


9.11       Loans


 


(a)         The
Guarantor shall not, and shall ensure that none of its Subsidiaries shall,
without the prior written consent of the Agent, make any loans or grant any
credit to or for the benefit of any person.


 


(b)         Paragraph
(a) above does not apply to:


 


13

















 


(i)            any
trade credit extended by the Guarantor to its customers on arm’s length terms
and in the ordinary course of trading;


 


(ii)           any
unsecured loans granted by
the Guarantor to another Obligor;


 


(iii)          any
loans granted by the Guarantor to any other
member of the Group which is not an Obligor on arm’s length terms; and


 


(iv)          any
loans granted by an Obligor to any person which is not a member of the Group, provided that:


 


(A)         without
prejudice to paragraph (C) below, the aggregate amount of all such loans
granted to distributors or suppliers of raw milk and other dairy products to
any member of the Group does not exceed 10 per cent. of the Total Assets of the
Group;


 


(B)          without
prejudice to paragraph (C) below, the aggregate amount of all such loans
granted to persons other than distributors or suppliers of raw milk and other
dairy products to any member of the Group does not exceed 5 per cent. of the
Total Assets of the Group; and


 


(C)          the
aggregate amount of all such loans and credit referred to in this paragraph (iv) does
not exceed 10 per cent. of the Total Assets of the Group.


 


9.12       Guarantees


 


The
Guarantor shall not, without the prior written consent of the Agent, grant any
guarantee or indemnity to or for the benefit of any person or otherwise
voluntarily assume any liability, whether actual or contingent, in respect of
any obligation of any other person, other than:


 


(a)            any
guarantee granted by the Guarantor to any person which is not a member of the
Group in respect of the obligations of any other member of the Group;


 


(b)           any guarantee or indemnity
granted pursuant to this Deed; or


 


(c)            any
Permitted Guarantee.


 


9.13       Acknowledgement following Agreed
Reorganisation


 


Following
completion of the Agreed Reorganisation, if the Agreed Reorganisation in
relation to the Guarantor is by way of the merger of the Guarantor and the
Borrower, the Guarantor shall (i) if required or desirable in accordance
with applicable law, assign its rights and novate its obligations under this
Deed to the resulting entity and (ii) procure that the resulting entity
shall acknowledge such rights and obligations as if it were an original party
to this Deed, in form and substance satisfactory to the Agent.


 


10.         ASSIGNMENT


 


The Guarantor may not assign any of its rights or transfer
any of its rights or obligations under the Finance Documents, except as
permitted in accordance with the Agreed Reorganisation.


 


14

















 


11.         INCORPORATION OF TERMS


 


(a)         The
provisions of Clause 25 (Conduct of business
by Finance Parties) and Clause 27 (Payment
Mechanics) to Clause 34 (Counterparts)
of the Facility Agreement shall be incorporated into this Deed as if set out in
full in this Deed and as if references in those clauses to “this Agreement” and
“the Borrower” were references to this Deed and the Guarantor.


 


(b)         For the
purposes of Clause 29 (Notices) of
the Facility Agreement, the notice details for the Guarantor are as set out on
the execution page to this Deed.


 


12.         GOVERNING LAW


 


This Agreement is governed by English law.


 


13.         ENFORCEMENT


 


13.1       Arbitration


 


Subject
to Clause 13.4 (Agent’s option),
any dispute arising out of or in connection with this Deed (including a dispute
regarding the existence, validity or termination of this Deed) (a “Dispute”) shall be referred to and finally resolved by
arbitration under the LCIA Arbitration Rules (the “Rules”).


 


13.2       Procedure
for arbitration


 


(a)         The
arbitral tribunal shall consist of three arbitrators. The claimant(s),
irrespective of number, shall nominate jointly one arbitrator; the
respondent(s), irrespective of number, shall nominate jointly the second
arbitrator; and a third arbitrator, who shall serve as Chairman (who shall be a
lawyer currently qualified in England and Wales and be admitted to the Bar of
England and Wales), shall be appointed by the LCIA Court as soon as possible
and, in any event, within 15 days of the appointment of the second arbitrator.


 


(b)         In the
event the claimant(s) or the respondent(s) shall fail to nominate an
arbitrator within the time limits specified in the Rules, such arbitrator shall
be appointed by the LCIA Court as soon as possible and, in any event, within 15
days of such failure. In the event that both the claimant(s) and the
respondent(s) fail to nominate an arbitrator within the time limits
specified in the Rules, all three arbitrators shall be appointed by the LCIA
Court as soon as possible and, in any event, within 15 days of such failure who
shall designate one of them as chairman.


 


(c)         If all
the parties to an arbitration so agree, there shall be a sole arbitrator
appointed by the LCIA Court as soon as possible and, in any event, within 15
days of such agreement.


 


(d)         The seat
of arbitration shall be London, England, and the language of the arbitration
shall be English.


 


(e)         Where
disputes arise under this Deed and/or any other Finance Document which, in the
reasonable opinion of the first arbitrator to be appointed by a Finance Party
in any of the disputes, are so closely connected that it is expedient for them
to be resolved in the same proceedings, that arbitrator shall have the power to
order that the proceedings to resolve that dispute shall be consolidated with
those to resolve any of the other disputes (whether or not proceedings to
resolve those other disputes have been instituted), provided
that no date for the 


 


15

















 


final hearing of the first arbitration has been fixed.
If he so orders, the parties to each dispute which is subject to his order
shall be treated as having consented to that dispute being finally decided:


 


(i)             by
the arbitrator who ordered the consolidation unless the LCIA Court decides that
he would not be suitable or impartial; and


 


(ii)            in
accordance with the procedure, at the seat and in the language specified in the
arbitration agreement in the contract under which the arbitrator who ordered
the consolidation was appointed, save as otherwise agreed by all parties to the
consolidated proceedings or, in the absence of such agreement, ordered by the
arbitrator in the consolidated proceedings.


 


13.3       Recourse
to courts


 


Save as
provided in Clause 13.4 (Agent’s option),
the parties exclude the jurisdiction of the courts under Sections 45 and 69 of
the Arbitration Act 1996.


 


13.4       Agent’s
option


 


Before
an arbitrator has been appointed by a Finance Party to determine a Dispute, the
Agent may (and, if so directed by the Majority Lenders shall) by notice in
writing to the Guarantor require that all Disputes or a specific Dispute be
heard by a court of law. If the Agent gives such notice, the Dispute to which
such notice refers shall be determined in accordance with Clause 13.5 (Jurisdiction).


 


13.5       Jurisdiction


 


(a)         Subject
to Clause 13.1 (Arbitration), the courts of
England have exclusive jurisdiction to settle all Disputes.


 


(b)         The
Parties agree that the courts of England are the most appropriate and
convenient courts to settle Disputes and accordingly no Party will argue to the
contrary.


 


(c)         This
Clause 13.5 is for the benefit of the Finance Parties only.  As a result, no Finance Party shall be
prevented from taking proceedings relating to a Dispute in any other courts
with jurisdiction.  To the extent allowed
by law, the Finance Parties may take concurrent proceedings in any number of
jurisdictions.


 


13.6       Service of
process


 


Without prejudice to any other mode of service allowed under
any relevant law, the Guarantor:


 


(a)            irrevocably
appoints Clifford Chance Secretaries Limited of 10 Upper Bank Street, London
E14 5JJ, United Kingdom as its agent for service of process in relation to any
proceedings before the English courts in connection with any Finance Document
governed by English law; and


 


(b)           agrees
that failure by a process agent to notify the Guarantor of the process will not
invalidate the proceedings concerned.


 


13.7       Waiver of
immunity


 


The Guarantor irrevocably agrees that, should any party take
any proceedings anywhere (whether for an injunction, specific performance,
damages or otherwise), no immunity (to the 


 


16

















 


extent that it may at any time exist, whether on the grounds
of sovereignty or otherwise) from those proceedings, from attachment (whether
in aid of execution, before judgment or otherwise) of its assets or from
execution of judgment shall be claimed by it or on behalf of it or with respect
to its assets, any such immunity being irrevocably waived. The Guarantor
irrevocably agrees that it and its assets are, and shall be, subject to such
proceedings, attachment or execution in respect of its obligations under the
Finance Documents.


 


IN WITNESS whereof this Deed has been executed and delivered and is
intended to be delivered as a deed on the date first stated above.


 


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THE GUARANTOR


 


EXECUTED AS A DEED


 


OPEN JOINT STOCK COMPANY “WIMM-BILL-DANN”


 


Address:


 


Fax No:


 


Attention:


 


 


	
  By:

  	
   

  	
   

  	
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  Name:

  	
   

  	
   

  	
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  Title:

  	
  Authorised signatory

  	
   

  	
  Title:

  	
  Chief Accountant

  



 


 


THE AGENT


 


ING BANK N.V., LONDON BRANCH


 


	
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  Title:

  	
   

  	
   

  	
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