**Exhibit 4.1.1**

 

GUARANTEE

 

 

dated [                 ]2008

 

 

createdby

 

 

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

 

asGuarantor

 

 

infavour of

 

 

*INGBANK N.V., LONDON BRANCH*

asAgent

 

 

Ref: L-149937

 

 

Linklaters LLP

 

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**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 |

 

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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 BRANCHas agent of the other Finance Parties (the “**Agent**”).

 

BACKGROUND

 

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

 

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

 

(C)       The Agent is entering into thisDeed 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 acontrary indication appears, a term defined in the Facility Agreement has thesame meaning in this Deed. In addition, in this Deed:

 

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

 

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

 

“**Party**”means a party to this Deed.

 

“**RepeatingRepresentations**” means each of the representations set out inClauses 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)         Anyreference in this Deed to a “**Finance Document**”or any other agreement or instrument is a reference to that Finance Document orother agreement or instrument as amended, novated, supplemented, extended,restated (however fundamentally and whether or not more onerously) or replacedand includes any change in the purpose of, any extension of or any increase inany facility or the addition of any new facility under that Finance Document orother agreement or instrument.

 

(c)         Theprinciples 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 anyreference to a “Clause” or a “Schedule” is, unless the context otherwiserequires, a reference to a Clause of or a Schedule to this Deed.

 

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1.3       **Third PartyRights**

** **

Subject to the remainingprovisions of this Clause, a person who is not a Party has no right under theContracts (Rights of Third Parties) Act 1999 (the “**ThirdParties Act**”) to enforce or to enjoy the benefit of any term of thisDeed. The Finance Parties through the Agent may enforce and rely on the termsof this Deed in accordance with the terms of this Deed and the Third PartiesAct 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 otheraction necessary or desirable, under or in connection with the FinanceDocuments.

 

**2.**           GUARANTEE AND INDEMNITY

** **

**2.1**         Guarantee and indemnity

** **

The Guarantorirrevocably and unconditionally:

 

(a)            guaranteesto each Finance Party punctual performance by each Obligor of all of thatObligor’s obligations under the Finance Documents;

 

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

 

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

 

**2.2**         Continuing guarantee

** **

This guarantee is a continuing guarantee and will extend tothe ultimate balance of sums payable by any Obligor under the FinanceDocuments, regardless of any intermediate payment or discharge in whole or inpart.

 

**2.3**         Reinstatement

** **

If as a result of insolvency or any similar event:

 

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

 

(b)            anydischarge or arrangement (whether in respect of the obligations of an Obligoror any security for those obligations or otherwise) is made in whole or in parton the basis of any payment, security or other thing which is avoided, reducedor must be restored:

 

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

 

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(ii)          eachFinance Party shall be entitled to recover the value or amount of that securityor payment from the Guarantor, as if the payment, discharge, avoidance orreduction had not occurred.

 

**2.4**         Waiver of defences

** **

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

 

(a)            anytime, waiver or consent granted to, or composition with, any Obligor or anyother person;

 

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

 

(c)            thetaking, variation, compromise, exchange, renewal or release of, or refusal orneglect to perfect, take up or enforce, any rights against, or security overassets of, any Obligor or any other person or any non-presentation ornon-observance of any formality or other requirement in respect of anyinstrument or any failure to realise the full value of any security;

 

(d)            anyincapacity or lack of power, authority or legal personality of or dissolutionor 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) orreplacement of any Finance Document or any other document or security includingany change in the purpose of, any extension of or any increase in any facilityor the addition of any new facility under any Finance Document or otherdocument or security;

 

(f)             anyunenforceability, illegality or invalidity of any obligation of any personunder any Finance Document or any other document or security; or

 

(g)            anyinsolvency or similar proceedings.

 

**2.5**         Immediate recourse

** **

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

 

**2.6**         Appropriations

** **

Until all amounts which may be or become payable by theBorrower under or in connection with the Finance Documents have beenirrevocably paid in full, each Finance Party (or any trustee or agent on itsbehalf) may:

 

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

 

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those amounts or otherwise) and the Guarantor shallnot be entitled to the benefit of the same; and

 

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

 

**2.7**         Deferral of Guarantor’srights

** **

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

 

(a)            to beindemnified by an Obligor;

 

(b)            toclaim any contribution from any other guarantor of the Borrower’s obligationsunder the Finance Documents; and/or

 

(c)            totake the benefit (in whole or in part and whether by way of subrogation orotherwise) of any rights of the Finance Parties under the Finance Documents orof 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 ordistribution in relation to such rights it shall hold that benefit, payment ordistribution to the extent necessary to enable all amounts which may be orbecome payable to the Finance Parties by the Obligors under or in connectionwith the Finance Documents to be repaid in full on trust for the FinanceParties and shall promptly pay or transfer the same to the Agent or as theAgent 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 wayprejudiced by any other guarantee or security now or subsequently held by anyFinance Party.

 

**3.**           INTEREST

 

**3.1**         Default interest

 

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

 

**3.2**         Compounding

** **

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

 

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**4.**           TAX GROSS-UP AND INDEMNITIES

** **

**4.1**         Tax gross-up

** **

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

 

(b)         TheGuarantor 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 apayment payable to it or any Finance Party.

 

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

 

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

 

(e)         Within30 days of making either a Tax Deduction or any payment required in connectionwith that Tax Deduction, the Guarantor shall deliver to the Agent evidencereasonably 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 ofdemand, indemnify each Finance Party against any cost, loss or liability thatFinance Party incurs in relation to all stamp duty, registration and othersimilar Taxes payable in respect of this Deed.

 

**4.3**         Value added tax

** **

(a)         Allamounts set out, or expressed to be payable under a Finance Document by anyparty to a Finance Document which (in whole or in part) constitute theconsideration for VAT purposes shall be deemed to be exclusive of any VAT whichis 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 undera Finance Document, that party shall pay to the Finance Party (in addition toand at the same time as paying the consideration) an amount equal to the amountof the VAT (and such Finance Party shall promptly provide an appropriate VATinvoice to such party).

 

(b)         If VATis chargeable on any supply made by any Finance Party (the “**Supplier**”) to any other Finance Party (the “**Recipient**”) under a Finance Document, andany party to a Finance Document (the “**RelevantParty**”) is required by the terms of any Finance Document to pay anamount equal to the consideration for such supply to the Supplier (rather thanbeing 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 timeas paying such amount) an amount equal to the amount of such VAT. The Recipientwill promptly pay to the Relevant Party an amount equal to any credit orrepayment from the relevant tax authority which it reasonably determinesrelates to the VAT chargeable on that supply.

 

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

 

**5.**           OTHER INDEMNITIES

** **

**5.1**         Currency indemnity

** **

(a)         If anysum 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 beconverted from the currency (the “**First Currency**”)in which that Sum is payable into another currency (the “**SecondCurrency**”) for the purpose of:

 

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

 

(ii)            obtaining or enforcing anorder, judgment or award in relation to any litigation or arbitrationproceedings,

 

the Guarantor shall asan independent obligation, within five Business Days of demand, indemnify eachFinance Party to which that Sum is due against any cost, loss or liabilityarising out of or as a result of the conversion including any discrepancybetween (A) the rate of exchange used to convert that Sum from the First Currencyinto the Second Currency and (B) the rate or rates of exchange availableto that person at the time of its receipt of that Sum.

 

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

 

**5.2**         Indemnities separate

 

Each indemnity in each Finance Document shall:

 

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

 

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

 

(c)            applyirrespective of any indulgence granted by any Finance Party;

 

(d)            continuein full force and effect despite any judgment, order, claim or proof for aliquidated amount in respect of any sum due under any Finance Document or anyother judgment or order; and

 

(e)            applywhether or not any claim under it relates to any matter disclosed by theGuarantor 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 andexpenses (including legal fees) incurred by 

 

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

 

**7.**           REPRESENTATIONS

** **

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

 

**7.1**         Status

** **

(a)         It is anopen joint stock company, duly incorporated and validly existing under the lawsof the Russian Federation.

 

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

 

**7.2**         Binding obligations

** **

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

 

**7.3**         Non-conflict with other obligations

** **

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

 

(a)            anylaw or regulation applicable to it;

 

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

 

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

 

nor result in the existence of, or oblige it to create, anySecurity over any of its or its Subsidiaries’ assets. For the avoidance fordoubt and without limiting the generality of the foregoing, guaranteeing theTotal Commitments will not cause any guaranteeing limit binding upon it to beexceeded nor will such guaranteeing or the entry into this Deed oblige it toenter into any subordination agreement in respect thereof.

 

**7.4**         Power and authority

** **

(a)         It has thepower to enter into, perform and deliver, and has taken all necessary action toauthorise its entry into, performance and delivery of, this Deed and thetransactions contemplated thereby.

 

(b)         Withoutlimiting the generality of paragraph (a) above, this Deed, and thetransactions contemplated thereunder, does not or will not constitute a majortransaction or an interested party transaction for it under applicable Russianlaw, except where requisite corporate approvals authorising all majortransactions and all interested party transactions have been obtained by itwith respect to this Deed.

 

**7.5**         Validity and admissibility in evidence

** **

All Authorisations required or desirable:

 

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(a)            to enable it lawfully toenter into, exercise its rights and comply with its obligations under thisDeed; and

 

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

 

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

 

**7.6**         Governing law and enforcement

** **

(a)         Subjectto any Reservations, the choice of English law as the governing law of thisDeed will be recognised and enforced in its jurisdiction of incorporation.

 

(b)         Subjectto any Reservations, any arbitration award obtained in England in relation tothis 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 accountof 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 notnecessary that this Deed be filed, recorded or enrolled with any court or otherauthority in that jurisdiction or that any stamp, registration or similar taxbe paid on or in relation to this Deed or the transactions contemplated thereby.

 

**7.9**         No default

** **

(a)         NoDefault is continuing or might reasonably be expected to result from the makingof any Utilisation.

 

(b)         No otherevent or circumstance is outstanding which constitutes a default under anyother agreement or instrument which is binding on it or any of its Subsidiariesor to which its (or any of its Subsidiaries’) assets are subject which mighthave a Material Adverse Effect.

 

**7.10**       No misleading information

** **

(a)         Anyfactual information provided by or on behalf of it in writing in connectionwith any Finance Document (including, without limitation, the Agreed ReorganisationMemorandum) was true and accurate in all material respects as at the date itwas provided or as at the date (if any) at which it is stated.

 

(b)         Anyfinancial projections contained in any written information provided by or onbehalf of it to any Finance Party in connection with any Finance Document havebeen prepared on the basis of recent historical information and on the basis ofreasonable assumptions.

 

(c)         Nothinghas occurred or been omitted from any written information (including, withoutlimitation, the Agreed Reorganisation Memorandum) provided by it to any FinanceParty in connection with any Finance Document that results in the informationreferred to in paragraphs (a) and (b) above being untrue ormisleading in any material respect.

 

**7.11**       Financial statements

** **

(a)         ItsOriginal Financial Statements were prepared in accordance with RAS consistentlyapplied.

 

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(b)         ItsOriginal Financial Statements represent its financial condition and operationsas at the end of and for the relevant financial period.

 

(c)         It hasnot incurred any material liabilities since the date of its Original FinancialStatements or its most recent financial statements delivered pursuant to Clause8.1 (*Financial statements*) (whichever islater), which were not disclosed to the Agent in writing.

 

(d)         Therehas been no material adverse change in its business or financial conditionsince 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 andunsubordinated creditors, except for obligations mandatorily preferred by lawapplying to companies generally.

 

**7.13**       No proceedings pending or threatened

** **

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

 

**7.14**       Title

** **

Itand each of its Subsidiaries has good and marketable title to, or valid leasesor licences of, or is otherwise entitled to use, all material assets necessaryfor 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 theAgent in writing prior to the date of this Agreement, it and each of itsSubsidiaries has:

 

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

 

(b)            obtainedall Environmental Licences required or desirable in connection with itsbusiness; and

 

(c)            compliedwith the terms of those Environmental Licences.

 

**7.16**       Environmental releases

** **

No:

 

(a)            propertycurrently or previously owned, leased, occupied or controlled by it or any ofits Subsidiaries (including any offsite waste management or disposal locationutilised by it or any of its Subsidiaries) is contaminated with any HazardousSubstance; and

 

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

 

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**7.17**       Taxes

** **

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

 

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

 

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

 

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

 

**7.18**       Pensions, undisclosedliabilities

** **

(a)         Neitherit nor any of its Subsidiaries have any material liability in respect of anypension scheme or otherwise and there are no circumstances which would giverise to such a liability.

 

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

 

**7.19**       Immunity

** **

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

 

(b)         It willnot be entitled to claim immunity from suit, execution, attachment or otherlegal process in any proceedings taken in any jurisdiction in relation to thisDeed.

 

**7.20**       Solvency

** **

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

 

(b)         Ithas not taken any corporate action nor have any legal proceedings or otherprocedure or step been taken, started or threatened in relation to anythingreferred to in Clause 21.8 (*Insolvencyproceedings*) of the Facility Agreement.

 

**7.21**       No Security

** **

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

 

**7.22**       Repetition

** **

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

 

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** **

**8.**           INFORMATION UNDERTAKINGS

** **

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

 

**8.1**         Financialstatements

 

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

 

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

 

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

 

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

 

**8.2**         Requirementsas to financial statements

 

(a)         Each setof financial statements delivered by the Guarantor pursuant to Clause 8.1 (*Financial statements*) shall be certified by the generaldirector and the chief accountant of the Guarantor as fairly representing itsfinancial condition and operations as at the end of and for the period inrelation to which those financial statements were drawn up.

 

(b)         TheGuarantor shall procure that each set of its financial statements deliveredpursuant to Clause 8.1 (*Financial statements*)is prepared using RAS, accounting practices and financial reference periodsconsistent with those applied in the preparation of its Original FinancialStatements unless, in relation to any set of financial statements, it notifiesthe Agent that there has been a change in RAS, the accounting practices orreference periods and its auditors deliver to the Agent:

 

(i)             adescription of any change necessary for those financial statements to reflectRAS, accounting practices and reference periods upon which its OriginalFinancial Statements were prepared; and

 

(ii)            sufficientinformation, in form and substance as may be reasonably required by the Agent,to enable the Lenders to determine whether Clause 19 (*Financialcovenants*) of the Facility Agreement has been complied with and makean accurate comparison between the financial position indicated in thosefinancial statements and its Original Financial Statements.

 

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

 

**8.3**         Information:miscellaneous

** **

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

 

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

 

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

 

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

 

**8.4**         Notificationof default

** **

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

 

**9.**           GENERAL UNDERTAKINGS

** **

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

 

**9.1**         Authorisations

** **

TheGuarantor shall promptly:

 

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

 

(b)           supplycertified copies to the Agent of

 

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

 

**9.2**         Compliancewith laws

** **

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

 

**9.3**         Negativepledge

** **

TheGuarantor shall not create or permit to subsist any Security over any of itsassets other than Permitted Security.

 

**9.4**         Disposals

** **

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

 

**9.5**         Reorganisation

** **

TheGuarantor shall not (and shall ensure that none of its Subsidiaries will) enterinto or become subject to any consolidation or reorganisation, whether by wayof merger (*sliyaniye obschestva*),company accession (*prisoedinyeniyeobschestva*), company division (*razdelyeniyeobschestva*), 

 

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companyseparation (*vydelyeniye obschestva*),company transformation (*preobrazovaniyeobschestva*), company liquidation (*likvidatsiyaobschestva*) or any other company reorganisation (*reorganizatsiya obschestva*) (as theseterms are construed by applicable Russian law) or otherwise, or any analogoustransaction in any jurisdiction, other than the Agreed Reorganisation, in eachcase, without the prior consent of the Agent.

 

**9.6**         Acquisitions

** **

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

 

(a)            theaggregate Acquisition Costs in any financial year do not exceed 25 per cent. ofthe Total Assets of the Group for such financial year as construed by referenceto the consolidated financial statements of the Borrower delivered underparagraph (a) of Clause 18.1 (*Financial statements*)of the Facility Agreement;

 

(b)           such Acquisition is made at fair marketvalue; and

 

(c)           noDefault is continuing or would result from the proposed Acquisition.

 

**9.7**         Changeof business

** **

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

 

**9.8**         Insurance

** **

TheGuarantor shall, and shall procure that each of its Subsidiaries will, maintaininsurances on and in relation to its business and assets with reputableunderwriters or insurance companies.

 

**9.9**         Environmentalundertakings

** **

TheGuarantor shall, and shall procure that each of its Subsidiaries will:

 

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

 

(b)           obtainall Environmental Licences required or desirable in connection with itsbusiness; and

 

(c)           complywith the terms of all those Environmental Licences.

 

**9.10**       Environmentalclaims

** **

TheGuarantor shall, and shall procure that each of its Subsidiaries will, promptlynotify the Agent of any claim, notice or other communication received by it inrespect of any actual or alleged breach of or liability under EnvironmentalLaw.

 

**9.11**       Loans

** **

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

 

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

 

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(i)            anytrade credit extended by the Guarantor to its customers on arm’s length termsand in the ordinary course of trading;

 

(ii)           anyunsecured loans granted bythe Guarantor to another Obligor;

 

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

 

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

 

(A)         withoutprejudice to paragraph (C) below, the aggregate amount of all such loansgranted to distributors or suppliers of raw milk and other dairy products toany member of the Group does not exceed 10 per cent. of the Total Assets of theGroup;

 

(B)          withoutprejudice to paragraph (C) below, the aggregate amount of all such loansgranted to persons other than distributors or suppliers of raw milk and otherdairy products to any member of the Group does not exceed 5 per cent. of theTotal Assets of the Group; and

 

(C)          theaggregate amount of all such loans and credit referred to in this paragraph (iv) doesnot exceed 10 per cent. of the Total Assets of the Group.

 

**9.12**       Guarantees

** **

TheGuarantor shall not, without the prior written consent of the Agent, grant anyguarantee or indemnity to or for the benefit of any person or otherwisevoluntarily assume any liability, whether actual or contingent, in respect ofany obligation of any other person, other than:

 

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

 

(b)           any guarantee or indemnitygranted pursuant to this Deed; or

 

(c)            anyPermitted Guarantee.

 

**9.13**       Acknowledgement following AgreedReorganisation

** **

Followingcompletion of the Agreed Reorganisation, if the Agreed Reorganisation inrelation to the Guarantor is by way of the merger of the Guarantor and theBorrower, the Guarantor shall (i) if required or desirable in accordancewith applicable law, assign its rights and novate its obligations under thisDeed to the resulting entity and (ii) procure that the resulting entityshall acknowledge such rights and obligations as if it were an original partyto this Deed, in form and substance satisfactory to the Agent.

 

**10.**         ASSIGNMENT

** **

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

 

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**11.**         INCORPORATION OF TERMS

** **

(a)         Theprovisions of Clause 25 (*Conduct of businessby Finance Parties*) and Clause 27 (*PaymentMechanics*) to Clause 34 (*Counterparts*)of the Facility Agreement shall be incorporated into this Deed as if set out infull 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 thepurposes of Clause 29 *(Notices)* ofthe Facility Agreement, the notice details for the Guarantor are as set out onthe execution page to this Deed.

 

**12.**         GOVERNING LAW

** **

This Agreement is governed by English law.

 

**13.**         ENFORCEMENT

** **

**13.1**       Arbitration

** **

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

 

**13.2**       Procedurefor arbitration

** **

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

 

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

 

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

 

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

 

(e)         Wheredisputes arise under this Deed and/or any other Finance Document which, in thereasonable opinion of the first arbitrator to be appointed by a Finance Partyin any of the disputes, are so closely connected that it is expedient for themto be resolved in the same proceedings, that arbitrator shall have the power toorder that the proceedings to resolve that dispute shall be consolidated withthose to resolve any of the other disputes (whether or not proceedings toresolve those other disputes have been instituted), **providedthat** no date for the 

 

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

 

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

 

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

 

**13.3**       Recourseto courts

** **

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

 

**13.4**       Agent’soption

** **

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

 

**13.5**       Jurisdiction

** **

(a)         Subjectto Clause 13.1 (*Arbitration*), the courts ofEngland have exclusive jurisdiction to settle all Disputes.

 

(b)         TheParties agree that the courts of England are the most appropriate andconvenient courts to settle Disputes and accordingly no Party will argue to thecontrary.

 

(c)         ThisClause 13.5 is for the benefit of the Finance Parties only.  As a result, no Finance Party shall beprevented from taking proceedings relating to a Dispute in any other courtswith jurisdiction.  To the extent allowedby law, the Finance Parties may take concurrent proceedings in any number ofjurisdictions.

 

**13.6**       Service ofprocess

** **

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

 

(a)            irrevocablyappoints Clifford Chance Secretaries Limited of 10 Upper Bank Street, LondonE14 5JJ, United Kingdom as its agent for service of process in relation to anyproceedings before the English courts in connection with any Finance Documentgoverned by English law; and

 

(b)           agreesthat failure by a process agent to notify the Guarantor of the process will notinvalidate the proceedings concerned.

 

**13.7**       Waiver ofimmunity

** **

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

 

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

 

**IN WITNESS whereof this Deed has been executed and delivered and isintended 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:    |                 |   | By:    |             |
|--------|----------------------|--------|--------|------------------|
|   |                 |   |   |             |
| Name:  |                 |   | Name:  |             |
|   |                 |   |   |             |
| Title: | Authorised signatory |   | Title: | Chief Accountant |

 

 

**THE AGENT**

 

**ING BANK N.V., LONDON BRANCH**

 
| By:    |   |   | By:    |   |
|--------|--------|--------|--------|--------|
|   |   |   |   |   |
| Name:  |   |   | Name:  |   |
|   |   |   |   |   |
| Title: |   |   | Title: |   |

 

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