**Exhibit 4.1.2**

 

GUARANTEE

 

dated [                         ]2008

 

 

createdby

 

 

*PUBLIC JOINT-STOCK COMPANY“WIMM-BILL-DANN BEVERAGES”*

 

asGuarantor

 

 

infavour of

 

 

*INGBANK 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                     |   | 15 |
| 11. |   | Incorporation of terms         |   | 15 |
| 12. |   | Governing law                  |   | 15 |
| 13. |   | Enforcement                    |   | 15 |

 

i

----

 

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

 

(1)         PUBLICJOINT-STOCK COMPANY “WIMM-BILL-DANN BEVERAGES” (the “**Guarantor**”);and

 

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

 

BACKGROUND

 

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

 

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

 

(C)         TheAgent is entering into this Deed on behalf of, and for the benefit of, theFinance Parties.

 

IT IS AGREED as follows:

 

**1.**           DEFINITIONS AND INTERPRETATION

** **

**1.1**         Definitionsand 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**” meansOpen Joint Stock Company “Wimm-Bill-Dann Foods”.

 

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

 

“**Party**” means aparty 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 orthreatened*) 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 any reference to a “Clause” or a “Schedule” is,unless the context otherwise requires, a reference to a Clause of or a Scheduleto this Deed.

 

1

----

 

**1.3**         ThirdParty Rights

** **

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

 

**1.4**         Companyas 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**         Guaranteeand indemnity

** **

The Guarantor irrevocably 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,loss or liability it incurs as a result of any Obligor not paying any amountwhen due 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**         Continuingguarantee

** **

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

 

2

----

 

(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**         Waiverof defences

** **

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

 

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

 

(b)                                  the release of any Obligor or any other person under the terms ofany composition or 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)                                  any incapacity or lack of power, authority or legal personality ofor dissolution or change in the members or status of any Obligor or any otherperson;

 

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

 

(g)           anyinsolvency or similar proceedings.

 

**2.5**         Immediaterecourse

** **

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 

 

3

----

 

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

 

(b)                                  hold in an interest-bearing suspense account any moneys receivedfrom the Guarantor or on account of the Guarantor’s liability under this Clause2.

 

**2.7**         Deferralof Guarantor’s rights

** **

Until all amounts which may be or become payable by theObligors 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)                                  to claim any contribution from any other guarantor of the Borrower’sobligations under 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**         Additionalsecurity

** **

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**         Defaultinterest

** **

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.

 

4

----

 

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

** **

**4.1**         Taxgross-up

** **

(a)         TheGuarantor 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 aTax 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 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 anamount which (after making any Tax Deduction) leaves an amount equal to thepayment which would have been due if no Tax Deduction had been required.

 

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

 

(e)                            Within 30 days of making either a Tax Deduction or any payment requiredin connection with that Tax Deduction, the Guarantor shall deliver to the Agentevidence reasonably satisfactory to the Agent that the Tax Deduction has beenmade or (as applicable) any appropriate payment paid to the relevant taxingauthority.

 

**4.2**         Stamptaxes

** **

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**         Valueadded 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 to andat the same time as paying the consideration) an amount equal to the amount ofthe 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.

 

5

----

 

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

 

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

 

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

 

the Guarantor shall as an independent obligation, withinfive Business Days of demand, indemnify each Finance Party to which that Sum isdue against any cost, loss or liability arising out of or as a result of theconversion including any discrepancy between (A) the rate of exchange usedto convert that Sum from the First Currency into the Second Currency and (B) therate or rates of exchange available to that person at the time of its receiptof 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**         Indemnitiesseparate

** **

Each indemnity in each Finance Document shall:

 

(a)            constitutea separate and independent obligation from the other obligations in that or anyother 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, claimor proof for a liquidated amount in respect of any sum due under any FinanceDocument or any other judgment or order; and

 

(e)                                   apply whether or not any claim under it relates to any matterdisclosed 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 andexpenses (including legal fees) incurred by 

 

6

----

 

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 an open joint stock company, duly incorporated and validlyexisting under the laws of the Russian Federation.

 

(b)                           It and each of its Subsidiaries has the power to own its assets andcarry on its business 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-conflictwith other obligations

** **

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

 

(a)            anylaw or regulation applicable to it;

 

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

 

(c)                                   any agreement or instrument binding upon it or any of itsSubsidiaries or any of its 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**         Powerand authority

** **

(a)                            It has the power to enter into, perform and deliver, and has takenall necessary action to authorise its entry into, performance and delivery of,this Deed and the transactions 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**         Validityand admissibility in evidence

** **

All Authorisations required or desirable:

 

7

----

 

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

 

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

 

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**         Governinglaw 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**         Deductionof 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**         Nofiling 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**         Nodefault

** **

(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**       Nomisleading information

** **

(a)                            Any factual information provided by or on behalf of it in writing inconnection with any Finance Document (including, without limitation, the AgreedReorganisation Memorandum) was true and accurate in all material respects as atthe date it was 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)                            Nothing has occurred or been omitted from any written information(including, without limitation, the Agreed Reorganisation Memorandum) providedby it to any Finance Party in connection with any Finance Document that resultsin the information referred to in paragraphs (a) and (b) above beinguntrue or misleading in any material respect.

 

**7.11**                     Financial statements

** **

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

 

8

----

 

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

 

(c)                            It has not incurred any material liabilities since the date of itsOriginal Financial Statements or its most recent financial statements deliveredpursuant 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 orfinancial condition since the date of its Original Financial Statements.

 

**7.12**       Pari passuranking

** **

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**       Noproceedings 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 orany of 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**       EnvironmentalLaws 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)                                   complied with all Environmental Laws to which it may be subject;

 

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

 

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

 

**7.16**       Environmentalreleases

** **

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.

 

9

----

** **

**7.17**                   Taxes

** **

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

 

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

 

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

 

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

 

**7.18**                   Pensions, undisclosed liabilities

** **

(a)                            Neither itnor 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 applicable lawsand contracts relating to and the governing provisions of the pension schemesmaintained by or for its or any of its Subsidiaries’ benefit or for the benefitof any of its or its Subsidiaries’ employees.

 

**7.19**                   Immunity

** **

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

 

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

 

**7.20**                   Solvency

** **

(a)                          It is notinsolvent or unable to pay its debts (including subordinated and contingentdebts), nor could it be deemed by a court to be unable to pay its debts withinthe meaning of the law of the jurisdiction in which it is incorporated nor, inany 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 nottaken any corporate action nor have any legal proceedings or other procedure orstep been taken, started or threatened in relation to anything referred to inClause 21.8 (*Insolvency proceedings*)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 bythe Guarantor by reference to the facts and circumstances then existing on thedate of each Utilisation Request, the date on which the Agreed Reorganisationis completed and the first day of each Interest Period.

 

10

----

 

**8.**                               INFORMATION UNDERTAKINGS

** **

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

 

**8.1**                         Financial statements

** **

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

 

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

 

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

 

(c)                                  as soon as the same become available, but in any event within 35 daysafter the end of each quarter of each of its financial years, its financialstatements 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 toClause 8.1 (*Financial statements*) shall be certifiedby the general director and the chief accountant of the Guarantor as fairlyrepresenting its financial condition and operations as at the end of and forthe period in relation to which those financial statements were drawn up.

 

(b)                         The Guarantor shall procure that each set of its financial statementsdelivered pursuant 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)                                    a description of any change necessary for those financial statements toreflect RAS, accounting practices and reference periods upon which its OriginalFinancial Statements were prepared; and

 

(ii)                                 sufficient information, in form and substance as may be reasonablyrequired by the Agent, to enable the Lenders to determine whether Clause 19 (*Financial covenants*) of the Facility Agreement has beencomplied with and make an accurate comparison between the financial positionindicated in those financial 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):

 

11

----

 

(a)                                  all documents dispatched by the Guarantor to its shareholders (or anyclass 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**                         Notification of default

** **

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

 

**9.**                               GENERAL UNDERTAKINGS

** **

The undertakings in this Clause 9 remain in force fromthe date of this Deed for so long as any amount is outstanding under this Deedor 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 forceand effect; and

 

(b)                                supply certified 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**                         Compliance with laws

** **

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

 

**9.3**                         Negative pledge

** **

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

 

**9.4**                         Disposals

** **

The Guarantor shall not, and shall procure that none ofits Subsidiaries will, enter into a single transaction or a series oftransactions (whether related or not and whether voluntary or involuntary) tosell, lease, transfer or otherwise dispose of any asset other than a PermittedDisposal.

 

**9.5**                         Reorganisation

** **

The Guarantor shall not (and shall ensure that none ofits Subsidiaries will) enter into or become subject to any consolidation orreorganisation, whether by way of merger (*sliyaniyeobschestva*), company accession (*prisoedinyeniyeobschestva*), company division (*razdelyeniyeobschestva*), 

 

12

----

 

company separation (*vydelyeniyeobschestva*), company transformation (*preobrazovaniye obschestva*), company liquidation (*likvidatsiya obschestva*) or any othercompany reorganisation (*reorganizatsiyaobschestva*) (as these terms are construed by applicable Russian law)or otherwise, or any analogous transaction in any jurisdiction, other than theAgreed Reorganisation, in each case, 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)                                  the aggregate Acquisition Costs in any financial year do not exceed 25 percent. of the Total Assets of the Group for such financial year as construed byreference to the consolidated financial statements of the Borrower deliveredunder 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 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

** **

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

 

**9.9**                         Environmental undertakings

** **

The Guarantor shall, and shall procure that each of its Subsidiarieswill:

 

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

 

(b)                                  obtain all Environmental Licences required or desirable in connection withits 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 itsSubsidiaries will, promptly notify the Agent of any claim, notice or othercommunication received by it in respect of any actual or alleged breach of orliability under Environmental Law.

 

**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) abovedoes not apply to:

 

13

----

 

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

 

(ii)                                 anyunsecured loans granted by the Guarantorto another Obligor;

 

(iii)                              any loans granted by the Guarantor to any other member of theGroup 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)                          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)                            the aggregateamount 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 indemnity grantedpursuant to this Deed; or

 

(c)                                 anyPermitted Guarantee.

 

**9.13**                   Acknowledgementfollowing Agreed Reorganisation

** **

Followingcompletion of the Agreed Reorganisation, the Guarantor shall:

 

(a)                    if the Agreed Reorganisation in relation to theGuarantor is by way of the merger of the Guarantor and certain Subsidiaries ofthe Borrower listed in the Agreed Reorganisation Memorandum, (i) if requiredor desirable in accordance with applicable law, assign its rights and novateits obligations under this Deed to the resulting entity and (ii) procurethat the resulting entity shall acknowledge such rights and obligations as ifit were an original party to this Deed; or

 

(b)                   if the Agreed Reorganisation in relation to theGuarantor is by way of the accession of such Subsidiaries to the Guarantor suchthat the Guarantor is the surviving entity, acknowledge its rights andobligations under this Deed,

 

in each case in form andsubstance satisfactory to the Agent.

 

14

----

 

**10.**                         ASSIGNMENT

** **

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

 

**11.**                         INCORPORATION OF TERMS

** **

(a)                          The provisions of Clause 25 (*Conduct ofbusiness by Finance Parties*) and Clause 27 (*Payment Mechanics*) to Clause 34 (*Counterparts*) of the Facility Agreementshall be incorporated into this Deed as if set out in full in this Deed and asif references in those clauses to “this Agreement” and “the Borrower” werereferences 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

** **

Subject to Clause 13.4 (*Agent’soption*), any dispute arising out of or in connection with this Deed(including a dispute regarding the existence, validity or termination of thisDeed) (a “**Dispute**”) shall be referred to andfinally 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; 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 the event the claimant(s) or the respondent(s) shall fail tonominate an arbitrator within the time limits specified in the Rules, sucharbitrator shall be appointed by the LCIA Court as soon as possible and, in anyevent, within 15 days of such failure. In the event that both the claimant(s) andthe respondent(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 all the parties to an arbitration so agree, there shall be a solearbitrator appointed by the LCIA Court as soon as possible and, in any event, within15 days of such agreement.

 

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

 

(e)                          Where disputes arise under this Deed and/or any other Finance Documentwhich, in the reasonable opinion of the first arbitrator to be appointed by aFinance Party in any of the 

 

15

----

 

disputes, are so closely connected that it isexpedient for them to be resolved in the same proceedings, that arbitratorshall have the power to order that the proceedings to resolve that disputeshall be consolidated with those to resolve any of the other disputes (whetheror not proceedings to resolve those other disputes have been instituted), **provided that** no date for the final hearing of the firstarbitration has been fixed. If he so orders, the parties to each dispute whichis subject to his order shall be treated as having consented to that disputebeing finally decided:

 

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

 

(ii)                                 in accordance with the procedure, at the seat and in the languagespecified in the arbitration agreement in the contract under which thearbitrator who ordered the consolidation was appointed, save as otherwiseagreed by all parties to the consolidated proceedings or, in the absence ofsuch 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 thecourts under Sections 45 and 69 of the Arbitration Act 1996.

 

**13.4**                   Agent’s option

** **

Before an arbitrator has been appointed by a FinanceParty to determine a Dispute, the Agent may (and, if so directed by the MajorityLenders shall) by notice in writing to the Guarantor require that all Disputesor a specific Dispute be heard by a court of law. If the Agent gives suchnotice, the Dispute to which such notice refers shall be determined inaccordance 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 andconvenient courts to settle Disputes and accordingly no Party will argue to thecontrary.

 

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

 

**13.6**                   Service of process

** **

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

 

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

 

16

----

 

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

 

**13.7**                   Waiver of immunity

** **

The Guarantor irrevocably agrees that, should any partytake any proceedings anywhere (whether for an injunction, specific performance,damages or otherwise), no immunity (to the extent that it may at any timeexist, whether on the grounds of sovereignty or otherwise) from those proceedings,from attachment (whether in aid of execution, before judgment or otherwise) ofits assets or from execution of judgment shall be claimed by it or on behalf ofit 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 itsobligations under the Finance Documents.

 

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

 

17

----

 

**THE GUARANTOR**

 

**EXECUTED AS A DEED**

 

**PUBLIC JOINT STOCK COMPANY “WIMM-BILL-DANNBEVERAGES”**

 

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: |   |

 

18

----