***Exhibit 4.1***

* *

USD250,000,000

 

FACILITYAGREEMENT

 

dated [                       ]

 

for

 

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

 

arranged by

*ABN AMRO BANK N.V.*

*CALYON*

*ING BANK N.V.*

 

as MandatedLead Arrangers

 

with

 

*ING BANK N.V., LONDON BRANCH*

as Agent

 

L-149937

 

 

LinklatersLLP

 

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**CONTENTS**

 
| **CLAUSE**                                 | ** **                      | ** ** |
|--------------------------------------------|---------------------------------|------------|
| ** **                                 | ** **                      | ** ** |
| **SECTION 1**                              |
| **INTERPRETATION**                         |
| 1.                                         | Definitions  and interpretation |       |
| **SECTION 2**                         |
| **THE FACILITIES**                         |
| 2.                                         | The Facility                    |       |
| 3.                                         | Purpose                         |       |
| 4.                                         | Conditions of Utilisation       |       |
| **SECTION 3**                         |
| **UTILISATION**                            |
| 5.                                         | Utilisation                     |       |
| **SECTION 4**                         |
| **REPAYMENT, PREPAYMENT AND CANCELLATION** |
| 6.                                         | Repayment                       |       |
| 7.                                         | Prepayment and cancellation     |       |

**SECTION 5**

**COSTS OF UTILISATION**
| 8.  | Interest                               |   |
|-----|----------------------------------------|--------|
| 9.  | Interest Periods                       |   |
| 10. | Changes to the calculation of interest |   |
| 11. | Fees                                   |   |

**SECTION 6**

**ADDITIONAL PAYMENTOBLIGATIONS**
| 12. | Tax gross-up and indemnities |   |
|-----|------------------------------|--------|
| 13. | Increased costs              |   |
| 14. | Other indemnities            |   |
| 15. | Mitigation by the Lenders    |   |
| 16. | Costs and expenses           |   |

**SECTION 7**

**REPRESENTATIONS,UNDERTAKINGS AND EVENTS OF DEFAULT**
| 17. | Representations          |   |
|-----|--------------------------|--------|
| 18. | Information undertakings |   |
| 19. | Financial covenants      |   |
| 20. | General undertakings     |   |
| 21. | Events of Default        |   |

**SECTION 8**

**CHANGES TO PARTIES**
| 22. | Changes to the Lenders  |   |
|-----|-------------------------|--------|
| 23. | Changes to the Borrower |   |

** **

----

 

**SECTION 9**

**THE FINANCE PARTIES**
| 24. | Role of the Agent and the Arranger          |   |
|-----|---------------------------------------------|--------|
| 25. | Conduct of business by the Finance  Parties |   |
| 26. | Sharing among the Finance Parties           |   |

**SECTION 10**

**ADMINISTRATION**
| 27. | Payment mechanics             |   |
|-----|-------------------------------|--------|
| 28. | Set-off                       |   |
| 29. | Notices                       |   |
| 30. | Calculations and certificates |   |
| 31. | Partial invalidity            |   |
| 32. | Remedies and waivers          |   |
| 33. | Amendments and waivers        |   |
| 34. | Counterparts                  |   |

**SECTION 11**

**GOVERNING LAW ANDENFORCEMENT**
| 35. | Governing law |   |
|-----|---------------|--------|
| 36. | Enforcement   |   |

** **

**THE SCHEDULES**

** **
| **SCHEDULE**                                    | ** ** | ** ** |
|-------------------------------------------------|------------|------------|
| ** **                                      | ** ** |
| SCHEDULE 1 The Original Lenders                 |       |
| SCHEDULE 2 Conditions precedent and  subsequent |       |
| SCHEDULE 3 Utilisation Request                  |       |
| SCHEDULE 4 Mandatory Cost formula               |       |
| SCHEDULE 5 Form of Transfer  Certificate   |       |
| SCHEDULE 6 Form of Compliance  Certificate |       |
| SCHEDULE 7 Timetables                           |       |

 

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THIS AGREEMENT is dated [                             ]and made between:

 

(1)         OPENJOINT STOCK COMPANY “WIMM-BILL-DANN FOODS” (the “**Borrower**”);

 

(2)         ABNAMRO BANK N.V., CALYON and ING BANK N.V. as mandated lead arrangers (whetheracting individually or together the “**Arranger**”);

 

(3)         THEFINANCIAL INSTITUTIONS listed in Schedule 1 (*The**Original Lenders*) as lenders (the “**Original Lenders**”); and

 

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

 

 

IT IS AGREED as follows:

** **

**SECTION 1**

** **

**INTERPRETATION**

 

**1.**           DEFINITIONSAND INTERPRETATION

** **

**1.1**         Definitions

 

In this Agreement:

 

“**Acquisition**”means the acquisition by any member of the Group of any business or goingconcern, or the whole or substantially the whole of the assets or business ofany person, or any assets that constitute a division or operating unit of thebusiness of any person.

 

“**Acquisition Costs**”means all costs, fees and expenses (and Taxes on them) and all stamp duty,stamp duty land tax, registration and other similar Taxes incurred by or onbehalf of a member of the Group or the relevant Obligor (as applicable) inconnection with an Acquisition.

 

“**Additional Cost Rate**”has the meaning given to it in Schedule 4 (*Mandatory Cost formula*).

 

“**Affiliate**”means, in relation to any person, a Subsidiary of that person or a HoldingCompany of that person or any other Subsidiary of that Holding Company.

 

“**Agreed Reorganisation**”means:

 

(a)            (i) the merger (*sliyaniye*) (as this term is construed by applicable Russian law) of theBorrower and WBD or (ii) the accession (*prisoedinyeniye*) (as this term is construed byapplicable Russian law) of WBD to the Borrower (resulting in the Borrower beingthe surviving entity); and

 

(b)           (i) the merger (*sliyaniye*) (as this term is construed by applicable Russian law) of WBD Beverages and certain other subsidiariesof theBorrower listed in the Agreed Reorganisation Memorandum or (ii) the accession (*prisoedinyeniye*) (as this term is construed byapplicable Russian law) of such subsidiaries to WBD Beverages (resulting in WBDBeverages being the surviving entity),

 

which, in each case, (A) in the reasonable opinion of the MajorityLenders, does not and is not likely to have an adverse effect on the ability ofthe Borrower, WBD Beverages or any surviving 

 

 

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entity (as the case may be), toperform or comply with any of its obligations under any Finance Document and (B) is in accordance with the AgreedReorganisation Memorandum.

 

“**Agreed ReorganisationMemorandum**” means a memorandum, in form and substance satisfactoryto the Agent, prepared by the Borrower and containing a detailed description ofthe Agreed Reorganisation.

 

“**Authorisation**”means an authorisation, consent, approval, resolution, licence, exemption,filing, notarisation or registration.

 

“**Availability Period**”means:

 

(a)            in relation to Tranche 1, the period fromand including the date of this Agreement to and including 21 May 2008 (or,if not a Business Day, the next Business Day); and

 

(b)           in relation to Tranche 2, the period fromand including the date of this Agreement to and including the date which isthree Months after the date of this Agreement,

 

or, in each case, if earlier, the day on which each Lender’sCommitment under the relevant Tranche is zero.

 

“**Available Tranche 1Commitment**” means, in relation to Tranche 1, a Lender’s Commitmentunder that Tranche minus:

 

(a)            the amount of its participation in anyoutstanding Loans under that Tranche; and

 

(b)           in relation to any proposed Utilisationunder that Tranche, the amount of its participation in any Loans that are dueto be made under that Tranche on or before the proposed Utilisation Date.

 

“**Available Tranche 2Commitment**” means, in relation to Tranche 2, a Lender’s Commitmentunder that Tranche minus:

 

(a)            the amount of its participation in anyoutstanding Loans under that Tranche; and

 

(b)           in relation to any proposed Utilisation underthat Tranche, the amount of its participation in any Loans that are due to bemade under that Tranche on or before the proposed Utilisation Date.

 

“**Break Costs**”means the amount (if any) by which:

 

(a)            the interest (excluding the Margin) which aLender should have received for the period from the date of receipt of all orany part of its participation in a Loan or Unpaid Sum to the last day of thecurrent Interest Period in respect of that Loan or Unpaid Sum, had theprincipal amount or Unpaid Sum received been paid on the last day of thatInterest Period;

 

exceeds:

 

(b)           the amount which that Lender would be ableto obtain by placing an amount equal to the principal amount or Unpaid Sumreceived by it on deposit with a leading bank in the Relevant Interbank Marketfor a period starting on the Business Day following receipt or recovery andending on the last day of the current Interest Period.

 

 

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“**Business Day**”means a day (other than a Saturday or Sunday) on which banks are open forgeneral business in Dublin, London, New York and Moscow.

 

“**Change of ShareholdingStructure**”means any person, other than an Excluded Person or Excluded Persons,whether acting alone or together with (an)other person(s):

 

(a)            has or acquires, directly orindirectly, in aggregate more than 25 per cent. of the voting sharesof the Borrower (whether by virtue of any issuance, sale or other dispositionof such shares, any merger or other transaction having a similar effect or anyvoting trust or other agreement);

 

(b)           has or acquires the right toappoint or remove a majority of the Borrower’s board of directors or its chiefexecutive officer; or

 

(c)            has or acquires the power tocast or control the casting of more than 25 per cent. of the voting rightsin the Borrower.

 

“**Commitment**”means a Tranche 1 Commitment or a Tranche 2 Commitment.

 

“**Compliance Certificate**”means a certificate substantially in the form set out in Schedule 6 (*Form of Compliance Certificate*).

 

“**ConfidentialityUndertaking**” means a confidentiality undertaking substantially in arecommended form of the LMA or in any other form agreed between the Borrowerand the Agent.

 

“**Default**” meansan Event of Default or any event or circumstance specified in Clause 21 (*Events of Default*) which would (with the expiry of a graceperiod, the giving of notice, the making of any determination under the FinanceDocuments or any combination of any of the foregoing) be an Event of Default.

 

“**Dollars**”, “**USD**” or “**$**” means thelawful currency of the United States of America.

 

“**Environment**”means living organisms including the ecological systems of which they form partand the following media:

 

(a)            air (including air within natural orman-made structures, whether above or below ground);

 

(b)           water (including territorial, coastal andinland waters, water under or within land and water in drains and sewers); and

 

(c)            land (including land under water).

 

“**Environmental Law**”means all laws and regulations of any relevant jurisdiction which:

 

(a)            have as a purpose or effect the protectionof, and/or prevention of harm or damage to, the Environment;

 

(b)           provide remedies or compensation for harmor damage to the Environment; or

 

(c)            relate to Hazardous Substances or healthand safety matters.

 

“**Environmental Licence**”means any Authorisation required at any time under Environmental Law.

 

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“**Event of Default**”means any event or circumstance specified as such in Clause 21 (*Events of Default*).

 

“**Eurobond FacilityAgreement**” means the USD150,000,000 loan agreement dated 21 May 2003between the Borrower as borrower and UBS (Luxembourg) S.A. as lender.

 

“**Excluded Persons**”means Groupe DANONE SA and its subsidiaries, I.M. ArteksHolding Limited, Gavril A. Yushavaev, Mikhail V. Dubinin,Sergei A. Plastinin, Alexander S. Orlov, David Iakobachvili, Mikhail I.Vishnyakov and Viktor E. Evdokimov and each of their legalsuccessors, respective heirs and first degree relatives.

 

“**Facility**” meansthe term loan facility made available under this Agreement as described inClause 2 (*The Facility*).

 

“**Facility Office**”means the office or offices notified by a Lender to the Agent in writing on orbefore the date it becomes a Lender (or, following that date, by not less thanfive Business Days’ written notice) as the office or offices through which itwill perform its obligations under this Agreement.

 

“**Fee Letter**”means any letter or letters dated on or about the date of this Agreementbetween, as the case may be, the Arranger and the Borrower, or the Agent andthe Borrower setting out any of the fees referred to in Clause 11 (*Fees*).

 

“**Finance Document**”means this Agreement, any Guarantee, any Fee Letter, the Mandate Letter and anyother document designated as such by the Agent and the Borrower.

 

“**Finance Party**”means the Agent, the Arranger or a Lender.

 

“**Financial Indebtedness**”means any indebtedness for or in respect of:

 

(a)            moneys borrowed;

 

(b)           any amount raised by acceptance under anyacceptance credit facility or dematerialised equivalent;

 

(c)            any amount raised pursuant to any notepurchase facility or the issue of bonds, notes, debentures, loan stock or anysimilar instrument;

 

(d)           the amount of any liability in respect ofany lease or hire purchase contract which would, in accordance with GAAP, betreated as a finance or capital lease;

 

(e)            receivables sold or discounted (other thanany receivables to the extent they are sold on a non-recourse basis);

 

(f)            any amount raised under any othertransaction having the commercial effect of a borrowing;

 

(g)           any derivative transaction entered into inconnection with protection against or benefit from fluctuation in any rate orprice (and, when calculating the value of any derivative transaction, only themarked to market value shall be taken into account);

 

(h)           shares which are expressed to be redeemableprior to the Termination Date;

 

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(i)             any counter-indemnity obligation in respectof a guarantee, indemnity, bond, standby or documentary letter of credit or anyother instrument issued by a bank or financial institution; and

 

(j)             the amount of any liability in respect ofany guarantee or indemnity for any of the items referred to in paragraphs (a) to(i) above. (Forthe avoidance of doubt, this paragraph (j) shall include any guarantee,indemnity or other similar instrument in respect of obligations of anyperson who is not a member of the Group, arising under any of the itemsreferred to in paragraphs (a) to (i) above.)

 

“**GAAP**” meansgenerally accepted accounting principles, standards and practices in the UnitedStates of America.

 

“**GBP**” means thelawful currency for the time being of the United Kingdom.

 

“**Group**” meansthe Borrower and its Subsidiaries from time to time.

 

“**Group Structure Chart**”means the structure chart of the Group delivered to the Agent pursuant toClause 4.1 (*Initial conditions precedent*) as updatedfrom time to time pursuant to paragraph (c) of Clause 18.4 (*Information: miscellaneous*).

 

“**Guarantee**”****means the WBD Guarantee or the WBD Beverages Guarantee.

 

“**Guarantor**”means WBD or WBD Beverages.

 

“**Hazardous Substance**”means any waste, pollutant, contaminant or other substance (including anyliquid, solid, gas, ion, living organism or noise) that may be harmful to humanhealth or other life or the Environment.

 

“**Holding Company**”means, in relation to a company or corporation, any other company orcorporation in respect of which it is a Subsidiary.

 

“**Instruction 117-I**”means the Central Bank of the Russian Federation Instruction N 117-I dated 15 June 2004.

 

“**Interest Period**”means, in relation to a Loan, each period determined in accordance with Clause9 (*Interest Periods*) and, in relation to anUnpaid Sum, each period determined in accordance with Clause 8.3 (*Default interest*).

 

“**Lender**” means:

 

(a)            any Original Lender; and

 

(b)           any bank, financial institution, trust,fund or other entity which has become a Party in accordance with Clause 22 (*Changes to the Lenders*),

 

which, in each case, has not ceased to be a Party inaccordance with the terms of this Agreement.

 

“**Liabilities**”means all present and future moneys, debts and liabilities due, owing orincurred by the Obligors (or any of them) to the Finance Parties under or inconnection with the Finance Documents (or any of them) (in each case, whetheralone or jointly, or jointly and severally, with any other person, whetheractually or contingently and whether as principal, surety or otherwise).

 

----

 

“**LIBOR**” means,in relation to any Loan:

 

(a)            the applicable Screen Rate; or

 

(b)           (if no Screen Rate is available for the currency orInterest Period of that Loan) the arithmetic mean of the rates (rounded upwardsto four decimal places) as supplied to the Agent at its request quoted by theReference Banks to leading banks in the London interbank market,

 

as of the Specified Time on the Quotation Day for theoffering of deposits in the currency of that Loan and for a period comparableto the Interest Period for that Loan.

 

“**LMA**” means theLoan Market Association.

 

“**Loan**” means theTranche 1 Loan or a Tranche 2 Loan.

 

“**Majority Lenders**”means:

 

(a)            if there are no Loans then outstanding, a Lender orLenders whose Commitments aggregate more than 662/3 percent. of the Total Commitments (or, if the Total Commitments have been reducedto zero, aggregated more than 662/3% of the TotalCommitments immediately prior to the reduction); or

 

(b)                                  at any other time, a Lender or Lenderswhose participations in the Loans then outstanding aggregate more than 662/3 per cent. of all the Loans thenoutstanding.

 

“**Mandate Letter**”means the mandate letter between the Obligors and the Arranger dated 14 February 2008.

 

“**Mandatory Cost**”means the percentage rate per annum calculated by the Agent in accordance withSchedule 4 (*Mandatory Cost formula*).

 

“**Margin**” means1.75 per cent. per annum.

 

“**Material Adverse Effect**”means a material adverse effect on or material adverse change in:

 

(a)            the financial condition, assets, prospects or businessof any Obligor or the consolidated financial condition, assets, prospects orbusiness of the Group or the Obligors taken as a whole;

 

(b)           the ability of any Obligor to perform and comply withits obligations under any Finance Document; or

 

(c)            the validity, legality or enforceability of anyFinance Document.

 

“**Material Asset**”means:

 

(a)            in relation to an Obligor, any asset(s) of thatObligor the value of which (as determined in accordance with GAAP) exceeds 5per cent. of the Total Assets of that Obligor;

 

(b)           in relation to any member of the Group which is not anObligor, any asset(s) of that member of the Group the value of which (asdetermined in accordance with GAAP) exceeds 5 per cent. of the Total Assets ofthe Group.

 

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“**Month**” means aperiod starting on one day in a calendar month and ending on the numericallycorresponding day in the next calendar month, except that:

 

(a)            if the numerically corresponding day is nota Business Day, that period shall end on the next Business Day in that calendarmonth in which that period is to end if there is one, or if there is not, onthe immediately preceding Business Day; and

 

(b)           if there is no numerically correspondingday in the calendar month in which that period is to end, that period shall endon the last Business Day in that calendar month,

 

(and “**Monthly**” shallbe construed accordingly). The above rules will only apply to the lastMonth of any period.

 

“**Obligor**” meansthe Borrower or a Guarantor.

 

“**Original FinancialStatements**” means the financial statements:

 

(a)            of the Borrower on a consolidated basis forthe accounting year ending 31 December 2006, audited and prepared inaccordance with GAAP;

 

(b)           of the Borrower on a consolidated basis forthe accounting quarter ending 30 September 2007 prepared in accordancewith GAAP;

 

(c)            of each Obligor on a stand-alone basis forthe accounting year ending 31 December 2006, audited and prepared inaccordance with RAS; and

 

(d)           of each Obligor on a stand-alone basis forthe accounting quarter ending 31 December 2007 prepared in accordance withRAS.

 

“**Party**” means aparty to this Agreement.

 

“**Passport Bank**”means ING Bank Eurasia ZAO acting in its capacity as transaction passport bankin relation to this Agreement in accordance with Instruction 117-I.

 

“**PermittedDisposal**” means any sale, lease, licence, transfer, assignment orother disposal of any asset made:

 

(a)            in theordinary course of trading of the disposing entity (including, for theavoidance of doubt, cash and cash equivalent investments) and on arm’s lengthterms;

 

(b)           by amember of the Group to another member of the Group;

 

(c)            with theprior written consent of the Agent; or

 

(d)           on arm’slength terms where the higher of the market value and the considerationreceivable for any sale, lease, transfer or other disposal does not exceed 10per cent. in aggregate of the Total Assets of the Group in any financial year.

 

“**PermittedGuarantee**” means:

 

(a)            anyguarantee or indemnity given in favour of directors and officers of any memberof the Group in respect of their function as such;

 

(b)           anyindemnity given to professional advisers and consultants in the ordinary courseof business;

 

----

 

(c)            anyguarantee given to anyperson which is not a member of the Group in respectof any netting or set-off arrangements; and

 

(d)           theendorsement of negotiable instruments in the ordinary course of trading; or

 

(e)            anyguarantee or indemnity provided in respect of the obligations of any person which is adistributor or supplier to any member of the Group,

 

provided that such guarantee, indemnity or endorsement shall be givenonly in respect of obligations undertaken on arm’s length terms and providedfurther that the aggregate amount of all such guarantees, indemnities andendorsements, when taken together with the aggregate value of the assets of theObligors secured by any Permitted Security, shall not exceed 15 per cent. of the Total Assets of the Group.

 

“**Permitted Security**”means any Security grantedby a member of the Group to any person who is not a member of the Group, providedthat:

 

(a)            in relation to any Obligor on a stand-alonebasis, the aggregate value of the assets of that Obligor secured thereby,together with the aggregate amount of Permitted Guarantees given by thatObligor, shall not exceed 15 per cent. in aggregate of the Total Assets of thatObligor; and

 

(b)                                  in relation to the Group on a consolidatedbasis, the value of the assets of the Group secured thereby, together with theaggregate amount of Permitted Guarantees given by the Obligors, shall notexceed 15 per cent. in aggregate of the Total Assets of the Group.

 

“**Quotation Day**”means, in relation to any period for which an interest rate is to bedetermined, two Business Days before the first day of that period unless marketpractice differs in the Relevant Interbank Market for a currency, in which casethe Quotation Day for that currency will be determined by the Agent inaccordance with market practice in the Relevant Interbank Market (and ifquotations for that currency and period would normally be given by leadingbanks in the Relevant Interbank Market on more than one day, the Quotation Daywill be the last of those days).

 

“**RAS**” means theaccounting principles and practices specified by the laws of the RussianFederation, consistently applied.

 

“**Reference Banks**”means, in relation to LIBOR and Mandatory Cost the principal London offices ofABN AMRO Bank N.V., CALYON and ING Bank N.V. or such other banks as may beappointed by the Agent in consultation with the Borrower.

 

“**Relevant Interbank Market**”means the London interbank market.

 

“**Repeating Representations**”means each of the representations set out in Clauses 17.1 (*Status*)to 17.6 (*Governing law and enforcement*), 17.9 (*No default*) to 17.13 (*No proceedings pending orthreatened*) and 17.17 (*Taxes*).

 

“**Reservations**”means:

 

(a)            the principle that equitable remedies (andsimilar remedies under the laws of any relevant jurisdiction) may beunavailable or granted or refused at the discretion of a court, the limitationof the recognition of a chosen choice of law or validity and 

 

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enforcement of rights and obligations ineach case by laws relating to public policy (including the principles ofnon-recognition of judgments on the grounds of lack of natural justice or *res judicata* and the principle that a court will not enforcea penalty or any other contractual provision held to be *in terrorem*),bankruptcy, liquidation, winding-up, dissolution, administration, insolvency,reorganisation and/or other laws generally affecting the rights of creditors;

 

(b)           the time barring of claims under statutesof limitation or similar acts or principles in any relevant jurisdiction, thepossibility that an undertaking to assume liability for or indemnify a personagainst non-payment of stamp duty may be void and defences of set-off orcounterclaim and similar principles of law, contractual severance of aninvalid, illegal and unenforceable provision of an agreement may not beeffective in all circumstances;

 

(c)            the fact that a person vested with adiscretion or a right to determine a matter in its opinion may be required toexercise that discretion reasonably or hold that opinion on reasonable grounds;

 

(d)           that any determination or certificationwhich provides for such determination or certificate to constitute conclusiveor prima facie evidence may not be so if it is shown to have been incorrect,unreasonable, arbitrary or given other than in good faith; and

 

(e)            the fact that courts may regulate theconduct of judicial proceedings and the recognition, award and enforcement ofjudgments and costs in accordance with the rules of the relevant *lex fori* notwithstanding any contractual stipulations to thecontrary.

 

“**Russian Insolvency Law**”means the Federal Law of the Russian Federation No. 127-FZ of 26 October 2002“On Insolvency (Bankruptcy)”.

 

“**Screen Rate**”means the British Bankers’ Association Interest Settlement Rate for Dollars forthe relevant period displayed as at 11:00 a.m. London time on theappropriate page of the Reuters screen. If the agreed page isreplaced or service ceases to be available, the Agent may specify another page orservice displaying the appropriate rate after consultation with the Borrowerand the Lenders.

 

“**Security**” meansa mortgage, charge, pledge, lien or other security interest securing anyobligation of any person or any other agreement or arrangement having a similareffect.

 

“**Specified Time**”means a time determined in accordance with Schedule 7 (*Timetables*).

 

“**Subsidiary**”means, in relation to any company, corporation or other legal entity, acompany, corporation or other legal entity:

 

(a)            which is controlled, directly orindirectly, by the first mentioned company, corporation or legal entity (as thecase may be);

 

(b)           more than half the issued share capital orvoting rights in respect of more than half the issued share capital of which isor are beneficially owned, directly or indirectly, by the first mentionedcompany, corporation or other legal entity (as the case may be); or

 

(c)            which is a Subsidiary of another Subsidiaryof the first mentioned company, corporation or other legal entity (as the casemay be),

 

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and, for this purpose, a company, corporation or other legalentity shall be treated as being controlled by another if that other company,corporation or other legal entity is able to direct its affairs and/or tocontrol the composition of its board of directors or equivalent body.

 

“**Tax**” means anytax, levy, impost, duty or other charge or withholding of a similar nature(including any penalty or interest payable in connection with any failure topay or any delay in paying any of the same).

 

“**Termination Date**”means the date which is 36 Months after the date of this Agreement.

** **

**“Total Assets”** shall have the meaning givento such term in Clause 19.3 (*Financial definitions*).

 

“**Total Commitments**”means the aggregate of the Total Tranche 1 Commitments and the Total Tranche 2Commitments, being USD 250,000,000 at the date of this Agreement.

 

“**Total Tranche 1Commitments**” means the aggregate of the Tranche 1 Commitments, beingUSD 150,000,000 at the date of this Agreement*.*

 

“**Total Tranche 2Commitments**” means the aggregate of the Tranche 2 Commitments, beingUSD 100,000,000 at the date of this Agreement.

 

“**Tranche**” meansTranche 1 or Tranche 2.

 

“**Tranche 1**”means the term loan facility made available under this Agreement as describedin paragraph (a) of Clause 2.1 (*The Facility*).

 

“**Tranche 1 Commitment**”means:

 

(a)            in relation to an Original Lender, theamount in Dollars set opposite its name under the heading “Tranche 1 Commitment”in Schedule 1 (*The Original Lenders*) and theamount of any other Tranche 1 Commitment transferred to it under thisAgreement; and

 

(b)                                  in relation to any other Lender, the amountin Dollars of any Tranche 1 Commitment transferred to it under this Agreement,

 

to the extent not cancelled, reduced or transferred by itunder this Agreement.

 

“**Tranche 1 Loan**”means a loan made or to be made under Tranche 1 or the principal amountoutstanding for the time being of that loan.

 

“**Tranche 2**”means the term loan facility made available under this Agreement as describedin paragraph (b) of Clause 2.1 (*The Facility*).

 

“**Tranche 2 Commitment**”means:

 

(a)            in relation to an Original Lender, theamount in Dollars set opposite its name under the heading “Tranche 2 Commitment”in Schedule 1 (*The Original Lenders*) and theamount of any other Tranche 2 Commitment transferred to it under thisAgreement; and

 

(b)           in relation to any other Lender, the amountin Dollars of any Tranche 2 Commitment transferred to it under this Agreement,

 

to the extent not cancelled, reduced or transferred by itunder this Agreement.

 

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“**Tranche 2 Loan**”means a loan made or to be made under Tranche 2 or the principal amountoutstanding for the time being of that loan.

 

“**Transfer Certificate**”means a certificate substantially in the form set out in Schedule 5 (*Form of Transfer Certificate*) or any other form agreedbetween the Agent and the Borrower.

 

“**Transfer Date**”means, in relation to a transfer, the later of:

 

(a)            the proposed Transfer Date specified in theTransfer Certificate; and

 

(b)           the date on which the Agent executes theTransfer Certificate.

 

“**Unpaid Sum**”means any sum due and payable but unpaid by an Obligor under the FinanceDocuments.

 

“**Utilisation**”means a utilisation of the Facility.

 

“**Utilisation Date**”means the date of a Utilisation, being the date on which the relevant Loan isto be made.

 

“**Utilisation Request**”means a notice substantially in the form set out in Schedule 3 (*Requests*).

 

“**VAT**” meansvalue added tax as provided for in the Value Added Tax Act 1994 and any othertax of a similar nature.

 

“**WBD**” means OpenJoint Stock Company “Wimm-Bill-Dann”, an open joint stock company registeredand existing under the laws of the Russian Federation.

 

“**WBD Beverages**”means Public Joint Stock Company “Wimm-Bill-Dann Beverages”, an open jointstock company registered and existing under the laws of the Russian Federation.

 

“**WBD Beverages Guarantee**”means the guarantee entered into on or about the same date as this Agreementbetween WBD Beverages and the Agent.

 

“**WBD Guarantee**”means the guarantee entered into on or about the same date as this Agreementbetween WBD and the Agent.

** **

**1.2**         Construction

 

(a)         Unless a contrary indication appears, anyreference in this Agreement to:

 

(i)             the “**Agent**”, the “**Arranger**”, any “**Finance Party**”,any “**Lender**”, any “**Obligor**”or any “**Party**” shall be construed so as toinclude its successors in title (and in the case of an Obligor, shall includeany merged or surviving entity as a result of the Agreed Reorganisation),permitted assigns and permitted transferees;

 

(ii)            “**assets**”includes present and future properties, revenues and rights of everydescription;

 

(iii)           “**control**” of acompany or corporation by any person or persons shall be construed as:

 

(A)         the power (whether by way of ownership ofshares, proxy, contract, agency or otherwise) to:

 

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(1)          cast, or controlthe casting of, more than one-half of the maximum number of votes that might becast at a general meeting of that company or corporation; or

 

(2)          appoint or removeall, or the majority, of the members of a board of directors or members of amanagement board, a chief executive officer or other equivalent officers ofthat company or corporation (and the relevant person or persons shall be deemedto have power to make such an appointment if (x) an individual cannot beappointed as a director or an equivalent officer of that company or corporationwithout the exercise by the relevant person or persons of such power in theindividual’s favour or (y) an individual’s appointment as a director or anequivalent officer of that company or corporation follows necessarily from theindividual being a director or other equivalent officer of any of the relevantperson or persons); or

 

(3)          give directionswith respect to the operating and financial policies of that company orcorporation with which the directors or other equivalent officers of thatcompany or corporation are obliged to comply; or

 

(B)          the holding by that person or persons (directly orindirectly) of more than one-half of the issued share capital of that companyor corporation (excluding any shares which are non-voting or any part of thatissued share capital that carries no right to participate beyond a specifiedamount in a distribution of either profits or capital),

 

(and “**controlled**”shall be construed accordingly);

 

(iv)          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) orreplaced and includes any change in the purpose of, any extension of or anyincrease in any facility or the addition of any new facility under that FinanceDocument or other agreement or instrument;

 

(v)           “**indebtedness**”includes any obligation (whether incurred as principal or as surety) for thepayment or repayment of money, whether present or future, actual or contingent;

 

(vi)          a “**person**”includes any individual, firm, company, corporation, government, state oragency of a state or any association, trust, joint venture, consortium orpartnership (whether or not having separate legal personality);

 

(vii)         a “**regulation**”includes any regulation, rule, official directive, request or guideline(whether or not having the force of law, but if not having the force of law,with which compliance is necessary) of any governmental, intergovernmental orsupranational body, agency, department or regulatory, self-regulatory or other authorityor organisation;

 

(viii)        a provision of law is a reference to that provision as amended orre-enacted; and

 

(ix)           a time of day is a reference to London time.

 

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(b)         Section, Clause and Schedule headings are for ease ofreference only.

 

(c)         Unless a contrary indication appears, a term used inany other Finance Document or in any notice given under or in connection withany Finance Document has the same meaning in that Finance Document or notice asin this Agreement.

 

(d)         A Default (other than an Event of Default) is “**continuing**” if it has not been remedied or waived and anEvent of Default is “**continuing**” ifit has not been waived.

** **

**1.3**         Third party rights

 

A person who is not a Party has no right under the Contracts(Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of anyterm of this Agreement.

 

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**SECTION 2**

 

**THE FACILITIES**

 

**2.**           THE FACILITY

 

**2.1**         The Facility

 

Subject to the terms of this Agreement, the Lenders make available tothe Borrower a term loan facility in an aggregate amount equal to the TotalCommitments and in two Tranches:

 

(a)            Tranche1 in an aggregate amount equal to the Total Tranche 1 Commitments; and

 

(b)           Tranche2 in an aggregate amount equal to the Total Tranche 2 Commitments.

 

**2.2**         Finance Parties’ rights andobligations

 

(a)         Theobligations of each Finance Party under the Finance Documents are several.Failure by a Finance Party to perform its obligations under the FinanceDocuments does not affect the obligations of any other Party under the FinanceDocuments. No Finance Party is responsible for the obligations of any otherFinance Party under the Finance Documents.

 

(b)         Therights of each Finance Party under or in connection with the Finance Documentsare separate and independent rights and any debt arising under the FinanceDocuments to a Finance Party from an Obligor shall be a separate andindependent debt.

 

(c)         AFinance Party may, except as otherwise stated in the Finance Documents,separately enforce its rights under the Finance Documents.

 

**3.**           PURPOSE

 

**3.1**         Purpose

 

(a)         TheBorrower shall apply all amounts borrowed by it under Tranche 1 towards:

 

(i)             repaymentin full and discharge of any and all of its liabilities under the EurobondFacility Agreement; and

 

(ii)            as toany balance remaining, for its general corporate purposes.

 

(b)         TheBorrower shall apply all amounts borrowed by it under Tranche 2 for its generalcorporate purposes.

 

**3.2**         Monitoring

 

No Finance Party is bound to monitor or verify theapplication of any amount borrowed pursuant to this Agreement.

 

**4.**           CONDITIONS OF UTILISATION

 

**4.1**         Initial conditions precedent

 

The Borrower may not deliver a Utilisation Request unlessthe Agent has received all of the documents and other evidence listed in Part Iof Schedule 2 (*Conditions precedent and subsequent*)in form and substance satisfactory to the Agent. The Agent shall notify theBorrower and the Lenders promptly upon being so satisfied.

 

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**4.2**         Further conditions precedent

 

The Lenders will only be obliged to comply with Clause 5.4 (*Lenders’ participation*) if on the date of the UtilisationRequest and on the proposed Utilisation Date:

 

(a)           noDefault is continuing or would result from the proposed Loan; and

 

(b)           theRepeating Representations to be made by each Obligor are true in all materialrespects.

 

**4.3**         Conditions subsequent

 

(a)         TheBorrower shall, as soon as practicable but in any event not later than sixMonths after the date of this Agreement, deliver to the Agent the evidencereferred to in paragraph (a) of Part II of Schedule 2 (*Conditions precedent and subsequent*). Failure to deliversuch evidence to the Agent on or before such date shall, unless waived by theAgent, constitute an immediate Event of Default under Clause 21 (*Events of Default*).

 

(b)         TheBorrower shall, as soon as practicable but in any event not later than threeMonths after the date of this Agreement, deliver to the Agent the documentsreferred to in paragraphs (b) and (c) of Part II of Schedule 2 (*Conditions precedent and subsequent*). Failure to deliversuch documents to the Agent on or before such date shall, unless waived by theAgent, constitute an immediate Event of Default under Clause 21 (*Events of Default*).

 

**4.4**         Maximum number of Loans

 

The Borrower may not deliver a Utilisation Request if as aresult of the proposed Utilisation:

 

(a)            morethan two Tranche 1 Loans would be outstanding; or

 

(b)           morethan four Tranche 2 Loans would be outstanding.

 

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**SECTION 3**

 

**UTILISATION**

 

**5.**           UTILISATION

 

**5.1**         Delivery of a UtilisationRequest

 

The Borrower may utilise the Facility by delivery to theAgent of a duly completed Utilisation Request not later than the SpecifiedTime.

 

**5.2**         Completion of a UtilisationRequest

 

(a)         EachUtilisation Request is irrevocable and will not be regarded as having been dulycompleted unless:

 

(i)            itidentifies the Tranche to be utilised;

 

(ii)           theproposed Utilisation Date is a Business Day within the Availability Periodapplicable to that Tranche;

 

(iii)          thecurrency and amount of the Utilisation comply with Clause 5.3 (*Currency and amount*);

 

(iv)          theproposed Interest Period complies with Clause 9 (*InterestPeriods*); and

 

(v)          itspecifies the account of the Borrower (which shall be an account of theBorrower held with the Passport Bank) to which the proceeds of the Utilisationare to be credited.

 

(b)         TheBorrower shall ensure that upon the receipt of the proceeds of each Utilisationof Tranche 1 into the account of the Borrower with the Passport Bank inaccordance subparagraph (v) of paragraph (a) above such proceedsshall be paid to UBS (Luxembourg) S.A. as lender under the Eurobond FacilityAgreement in discharge of the obligations of the Borrower under the EurobondFacility Agreement at the times provided in, and otherwise in accordance withthe terms of, the Eurobond Facility Agreement.

 

(c)         Only oneLoan may be requested in each Utilisation Request.

 

**5.3**        Currency and amount

 

(a)         Thecurrency specified in a Utilisation Request must be Dollars.

 

(b)         Theamount of the proposed Loan must be:

 

(i)             inthe case of the first Utilisation under Tranche 1, an amount equal to theaggregate amount due and payable under the Eurobond Facility Agreement on itsmaturity date;

 

(ii)            inthe case of any other Utilisation under Tranche 1, a minimum of USD5,000,000or, if less, the Available Tranche 1 Commitments; or

 

(iii)           in thecase of Tranche 2, a minimum of USD25,000,000 or, if less, the AvailableTranche 2 Commitments.

 

**5.4**         Lenders’ participation

 

(a)        Ifthe conditions set out in this Agreement have been met, each Lender shall makeits participation in each Loan available by the Utilisation Date through itsFacility Office.

 

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(b)         Theamount of each Lender’s participation in each Loan will be equal to theproportion borne by:

 

(i)             inthe case of a Loan under Tranche 1, its Available Tranche 1 Commitment to theaggregate for the time being of each Lender’s Available Tranche 1 Commitment;and

 

(ii)            inthe case of a Loan under Tranche 2, its Available Tranche 2 Commitment to theaggregate for the time being of each Lender’s Available Tranche 2 Commitment,

 

in each case, immediately prior to making the Loan.

 

(c)         TheAgent shall notify each Lender of the amount of each Loan and the amount of itsparticipation in that Loan by the Specified Time.

 

**5.5**        Cancellation of Commitment

 

(a)         TheAvailable Tranche 1 Commitments shall be immediately cancelled at the end ofthe Availability Period for Tranche 1.

 

(b)         TheAvailable Tranche 2 Commitments shall be immediately cancelled at the end ofthe Availability Period for Tranche 2.

 

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**SECTION 4**

 

**REPAYMENT,PREPAYMENT AND CANCELLATION**

 

**6.**           REPAYMENT

 

(a)         TheBorrower shall repay each Loan on the Termination Date.

 

(b)         TheBorrower may not reborrow any part of the Facility which is repaid.

 

**7.**           PREPAYMENT AND CANCELLATION

 

**7.1**         Illegality

 

If it is or becomes unlawful in any applicable jurisdictionfor a Lender to perform any of its obligations as contemplated by thisAgreement or to fund or maintain its participation in any Loan:

 

(a)            thatLender shall promptly notify the Agent upon becoming aware of that event;

 

(b)           uponthe Agent notifying the Borrower, the Commitment of that Lender will beimmediately cancelled; and

 

(c)            theBorrower shall repay that Lender’s participation in the Loans made to theBorrower on the last day of the Interest Period for each Loan occurring afterthe Agent has notified the Borrower or, if earlier, the date specified by theLender in the notice delivered to the Agent (being no earlier than the last dayof any applicable grace period permitted by law).

 

**7.2**         Change of ShareholdingStructure

 

If a Change of Shareholding Structure occurs:

 

(a)            theBorrower shall promptly notify the Agent upon becoming aware of that event;

 

(b)           aLender shall not be obliged to fund a Utilisation; and

 

(c)            ifthe Majority Lenders so require, the Agent shall, by not less than 15 days’notice to the Borrower, cancel the Total Commitments and declare all outstandingLoans, together with accrued interest and all other amounts accrued under theFinance Documents, immediately due and payable, whereupon the Total Commitmentswill be cancelled and all such outstanding amounts will become immediately dueand payable.

 

**7.3**         Voluntary cancellation

 

The Borrower may, if it gives the Agent not less than 10Business Days’ (or such shorter period as the Majority Lenders may agree) priornotice, cancel the whole or any part (but if in part, being a minimum amount ofUSD10,000,000) of the aggregate of each Lender’s Available Tranche 1 Commitmentand/or Available Tranche 2 Commitment (as the case may be). Any cancellationunder this Clause 7.3 shall reduce the Tranche 1 Commitments and/or Tranche 2Commitments (as the case may be) of the Lenders rateably under the Facility.

 

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**7.4**         Voluntary prepayment of Loans

 

The Borrower may, if it gives the Agent not less than 10Business Days’ (or such shorter period as the Majority Lenders may agree) priornotice, prepay the whole or any part of any Loan (but, if in part, being anamount that reduces the Loan by a minimum amount of USD10,000,000).

 

**7.5**         Right of repayment andcancellation in relation to a single Lender

 

(a)         If:

 

(i)             anysum payable to any Lender by an Obligor is required to be increased underparagraph (c) of Clause 12.2 (*Tax gross-up*);

 

(ii)            anyLender claims indemnification from the Borrower under Clause 12.3 (*Tax indemnity*) or Clause 13.1 (*Increasedcosts*); or

 

(iii)           anyLender notifies the Agent that it intends to claim payment of any MandatoryCosts pursuant to paragraph 3 of Schedule 4 (*MandatoryCost formula*),

 

the Borrower may, whilst the circumstance giving rise to therequirement, indemnification or Additional Cost Rate continues, give the Agentnotice of cancellation of the Commitment of that Lender and its intention toprocure the repayment of that Lender’s participation in the Loans.

 

(b)         Onreceipt of a notice referred to in paragraph (a) above, the Commitment ofthat Lender shall immediately be reduced to zero.

 

(c)         On thelast day of each Interest Period which ends after the Borrower has given noticeunder paragraph (a) above (or, if earlier, the date specified by theBorrower in that notice), the Borrower shall repay that Lender’s participationin that Loan.

 

**7.6**         Restrictions

 

(a)         Anynotice of cancellation or prepayment given by any Party under this Clause 7shall be irrevocable and, unless a contrary indication appears in thisAgreement, specify the date or dates upon which the relevant cancellation orprepayment is to be made and the amount of that cancellation or prepayment.

 

(b)         Anyprepayment under this Agreement shall be made together with accrued interest onthe amount prepaid and, subject to any Break Costs, without premium or penalty.

 

(c)         TheBorrower may not reborrow any part of the Facility which is prepaid.

 

(d)         TheBorrower shall not repay or prepay all or any part of the Loans or cancel allor any part of the Commitments except at the times and in the manner expresslyprovided for in this Agreement.

 

(e)         Noamount of the Total Commitments cancelled under this Agreement may besubsequently reinstated.

 

(f)          If theAgent receives a notice under this Clause 7 it shall promptly forward a copy ofthat notice to either the Borrower or the affected Lender, as appropriate.

 

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**SECTION 5**

 

**COSTS OFUTILISATION**

 

**8.**           INTEREST

 

**8.1**         Calculation of interest

 

The rate of interest on each Loan for each Interest Periodis the percentage rate per annum which is the aggregate of the applicable:

 

(a)           Margin;

 

(b)           LIBOR;and

 

(c)           MandatoryCost, if any.

 

**8.2**         Payment of interest

 

The Borrower shall pay accrued interest on each Loan on thelast day of each Interest Period relating to that Loan.

 

**8.3**         Default interest

 

(a)         If theBorrower fails to pay any amount payable by it under a Finance Document on itsdue date, interest shall accrue on the overdue amount from the due date up tothe date of actual payment (both before and after judgment) at a rate which,subject to paragraph (b) below, is the sum of 2 per cent. and the ratewhich would have been payable 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 8.3 shall be immediatelypayable by the Borrower on demand by the Agent.

 

(b)         If anyoverdue amount consists of all or part of a Loan which became due on a daywhich was not the last day of an Interest Period relating to that Loan:

 

(i)             thefirst Interest Period for that overdue amount shall have a duration equal tothe unexpired portion of the current Interest Period relating to that Loan; and

 

(ii)            therate of interest applying to the overdue amount during that first InterestPeriod shall be the sum of 2 per cent. and the rate which would have applied ifthe overdue amount had not become due.

 

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

 

**8.4**         Notification of rates ofinterest

 

The Agent shall promptly notify the Lenders and the Borrowerof the determination of a rate of interest under this Agreement.

 

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**9.**           INTEREST PERIODS

 

**9.1**         Interest Periods

 

(a)         EachInterest Period for a Loan shall be three Months (or such other period as maybe agreed between the Borrower and the Agent from time to time), except in thecase of a Loan made after the first Utilisation Date, in which case the firstInterest Period in relation to that Loan shall start on the Utilisation Daterelating to that Loan and end on the last day of the current Interest Periodfor outstanding Loans.

 

(b)        AnInterest Period for a Loan shall not extend beyond the Termination Date.

 

(c)         EachInterest Period for a Loan shall start on the Utilisation Date or (if alreadymade) on the last day of its preceding Interest Period.

 

**9.2**         Non-Business Days

 

If an Interest Period would otherwise end on a day which isnot a Business Day, that Interest Period will instead end on the next BusinessDay in that calendar month (if there is one) or the preceding Business Day (ifthere is not).

 

**9.3**         Consolidation of Loans

 

If two or more Interest Periods end on the same date, the Loansto which they relate shall, on that date, be consolidated into, and treated as,a single Loan.

 

**10.**         CHANGES TO THE CALCULATION OF INTEREST

 

**10.1**       Absence of quotations

 

Subject to Clause 10.2 (*Market disruption*),if LIBOR is to be determined by reference to the Reference Banks but aReference Bank does not supply a quotation by the Specified Time on theQuotation Day, the applicable LIBOR shall be determined on the basis of thequotations of the remaining Reference Banks.

 

**10.2**       Market disruption

 

(a)         Ifa Market Disruption Event occurs in relation to a Loan for any Interest Period,then the rate of interest on each Lender’s share of that Loan for the InterestPeriod shall be the percentage rate per annum which is the sum of:

 

(i)             theMargin;

 

(ii)            therate notified to the Agent by that Lender as soon as practicable and in anyevent before interest is due to be paid in respect of that Interest Period, tobe that which expresses as a percentage rate per annum the cost to that Lenderof funding its participation in that Loan from whatever source it mayreasonably select; and

 

(iii)           theMandatory Cost, if any, applicable to that Lender’s participation in the Loan.

 

(b)         In thisAgreement “**Market Disruption Event**” means:

 

(i)             ator about noon on the Quotation Day for the relevant Interest Period the ScreenRate is not available and none or only one of the Reference Banks supplies arate to the Agent to determine LIBOR for the relevant currency and InterestPeriod; or

 

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(ii)            beforeclose of business in London on the Quotation Day for the relevant InterestPeriod, the Agent receives notifications from a Lender or Lenders (whoseparticipations in a Loan exceed 35 per cent. of that Loan) that the cost to itof obtaining matching deposits in the Relevant Interbank Market would be inexcess of LIBOR.

 

**10.3**       Alternative basis of interestor funding

 

(a)         Ifa Market Disruption Event occurs and the Agent or the Borrower so requires, theAgent and the Borrower shall enter into negotiations (for a period of not morethan 30 days) with a view to agreeing a substitute basis for determining therate of interest.

 

(b)         Anyalternative basis agreed pursuant to paragraph (a) above shall, with theprior consent of all the Lenders and the Borrower, be binding on all Parties.

 

**10.4**      Break Costs

 

(a)         TheBorrower shall, within three Business Days of demand by a Finance Party, pay tothat Finance Party its Break Costs attributable to all or any part of a Loan orUnpaid Sum being paid by the Borrower on a day other than the last day of an InterestPeriod for that Loan or Unpaid Sum.

 

(b)         EachLender shall, as soon as reasonably practicable after a demand by the Agent,provide a certificate confirming the amount of its Break Costs for any InterestPeriod in which they accrue.

 

**11.**         FEES

 

**11.1**      Commitment fee

 

(a)         TheBorrower shall pay to the Agent (for the account of each Lender) a fee inDollars computed at the rate of:

 

(i)             0.875per cent. per annum on that Lender’s Available Tranche 1 Commitment for theAvailability Period applicable to Tranche 1; and

 

(ii)            0.875per cent. per annum on that Lender’s Available Tranche 2 Commitment for theAvailability Period applicable to Tranche 2.

 

(b)         Theaccrued commitment fee is payable on the last day of the Availability Periodand, if cancelled in full, on the cancelled amount of the relevant Lender’sCommitment at the time the cancellation is effective.

 

**11.2**       Arrangement fee

 

The Borrower shall pay to the Arranger an arrangement fee inthe amount and at the times agreed in a Fee Letter.

 

**11.3**       Agency fee

 

The Borrower shall pay to the Agent (for its own account) anagency fee in the amount and at the times agreed in a Fee Letter.

 

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**SECTION 6**

 

**ADDITIONALPAYMENT OBLIGATIONS**

 

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

 

**12.1**      Definitions

 

(a)         In thisAgreement:

 

“**Protected Party**”means a Finance Party which is or will be subject to any liability, or requiredto make any payment, for or on account of Tax in relation to a sum received orreceivable (or any sum deemed for the purposes of Tax to be received orreceivable) under a Finance Document.

 

“**Tax Credit**”means a credit against, relief or remission for, or repayment of any Tax.

 

“**Tax Deduction**”means a deduction or withholding for or on account of Tax from a payment undera Finance Document.

 

“**Tax Payment**”means either the increase in a payment made by the Borrower to a Finance Partyunder Clause 12.2 (*Tax gross-up*)or a payment under Clause 12.3 (*Tax indemnity*).

 

(b)         Unless acontrary indication appears, in this Clause 12 a reference to “**determines**” or “**determined**” meansa determination made in the absolute discretion of the person making thedetermination.

 

**12.2**      Tax gross-up

 

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

 

(b)         TheBorrower 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, a Lender shall notify the Agent onbecoming so aware in respect of a payment payable to that Lender. If the Agentreceives such notification from a Lender it shall notify the Borrower.

 

(c)         If a TaxDeduction is required by law to be made by the Borrower, the amount of thepayment due from the Borrower 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 theBorrower is required to make a Tax Deduction, the Borrower shall make that TaxDeduction and any payment required in connection with that Tax Deduction withinthe 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 Borrower shall deliver to the Agent for theFinance Party entitled to the payment evidence reasonably satisfactory to thatFinance Party that the Tax Deduction has been made or (as applicable) anyappropriate payment paid to the relevant taxing authority.

 

**12.3**      Tax indemnity

 

(a)         TheBorrower shall (within three Business Days of demand by the Agent) pay to aProtected Party an amount equal to the loss, liability or cost which thatProtected Party determines will be

 

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or has been (directly or indirectly) suffered for oron account of Tax by that Protected Party in respect of a Finance Document.

 

(b)         Paragraph(a) above shall not apply:

 

(i)             withrespect to any Tax assessed on a Finance Party:

 

(A)         underthe law of the jurisdiction in which that Finance Party is incorporated or, ifdifferent, the jurisdiction (or jurisdictions) in which that Finance Party istreated as resident for tax purposes; or

 

(B)          underthe law of the jurisdiction in which that Finance Party’s Facility Office islocated in respect of amounts received or receivable in that jurisdiction,

 

if that Tax is imposed on or calculated by reference to thenet income received or receivable (but not any sum deemed to be received orreceivable) by that Finance Party; or

 

(ii)            tothe extent a loss, liability or cost is compensated for by an increased paymentunder Clause 12.2 (*Tax gross-up*).

 

(c)         AProtected Party making, or intending to make, a claim under paragraph (a) aboveshall promptly notify the Agent of the event which will give, or has given,rise to the claim, following which the Agent shall notify the Borrower.

 

(d)         AProtected Party shall, on receiving a payment from the Borrower under thisClause 12.3, notify the Agent.

 

**12.4**       Tax Credit

 

If the Borrower makes a Tax Payment and the relevant FinanceParty determines that:

 

(a)            a TaxCredit is attributable either to an increased payment of which that Tax Paymentforms part, or to that Tax Payment; and

 

(b)           thatFinance Party has obtained, utilised and retained that Tax Credit,

 

the Finance Party shall pay an amount to the Borrower whichthat Finance Party determines will leave it (after that payment) in the sameafter-Tax position as it would have been in had the Tax Payment not beenrequired to be made by the Borrower.

 

**12.5**       Stamp taxes

 

The Borrower 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 any Finance Document.

 

**12.6**       Value added tax

 

(a)         Allamounts set out, or expressed to be payable under a Finance Document by anyParty to a Finance Party 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

 

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the same time as paying the consideration) an amountequal to the amount of the VAT (and such Finance Party shall promptly providean appropriate VAT invoice 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 (the “**Relevant Party**”)is required by the terms of any Finance Document to pay an amount equal to theconsideration for such supply to the Supplier (rather than being required toreimburse the Recipient in respect of that consideration), such Party shallalso pay to the Supplier (in addition to and at the same time as paying suchamount) an amount equal to the amount of such VAT. The Recipient will promptlypay to the Relevant Party an amount equal to any credit or repayment from therelevant tax authority which it reasonably determines relates to the VATchargeable on that supply.

 

(c)         Where aFinance Document requires any Party to reimburse a Finance Party for any costsor expenses, that Party shall also at the same time pay and indemnify theFinance Party against all VAT incurred by the Finance Party in respect of thecosts or expenses to the extent that the Finance Party reasonably determinesthat neither it nor any other member of any group of which it is a member forVAT purposes is entitled to credit or repayment from the relevant tax authorityin respect of the VAT.

 

**12.7**      Residence certificates

 

(a)         EachFinance Party shall, as soon as reasonably possible, make an application inaccordance with applicable law to the relevant authority for theissue/certification of a residence certificate in accordance with the laws ofthe relevant jurisdiction confirming its residence for Tax purposes andpromptly upon receipt of such residence certificate provide it to the Borrower.

 

(b)         If,having used all reasonable efforts, a Finance Party has been unable to providesuch residence certificate, then the relevant Finance Party shall, promptly onrequest by the Borrower provide to the Borrower, evidence that it has made atimely application in accordance with applicable law to the relevant authorityfor the issue of the residence certificate referred to in paragraph (a) above.

 

(c)         For theavoidance of doubt, this Clause 12.7 shall not apply to a Finance Partyresident in a country without a double tax treaty with the Russian Federation.

 

**13.**         INCREASED COSTS

 

**13.1**      Increased costs

 

(a)         Subjectto Clause 13.3 (*Exceptions*) the Borrower shall,within five Business Days of a demand by the Agent, pay for the account of aFinance Party the amount of any Increased Costs incurred by that Finance Partyor any of its Affiliates as a result of (i) the introduction of or anychange in (or in the interpretation, administration or application of) any lawor regulation or (ii) compliance with any law or regulation made after thedate of this Agreement.

 

(b)         In thisAgreement “**Increased Costs**” means:

 

(i)             areduction in the rate of return from the Facility or on a Finance Party’s (orits Affiliate’s) overall capital;

 

----

 

(ii)            anadditional or increased cost; or

 

(iii)           areduction of any amount due and payable under any Finance Document,

 

which is incurred or suffered by a Finance Party or any ofits Affiliates to the extent that it is attributable to that Finance Partyhaving entered into its Commitment or funding or performing its obligationsunder any Finance Document.

 

**13.2**      Increased cost claims

 

(a)         AFinance Party intending to make a claim pursuant to Clause 13.1 (*Increased costs*) shall notify the Agent of the event givingrise to the claim, following which the Agent shall promptly notify theBorrower.

 

(b)         EachFinance Party shall, as soon as practicable after a demand by the Agent,provide a certificate confirming the amount of its Increased Costs.

 

**13.3**      Exceptions

 

(a)         Clause13.1 (*Increased costs*) does not apply to theextent any Increased Cost is:

 

(i)             attributableto a Tax Deduction required by law to be made by the Borrower;

 

(ii)            compensatedfor by Clause 12.3 (*Tax indemnity*)(or would have been compensated for under Clause 12.3 (*Taxindemnity*) but was not so compensated solely because any of theexclusions in paragraph (b) of Clause 12.3 (*Taxindemnity*) applied);

 

(iii)           compensatedfor by the payment of the Mandatory Cost; or

 

(iv)          attributableto the wilful breach by the relevant Finance Party or its Affiliates of any lawor regulation.

 

(b)         In thisClause 13.3, a reference to a “**Tax Deduction**”has the same meaning given to the term in Clause 12.1 (*Definitions*).

 

**14.**        OTHER INDEMNITIES

 

**14.1**      Currency indemnity

 

(a)         If anysum due from the Borrower 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)             makingor filing a claim or proof against the Borrower;

 

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

 

the Borrower shall, as an independent obligation, withinfive Business Days of demand, indemnify each Finance Party to whom 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)         TheBorrower 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.

 

**14.2**      Other indemnities

 

The Borrower shall, within five Business Days of demand,indemnify each Finance Party against any cost, loss or liability incurred bythat Finance Party as a result of:

 

(a)            theoccurrence of any Event of Default;

 

(b)          afailure by an Obligor to pay any amount due under a Finance Document on its duedate, including without limitation, any cost, loss or liability arising as aresult of Clause 26 (*Sharing among the FinanceParties*);

 

(c)            funding,or making arrangements to fund, its participation in a Loan requested by theBorrower in a Utilisation Request but not made by reason of the operation ofany one or more of the provisions of this Agreement (other than by reason ofdefault or negligence by that Finance Party alone); or

 

(d)          aLoan (or part of a Loan) not being prepaid in accordance with a notice ofprepayment given by the Borrower.

 

**14.3**      Indemnity to the Agent

 

The Borrower shall promptly indemnify the Agent against anycost, loss or liability incurred by the Agent (acting reasonably) as a resultof:

 

(a)            investigatingany event which it reasonably believes is a Default; or

 

(b)           actingor relying on any notice, request or instruction which it reasonably believesto be genuine, correct and appropriately authorised.

 

**15.**        MITIGATION BY THE LENDERS

 

**15.1**      Mitigation

 

(a)         EachFinance Party shall, in consultation with the Borrower, take all reasonablesteps to mitigate any circumstances which arise and which would result in anyamount becoming payable under or pursuant to, or cancelled pursuant to, any ofClause 7.1 (*Illegality*), Clause 12 (*Tax gross-up and indemnities*) or Clause 13 (*Increased costs*), paragraph 3 of Schedule 4 (*Mandatory Cost formula*) including (but not limited to)transferring its rights and obligations under the Finance Documents to anotherAffiliate or Facility Office.

 

(b)         Paragraph(a) above does not in any way limit the obligations of any Obligor underthe Finance Documents.

 

**15.2**      Limitation of liability

 

(a)         TheBorrower shall indemnify each Finance Party for all costs and expensesreasonably incurred by that Finance Party as a result of steps taken by itunder Clause 15.1 (*Mitigation*).

 

(b)         A FinanceParty is not obliged to take any steps under Clause 15.1 (*Mitigation*)if, in the opinion of that Finance Party (acting reasonably), to do so might beprejudicial to it.

 

----

 

**16.**         COSTS AND EXPENSES

 

**16.1**       Transaction expenses

 

The Borrower shall within five Business Days on demand paythe Agent and the Arranger the amount of all costs and expenses (includinglegal fees) reasonably incurred by any of them in connection with thenegotiation, preparation, printing, execution of, and syndication under:

 

(a)         thisAgreement and any other documents referred to in this Agreement, in accordancewith the Mandate Letter; and

 

(b)         and anyother Finance Documents executed after the date of this Agreement.

 

**16.2**       Amendment costs

 

If an Obligor requests an amendment, waiver or consent theBorrower shall, within three Business Days of demand, reimburse the Agent forthe amount of all costs and expenses (including legal fees) reasonably incurredby the Agent in responding to, evaluating, negotiating or complying with that requestor requirement.

 

**16.3**       Enforcement costs

 

The Borrower shall, within five Business Days of demand, payto each Finance Party the amount of all costs and expenses (including legalfees) incurred by that Finance Party in connection with the enforcement of, orthe preservation of any rights under, any Finance Document.

 

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**SECTION 7**

 

**REPRESENTATIONS,UNDERTAKINGS AND EVENTS OF DEFAULT**

 

**17.**         REPRESENTATIONS

 

The Borrower makes the representations and warranties setout in this Clause 17 to each Finance Party on the date of this Agreement.

 

**17.1**       Status

 

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

 

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

 

**17.2**       Binding obligations

 

The obligations expressed to be assumed by each Obligor ineach Finance Document to which it is a party are, subject to any Reservations,legal, valid, binding and enforceable.

 

**17.3**       Non-conflict with otherobligations

 

The entry into and performance by each Obligor of, and thetransactions contemplated by, the Finance Documents to which it is a party donot 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)            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, borrowing orguaranteeing (as the case may be) the Total Commitments will not cause anyborrowing or guaranteeing limit binding upon any Obligor to be exceeded norwill such borrowing or guaranteeing or the entry into the Finance Documents towhich an Obligor is a party oblige it to enter into any subordination agreementin respect thereof.

 

**17.4**       Power and authority

 

(a)         EachObligor has the power to enter into, perform and deliver, and has taken allnecessary action to authorise its entry into, performance and delivery of, theFinance Documents to which it is a party and the transactions contemplated bythose Finance Documents.

 

(b)         Withoutlimiting the generality of paragraph (a) above, none of the FinanceDocuments, and none of the transactions contemplated thereunder, does or willconstitute a major transaction or an interested party transaction for anyObligor under applicable Russian law, except where requisite corporate approvalsauthorising all major transactions and all interested party transactions havebeen obtained by it with respect to such Finance Documents.

 

**17.5**       Validity and admissibility inevidence

 

As regards each Obligor, all Authorisations required ordesirable:

 

----

 

(a)            toenable it lawfully to enter into, exercise its rights and comply with itsobligations in the Finance Documents to which it is a party; and

 

(b)           tomake the Finance Documents to which it is a party admissible in evidence in itsjurisdiction 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.

 

**17.6**      Governing law and enforcement

 

(a)         As regardseach Obligor, subject to any Reservations, the choice of English law as thegoverning law of the Finance Documents to which it is a party will berecognised and enforced in its jurisdiction of incorporation.

 

(b)         Asregards each Obligor, subject to any Reservations, any arbitration awardobtained in England in relation to a Finance Document to which it is a partywill be recognised and enforced in its jurisdiction of incorporation.

 

**17.7**       Deduction of Tax

 

No Obligor is required to make any deduction for or onaccount of Tax from any payment it may make under any Finance Document to aLender which is resident in a jurisdiction which has a double tax treaty withthe Russian Federation (or with the Union of Soviet Socialist Republics, towhich the Russian Federation has succeeded), the effect of which is to providethat payment of interest to the relevant Lender by the Borrower may be madefree and clear of any deduction for or on account of Tax, and has delivered thetax residence certificate referred to in paragraph (a) of Clause 12.7 (*Residence certificates*).

 

**17.8**      No filing or stamp taxes

 

Under the law of any Obligor’s jurisdiction of incorporationit is not necessary that the Finance Documents be filed, recorded or enrolledwith any court or other authority in that jurisdiction or that any stamp,registration or similar tax be paid on or in relation to the Finance Documentsor the transactions contemplated by the Finance Documents (excluding, for the avoidance of doubt, the submission by the Borrower ofa copy of this Agreement to the relevant Russian authorised bank (including,without limitation and if relevant, the Passport Bank) through which paymentsto and from it under this Agreement and/or other Finance Documents, as the casemay be, are to be made in accordance with Instruction 117-I).

 

**17.9**      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 any otheragreement or instrument which is binding on any Obligor or any of itsSubsidiaries or to which its (or any of its Subsidiaries’) assets are subjectwhich might have a Material Adverse Effect.

 

**17.10**    No misleading information

 

(a)         Anyfactual information provided by or on behalf of any Obligor in writing inconnection with any Finance Document (including, without limitation, the AgreedReorganisation Memorandum) was 

 

----

 

true and accurate in all material respects as at thedate 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 any Obligor to any Finance Party in connection with any FinanceDocument have been prepared on the basis of recent historical information andon the basis of reasonable assumptions.

 

(c)         Nothinghas occurred or been omitted from any written information (including, withoutlimitation, the Agreed Reorganisation Memorandum) provided by any Obligor toany Finance Party in connection with any Finance Document that results in theinformation referred to in paragraphs (a) and (b) above being untrueor misleading in any material respect.

 

**17.11**    Financial statements

 

(a)         TheOriginal Financial Statements of each Obligor were prepared in accordance withGAAP or RAS (as applicable) consistently applied.

 

(b)         TheOriginal Financial Statements of each Obligor fairly represent that Obligor’sfinancial condition and operations (and the consolidated financial condition ofthe Group in the case of the Borrower) as at the end of and for the relevantfinancial period.

 

(c)         NoObligor has incurred any material liabilities since the date of its OriginalFinancial Statements or the most recent financial statements delivered pursuantto Clause 18.1 (*Financial statements*) (whicheveris later), which were not disclosed to the Agent in writing.

 

(d)         Therehas been no material adverse change in the business or financial condition ofany Obligor other than the Borrower (or the business or consolidated financialcondition of the Group, in the case of the Borrower) since the date of itsOriginal Financial Statements.

 

**17.12**    Pari passu ranking

 

Each Obligor’s payment obligations under the FinanceDocuments rank at least *pari passu* withthe claims of all its other unsecured and unsubordinated creditors, except forobligations mandatorily preferred by law applying to companies generally.

 

**17.13**    No proceedings pending orthreatened

 

Save as fully, fairly and specifically disclosed to theAgent in writing prior to the date of this Agreement and except for anyfrivolous or vexatious proceedings which are being contested in good faith andwith appropriate action and which are discharged, stayed or dismissed within 30days from commencement, no litigation, arbitration or administrativeproceedings of or before any court, arbitral body or agency (including anyarising from or relating to Environmental Law) have been started or threatenedagainst any Obligor or any of its Subsidiaries.

 

**17.14**    Title

 

EachObligor and each of its Subsidiaries has good and marketable title to, or validleases or licences of, or is otherwise entitled to use, all material assetsnecessary for the conduct of its business as it is being, and is proposed tobe, conducted.

 

**17.15**    Environmental Laws andEnvironmental Licences

 

Except as fully, fairly and specifically disclosed to theAgent in writing prior to the date of this Agreement, each Obligor and each ofits Subsidiaries 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.

 

**17.16**    Environmental releases

 

No:

 

(a)           propertycurrently or previously owned, leased, occupied or controlled by any Obligor orany of its Subsidiaries (including any offsite waste management or disposallocation utilised by it or any of its Subsidiaries) is contaminated with anyHazardous Substance; 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.

 

**17.17**    Taxes

 

(a)         EachObligor 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)         EachObligor 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 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.

 

**17.18**    Pensions,undisclosed liabilities

 

(a)         Nomember of the Group has any material liability in respect of any pension schemeor otherwise and there are no circumstances which would give rise to such aliability.

 

(b)         Each member of the Group is in compliance with all applicable lawsand contracts relating to and the governing provisions of the pension schemesmaintained by or for the benefit of any member of the Group and/or any of itsemployees.

 

**17.19**    Immunity

 

(a)         Theexecution by each Obligor of each Finance Document to which it is a partyconstitutes, and the exercise by it of its rights and performance of itsobligations under each Finance Document will constitute, private and commercialacts performed for private and commercial purposes.

 

(b)         NoObligor will be entitled to claim immunity from suit, execution, attachment orother legal process in any proceedings taken in any jurisdiction in relation toany Finance Document.

 

**17.20**    Group Structure Chart

 

The Group Structure Chart delivered pursuant to Part I of Schedule2 (*Conditions precedent and subsequent*) iscomplete and accurate.

 

----

 

**17.21**    Solvency

 

(a)         NoObligor is 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 of enteringinto any Finance Document, and/or performing any transaction contemplated byany Finance Document.

 

(b)         NoObligor has 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*).

 

**17.22**    No Security

 

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

 

**17.23**    Repetition

 

The Repeating Representations are deemed to be made by theBorrower 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.

 

**18.**        INFORMATION UNDERTAKINGS

 

The undertakings in this Clause 18 remain in force from thedate of this Agreement for so long as any amount is outstanding under theFinance Documents or any Commitment is in force.

 

**18.1**      Financial statements

 

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

 

(a)            assoon as the same become available but in any event within:

 

(i)           180days after the end of the Borrower’s financial years its audited consolidatedfinancial statements for that financial year prepared in accordance with GAAP;

 

(ii)          90 daysafter the end of each half of the Borrower’s financial years its consolidatedfinancial statements for that financial half year prepared in accordance withGAAP;

 

(iii)         90 daysafter the end of each quarter of the Borrower’s financial years, itsconsolidated financial statements for that financial quarter prepared inaccordance with GAAP;

 

(b)           assoon as the same become available but in any event within 180 days after theend of each of that Obligor’s financial years, that Obligor’s audited financialstatements (stand-alone in the case of the Borrower) for that financial yearprepared in accordance with RAS;

 

(c)           assoon as the same become available but in any event within 95 days after the endof each of that Obligor’s financial years, that Obligor’s unaudited financialstatements (stand-alone in the case of the Borrower) for that financial yearprepared in accordance with RAS;

 

----

 

(d)           assoon as the same become available, but in any event within 35 days after theend of each quarter of each of that Obligor’s financial years, that Obligor’sfinancial statements for that financial quarter prepared in accordance withRAS; and

 

(e)            assoon as the same becomes available, but in any event not later than 30 April inany financial year, the updated business model of the Group (substantially inthe form of the business model delivered to the Agent pursuant to Clause 4.1 (*Initial conditions precedent*)) for the immediately followingfinancial year.

 

**18.2**      Compliance Certificate

 

(a)         TheBorrower shall supply to the Agent, with each set of financial statementsdelivered pursuant to paragraphs (a) to (c) of Clause 18.1 (*Financial statements*), a Compliance Certificate setting out(in reasonable detail) computations as to compliance with Clause 19**(*Financial covenants*)as at the date at which those financial statements were drawn up and confirmingthat no Default is continuing as at the date of the Compliance Certificate.

 

(b)         EachCompliance Certificate shall be signed by the general director and the chiefaccountant of the Borrower and, if required to be delivered with the financialstatements delivered pursuant to paragraph (a)(i) of Clause 18.1 (*Financial statements*), shall be confirmed by the Borrower’sauditors in the form agreed by the Borrower and all the Lenders before the dateof this Agreement.

 

**18.3**      Requirements as to financialstatements

 

(a)         Each setof financial statements delivered by the Borrower pursuant to Clause 18.1 (*Financial statements*) shall be certified by the general directorand the chief accountant of the relevant company as fairly representing its(or, as the case may be, its consolidated) financial condition and operationsas at the end of and for the period in relation to which those financialstatements were drawn up.

 

(b)         TheBorrower shall procure that each set of financial statements of an Obligordelivered pursuant to Clause 18.1 (*Financial statements*)is prepared using GAAP or RAS (as the case may be), accounting practices andfinancial reference periods consistent with those applied in the preparation ofthe Original Financial Statements for that Obligor unless, in relation to anyset of financial statements, it notifies the Agent that there has been a changein GAAP or RAS (as the case may be), the accounting practices or referenceperiods and its auditors (or, if appropriate, the auditors of the Obligor)deliver to the Agent:

 

(i)             adescription of any change necessary for those financial statements to reflectRAS, or GAAP (as the case may be), accounting practices and reference periodsupon which that Obligor’s Original Financial 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*) has been complied with and make an accurate comparisonbetween the financial position indicated in those financial statements and thatObligor’s Original Financial Statements.

 

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Any reference in this Agreement 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.

 

**18.4**      Information: miscellaneous

 

The Borrower shall supply to the Agent (in sufficient copiesfor all the Lenders, if the Agent so requests):

 
| (a)    |   | all documents dispatched by the Borrower  to its shareholders (or any class of them) or its creditors generally at the  same time as they are dispatched;                                                                                                                                                                                           |
|--------|--------|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |   |                                                                                                                                                                                                                                                                                                                                                |
| (b)    |   | promptly upon becoming aware of them, the  details of any litigation, arbitration or administrative proceedings which  are current, threatened or pending against any member of the Group and which  is reasonably likely to be adversely determined and, if adversely determined,  could reasonably be expected to have a Material Adverse Effect; |
|   |   |                                                                                                                                                                                                                                                                                                                                                |
| (c)    |   | promptly upon any change in the corporate  structure of the Group, an updated Group Structure Chart; and                                                                                                                                                                                                                                            |
|   |   |                                                                                                                                                                                                                                                                                                                                                |
| (d)    |   | promptly, such further information  regarding the financial condition, business and operations of any member of  the Group as any Finance Party (through the Agent) may reasonably request.                                                                                                                                                         |

 

**18.5**      Notification of default

 

(a)         TheBorrower shall notify the Agent of any Default (and the steps, if any, beingtaken to remedy it) promptly upon becoming aware of its occurrence (unless theBorrower is aware that a notification has already been provided by anotherObligor).

 

(b)         Promptlyupon a request by the Agent, the Borrower shall supply to the Agent acertificate signed by two of its directors or senior officers on its behalfcertifying that no Default is continuing (or if a Default is continuing,specifying the Default and the steps, if any, being taken to remedy it).

 

**18.6**      “Know your customer” checks

 

(a)         If:

 

(i)             theintroduction of or any change in (or in the interpretation, administration orapplication of) any law or regulation made after the date of this Agreement;

 

(ii)            anychange in the status of an Obligor after the date of this Agreement; or

 

(iii)           aproposed assignment or transfer by a Lender of any of its rights andobligations under this Agreement to a party that is not a Lender prior to suchassignment or transfer,

 

obliges the Agent or any Lender (or, in the case ofparagraph (iii) above, any prospective new Lender) to comply with “knowyour customer” or similar identification procedures in circumstances where thenecessary information is not already available to it, the Borrower shall, andshall procure that each Obligor shall, promptly upon the request of the Agentor any Lender supply, or procure the supply of, such documentation and otherevidence as is reasonably requested by the Agent (for itself or on behalf ofany Lender) or any Lender (for itself or, in the case of the event described inparagraph (iii) above, on behalf of any prospective new Lender) in orderfor the Agent, such Lender or, in the case of the event described in paragraph (iii) above,

 

----

 

any prospective new Lender to carry out and be satisfied ithas complied with all necessary “know your customer” or other similar checksunder all applicable laws and regulations pursuant to the transactionscontemplated in the Finance Documents.

 

(b)         EachLender shall promptly upon the request of the Agent supply, or procure thesupply of, such documentation and other evidence as is reasonably requested bythe Agent (for itself) in order for the Agent to carry out and be satisfied ithas complied with all necessary “know your customer” or other similar checksunder all applicable laws and regulations pursuant to the transactions contemplatedin the Finance Documents.

 

**19.**         FINANCIAL COVENANTS

 

**19.1**       Financial condition

 

(a)         At anytime, in relation to the Group on a consolidated basis, the ratio of Total Debtto Adjusted EBITDA shall not exceed 3.5:1.

 

(b)         For eachRelevant Period ending on a Relevant Date, in relation to the Group on aconsolidated basis, the ratio of Adjusted EBITDA to Interest Expense shall notbe less than 4:1.

 

(c)         For eachRelevant Period ending on a Relevant Date, the ratio of the combined AdjustedEBITDA of the Obligors (construed by reference to their stand-alone financialstatements) to the consolidated Adjusted EBITDA of the Group shall not be lessthan 0.7:1.

 

(d)         For eachRelevant Period ending on a Relevant Date, the ratio of the combined TotalAssets of the Obligors (construed by reference to their stand-alone financialstatements) to the consolidated Total Assets of the Group shall not be lessthan 0.7:1.

 

**19.2**      Financial covenant calculations

 

(a)         TotalDebt, Adjusted EBITDA, Interest Expense and Total Assets shall be calculatedand interpreted in accordance with GAAP applicable to the Original FinancialStatements and shall be expressed in Dollars.

 

(b)         TotalDebt, Adjusted EBITDA, Interest Expense and Total Assets shall be determinedfrom the financial statements delivered under Clause 18.1 (*Financialstatements*) and the Compliance Certificates delivered under Clause18.2 (*Compliance Certificate*)**in which the combined Adjusted EBITDA and the combinedTotal Assets of the Obligors shall be calculated on the basis of the pro-formaGAAP statements of each Obligor for each Relevant Period.

 

(c)         For thepurpose of paragraph (c) of Clause 19.1 (*Financialcondition*) the combined Adjusted EBITDA of the Obligors shallexclude any Adjusted EBITDA attributable to intra-Group sales, if any.

 

(d)         For thepurpose of paragraph (d) of Clause 19.1 (*Financialcondition*) the combined Total Assets of the Obligors shall excludeany intra-Group items, including but not limited to:

 

(i)             anyinvestment made by any Obligor in any other member of the Group;

 

(ii)            anyintra-Group loans granted by an Obligor to any other member of the Group; or

 

(iii)           anyreceivables due to any Obligor from any other member of the Group.

 

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**19.3**      Financial definitions

 

In this Clause 19:

 

“**Adjusted****EBITDA**” means the total consolidated netprofit of the Group or the net profit of the relevant Obligor (as applicable):

 

(a)            beforetaking into account:

 

(i)           InterestExpense;

 

(ii)          interestincome;

 

(iii)         Tax;

 

(iv)         profits(or losses) attributable to minority interests in any member of the Group orthe relevant Obligor (as applicable);

 

(v)         anyshare of the profit of any associated company or undertaking, except fordividends or other profit distributions (net of Tax) received in cash by anymember of the Group or the relevant Obligor (as applicable);

 

(vi)         allextraordinary and exceptional items; and

 

(vii)        exchangerate gains (or losses) arising due to the re-translation of balance sheet itemsand mark-to-market adjustments on currency swaps;

 

(b)           afterexcluding (to the extent included) any gains or losses on the disposal orrevaluation of assets (other than in the ordinary course of trading);

 

(c)            afteradding any business interruption loss incurred which is covered by insuranceand which is not added back to the total consolidated net profit of the Groupor the relevant Obligor (as applicable) in accordance with GAAP;

 

(d)           afteradding back all amounts provided for depreciation and amortisation (includingacquisition goodwill); and

 

(e)            includingthe Adjusted EBITDA of a member of the Group acquired by the Group or therelevant Obligor (as applicable) during that Relevant Period for the part ofthat Relevant Period when it was not a member of the Group but excluding theAdjusted EBITDA attributable to any member of the Group sold by the Group orthe relevant Obligor (as applicable) during that Relevant Period.

 

“**Interest Expense**”means, in relation to any Relevant Period, the aggregate amount of interest andany other finance charges (whether or not paid, payable or capitalised) accruedby the Group in that Relevant Period in respect of Total Debt (where “otherfinancial charges” include, but are not limited to, such items as:

 

(a)            theinterest element of leasing and hire purchase payments;

 

(b)           commitmentfees, commissions, arrangement fees and guarantee fees; and

 

(c)            prepaymentfees),

 

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adjusted (but without double counting) by adding back the net amountpayable (or deducting the net amount receivable) by any member of the Group inrespect of that Relevant Period under any interest or (so far as they relate tointerest) currency hedging arrangements.

 

“**Relevant Date**”means:

 

(a)            forthe purposes of paragraphs (a) and (b) of Clause 19.1 (*Financial condition*), the last day of each financial quarterof a financial year; and

 

(b)           forthe purposes of paragraphs (c) and (d) of Clause 19.1 (*Financial condition*), the last day of each half of afinancial year,

 

being the dates as at (or to) which a particular ratio is tested.

 

“**Relevant Period**”means:

 

(a)            forthe purposes of paragraphs (a) and (b) of Clause 19.1 (*Financial condition*), each period of four consecutivefinancial quarters ending on a Relevant Date; and

 

(b)           forthe purposes of paragraphs (c) and (d) of Clause 19.1 (*Financial condition*), each period of two consecutivefinancial half-years ending on a Relevant Date.

 

“**Total Assets**”means, in respect of an Obligor, the total assets of that Obligor as construedby reference to the stand-alone financial statements of that Obligor and, inrespect of the Group, the total assets of the Group as construed by referenceto the consolidated financial statements of the Borrower, in each case,delivered pursuant to Clause 18.1 (*Financial statements*).

 

“**Total Debt**”means, as at any particular time, the aggregate outstanding principal, capitalor nominal amount (and any fixed or minimum premium payable on prepayment orredemption) of the Financial Indebtedness of the Group (other than anyindebtedness referred to in paragraph (g) of the definition of FinancialIndebtedness and any guarantee or indemnity in respect of that indebtedness).

 

For this purpose, any amount outstanding or repayable in acurrency other than Dollars shall on that day be taken into account in itsDollar equivalent at the rate of exchange that would have been used had anaudited consolidated balance sheet of the Group been prepared as at that day inaccordance with GAAP applicable to the Original Financial Statements of theGroup.

 

**20.**         GENERAL UNDERTAKINGS

 

The undertakings in this Clause 20 remain in force from thedate of this Agreement for so long as any amount is outstanding under theFinance Documents or any Commitment is in force.

 

**20.1**       Authorisations

 

The Borrower shall, and shall procure that each otherObligor 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 underthe Finance Documents and to ensure the legality, 

 

----

 

validity, enforceability or admissibility in evidence in itsjurisdiction of incorporation of any Finance Document.

 

**20.2**       Compliance with laws

 

The Borrower shall, and shall procure that each other Obligorwill, comply in all respects with all laws to which it may be subject, iffailure so to comply is reasonably likely to impair its ability to perform itsobligations under the Finance Documents.

 

**20.3**       Negative pledge

 

The Borrower shall not, and shall procure that no othermember of the Group will, create or permit to subsist any Security over any ofits assets other than Permitted Security.

 

**20.4**       Disposals

 

The Borrower shall not, and shall procure that no othermember of the Group 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.

 

**20.5**       Distributions

 

The Borrower shall not declare, pay or make any dividend orother payment or distribution of any kind on or in respect of any of its sharesin respect of any financial year in an amount exceeding 40 per cent. of netprofits of the Group for such financial year as construed by reference to theconsolidated financial statements of the Borrower delivered under paragraph (a) ofClause 18.1 (*Financial statements*).

 

**20.6**       Reorganisation

 

The Borrower shall not (and shall ensure that no othermember of the Group will) enter into or become subject to any consolidation orreorganisation, whether by way of merger (*sliyaniyeobschestva*), company accession (*prisoedinyeniyeobschestva*), company division (*razdelyeniyeobschestva*), 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.

 

**20.7**       Acquisitions

 

Save with the prior written consent of the Agent, theBorrower shall not (and shall ensure that no other member of the Group will)make any 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*);

 

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

 

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

 

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**20.8**       Change of business

 

The Borrower shall procure that no change is made to thegeneral nature of the business of the Group as a whole from that carried on atthe date of this Agreement.

 

**20.9**       Insurance

 

The Borrower shall, and shall procure that each otherObligor will, maintain insurances on and in relation to its business and assetswith reputable underwriters or insurance companies.

 

**20.10**     Environmental undertakings

 

The Borrower shall, and shall procure that each otherObligor will:

 

(a)            comply with 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.

 

**20.11**               Environmental claims

 

The Borrower shall, and shall procure that each otherObligor 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.

 

**20.12**     Loans

 

(a)         TheBorrower shall not, and shall ensure that no other Obligor shall, without theprior written consent of the Agent, make any loans or grant any credit to orfor the benefit of any person.

 

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

 

(i)             anytrade credit extended by any Obligor to its customers on arm’s length terms andin the ordinary course of trading;

 

(ii)            anyunsecured loans granted byan Obligor to another Obligor;

 

(iii)                                any loans granted by an Obligor to any other member of the Group whichis not an Obligor on arm’s length terms and solely for the purpose ofdeveloping the baby food, agricultural, dairy or beverage business of theGroup; or

 

(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.

 

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**20.13**     Guarantees

 

TheBorrower shall not, and shall ensure that no other Obligor shall, without theprior written consent of the Agent, grant any guarantee or indemnity to or forthe benefit of any person or otherwise voluntarily assume any liability,whether actual or contingent, in respect of any obligation of any other person,other than:

 

(a)            anyguarantee granted by an Obligor 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 the Finance Documents; or

 

(c)            anyPermitted Guarantee.

 

**20.14**               Acknowledgement following Agreed Reorganisation

 

Followingcompletion of the Agreed Reorganisation, the Borrower shall:

 

(a)         if the AgreedReorganisation in relation to the Borrower is by way of:

 

(i)          the merger of theBorrower and WBD, (A) if required or desirable in accordance withapplicable law, assign its rights and novate its obligations under the FinanceDocuments to which it is a party to the resulting entity and (B) procurethat the resulting entity shall acknowledge such rights and obligations as ifit were an original party to this Agreement; or

 

(ii)         the accession ofWBD to the Borrower such that the Borrower is the surviving entity, acknowledgeits rights and obligations under the Finance Documents to which it is a party;and

 

(b)         if the AgreedReorganisation in relation to WBD Beverages is by way of:

 

(i)          the merger of WBDBeverages and certain other Subsidiaries of the Borrower, (A) if requiredor desirable in accordance with applicable law, procure that WBD Beveragesshall assign its rights and novate its obligations under the Finance Documentsto which it is a party to the resulting entity and (B) procure that theresulting entity shall acknowledge such rights and obligations as if it were anoriginal party to the relevant Finance Document; or

 

(ii)         the accession ofsuch Subsidiaries to WBD Beverages such that WBD Beverages is the survivingentity, procure that WBD Beverages shall acknowledge its rights and obligationsunder the Finance Documents to which it is a party,

 

in each case, in form and substancesatisfactory to the Agent.

 

**20.15**     Submission of documents to Russian bank

 

The Borrower shall (and shall ensure that each other Obligorwill) comply in all respects with applicable currency control laws andregulations to which it may be subject in connection with the entry into, andperformance of its obligations under, the Finance Documents and shall (andshall ensure that each other Obligor will), *inter alia*,timely submit to the relevant Russian authorised bank (including, whererelevant, the Passport Bank) through which payments to and from it under thisAgreement and/or other Finance Documents, as the case may be, are to be made,such documents and other information as may be required from time to time under

 

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Instruction 117-I and applicable currency control laws andregulations for the purpose of the receipt and making of such payments, inaccordance with the procedure described therein and in form and substancesatisfactory to that Russian authorised bank.

 

**21.**         EVENTS OF DEFAULT

 

Each of the events or circumstances set out in this Clause21 is an Event of Default (save for Clause 21.19 (*Acceleration*)).

 

**21.1**       Non-payment

 

An Obligor does not pay on the due date any amount payablepursuant to a Finance Document at the place at and in the currency in which itis expressed to be payable unless:

 

(a)            itsfailure to pay is caused by administrative or technical error; and

 

(b)           paymentis made within three Business Days of its due date.

 

**21.2**       Financial covenants

 

Any requirement of Clause 19 (*Financial covenants*)is not satisfied.

 

**21.3**       Other obligations

 

(a)              An Obligor does not comply with any provision of any FinanceDocument (other than those referred to in Clause 4.3 (*Conditionssubsequent*), Clause 21.1 (*Non-payment*)and Clause 21.2 (*Financial covenants*)).

 

(b)              No Event of Default under paragraph (a) above will occur if thefailure to comply is capable of remedy and is remedied within 10 Business Daysof the Agent giving notice to the Borrower or the Borrower becoming aware ofthe failure to comply (whichever occurs earlier).

 

**21.4**       Misrepresentation

 

Any representation or statement made or deemed to be made byan Obligor in any Finance Document or any other document delivered by or onbehalf of any Obligor under or in connection with any Finance Document is orproves to have been incorrect or misleading in any material respect when madeor deemed to be made.

 

**21.5**                     Cross default

 

(a)         AnyFinancial Indebtedness of any member of the Group is not paid when due norwithin any originally applicable grace period.

 

(b)         AnyFinancial Indebtedness of any member of the Group is declared to be orotherwise becomes due and payable prior to its specified maturity as a resultof an event of default (however described).

 

(c)         Anycommitment for any Financial Indebtedness of any member of the Group iscancelled or suspended by a creditor of any member of the Group as a result ofan event of default (however described).

 

(d)         Anycreditor of any member of the Group becomes entitled to declare any FinancialIndebtedness of any member of the Group due and payable prior to its specifiedmaturity as a result of an event of default (however described).

 

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(e)         No Eventof Default will occur under this Clause 21.5 if the aggregate amount ofFinancial Indebtedness or commitment for Financial Indebtedness falling withinparagraphs (a) to (d) above (when aggregated with the aggregateamount of Financial Indebtedness falling within Clause 21.6 (*Statutory rights resulting from Agreed Reorganisation*)) ofthe Group on a consolidated basis is less than USD15,000,000 (or its equivalentin any other currency or currencies).

 

**21.6**       Statutory rights resulting fromAgreed Reorganisation

 

(a)         AnyFinancial Indebtedness of any member of the Group is declared to be orotherwise becomes due and payable prior to its specified maturity as a resultof the exercise by a creditor of a member of the Group, being a subject of theAgreed Reorganisation, of its statutory right to accelerate the repayment ofthe debt owed to it, as conferred upon it by statute following the announcementof the Agreed Reorganisation.

 

(b)         No Eventof Default will occur under this Clause 21.6 if the aggregate amount ofFinancial Indebtedness falling within paragraph (a) above (when aggregatedwith the aggregate amount of Financial Indebtedness and commitment forFinancial Indebtedness falling within paragraphs (a) to (d) of Clause21.5 (*Cross default)*) of the Group on aconsolidated basis is less than USD15,000,000 (or its equivalent in any othercurrency or currencies).

 

**21.7**       Insolvency

 

(a)         A memberof the Group is unable or admits inability to pay its debts as they fall due,suspends making payments on any of its debts or, by reason of actual oranticipated financial difficulties, commences negotiations with one or more ofits creditors with a view to rescheduling any of its indebtedness.

 

(b)         Thevalue of the assets of any member of the Group (as determined in accordancewith GAAP) is less than its liabilities (taking into account contingent andprospective liabilities).

 

(c)         A moratoriumis declared in respect of any indebtedness of any member of the Group.

 

**21.8**       Insolvency proceedings

 

Any corporate action, legal proceedings or other procedureor step is taken in relation to or any petition is presented for:

 

(a)            thesuspension of payments, a moratorium of any indebtedness, winding-up,dissolution, liquidation, bankruptcy, insolvency, financial rehabilitation,administration or reorganisation (by way of voluntary arrangement, scheme ofarrangement or otherwise) of any member of the Group (other than an intra-Groupvoluntary merger or reorganisation on a solvent basis of any member of theGroup which constitutes the Agreed Reorganisation), including, but not limitedto, implementation of pre-judicial recovery (*dosudebnayasanatsiya*) or institution of supervision (*nablyudeniye*),financial rehabilitation (*finansovoe ozdorovlenie*),external management (*vneshneye upravlenie*)or bankruptcy management (*konkursnoye proizvodstvo*);

 

(b)           acomposition, compromise, assignment or arrangement with any creditor of anymember of the Group;

 

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(c)            theappointment of a liquidator (*likvidator*) ora liquidation commission (*likvidatsionnaya komissiya*)(other than in respect of a voluntary solvent liquidation of a member of theGroup which is not an Obligor), temporary manager (*vremennyiupravlaushiy*), administrative manager (*administrativniyupravlaushiy*), external manager (*vneshniy upravlaushiy*),bankruptcy manager (*konkursniy upravlaushiy*),receiver, administrative receiver, administrator, compulsory manager or othersimilar officer in respect of any member of the Group or any of its assets;

 

(d)                                  the convening or announcement of an intention to convene a meetingof creditors of any member of the Group for the purposes of considering anamicable settlement (as defined in the Russian Insolvency Law); or

 

(e)            theenforcement of any Security over any asset or assets of any member of theGroup,

 

or any analogous procedure or step is taken in anyjurisdiction.

 

**21.9**       Creditors’ process

 

Any expropriation, attachment, sequestration, distress orexecution affects any asset or assets of any Obligor with an aggregate value ofnot less than USD15,000,000 (or equivalent in other currencies) andis not discharged within 15 Business Days.

 

**21.10**     Ownership or control of the Guarantors

 

Save as a result of the Agreed Reorganisation, the ownershipor control (whether legal or beneficial, and whether direct or indirect) of anyof the Guarantors changes without the prior consent of the Agent, acting on theinstructions of all the Lenders.

 

**21.11**     Unlawfulness

 

It is or becomes unlawful for an Obligor to perform any ofits obligations under a Finance Document.

 

**21.12**     Repudiation

 

An Obligor repudiates a Finance Document or evidences inwriting an intention to repudiate a Finance Document.

 

**21.13**     Litigation

 

Any litigation, arbitration, proceeding or dispute isstarted or threatened in writing against any member of the Group that isreasonably likely to have a Material Adverse Effect.

 

**21.14**     Failure to comply with finaljudgment

 

Any member of the Group fails to comply with a bindingjudgment or any final order made or given by any court of competentjurisdiction which, in respect of non-Obligors only, might have a MaterialAdverse Effect.

 

**21.15**     Material adverse change

 

Any event or circumstance exists, has occurred or isreasonably likely to occur that the Majority Lenders reasonably determine has aMaterial Adverse Effect.

 

**21.16**     Cessationof business

 

AnyObligor suspends or ceases (or threatens to suspend or cease) to carry on allor a material part of its business except as a result of the AgreedReorganisation.

 

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**21.17**     Taxes

 

A Tax claim is presented to an Obligor or any of itsSubsidiaries unless:

 

(a)            it isbeing contested by it in goodfaith and in accordance with the relevant procedures, for which adequatereserves are being maintained in accordance with GAAP and where payment can belawfully withheld and will not result in the imposition of any penalty nor inany attachment or freezing of its assets; or

 

(b)           the non-payment of such Tax claim is not likely to have a MaterialAdverse Effect.

 

**21.18**      Sovereign intervention

 

(a)         By orunder the authority of any government:

 

(i)             themanagement of any member of the Group is wholly or materially displaced or theauthority of any member of the Group in the conduct of its business is whollyor partially curtailed;

 

(ii)            anyof the revenues of the Group or any Material Asset(s) is seized,nationalised, expropriated or compulsorily acquired; or

 

(iii)           anymember of the Group is otherwise deprived of, or prevented from exercising,ownership or control of all or any part of its business, assets or rights, thevalue of which (as determined in accordance with GAAP) exceeds 5 per cent. inaggregate of the Total Assets of the Group.

 

(b)         Anyforeign exchange law is enacted or introduced in the Russian Federation,Ukraine, Georgia, Kyrgyzstan or Uzbekistan which, in the opinion of the Agent,has or might have the effect of preventing or delaying any payment under anyFinance Document.

 

(c)         A moratoriumis called on the payment of interest or repayment of principal on internationaldebts of Russian borrowers generally or a class thereof to which the Borroweror any other Obligor belongs which has the effect of preventing or delaying anypayment under any Finance Document.

 

(d)         Adeterioration occurs in the political or economic situation in any of theRussian Federation, Ukraine, Georgia, Kyrgyzstan or Uzbekistan or an act of waror hostilities, invasion, armed conflict or act of foreign enemy, revolution,insurrection, insurgency or threat thereof occurs in or involving any of theRussian Federation, Ukraine, Georgia, Kyrgyzstan or Uzbekistan which (in anycase and in the reasonable opinion of the Majority Lenders) has or mightreasonably be expected to have a Material Adverse Effect.

 

**21.19**               Acceleration

 

On and at any time after the occurrence of an Event ofDefault which is continuing the Agent may, and shall if so directed by theMajority Lenders, by notice to the Borrower:

 

(a)            cancelthe Total Commitments whereupon they shall immediately be cancelled; and/or

 

(b)                 declare that all or part of the Loans, together with accruedinterest, and all other amounts accrued or outstanding under the FinanceDocuments be immediately due and payable, whereupon they shall becomeimmediately due and payable; and/or

 

----

 

(c)            declarethat all or part of the Loans be payable on demand, whereupon they shallimmediately become payable on demand by the Agent on the instructions of theMajority Lenders.

 

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**SECTION 8**

 

**CHANGES TOPARTIES**

 

**22.**         CHANGES TO THE LENDERS

 

**22.1**       Assignments and transfers bythe Lenders

 

Subject to this Clause 22, a Lender (the “**Existing Lender**”) may:

 

(a)            assignany of its rights; or

 

(b)           transferby novation any of its rights and obligations,

 

to another bank or financial institution or to a trust, fundor other entity which is regularly engaged in or established for the purpose ofmaking, purchasing or investing in loans, securities or other financial assets(the “**New Lender**”).

 

**22.2**                     Conditions of assignment or transfer

 

(a)         Theconsent of the Borrower is required for an assignment or transfer by anExisting Lender, unless the assignment or transfer is to another Lender or anAffiliate of a Lender or an Event of Default is continuing.

 

(b)         The consentof the Borrower to an assignment or transfer must not be unreasonably withheldor delayed. The Borrower will be deemed to have given its consent five BusinessDays after the Existing Lender has requested it unless consent is expresslyrefused by the Borrower within that time.

 

(c)         Theconsent of the Borrower to an assignment or transfer must not be withheldsolely because the assignment or transfer may result in an increase to theMandatory Cost.

 

(d)         Anassignment will only be effective on:

 

(i)             receiptby the Agent of written confirmation from the New Lender (in form and substancesatisfactory to the Agent) that the New Lender will assume the same obligationsto the other Finance Parties as it would have been under if it was an OriginalLender; and

 

(ii)            performanceby the Agent of all necessary “know your customer” or other similar checksunder all applicable laws and regulations in relation to such assignment to aNew Lender, the completion of which the Agent shall promptly notify to theExisting Lender and the New Lender.

 

(e)         Atransfer will only be effective if the procedure set out in Clause 22.5 (*Procedure for transfer*) is complied with.

 

(f)          If:

 

(i)             aLender assigns or transfers any of its rights or obligations under the FinanceDocuments or changes its Facility Office; and

 

(ii)            as aresult of circumstances existing at the date the assignment, transfer or changeoccurs, an Obligor would be obliged to make a payment to the New Lender orLender acting through its new Facility Office under Clause 12 (*Tax gross-up and indemnities*), or Clause 4.1 (*Tax Gross-up*) of the Guarantees, or Clause 13 (*Increased costs*),

 

----

 

then the New Lender or Lender acting through its newFacility Office is only entitled to receive payment under those Clauses to thesame extent as the Existing Lender or Lender acting through its previousFacility Office would have been if the assignment, transfer or change had notoccurred.

 

**22.3**       Assignment or transfer fee

 

Each New Lender shall, on the date upon which an assignmentor transfer takes effect, pay to the Agent (for its own account) a fee ofUSD2,000 unless such assignment or transfer is to an Affiliate of an ExistingLender in which case no fee shall be payable.

 

**22.4**       Limitation of responsibility of Existing Lenders

 

(a)         Unlessexpressly agreed to the contrary, an Existing Lender makes no representation orwarranty and assumes no responsibility to a New Lender for:

 

(i)             thelegality, validity, effectiveness, adequacy or enforceability of the FinanceDocuments or any other documents;

 

(ii)            thefinancial condition of any Obligor;

 

(iii)           the performance and observance by any Obligor of its obligationsunder the Finance Documents or any other documents; or

 

(iv)          theaccuracy of any statements (whether written or oral) made in or in connectionwith any Finance Document or any other document,

 

and any representations or warranties implied by law areexcluded.

 

(b)         Each NewLender confirms to the Existing Lender and the other Finance Parties that it:

 

(i)             hasmade (and shall continue to make) its own independent investigation andassessment of the financial condition and affairs of each Obligor and itsrelated entities in connection with its participation in this Agreement and hasnot relied exclusively on any information provided to it by the Existing Lenderin connection with any Finance Document; and

 

(ii)            willcontinue to make its own independent appraisal of the creditworthiness of eachObligor and its related entities whilst any amount is or may be outstandingunder the Finance Documents or any Commitment is in force.

 

(c)         Nothingin any Finance Document obliges an Existing Lender to:

 

(i)             accepta re-transfer from a New Lender of any of the rights and obligations assignedor transferred under this Clause 22; or

 

(ii)            supportany losses directly or indirectly incurred by the New Lender by reason of thenon-performance by any Obligor of its obligations under the Finance Documentsor otherwise.

 

**22.5**       Procedure for transfer

 

(a)         Subjectto the conditions set out in Clause 22.2 (*Conditions of assignmentor transfer*) a transfer is effected in accordance with paragraph (c) belowwhen the Agent executes an otherwise duly completed Transfer Certificatedelivered to it by the Existing Lender and the New Lender. The 

 

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Agent shall, subject to paragraph (b) below, assoon as reasonably practicable after receipt by it of a duly completed TransferCertificate appearing on its face to comply with the terms of this Agreementand delivered in accordance with the terms of this Agreement, execute thatTransfer Certificate.

 

(b)         TheAgent shall only be obliged to execute a Transfer Certificate delivered to itby the Existing Lender and the New Lender once it is satisfied it has compliedwith all necessary “know your customer” or other similar checks under allapplicable laws and regulations in relation to the transfer to such New Lender.

 

(c)         On theTransfer Date:

 

(i)             tothe extent that in the Transfer Certificate the Existing Lender seeks totransfer by novation its rights and obligations under the Finance Documents,each of the Obligors and the Existing Lender shall be released from furtherobligations towards one another under the Finance Documents and theirrespective rights against one another under the Finance Documents shall becancelled (being the “**Discharged Rights andObligations**”);

 

(ii)            eachof the Obligors and the New Lender shall assume obligations towards one anotherand/or acquire rights against one another which differ from the DischargedRights and Obligations only insofar as that Obligor and the New Lender haveassumed and/or acquired the same in place of that Obligor and the ExistingLender;

 

(iii)           theAgent, the Arranger, the New Lender and other Lenders shall acquire the samerights and assume the same obligations between themselves as they would haveacquired and assumed had the New Lender been an Original Lender with the rightsand/or obligations acquired or assumed by it as a result of the transfer and tothat extent the Agent, the Arranger and the Existing Lender shall each be releasedfrom further obligations to each other under the Finance Documents; and

 

(iv)          the NewLender shall become a Party as a “Lender”.

 

**22.6**       Copy of Transfer Certificate toCompany

 

The Agent shall, as soon as reasonably practicable after ithas executed a Transfer Certificate, send to the Borrower a copy of thatTransfer Certificate.

 

**22.7**       Disclosure of information

 

Any Lender may disclose to any of its Affiliates and anyother person:

 

(a)            to(or through) whom that Lender assigns or transfers (or may potentially assignor transfer) all or any of its rights and obligations under this Agreement;

 

(b)           with(or through) whom that Lender enters into (or may potentially enter into) anysub-participation in relation to, or any other transaction under which paymentsare to be made by reference to, this Agreement or any Obligor;

 

(c)            towhom, and to the extent that, information is required to be disclosed by anyapplicable law or regulation;

 

----

 

any information about any Obligor, the Group and the FinanceDocuments as that Lender shall consider appropriate if, in relation toparagraphs (a) and (b) above, the person to whom the information isto be given has entered into a Confidentiality Undertaking. This Clause 22.7supersedes any previous agreement relating to the confidentiality of thisinformation.

 

**22.8**       Agreed Reorganisation

 

Subject to Clause 21.6 (*Statutory rights resultingfrom Agreed Reorganisation*), each Lender shall refrain fromexercising its statutory right to accelerate the repayment of the Liabilities,as conferred upon it by statute, following the announcement of the AgreedReorganisation.

 

**23.**         CHANGES TO THE BORROWER

 

No Obligor may assign any of its rights or transfer any ofits rights or obligations under the Finance Documents, except as permitted inaccordance with the Agreed Reorganisation.

 

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**SECTION 9**

 

**THE FINANCEPARTIES**

 

**24.**         ROLE OF THE AGENT AND THE ARRANGER

 

**24.1**       Appointment of the Agent

 

(a)         Eachother Finance Party appoints the Agent to act as its agent under and inconnection with the Finance Documents.

 

(b)         Eachother Finance Party authorises the Agent to exercise the rights, powers,authorities and discretions specifically given to it under or in connectionwith the Finance Documents together with any other incidental rights, powers,authorities and discretions.

 

**24.2**       Duties of the Agent

 

(a)         TheAgent shall promptly forward to a Party the original or a copy of any documentwhich is delivered to the Agent for that Party by any other Party.

 

(b)         Exceptwhere a Finance Document specifically provides otherwise, the Agent is notobliged to review or check the adequacy, accuracy or completeness of anydocument it forwards to another Party.

 

(c)         If theAgent receives notice from a Party referring to this Agreement, describing aDefault and stating that the circumstance described is a Default, it shallpromptly notify the Finance Parties.

 

(d)         If theAgent is aware of the non-payment of any principal, interest, commitment fee orother fee payable to a Finance Party (other than the Agent or the Arranger)under this Agreement, it shall promptly notify the other Finance Parties.

 

(e)         Theduties of the Agent under the Finance Documents are solely mechanical andadministrative in nature.

 

**24.3**       Role of the Arranger

 

Except as specifically provided in the Finance Documents,the Arranger has no obligations of any kind to any other Party under or inconnection with any Finance Document.

 

**24.4**       No fiduciary duties

 

(a)         Nothingin this Agreement constitutes the Agent (except as expressly provided in anyFinance Document) or the Arranger as a trustee or fiduciary of any otherperson.

 

(b)         Neitherthe Agent (except as expressly provided in any Finance Document) nor theArranger shall be bound to account to any Lender for any sum or the profitelement of any sum received by it for its own account.

 

**24.5**       Business with the Group

 

The Agent and the Arranger may accept deposits from, lendmoney to and generally engage in any kind of banking or other business with anymember of the Group.

 

**24.6**       Rights and discretions of theAgent

 

(a)         TheAgent may rely on:

 

----

 

(i)             anyrepresentation, notice or document believed by it to be genuine, correct andappropriately authorised; and

 

(ii)            anystatement made by a director, authorised signatory or employee of any personregarding any matters which may reasonably be assumed to be within hisknowledge or within his power to verify.

 

(b)         TheAgent may assume, unless it has received notice to the contrary in its capacityas agent for the Lenders, that:

 

(i)             noDefault has occurred (unless it has actual knowledge of a Default arising underClause 21.1 (*Non-payment*));

 

(ii)            anyright, power, authority or discretion vested in any Party or the MajorityLenders (or if appropriate, the Lenders) has not been exercised; and

 

(iii)           anynotice or request made by an Obligor (other than a Utilisation) is made onbehalf of and with the consent and knowledge of all the Obligors.

 

(c)         TheAgent may engage, at the cost of the Borrower, and rely on the advice orservices of any lawyers, accountants, surveyors or other experts.

 

(d)         TheAgent may act in relation to the Finance Documents through its personnel andagents.

 

(e)         TheAgent may disclose to any other Party any information it reasonably believes ithas received as agent under this Agreement.

 

(f)          Notwithstandingany other provision of any Finance Document to the contrary, neither the Agentnor the Arranger is obliged to do or omit to do anything if it would or mightin its reasonable opinion constitute a breach of any law or regulation or abreach of a fiduciary duty or duty of confidentiality.

 

**24.7**       Majority Lenders’ instructions

 

(a)         Unless acontrary indication appears in a Finance Document, the Agent shall (i) exerciseany right, power, authority or discretion vested in it as Agent in accordancewith any instructions given to it by the Majority Lenders (or, if so instructedby the Majority Lenders, refrain from exercising any right, power, authority ordiscretion vested in it as Agent) and (ii) not be liable for any act (oromission) if it acts (or refrains from taking any action) in accordance with aninstruction of the Majority Lenders.

 

(b)         Unless acontrary indication appears in a Finance Document, any instructions given bythe Majority Lenders will be binding on all the Finance Parties.

 

(c)         TheAgent may refrain from acting in accordance with the instructions of theMajority Lenders (or, if appropriate, the Lenders) until it has received suchsecurity as it may require for any cost, loss or liability (together with anyassociated VAT) which it may incur in complying with the instructions.

 

(d)         In theabsence of instructions from the Majority Lenders (or, if appropriate, theLenders), the Agent may act (or refrain from taking action) as it considers tobe in the best interests of the Lenders.

 

----

 

(e)         TheAgent is not authorised to act on behalf of a Lender (without first obtainingthat Lender’s consent) in any legal or arbitration proceedings relating to anyFinance Document.

 

**24.8**       Responsibility fordocumentation

 

Neither the Agent nor the Arranger:

 

(a)            isresponsible for the adequacy, accuracy and/or completeness of any information(whether oral or written) supplied by the Agent, the Arranger, an Obligor orany other person given in or in connection with any Finance Document; or

 

(b)           isresponsible for the legality, validity, effectiveness, adequacy orenforceability of any Finance Document or any other agreement, arrangement ordocument entered into, made or executed in anticipation of or in connectionwith any Finance Document.

 

**24.9**       Exclusion of liability

 

(a)         Withoutlimiting paragraph (b) below (and without prejudice to the provisions ofparagraph (e) of Clause 27.10 (*Disruptionto payment systems etc.*)), the Agent will not be liable for anyaction taken by it under or in connection with any Finance Document, unlessdirectly caused by its gross negligence or wilful misconduct.

 

(b)         No Party(other than the Agent) may take any proceedings against any officer, employeeor agent of the Agent in respect of any claim it might have against the Agentor in respect of any act or omission of any kind by that officer, employee oragent in relation to any Finance Document and any officer, employee or agent ofthe Agent may rely on this Clause 24.9.

 

(c)         TheAgent will not be liable for any delay (or any related consequences) increditing an account with an amount required under the Finance Documents to bepaid by it if it has taken all necessary steps as soon as reasonablypracticable to comply with the regulations or operating procedures of anyrecognised clearing or settlement system used by it for that purpose.

 

(d)         Nothingin this Agreement shall oblige the Agent or the Arranger to carry out any “knowyour customer” or other checks in relation to any person on behalf of anyLender and each Lender confirms to the Agent and the Arranger that it is solelyresponsible for any such checks it is required to carry out and that it may notrely on any statement in relation to such checks made by the Agent or theArranger.

 

**24.10**     Lenders’ indemnity to the Agent

 

Each Lender shall (in proportion to its share of the TotalCommitments or, if the Total Commitments are then zero, to its share of theTotal Commitments immediately prior to their reduction to zero) indemnify theAgent, within three Business Days of demand, against any cost, loss orliability incurred by the Agent (otherwise than by reason of the Agent’s grossnegligence or wilful misconduct) without prejudice to Clause 27.10 (*Disruption to payment systems etc.*) inacting as Agent under the Finance Documents (unless the Agent has beenreimbursed by an Obligor pursuant to a Finance Document).

 

**24.11**    Resignation of the Agent

 

(a)         TheAgent may resign and appoint one of its Affiliates as successor by givingnotice to the other Finance Parties and the Borrower.

 

----

 

(b)         Alternativelythe Agent may resign by giving notice to the other Finance Parties and theBorrower, in which case the Majority Lenders (after consultation with theBorrower) may appoint a successor Agent.

 

(c)         If theMajority Lenders have not appointed a successor Agent in accordance withparagraph (b) above within 30 days after notice of resignation was given,the Agent (after consultation with the Borrower) may appoint a successor Agent.

 

(d)         Theretiring Agent shall, at its own cost, make available to its successor suchdocuments and records and provide such assistance as its successor mayreasonably request for the purposes of performing its functions as Agent underthe Finance Documents.

 

(e)         Theresignation notice of the Agent shall only take effect upon the appointment ofa successor.

 

(f)          Uponthe appointment of a successor, the retiring Agent shall be discharged from anyfurther obligation in respect of the Finance Documents but shall remainentitled to the benefit of this Clause 24. Its successor and each of the otherParties shall have the same rights and obligations among themselves as theywould have had if such successor had been an original Party.

 

(g)         Afterconsultation with the Borrower, the Majority Lenders may, by notice to theAgent, require it to resign in accordance with paragraph (b) above. Inthis event, the Agent shall resign in accordance with paragraph (b) above.

 

**24.12**    Confidentiality

 

(a)         TheAgent (in acting as agent for the Finance Parties) shall be regarded as actingthrough its division which shall be treated as a separate entity from any otherof its divisions or departments.

 

(b)         Ifinformation is received by another division or department of the Agent, it maybe treated as confidential to that division or department and the Agent shallnot be deemed to have notice of it.

 

**24.13**    Relationship with the Lenders

 

(a)         TheAgent may treat each Lender as a Lender, entitled to payments under thisAgreement and acting through its Facility Office unless it has received notless than five Business Days’ prior notice from that Lender to the contrary inaccordance with the terms of this Agreement.

 

(b)         EachLender shall supply the Agent with any information required by the Agent inorder to calculate the Mandatory Cost in accordance with Schedule 4 (*Mandatory Cost formula*).

 

**24.14**    Credit appraisal by the Lenders

 

Without affecting the responsibility of any Obligor forinformation supplied by it or on its behalf in connection with any FinanceDocument, each Lender confirms to the Agent and the Arranger that it has been,and will continue to be, solely responsible for making its own independentappraisal and investigation of all risks arising under or in connection withany Finance Document including but not limited to:

 

(a)            thefinancial condition, status and nature of each member of the Group;

 

(b)          thelegality, validity, effectiveness, adequacy or enforceability of any FinanceDocument and any other agreement, Security, arrangement or document enteredinto, made or executed in anticipation of, under or in connection with anyFinance Document;

 

----

 

(c)            whetherthat Lender has recourse, and the nature and extent of that recourse, againstany Party or any of its respective assets under or in connection with anyFinance Document, the transactions contemplated by the Finance Documents or anyother agreement, Security, arrangement or document entered into, made orexecuted in anticipation of, under or in connection with any Finance Document;and

 

(d)          theadequacy, accuracy and/or completeness of any information provided by theAgent, any Party or by any other person under or in connection with any FinanceDocument, the transactions contemplated by the Finance Documents or any otheragreement, Security, arrangement or document entered into, made or executed inanticipation of, under or in connection with any Finance Document.

 

**24.15**    Reference Banks

 

If a Reference Bank (or, if a Reference Bank is not aLender, the Lender of which it is an Affiliate) ceases to be a Lender, theAgent shall (in consultation with the Borrower) appoint another Lender or anAffiliate of a Lender to replace that Reference Bank.

 

**24.16**    Management Time of the Agent

 

Any amount payable to the Agent under Clause 14.3 (*Indemnity to the Agent*), Clause 16 (*Costs andexpenses*) and Clause 24.10 (*Lenders’ indemnity to theAgent*) shall include the cost of utilising its management time orother resources and will be calculated on the basis of such reasonable daily orhourly rates as it may notify to the Borrower and the Lenders, and is inaddition to any fee paid or payable to it under Clause 11 (*Fees*).

 

**24.17**    Deduction from amounts payable bythe Agent

 

If any Party owes an amount to the Agent under the FinanceDocuments, the Agent may, after giving notice to that Party, deduct an amountnot exceeding that amount from any payment to that Party which the Agent wouldotherwise be obliged to make under the Finance Documents and apply the amountdeducted in or towards satisfaction of the amount owed. For the purposes of theFinance Documents, that Party shall be regarded as having received any amountso deducted.

 

**25.**        CONDUCT OF BUSINESS BY THE FINANCEPARTIES

 

No provision of this Agreement will:

 

(a)            interferewith the right of any Finance Party to arrange its affairs (tax or otherwise)in whatever manner it thinks fit;

 

(b)           obligeany Finance Party to investigate or claim any credit, relief, remission orrepayment available to it or the extent, order and manner of any claim; or

 

(c)            obligeany Finance Party to disclose any information relating to its affairs (tax orotherwise) or any computations in respect of Tax.

 

----

 

**26.**         SHARING AMONG THE FINANCE PARTIES

 

**26.1**       Payments to Finance Parties

 

If a Finance Party (a “**Recovering Finance Party**”)receives or recovers any amount from an Obligor other than in accordance withClause 27 (*Payment mechanics*) and applies thatamount to a payment due under the Finance Documents then:

 

(a)            theRecovering Finance Party shall, within three Business Days, notify details ofthe receipt or recovery to the Agent;

 

(b)          theAgent shall determine whether the receipt or recovery is in excess of theamount the Recovering Finance Party would have been paid had the receipt orrecovery been received or made by the Agent and distributed in accordance withClause 27 (*Payment mechanics*), without takingaccount of any Tax which would be imposed on the Agent in relation to thereceipt, recovery or distribution; and

 

(c)            theRecovering Finance Party shall, within three Business Days of demand by theAgent, pay to the Agent an amount (the “**Sharing Payment**”)equal to such receipt or recovery less any amount which the Agent determinesmay be retained by the Recovering Finance Party as its share of any payment tobe made, in accordance with Clause 27.5 (*Partial payments*).

 

**26.2**       Redistribution of payments

 

The Agent shall treat the Sharing Payment as if it had beenpaid by the relevant Obligor and distribute it between the Finance Parties(other than the Recovering Finance Party) in accordance with Clause 27.5 (*Partial payments*).

 

**26.3**       Recovering Finance Party’srights

 

(a)         On adistribution by the Agent under Clause 26.2 (*Redistributionof payments*), the Recovering Finance Party will be subrogated to therights of the Finance Parties which have shared in the redistribution.

 

(b)         If andto the extent that the Recovering Finance Party is not able to rely on itsrights under paragraph (a) above, the Borrower shall ensure that therelevant Obligor shall be liable to the Recovering Finance Party for a debtequal to the Sharing Payment which is immediately due and payable.

 

**26.4**      Reversal of redistribution

 

If any part of the Sharing Payment received or recovered bya Recovering Finance Party becomes repayable and is repaid by that RecoveringFinance Party, then:

 

(a)            eachFinance Party which has received a share of the relevant Sharing Paymentpursuant to Clause 26.2 (*Redistribution of payments*)shall, upon request of the Agent, pay to the Agent for account of thatRecovering Finance Party an amount equal to the appropriate part of its shareof the Sharing Payment (together with an amount as is necessary to reimbursethat Recovering Finance Party for its proportion of any interest on the SharingPayment which that Recovering Finance Party is required to pay); and

 

----

 

(b)          thatRecovering Finance Party’s rights of subrogation in respect of any reimbursementshall be cancelled and the Borrower shall ensure that the relevant Obligor willbe liable to the reimbursing Finance Party for the amount so reimbursed.

 

**26.5**      Exceptions

 

(a)         ThisClause 26 shall not apply to the extent that the Recovering Finance Party wouldnot, after making any payment pursuant to this Clause 26, have a valid andenforceable claim against the relevant Obligor.

 

(b)         ARecovering Finance Party is not obliged to share with any other Finance Partyany amount which the Recovering Finance Party has received or recovered as aresult of taking legal or arbitration proceedings, if:

 

(i)             itnotified that other Finance Party of the legal or arbitration proceedings; and

 

(ii)           thatother Finance Party had an opportunity to participate in those legal orarbitration proceedings but did not do so as soon as reasonably practicablehaving received notice and did not take separate legal or arbitrationproceedings.

 

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**SECTION 10**

 

**ADMINISTRATION**

 

**27.       **PAYMENT MECHANICS

** **

**27.1     **Payments to the Agent

 

(a)        Oneach date on which the Borrower or a Lender is required to make a payment undera Finance Document, the Borrower or the Lender shall make the same available tothe Agent (unless a contrary indication appears in a Finance Document) forvalue on the due date at the time and in such funds specified by the Agent asbeing customary at the time for settlement of transactions in the relevantcurrency in the place of payment.

 

(b)         Paymentshall be made to such account in the principal financial centre of the countryof that currency (or, in relation to euro, in the principal financial centre ina Participating Member State or London) with such bank as the Agent specifies.

** **

**27.2     **Distributions by the Agent

 

Each payment received by the Agent under the Finance Documentsfor another Party shall, subject to Clause 27.3 (*Distributionsto the Borrower*) and Clause 27.4 (*Clawback*),be made available by the Agent as soon as practicable after receipt to theParty entitled to receive payment in accordance with this Agreement (in thecase of a Lender, for the account of its Facility Office), to such account asthat Party may notify to the Agent by not less than five Business Days’ noticewith a bank in the principal financial centre of the country of that currency(or, in relation to euro, in the principal financial centre of a ParticipatingMember State or London).

** **

**27.3     **Distributions to the Borrower

 

The Agent may (with the consent of the Borrower or inaccordance with Clause 28 (*Set-off*)) applyany amount received by it for the Borrower in or towards payment (on the dateand in the currency and funds of receipt) of any amount due from the Borrowerunder the Finance Documents or in or towards purchase of any amount of anycurrency to be so applied.

** **

**27.4     **Clawback

 

(a)        Wherea sum is to be paid to the Agent under the Finance Documents for another Party,the Agent is not obliged to pay that sum to that other Party (or to enter intoor perform any related exchange contract) until it has been able to establishto its satisfaction that it has actually received that sum.

 

(b)        Ifthe Agent pays an amount to another Party and it proves to be the case that ithad not actually received that amount, then the Party to whom that amount (orthe proceeds of any related exchange contract) was paid shall on demand refundthe same to the Agent together with interest on that amount from the date ofpayment to the date of receipt by the Agent calculated by it to reflect itscost of funds.

 

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** **

**27.5**                   Partial payments

** **

(a)                            If theAgent receives a payment that is insufficient to discharge all the amounts thendue and payable by the Borrower under the Finance Documents, the Agent shallapply that payment towards the obligations of the Borrower under the FinanceDocuments in the following order:

 

(i)                                      **first**, in or towardspayment pro rata of any unpaid fees, costs and expenses of the Agent or theArranger under the Finance Documents;

 

(ii)                                   **secondly**, in or towards payment pro rata of any accrued interest, fee orcommission due but unpaid under this Agreement;

 

(iii)                                **thirdly**, in or towards payment pro rata of any principal due but unpaidunder this Agreement; and

 

(iv)                               **fourthly**, in or towards payment pro rata of any other sum due but unpaidunder the Finance Documents.

 

(b)                           The Agentshall, if so directed by the Majority Lenders, vary the order set out inparagraphs (a)(ii) to (iv) above.

 

(c)                            Paragraphs(a) and (b) above will override any appropriation made by theBorrower.

 

**27.6**                   No set-off by the Borrower

** **

Allpayments to be made by the Borrower under the Finance Documents shall becalculated and be made without (and free and clear of any deduction for)set-off or counterclaim.

 

**27.7**                   Business Days

** **

(a)                            Anypayment which is due to be made on a day that is not a Business Day shall bemade on the next Business Day in the same calendar month (if there is one) orthe preceding Business Day (if there is not).

 

(b)                           During anyextension of the due date for payment of any principal or Unpaid Sum under thisAgreement interest is payable on the principal or Unpaid Sum at the ratepayable on the original due date.

 

**27.8**                   Currency of account

** **

(a)                            Subject toparagraphs (b) to (e) below, the Dollar is the currency of accountand payment for any sum due from the Borrower under any Finance Document.

 

(b)                           A repaymentof a Loan or Unpaid Sum or a part of a Loan or Unpaid Sum shall be made in thecurrency in which that Loan or Unpaid Sum is denominated on its due date.

 

(c)                            Eachpayment of interest shall be made in the currency in which the sum in respectof which the interest is payable was denominated when that interest accrued.

 

(d)                           Eachpayment in respect of costs, expenses or Taxes shall be made in the currency inwhich the costs, expenses or Taxes are incurred.

 

(e)                            Any amountexpressed to be payable in a currency other than the Dollar shall be paid inthat other currency.

 

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**27.9**                   Change of currency

** **

(a)                            Unlessotherwise prohibited by law, if more than one currency or currency unit are atthe same time recognised by the central bank of any country as the lawfulcurrency of that country, then:

 

(i)                                      anyreference in the Finance Documents to, and any obligations arising under theFinance Documents in, the currency of that country shall be translated into, orpaid in, the currency or currency unit of that country designated by the Agent(after consultation with the Borrower); and

 

(ii)                                   anytranslation from one currency or currency unit to another shall be at theofficial rate of exchange recognised by the central bank for the conversion ofthat currency or currency unit into the other, rounded up or down by the Agent(acting reasonably).

 

(b)                           If a changein any currency of a country occurs, this Agreement will, to the extent theAgent (acting reasonably and after consultation with the Borrower) specifies tobe necessary, be amended to comply with any generally accepted conventions andmarket practice in the Relevant Interbank Market and otherwise to reflect thechange in currency.

 

**27.10**             Disruptionto payment systems etc.

** **

If either the Agent determines (in its discretion) that aDisruption Event has occurred or the Agent is notified by the Borrower that aDisruption Event has occurred:

 

(a)                                   theAgent may, and shall if requested to do so by the Borrower, consult with theBorrower with a view to agreeing with the Borrower such changes to theoperation or administration of the Facilities as the Agent may deem necessaryin the circumstances;

 

(b)                                  theAgent shall not be obliged to consult with the Borrower in relation to anychanges mentioned in paragraph (a) above if, in its opinion, it is notpracticable to do so in the circumstances and, in any event, shall have noobligation to agree to such changes;

 

(c)                                   theAgent may consult with the Finance Parties in relation to any changes mentionedin paragraph (a) above but shall not be obliged to do so if, in itsopinion, it is not practicable to do so in the circumstances;

 

(d)                                  anysuch changes agreed upon by the Agent and the Borrower shall (whether or not itis finally determined that a Disruption Event has occurred) be binding upon theParties as an amendment to (or, as the case may be, waiver of) the terms of theFinance Documents notwithstanding the provisions of Clause 33 (*Amendments and waivers*);

 

(e)                                   theAgent shall not be liable for any damages, costs or losses whatsoever(including, without limitation for negligence, gross negligence or any othercategory of liability whatsoever but not including any claim based on the fraudof the Agent) arising as a result of its taking, or failing to take, anyactions pursuant to or in connection with this Clause 27.10; and

 

(f)                                     theAgent shall notify the Finance Parties of all changes agreed pursuant toparagraph (d) above.

 

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**28.**                         SET-OFF

** **

AFinance Party may set off any matured obligation due from the Borrower underthe Finance Documents (to the extent beneficially owned by that Finance Party)against any matured obligation owed by that Finance Party to the Borrower,regardless of the place of payment, booking branch or currency of eitherobligation. If the obligations are in different currencies, the Finance Partymay convert either obligation at a market rate of exchange in its usual courseof business for the purpose of the set-off.

 

**29.**                         NOTICES

** **

**29.1**                   Communications in writing

** **

Anycommunication to be made under or in connection with the Finance Documentsshall be made in writing and, unless otherwise stated, may be made by fax orletter.

 

**29.2**                   Addresses

** **

Theaddress and fax number (and the department or officer, if any, for whoseattention the communication is to be made) of each Party for any communicationor document to be made or delivered under or in connection with the FinanceDocuments is:

 

(a)                                   inthe case of the Borrower, that identified with its name below;

 

(b)                                  inthe case of each Lender, that notified in writing to the Agent on or prior tothe date on which it becomes a Party; and

 

(c)                                   inthe case of the Agent, that identified with its name below,

 

or anysubstitute address, fax number or department or officer as the Party may notifyto the Agent (or the Agent may notify to the other Parties, if a change is madeby the Agent) by not less than five Business Days’ notice.

 

**29.3**                   Delivery

** **

(a)                            Anycommunication or document made or delivered by one person to another under orin connection with the Finance Documents will only be effective:

 

(i)                                    if by way of fax, when received in legible form; or

 

(ii)                                 if by way of letter, when it has been left at the relevant addressor five Business Days after being deposited in the post postage prepaid in anenvelope addressed to it at that address,

 

and, ifa particular department or officer is specified as part of its address detailsprovided under Clause 29.2 (*Addresses*), ifaddressed to that department or officer.

 

(b)                           Anycommunication or document to be made or delivered to the Agent will beeffective only when actually received by it and then only if it is expresslymarked for the attention of the department or officer identified with itssignature below (or any substitute department or officer as it shall specifyfor this purpose).

 

(c)                            Allnotices from or to the Borrower shall be sent through the Agent.

 

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**29.4**                   Notification of address and fax number

** **

Promptlyupon receipt of notification of an address and fax number or change of addressor fax number pursuant to Clause 29.2 (*Addresses*) orchanging its own address or fax number, the Agent shall notify the otherParties.

 

**29.5**                   Electronic communication

** **

(a)                            Withoutprejudice to paragraph (c) of Clause 33.1 (*Requiredconsents*), any communication to be made between the Agent and aLender under or in connection with the Finance Documents may be made byelectronic mail or other electronic means, if the Agent and the relevantLender:

 

(i)                                    agree that, unless and until notified to the contrary, this is to bean accepted form of communication;

 

(ii)                                 notify each other in writing of their electronic mail address and/orany other information required to enable the sending and receipt of informationby that means; and

 

(iii)                              notify each other of any change to their address or any other suchinformation supplied by them.

 

(b)                           Anyelectronic communication made between the Agent and a Lender will be effectiveonly when actually received in readable form and in the case of any electroniccommunication made by a Lender to the Agent only if it is addressed in such amanner as the Agent shall specify for this purpose.

 

**29.6**                   English language

** **

(a)                            Any noticegiven under or in connection with any Finance Document must be in English.

 

(b)                           All otherdocuments provided under or in connection with any Finance Document must be:

 

(i)                                      inEnglish; or

 

(ii)                                   ifnot in English, and if so required by the Agent, accompanied by a certifiedEnglish translation and, in this case, the English translation will prevailunless the document is a constitutional, statutory or other official document.

 

**30.**                         CALCULATIONS AND CERTIFICATES

** **

**30.1**                   Accounts

** **

In anylitigation or arbitration proceedings arising out of or in connection with aFinance Document, the entries made in the accounts maintained by a Finance Partyare prima facie evidence of the matters to which they relate.

 

**30.2**                   Certificates and determinations

** **

Anycertification or determination by a Finance Party of a rate or amount under anyFinance Document is, in the absence of manifest error, conclusive evidence ofthe matters to which it relates.

 

**30.3**                   Day count convention

** **

Anyinterest, commission or fee accruing under a Finance Document will accrue fromday to day and is calculated on the basis of the actual number of days elapsedand a year of 360 days or, in

 

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anycase where the practice in the Relevant Interbank Market differs, in accordancewith that market practice.

 

**31.**                         PARTIAL INVALIDITY

** **

If, atany time, any provision of the Finance Documents is or becomes illegal, invalidor unenforceable in any respect under any law of any jurisdiction, neither thelegality, validity or enforceability of the remaining provisions nor thelegality, validity or enforceability of such provision under the law of anyother jurisdiction will in any way be affected or impaired.

 

**32.**                         REMEDIES AND WAIVERS

** **

Nofailure to exercise, nor any delay in exercising, on the part of any FinanceParty, any right or remedy under the Finance Documents shall operate as awaiver, nor shall any single or partial exercise of any right or remedy preventany further or other exercise or the exercise of any other right or remedy. Therights and remedies provided in this Agreement are cumulative and not exclusiveof any rights or remedies provided by law.

 

**33.**                         AMENDMENTS AND WAIVERS

** **

**33.1**                   Required consents

** **

(a)                            Subject toClause 33.2 (*Exceptions*), any term of theFinance Documents to which the Borrower is a Party may be amended or waivedonly with the consent of the Majority Lenders and the Borrower and any suchamendment or waiver will be binding on all Parties.

 

(b)                           The Agentmay effect, on behalf of any Finance Party, any amendment or waiver permittedby this Clause 33.

 

(c)                            Anamendment to any Finance Document shall be in writing and shall be signed bythe duly authorised signatories of the relevant Parties.

 

**33.2**                   Exceptions

** **

(a)                            Anamendment or waiver that has the effect of changing or which relates to:

 

(i)                                      thedefinition of “Majority Lenders” in Clause 1.1 (*Definitions*);

 

(ii)                                   anextension to the date of payment of any amount under the Finance Documents;

 

(iii)                                areduction in the Margin or a reduction in the amount of any payment ofprincipal, interest, fees or commission payable;

 

(iv)                               anincrease in or an extension of any Commitment;

 

(v)                                  achange to the Borrowers other than in accordance with Clause 23 (*Changes to the Borrower*);

 

(vi)                               anextension of an Availability Period;

 

(vii)                            a changeof the currency of any payment under any Finance Document;

 

(viii)                         the releaseof the obligations of any Guarantor under any Finance Documents;

 

(ix)                                 anyprovision which expressly requires the consent of all the Lenders; or

 

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(x)                                  Clause 2.2 (*Finance Parties’ rightsand obligations*), Clause 22 (*Changes to the Lenders*),Clause 26 (*Sharing among the Finance Parties*), orthis Clause 33,

 

shallnot be made without the prior consent of all the Lenders.

 

(b)                           Anamendment or waiver which relates to the rights or obligations of the Agent orthe Arranger may not be effected without the consent of the Agent or, as thecase may be, the Arranger.

 

**34.**                         COUNTERPARTS

** **

EachFinance Document may be executed in any number of counterparts, and this hasthe same effect as if the signatures on the counterparts were on a single copyof the Finance Document.

 

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** **

**SECTION 11**

** **

**GOVERNING LAW AND ENFORCEMENT**

** **

**35.**                         GOVERNING LAW

** **

This Agreement is governed by English law.

 

**36.**                         ENFORCEMENT

** **

**36.1**                   Arbitration

** **

Subject to Clause 36.4 (*Agent’soption*), any dispute arising out of or in connection with thisAgreement (including a dispute regarding the existence, validity or terminationof this Agreement) (a “**Dispute**”) shallbe referred to and finally resolved by arbitration under the LCIA Arbitration Rules (the“**Rules**”).

 

**36.2**                   Procedure for 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 all theparties to an arbitration so agree, there shall be a sole arbitrator appointedby the LCIA Court as soon as possible and, in any event, within 15 days of suchagreement.

 

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

 

(e)                            Wheredisputes arise under this Agreement and/or any other Finance Document which, inthe reasonable opinion of the first arbitrator to be appointed by a FinanceParty in any of the disputes, are so closely connected that it is expedient forthem to be resolved in the same proceedings, that arbitrator shall have thepower to order that the proceedings to resolve that dispute shall beconsolidated with those to resolve any of the other disputes (whether or notproceedings 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)                                      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.

 

**36.3**                   Recourse to courts

** **

Save as provided in Clause 36.4 (*Agent’soption*), the parties exclude the jurisdiction of the courts undersections 45 and 69 of the Arbitration Act 1996.

 

**36.4**                   Agent’s option

** **

Before an arbitrator has been appointed by a Finance Partyto determine a Dispute, the Agent may (and, if so directed by the MajorityLenders, shall) by notice in writing to the Borrower 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 36.5 (*Jurisdiction*).

 

**36.5**                   Jurisdiction

** **

(a)                            The courtsof England have non-exclusive jurisdiction to settle any Dispute.

 

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

 

(c)                            ThisClause 36.5 is for the benefit of the Finance Parties only. As a result, noFinance Party shall be prevented from taking proceedings relating to a Disputein any other courts with jurisdiction. To the extent allowed by law, theFinance Parties may take concurrent proceedings in any number of jurisdictions.

 

**36.6**                   Service of process

** **

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

 

(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 Borrower of the process will notinvalidate the proceedings concerned.

 

**36.7**                   Waiver of immunity

** **

The Borrower 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 thoseproceedings, from attachment (whether in aid of execution, before judgment orotherwise) of its assets or from execution of judgment shall be claimed by itor on behalf of it or with respect to its assets, any such immunity beingirrevocably waived. The Borrower irrevocably agrees that it and its assets are,and shall be, subject to such proceedings, attachment or execution in respectof its obligations under the Finance Documents.

 

----

 

**This Agreement has been entered into on the date stated at thebeginning of this Agreement.**

 

----

 

**SCHEDULE 1**

** **

**THE ORIGINAL LENDERS**

 
| **Name of Original Lender**        | ** ** | **Tranche 1 Commitment** | ** ** | **Tranche 2 Commitment** | ** ** |
|---------------------------------------------------|------------|------------------------------------|------------|------------------------------------|------------|
| ABN  AMRO Bank N.V.                               |       | 20,400,000                         |       | 13,600,000                         |       |
|                                              |       |                               |       |                               |       |
| CALYON                                            |       | 20,400,000                         |       | 13,600,000                         |       |
|                                              |       |                               |       |                               |       |
| ING  Bank N.V., Dublin Branch                     |       | 20,400,000                         |       | 13,600,000                         |       |
|                                              |       |                               |       |                               |       |
| Joint-Stock  Bank Orgresbank                      |       | 19,800,000                         |       | 13,200,000                         |       |
|                                              |       |                               |       |                               |       |
| EFG  Private Bank (Luxembourg) S.A.               |       | 15,000,000                         |       | 10,000,000                         |       |
|                                              |       |                               |       |                               |       |
| Intesa Sanpaolo Bank Ireland plc                  |       | 15,000,000                         |       | 10,000,000                         |       |
|                                              |       |                               |       |                               |       |
| Banque  Societe Generale Vostok                   |       | 12,000,000                         |       | 8,000,000                          |       |
|                                              |       |                               |       |                               |       |
| Alpha  Bank A.E.                                  |       | 6,000,000                          |       | 4,000,000                          |       |
|                                              |       |                               |       |                               |       |
| Banco Nacional Ultramarino, S.A.                  |       | 6,000,000                          |       | 4,000,000                          |       |
|                                              |       |                               |       |                               |       |
| Taiwan  Cooperative Bank, Offshore Banking Branch |       | 6,000,000                          |       | 4,000,000                          |       |
|                                              |       |                               |       |                               |       |
| ZAO  Svenska Handelsbanken                        |       | 6,000,000                          |       | 4,000,000                          |       |
|                                              |       |                               |       |                               |       |
| Bank  Sinopac, Offshore Banking Branch            |       | 3,000,000                          |       | 2,000,000                          |       |
|                                              |       |                               |       |                               |       |
|                                              |       | 150,000,000                        |       | 100,000,000                        |       |

 

----

 

**SCHEDULE 2**

** **

**CONDITIONS PRECEDENT AND SUBSEQUENT**

** **

**PART I**

 

**CONDITIONS PRECEDENT**

 

1.                               **Obligors**

 

(a)                            Notarised copy of each Obligor’s duly registered constitutionaldocuments (including any amendments thereto) and certificate of registrationthereof in force at the date of each of the Finance Documents.

 

(b)                           Notarised copy of (i) each Obligor’s registration certificateissued by the competent registration authority (if applicable), (ii) certificateof its entry into the Unified State Registry of Legal Entities issued by thecompetent tax authority and (iii) an extract from the Unified Registry ofLegal Entities in relation to it issued by the competent tax authority as ofthe date no earlier than five days prior to the date of each of the FinanceDocuments.

 

(c)                            Certified copy of all internal approvals and corporate resolutionsnecessary to authorise each Obligor to execute and perform the FinanceDocuments to which it is a party and any related documents and the transactionscontemplated thereunder (including, but not limited to, any major transactionapprovals or interested party transaction approvals required under applicableRussian law).

 

(d)                           Evidence of the authority of the relevant signatories of eachObligor (including the Chief Accountant) to execute the Finance Documents towhich it is party and any related documents.

 

(e)                            Original certificate issued by each Obligor:

 

(i)                                      certifyingthe sample signature and office of each person that is to execute the FinanceDocuments to which it is party and any related documents on behalf of suchObligor and certifying that such signatories hold the positions in whichcapacity they will execute such documents;

 

(ii)                                   certifying(A) that none of the Finance Documents to which itis party, and none of the transactions contemplated thereunder, does or willconstitute a major transaction or an interested party transaction for it underapplicable Russian law, except where requisite corporate approvals authorisingall major transactions and all interested party transactions have been obtainedby it with respect to such Finance Documents and (B) in the case of the Borrower only, that the aggregate value of thetransactions contemplated under the Finance Documents exceeds 25 per cent. butdoes not exceed 50 per cent. of the balance sheet value of its assets as of thelatest reporting date (prepared and calculated in accordance with RAS);

 

(iii)                                certifyingthat each copy document relating to it that is specified in Part I of thisSchedule 2 is correct, complete and in full force and effect as of a date noearlier than each of the Finance Documents to which the relevant Obligor is aparty;

 

----

 

(iv)                               confirmingthat the conclusion of and the performance by it of its obligations under theFinance Documents to which it is a party and any related documents would notcontravene any of its internal orders or regulations or decisions of itsgoverning bodies and the power of the chief executive officer and, whererelevant, other authorised signatories to act on its behalf, as defined in itsconstitutional documents and in any power(s) of attorney issued to anysignatory/ies referred to in paragraph (i) above, is not limited by any ofits internal documents ****or decisions of its************governing bodies****or by any contract; and

 

(v)                                  confirmingthat borrowing, guaranteeing, as appropriate, the Total Commitments would notcause any borrowing, guaranteeing or similar limit binding on it to beexceeded.

 

(f)                              Evidence that (A) the Borrower has complied or will comply withapplicable currency control laws and regulations in respect of the entry into andperformance of any Finance Document to which it is party, including a certifiedcopy of the transaction passport (*passport sdelki*)of the Borrower in relation to the relevant Finance Documents (in the formestablished by Instruction 117-I or other applicable currency control laws andregulations, as the case may be) accepted and duly certified by the PassportBank and (B) all necessary documents in relation to the Finance Documentshave been submitted to the Passport Bank in accordance with applicable currencycontrol laws and regulations and in form and substance satisfactory to thePassport Bank, together with certified copies of any of such documents as theAgent may require.

 

2.                               **Legal opinions**

 

(a)                            A legal opinion of Linklaters LLP, legal advisers to the Arrangerand the Agent in England.

 

(b)                           A legal opinion of Linklaters CIS, legal advisers to the Arrangerand the Agent in the Russian Federation.

 

3.                               **Finance Documents**

 

An executed original of each:

 

(a)                                   this Agreement;

 

(b)                                  each Guarantee; and

 

(c)                                   each Fee Letter.

 

4.                               **Other documents and evidence**

 

(a)                            The Original Financial Statements of each Obligor.

 

(b)                           A certified copy of the business model of the Group (including cashflow projections, balance sheet and profit and loss accounts) for the financialyear ended on 31 December 2007 as approved by the competent governing bodyof the Borrower that is able to effectively approve such matters.

 

(c)                            The latest available consolidated audited annual financialstatements of the Borrower prepared in accordance with GAAP, if different fromthe Borrower’s Original Financial Statements.

 

----

 

(d)                           The latest available consolidated unaudited quarterly financialstatements of the Borrower prepared in accordance with GAAP, if different fromthe Borrower’s Original Financial Statements.

 

(e)                            The latest available financial statements of each Obligor preparedin accordance with RAS, together with the auditors’ statement (if any), ifdifferent from the relevant Obligor’s Original Financial Statements.

 

(f)                              Confirmation from the tax authorities of the Russian Federation thatall liabilities of each Obligor to the tax authorities of the RussianFederation are being routinely discharged to the satisfaction of all therelevant authorities, in form and substance acceptable to the Agent.

 

(g)                           Evidence that any process agent referred to in Clause 36.6 (*Service of process*) of this Agreement, clause 14.6 (*Service of process*) of the WBD Guarantee and clause 14.6 (*Service of process*) of the WBD Beverages Guarantee hasaccepted its appointment.

 

(h)                           A certified copy of a Group structure chart as at the date noearlier than the date of this Agreement.

 

(i)                               Evidence that the fees, costs and expenses then due from theBorrower pursuant to Clause 11 (*Fees*) andClause 16 (*Costs and expenses*) have been paid orwill be paid by the first Utilisation Date.

 

(j)                               A copy of any other Authorisation or other document, opinion orassurance which the Agent considers to be necessary or desirable (if it hasnotified the Borrower accordingly) in connection with the entry into andperformance of the transactions contemplated by any Finance Document or for thevalidity and enforceability of any Finance Document.

 

----

 

**PART II**

** **

**CONDITIONS SUBSEQUENT**

 

(a)                            A certified copy of the hedging policy adopted by the Borrower.

 

(b)                           A certified copy of the Agreed Reorganisation Memorandum, in formand substance satisfactory to the Agent (acting on the instructions of theMajority Lenders).

 

(c)                            A legal opinion of Clifford Chance CIS Limited, legal advisers tothe Borrower in the Russian Federation, issued in relation to the AgreedReorganisation and the Agreed Reorganisation Memorandum in form and substancesatisfactory to the Agent (acting on the instructions of the Majority Lenders).

 

----

 

**SCHEDULE 3**

** **

**UTILISATION REQUEST**

** **

From:                                              OpenJoint Stock Company “Wimm-Bill-Dann Foods”

 

To:                                                           INGBank N.V., London Branch as Agent

 

Dated:

 

Dear Sirs

 

**USD 250,000,000 Facility Agreementdated [       ] 2008 (the “Agreement”)**

 

1.                                 We refer to the Agreement. This is a Utilisation Request. Terms definedin the Agreement have the same meaning in this Utilisation Request unless givena different meaning in this Utilisation Request.

 

2.                                 We wish to borrow a Loan on the following terms:

 
| Proposed  Utilisation Date: |   | [          ]  (or, if that is not a Business Day, the next Business Day) |
|-----------------------------|--------|----------------------------------------------------------------------------------------------------------------------------|
|                        |   |                                                                                                                       |
| Tranche  to be utilised:    |   | [Tranche  1/Tranche 2]                                                                                                     |
|                        |   |                                                                                                                       |
| Currency  of Loan:          |   | Dollars                                                                                                                    |
|                        |   |                                                                                                                       |
| Amount:                     |   | [          ]                                                             |
|                        |   |                                                                                                                       |
| Interest  Period:           |   | 3  Months                                                                                                                  |

 

3.                                 We confirm that each condition specified in Clause 4.2 (*Further conditions precedent*) is satisfied on the date ofthis Utilisation Request.

 

4.                                 The proceeds of this Loan should be credited to [account].(1)

 

5.                                 This Utilisation Request is irrevocable.

 

Yours faithfully

 

 
| Signed: |   |                             |   |                             |
|---------|--------|----------------------------------|--------|----------------------------------|
|    |   |                             |   |                             |
|    |   | authorised signatory of          |   | Chief Accountant                 |
|    |   | Open Joint Stock Company         |   | Open Joint Stock Company         |
|    |   | “Wimm-Bill-Dann Foods” |   | “Wimm-Bill-Dann Foods” |

 

----

(1)                            Account of the Borrower held with the Passport Bank.

 

----

 

**SCHEDULE 4**

** **

**MANDATORY COST FORMULA**

** **

1.                                 The Mandatory Cost is an addition to the interest rate to compensateLenders for the cost of compliance with (a) the requirements of the Bankof England and/or the Financial Services Authority (or, in either case, anyother authority which replaces all or any of its functions) or (b) therequirements of the European Central Bank.

 

2.                                 On the first day of each Interest Period (or as soon as possiblethereafter) the Agent shall calculate, as a percentage rate, a rate (the “**Additional Cost Rate**”) for each Lender, in accordance withthe paragraphs set out below. The Mandatory Cost will be calculated by theAgent as a weighted average of the Lenders’ Additional Cost Rates (weighted inproportion to the percentage participation of each Lender in the relevant Loan)and will be expressed as a percentage rate per annum.

 

3.                                 The Additional Cost Rate for any Lender lending from a FacilityOffice in a Participating Member State will be the percentage notified by thatLender to the Agent. This percentage will be certified by that Lender in itsnotice to the Agent to be its reasonable determination of the cost (expressedas a percentage of that Lender’s participation in all Loans made from thatFacility Office) of complying with the minimum reserve requirements of theEuropean Central Bank in respect of loans made from that Facility Office.

 

4.                                 The Additional Cost Rate for any Lender lending from a FacilityOffice in the United Kingdom will be calculated by the Agent as follows:

 
|  |   | per cent.  per annum. |
|--|--------|-----------------------|

 

Where: E is designed to compensate Lenders for amountspayable under the Fees Rules and is calculated by the Agent as being theaverage of the most recent rates of charge supplied by the Reference Banks tothe Agent pursuant to paragraph 6 below and expressed in pounds per £1,000,000.

 

5.                                 For the purposes of this Schedule:

 

(a)                                   “**Fees Rules**” means the rules onperiodic fees contained in the FSA Supervision Manual or such other law orregulation as may be in force from time to time in respect of the payment offees for the acceptance of deposits;

 

(b)                                  “**Fee Tariffs**” means the fee tariffsspecified in the Fees Rules under the activity group A.1 Deposit acceptors(ignoring any minimum fee or zero rated fee required pursuant to the Fees Rules buttaking into account any applicable discount rate); and

 

(c)                                   “**Tariff Base**” has the meaning givento it in, and will be calculated in accordance with, the Fees Rules.

 

6.                                 If requested by the Agent, each Reference Bank shall, as soon aspracticable after publication by the Financial Services Authority, supply tothe Agent, the rate of charge payable by that

 

----

 

Reference Bank to the Financial Services Authoritypursuant to the Fees Rules in respect of the relevant financial year ofthe Financial Services Authority (calculated for this purpose by that ReferenceBank as being the average of the Fee Tariffs applicable to that Reference Bankfor that financial year) and expressed in pounds per £1,000,000 of the TariffBase of that Reference Bank.

 

7.                                 Each Lender shall supply any information required by the Agent forthe purpose of calculating its Additional Cost Rate. In particular, but withoutlimitation, each Lender shall supply the following information on or prior tothe date on which it becomes a Lender:

 

(i)                                      the jurisdiction of its Facility Office; and

 

(ii)                                   any other information that the Agent may reasonably require for suchpurpose.

 

Each Lender shall promptly notify the Agent of anychange to the information provided by it pursuant to this paragraph 7.

 

8.                                 The rates of charge of each Reference Bank for the purpose of Eabove shall be determined by the Agent based upon the information supplied toit pursuant to paragraphs 6 and 7 above.

 

9.                                 The Agent shall have no liability to any person if suchdetermination results in an Additional Cost Rate which over or undercompensates any Lender and shall be entitled to assume that the informationprovided by any Lender or Reference Bank pursuant to paragraphs 3, 6 and 7above is true and correct in all respects.

 

10.                           The Agent shall distribute the additional amounts received as aresult of the Mandatory Cost to the Lenders on the basis of the Additional CostRate for each Lender based on the information provided by each Lender and eachReference Bank pursuant to paragraphs 3, 6 and 7 above.

 

11.                           Any determination by the Agent pursuant to this Schedule 4 inrelation to a formula, the Mandatory Cost, an Additional Cost Rate or anyamount payable to a Lender shall, in the absence of manifest error, beconclusive and binding on all Parties.

 

12.                           The Agent may from time to time, after consultation with the Borrowerand the Lenders, determine and notify to all Parties any amendments which arerequired to be made to this Schedule in order to comply with any change in law,regulation or any requirements from time to time imposed by the Bank ofEngland, the Financial Services Authority or the European Central Bank (or, inany case, any other authority which replaces all or any of its functions) andany such determination shall, in the absence of manifest error, be conclusiveand binding on all Parties.

 

----

 

**SCHEDULE 5**

** **

**FORM OF TRANSFER CERTIFICATE**

** **

To:                                                           INGBANK N.V., London Branch as Agent

 

From:                                              [TheExisting Lender] (the “Existing Lender”) and [The New Lender] (the “New Lender”)

 

Dated:

 

**USD 250,000,000 Facility Agreementdated [        ] 2008 (the “Agreement”)**

 

1.                                 We refer to the Agreement. This is a Transfer Certificate. Termsdefined in the Agreement have the same meaning in this Transfer Certificateunless given a different meaning in this Transfer Certificate.

 

2.                                 We refer to Clause 22.5 (*Procedure for transfer*):

 

(a)                                   The Existing Lender and the New Lender agree to the Existing Lendertransferring to the New Lender by novation all or part of the Existing Lender’sCommitment, rights and obligations referred to in the Schedule in accordancewith Clause 22.5 (*Procedure for transfer*).

 

(b)                                  The proposed Transfer Date is [          ].

 

(c)                                   The Facility Office and address, fax number and attention detailsfor notices of the New Lender for the purposes of Clause 29.2 (*Addresses*) are set out in the Schedule.

 

3.                                 The New Lender expressly acknowledges the limitations on theExisting Lender’s obligations set out in paragraph (c) of Clause 22.4 (*Limitation of responsibility of Existing Lenders*).

 

4.                                 This Transfer Certificate may be executed in any number ofcounterparts and this has the same effect as if the signatures on thecounterparts were on a single copy of this Transfer Certificate.

 

5.                                 This Transfer Certificate is governed by English law.

 

----

 

**THE SCHEDULE**

 

**Commitment/rights and obligations to be transferred**

 

[*insert relevant details*]

 

[*Facility Office address,fax number and attention details for notices and account details for payments.*]

 

 
| [Existing Lender] |   | [New Lender] |
|-------------------|--------|--------------|
|              |   |         |
| By:               |   | By:          |

 

 

This Transfer Certificate is accepted by the Agent and theTransfer Date is confirmed as

 

[               ].

 

[Agent]

 

By:

 

----

** **

**SCHEDULE 6**

 

**FORM OF COMPLIANCE CERTIFICATE**

** **

To:                                                           ING Bank N.V., London Branch as Agent

 

From:                                              Open Joint Stock Company “Wimm-Bill-Dann Foods”

 

Dated:

 

Dear Sirs

 

**USD250,000,000 Facility Agreementdated [       ] 2008 (the “Agreement”)**

 

1.                                 We refer to the Agreement. This is a Compliance Certificate. Termsdefined in the Agreement have the same meaning when used in this ComplianceCertificate unless given a different meaning in this Compliance Certificate.

 

2.                                 We confirm that: [Insert details of covenants to be certified]

 

3.                                 We confirm that no Default is continuing.

 

 
| Signed: |   |                              |   |                              |
|---------|--------|-----------------------------------|--------|-----------------------------------|
|    |   |                              |   |                              |
|    |   | General  Director                 |   | Chief  Accountant                 |
|    |   | Open Joint  Stock Company         |   | Open Joint  Stock Company         |
|    |   | “Wimm-Bill-Dann  Foods” |   | “Wimm-Bill-Dann  Foods” |

 

*[insert applicable certificationlanguage]*

 

 
|                                  |   |
|---------------------------------------|--------|
| for and on behalf of                  |
| *[name of auditors of the  Borrower]* |

 

----

 

**SCHEDULE 7**

 

**TIMETABLES**

** **

“D -  “ refers to the number of Business Days before the relevant UtilisationDate/the first day of the relevant Interest Period.

 
| Delivery of a duly completed Utilisation  Request (Clause 5.1 (*Delivery of a  Utilisation Request*)) |   | D-3  10:00 a.m.                  |
|-------------------------------------------------------------------------------------------------------|--------|---------------------------------------|
|                                                                                                  |   |                                  |
| Agent notifies the Lenders of the Loan in  accordance with Clause 5.4 (*Lenders’ participation*) |   | D-3  11:00 a.m.                  |
|                                                                                                  |   |                                  |
| LIBOR is fixed                                                                                        |   | Quotation  Day  as of 11:00 a.m. |

 

----

 

**The Borrower**

 

OPEN JOINT STOCK COMPANY “WIMM-BILL-DANNFOODS”

 

By:

 

 

By:

 

Chief Accountant

 

 

Address:

 

Fax No:

 

Attention:

 

 

**The Arrangers**

 

ABN AMRO BANK N.V.

 

By:

 

Address:

 

Fax No:

 

Attention:

 

 

CALYON

 

By:

 

Address:

 

Fax No:

 

Attention:

 

 

ING BANK N.V.

 

By:

 

Address:

 

Fax No:

 

Attention:

 

----

 

**The Original Lenders**

 

 

ABN AMRO BANK N.V.

 

By:

 

Address:

 

Fax No:

 

Attention:

 

 

CALYON

 

By:

 

Address:

 

Fax No:

 

Attention:

 

 

INGBANK N.V., DUBLIN BRANCH

 

By:

 

Address:

 

Fax No:

 

Attention:

 

 

JOINT-STOCKBANK ORGRESBANK

 

By:

 

Address:

 

Fax No:

 

Attention:

 

 

EFGPRIVATE BANK (LUXEMBOURG) S.A.

 

By:

 

Address:

 

Fax No:

 

Attention:

 

----

 

INTESASANPAOLO BANK IRELAND PLC

 

By:

 

Address:

 

Fax No:

 

Attention:

 

 

BANQUE SOCIETE GENERALE VOSTOK

 

By:

 

Address:

 

Fax No:

 

Attention:

 

 

ALPHABANK A.E.

 

By:

 

Address:

 

Fax No:

 

Attention:

 

 

BANCO NACIONAL ULTRAMARINO, S.A.

 

By:

 

Address:

 

Fax No:

 

Attention:

 

 

TAIWANCOOPERATIVE BANK, OFFSHORE BANKING BRANCH

 

By:

 

Address:

 

Fax No:

 

Attention:

 

----

 

ZAOSVENSKA HANDELSBANKEN

 

By:

 

Address:

 

Fax No:

 

Attention:

 

 

BANKSINOPAC, OFFSHORE BANKING BRANCH

 

By:

 

Address:

 

Fax No:

 

Attention:

 

 

**The Agent**

 

ING BANK N.V., LONDON BRANCH

 

By:

 

Address:

 

Fax No:

 

Attention:

 

----