A FACILITY AGREEMENT
DATED 21 DECEMBER 2007
UNIFIED TEXT OF THE AMENDED AND RESTATED FACILITY
FACILITY AGREEMENT
DATED 21 DECEMBER 2007
AND AMENDED AND RESTATED ON 24 FEBRUARY 2009
FOR
CAREY AGRI INTERNATIONAL-POLAND SP. Z O.O.
WITH
BANK POLSKA KASA OPIEKI S.A.
AS AGENT AND SECURITY AGENT
FORTIS BANK POLSKA S.A.
FORTIS BANK S.A./N.V. AUSTRIAN BRANCH
AND
BANK POLSKA KASA OPIEKI S.A.
AS LENDERS
AMENDED AND RESTATED
FACILITY AGREEMENT
CONTENTS
Clause
Page
1.
DEFINITIONS AND INTERPRETATION
2
2.
THE FACILITY
19
3.
PURPOSE
20
4.
UTILISATION
21
5.
REPAYMENT
21
6.
ILLEGALITY AND VOLUNTARY PREPAYMENT
21
7.
MANDATORY PREPAYMENT
22
8.
RESTRICTIONS
23
9.
INTEREST
23
10.
INTEREST PERIODS
24
11.
CHANGES TO THE CALCULATION OF INTEREST
25
12.
FEES
26
13.
TAX GROSS-UP AND INDEMNITIES
26
14.
INCREASED COSTS
30
15.
OTHER INDEMNITIES
31
16.
MITIGATION BY THE LENDERS
32
17.
COSTS AND EXPENSES
32
18.
GUARANTEE AND INDEMNITY
33
19.
REPRESENTATIONS
36
20.
INFORMATION UNDERTAKINGS
43
21.
FINANCIAL COVENANTS
47
22.
GENERAL UNDERTAKINGS
49
23.
EVENTS OF DEFAULT
60
24.
CHANGES TO THE FINANCE PARTIES
65
25.
CHANGES TO THE OBLIGORS
68
26.
ROLE OF THE FINANCE PARTIES
69
27.
CONDUCT OF BUSINESS BY THE FINANCE PARTIES
75
28.
SHARING AMONG THE FINANCE PARTIES
75
29.
PAYMENT MECHANICS
77
30.
SET-OFF
80
31.
NOTICES
81
32.
CALCULATIONS AND CERTIFICATES
82
33.
PARTIAL INVALIDITY
82
34.
REMEDIES AND WAIVERS
82
35.
AMENDMENTS AND WAIVERS
83
36.
COUNTERPARTS
83
37.
GOVERNING LAW
83
38.
ENFORCEMENT
83
SCHEDULE 1
The Original Guarantors
84
SCHEDULE 2
Conditions Precedent required to be delivered by an Additional Guarantor
85
SCHEDULE 3
Form of Accession Letter
87
SCHEDULE 4
Form of Compliance Certificate
88
SCHEDULE 5
Existing Security
89
SCHEDULE 6
CEDC Group Undertakings (Based on Indenture)
95
1.
DEFINITIONS AND INTERPRETATION
95
2.
UNDERTAKINGS
115
3.
SUCCESSOR COMPANY
139
SCHEDULE 7
Form of Transfer Certificate
140
SCHEDULE 8
Form of Selection Notice
142
THIS AGREEMENT is dated 21 December 2007 and amended and restated on 24 February
2009 and made between:
CAREY AGRI INTERNATIONAL-POLAND SP. Z O.O., a company incorporated in Poland,
having its registered seat at 02-690 Warszawa, ul. Bokserska 66A, Poland,
entered into the register of business entities of the National Court Register
under no. KRS 0000051098, with share capital of PLN 497,784,500.00, REGON
002160096, NIP 526-020-93-95 (the "Borrower");
CENTRAL EUROPEAN DISTRIBUTION CORPORATION INC., a company incorporated under the
laws of Delaware (the "Investor");
THE PERSONS listed in Schedule 1 (The Original Guarantors) as original
guarantors (the "Original Guarantors");
BANK POLSKA KASA OPIEKI S.A., with its registered seat in Warsaw, at ul.
Grzybowska 53/57, registered under KRS No. 0000014843, with share capital of PLN
262,212,629.00 REGON 000010205, NIP 526-00-06-841, FORTIS BANK POLSKA S.A., with
its registered seat in Warsaw at ul. Suwak 3, registered under KRS
No. 0000006421, with share capital of PLN 503,135,400.00 REGON 003915970, NIP
676-00-78-301 and FORTIS BANK S.A./NV, AUSTRIAN BRANCH, a credit institution
organized and existing under the laws of Belgium having its business address