SIDE LETTER
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23 January 2004
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To: | UBS (Luxembourg) S.A. (as Issuer) The Bank of New York (as Trustee) The Bank of New York, London Office (as Principal Paying Agent and Transfer Agent) and The Bank of New York, New York Office (as Paying Agent, Transfer Agent and Registrar) |
Dear Sirs,
U.S.$150,000,000 8.5% Loan Participation Notes due 2008 (the "Notes") issued by, but without recourse to, UBS (Luxembourg) S.A. (the "Bank") for the sole purpose of funding a U.S.$150,000,000 loan (the "Loan") to Wimm-Xxxx-Xxxx Foods OJSC (the "Borrower"), such loan initially unconditionally, irrevocably, jointly and severally guaranteed by OAO Lianozovo Dairy Plant, OAO Tsaritsino Dairy Plant and ZAO Trade Company Wimm-Xxxx-Xxxx (together the "Initial Guarantors")
- 1.
- Pursuant
to a deed of accession dated the date hereof, each of Nevskij Dairy Trade House Ltd., Lianozovo-Samara LLC, Limited Liability Company Ural Dairy Traiding
House—Wimm-Xxxx-Xxxx, Donskoi Dairy Trading House—Wimm-Xxxx-Xxxx LLC, Krasnodar dairy Trade
House—Wimm-Xxxx-Xxxx LLC and Roska OJSC has become a new Guarantor of the above-mentioned Loan.
- 2.
- In
connection therewith, we hereby
- (a)
- repeat
the representations that are deemed to be repeated pursuant to the Loan Agreement entered into as of 14 May 2003 between ourselves and the Bank;
- (b)
- confirm
that no Default or Event of Default is continuing or would occur as a result of any of the New Guarantors becoming a Guarantor; and
- (c)
- confirm that all conditions precedent to the addition of each of the New Guarantors have been satisfied.
1
- 3.
- This side letter is governed by, and shall be construed in accordance with, English law.
Yours faithfully,
WIMM-XXXX-XXXX FOODS OJSC | ||
By: |
/s/ • |
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By: |
/s/ • |
Acknowledged and agreed the date hereof.
UBS (LUXEMBOURG) S.A. |
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By: |
THE BANK OF NEW YORK (as Trustee) |
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By: |
THE BANK OF NEW YORK, LONDON OFFICE (as Principal Paying Agent and Transfer Agent) |
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By: |
THE BANK OF NEW YORK, NEW YORK OFFICE (as Paying Agent, Transfer Agent and Registrar) |
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By: |
2
- 3.
- This side letter is governed by, and shall be construed in accordance with, English law.
Yours faithfully,
WIMM-XXXX-XXXX FOODS OJSC | ||
By: |
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By: |
Acknowledged and agreed the date hereof.
UBS (LUXEMBOURG) S.A. |
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By: |
/s/ X. Xxxxxxx |
/s/ X. Xxxxxxxx |
THE BANK OF NEW YORK (as Trustee) |
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By: |
THE BANK OF NEW YORK, LONDON OFFICE (as Principal Paying Agent and Transfer Agent) |
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By: |
THE BANK OF NEW YORK, NEW YORK OFFICE (as Paying Agent, Transfer Agent and Registrar) |
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By: |
3
- 3.
- This side letter is governed by, and shall be construed in accordance with, English law.
Yours faithfully,
WIMM-XXXX-XXXX FOODS OJSC |
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By: |
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By: |
Acknowledged and agreed the date hereof.
UBS (LUXEMBOURG) S.A. |
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By: |
THE BANK OF NEW YORK (as Trustee) |
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By: |
/s/ Xxxx Xxxxxxx, AVP |
THE BANK OF NEW YORK, LONDON OFFICE (as Principal Paying Agent and Transfer Agent) |
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By: |
/s/ Xxxx Xxxxxxx, AVP |
THE BANK OF NEW YORK, NEW YORK OFFICE (as Paying Agent, Transfer Agent and Registrar) |
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By: |
/s/ Xxxx Xxxxxxx, AVP |
4
23 January 2004
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To: | UBS (Luxembourg) S.A. (as Issuer) The Bank of New York (as Trustee) The Bank of New York, London Office (as Principal Paying Agent and Transfer Agent) and The Bank of New York, New York Office (as Paying Agent, Transfer Agent and Registrar) |
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From: |
Nevskij Dairy Trade House Ltd. Lianozovo-Samara LLC Limited Liability Company Ural Dairy Traiding House—Wimm-Xxxx-Xxxx Donskoi Dairy Trading House—Wimm-Xxxx-Xxxx LLC Krasnodar dairy Trade House—Wimm-Xxxx-Xxxx LLC Xxxxx OJSC (together the "New Guarantors") |
Dear Sirs,
U.S.$I50,000,000 8.5% Loan Participation Notes due 2008 (the "Notes") issued by, but without recourse to, UBS (Luxembourg) S.A. (the "Bank") for the sole purpose of funding a U.S.$150,000,000 loan (the "Loan") to Wimm-Xxxx-Xxxx Foods OJSC (the "Borrower"), such loan initially unconditionally, irrevocably, jointly and severally guaranteed by OAO Lianozovo Dairy Plant, OAO Tsaritsino Dairy Plant and ZAO Trade Company Wimm-Xxxx-Xxxx (together the "Initial Guarantors")
- 1.
- We
refer to a deed of guarantee dated as of 14 May 2003 and made between UBS (Luxembourg) S.A. as Issuer and OAO Lianozovo Dairy Plant, OAO Tsaritsino Dairy Plant and ZAO Trade
Company Wimm-Xxxx-Xxxx as Guarantors (the "Deed of Guarantee").
- 2.
- We
also refer to a Deed of Indemnity dated as of 21 May 2003 and made between the Guarantors and The Bank of New York as Trustee and a Deed of Indemnity dated as of 21
May 2003 and made between the Guarantors, The Bank of New York, London Office as Principal Paying Agent and Transfer Agent and The Bank of New York, New York Office as Paying Agent, Transfer
Agent and Registrar (together the "Deeds of Indemnity").
- 3.
- Terms
defined in the Deed of Guarantee shall bear the same meaning herein.
- 4.
- Each of Nevskij Dairy Trade House Ltd., Lianozovo-Samara LLC, Limited Liability Company Ural Dairy Traiding House—Wimm-Xxxx-Xxxx, Donskoi Dairy Trading House—Wimm-Xxxx-Xxxx LLC, Krasnodar dairy Trade House—Wimm-Xxxx-Xxxx LLC and Roska OJSC has resolved to become a New Guarantor pursuant to Clause 1.10 (Termination and Accession of Guarantors) of the Deed of Guarantee, and each of the New Guarantors has resolved to accede to the Deeds of Indemnity. It is expected that the name of Roska OJSC will be changed during the first six months of 2004, although, as at the date hereof, a new name has not yet been determined.
5
- 5.
- Each
of the New Guarantors is a limited liability company (except for Roska OJSC which is an open joint stock company), in each case duly organised under the laws of the Russian
Federation.
- 6.
- Each
of the New Guarantors confirms that it has received from the Borrower true and up-to-date copies of the Loan Agreement, the Deed of Guarantee and the Deeds
of Indemnity as at the date hereof.
- 7.
- Each
of the New Guarantors undertakes, upon its becoming a Guarantor, to perform all the obligations expressed to be undertaken under the Deed of Guarantee and the Deeds of Indemnity
by a Guarantor and agrees that it shall be bound by the Deed of Guarantee and the Deeds of Indemnity and any other agreements in connection with the Notes binding on the Guarantors in all respects as
if it had been an original party thereto.
- 8.
- Each
of the New Guarantors makes the representations set out in Clause 2 (Representations and Warranties of the Guarantors) of
the Deed of Guarantee in respect of itself and on its own behalf.
- 9.
- The
administrative details of each of the New Guarantors are set out in the Schedule hereto.
- 10.
- Governing Law and Jurisdiction
- 10.1
- This
Deed of Accession is governed by, and shall be construed in accordance with, English law.
- 10.2
- Each
of the New Guarantors irrevocably agrees that the courts of England shall have jurisdiction to hear and determine any suit, action or proceedings, and to settle any disputes,
which arise out of or in connection with this Deed of Accession ("Proceedings") and, for such purposes, irrevocably submit to the jurisdiction of such
courts.
- 10.3
- Each
of the New Guarantors irrevocably waivers any objection which it might now or hereafter have to the courts of England being nominated as the forum to hear and determine any
Proceedings and settle any Disputes (as defined below), and agrees not to claim that any such court is not a convenient or appropriate forum.
- 10.4
- Each
of the New Guarantors agrees that the process by which any Proceedings in England are begun may be served on them by being delivered to Law Debenture Corporate Services Limited,
or their registered offices for the time being. If any Person (as defined in the Loan Agreement) mentioned in this Clause is not or ceases to be effectively appointed to accept service of process on
any New Guarantor's behalf, the relevant New Guarantor shall immediately appoint a further Person in England to accept service of process on its behalf. Nothing in this Clause shall affect the right
of any party to this Deed of Accession to serve process in any other manner permitted by law.
- 10.5
- The
submission to the jurisdiction of the English courts in accordance with Clause 11.2 hereof shall not, and shall not be construed so as to, limit the right of any party
hereto to take Proceedings in any other court of competent jurisdiction.
- 10.6
- Each of the New Guarantors consents generally in respect of any Proceedings to the giving of any relief or the issue of any process in connection with such Proceedings including, without limitation, the making, enforcement or execution against any property whatsoever, irrespective of its use or intended use, of any order or judgement which is made or given in such Proceedings.
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- 10.7
- If any dispute or difference of whatever nature howsoever arises from or in connection with this Deed of Accession, or any supplement, modifications or additions thereto (each a "Dispute"), any party to this Deed may elect, by notice in writing to the other party, to settle such claim by arbitration in accordance with the following provisions. The parties to this Deed hereby agree that, regardless of the nature of the Dispute, any Dispute may be settled by arbitration in accordance with the UNCITRAL Arbitration Rules (the "Rules") as in force at the date of this Deed by a panel of three arbitrators appointed in accordance with the Rules. The seat of any reference to arbitration shall be London, England. The procedural law of any reference to arbitration shall be English law. The language of any arbitral proceedings shall be English. The appointing authority for the purposes set out in Article 7(2) and 7(3) of the Rules shall be the London Court of International Arbitration.
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IN WITNESS whereof this Deed of Accession has been entered into by each party hereto on the date which appears first on page 1.
Executed
as a deed by
UBS (LUXEMBOURG) S.A.
and signed and delivered as a deed by:
By: |
/s/ X. Xxxxxxxx |
/s/ X. Xxxxxxx |
on its behalf in the presence of:
Witness: Rinaldo Di Fabio
Signature:
Name: UBS (Luxembourg) S.A.
Address: 36-38 Grand-rue, X.X. Xxx 0, X-0000 Xxxxxxxxxx
Executed
as a deed by
THE BANK OF NEW YORK (as Trustee)
and signed and delivered as a deed by:
.......................................................................
on its behalf in the presence of:
Witness:
Signature:
Name:
Address:
Executed
as a deed by
THE BANK OF NEW YORK, LONDON OFFICE
(as Principal Paying Agent and Transfer Agent)
and signed and delivered as a deed by:
.......................................................................
on its behalf in the presence of:
Witness:
Signature:
Name:
Address:
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IN WITNESS whereof this Deed of Accession has been entered into by each party hereto on the date which appears first on page 1.
Executed
as a deed by
UBS (LUXEMBOURG) S.A.
and signed and delivered as a deed by:
.......................................................................
on its behalf in the presence of:
Witness:
Signature:
Name:
Address:
Executed
as a deed by
THE BANK OF NEW YORK (as Trustee)
and signed and delivered as a deed by:
By: |
/s/ Xxxx Xxxxxxx, AVP |
on its behalf in the presence of:
Witness: Xxxxxx Xxxxx, AVP
Signature:
Name:
Address: One Canada Sq., London
Executed
as a deed by
THE BANK OF NEW YORK, LONDON OFFICE
(as Principal Paying Agent and Transfer Agent)
and signed and delivered as a deed by:
By: |
/s/ Xxxx Xxxxxxx, AVP |
on its behalf in the presence of:
Witness: Xxxxxx Xxxxx, AVP
Signature:
Name:
Address: One Canada Sq., London
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Executed
as a deed by
THE BANK OF NEW YORK, NEW YORK OFFICE
(as Paying Agent, Transfer Agent and Registrar)
and signed and delivered as a deed by:
By: |
/s/ Xxxx Xxxxxxx, AVP |
on its behalf in the presence of:
Witness: Xxxxxx Xxxxx, AVP
Signature:
Name:
Address: One Canada Sq., London
Executed
as a deed by
NEVSKIJ DAIRY TRADE HOUSE LTD.
and signed and delivered as a deed by:
........................................................ | and | ........................................................ | ||
Chief Executive Officer |
Chief Accountant |
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on its behalf in the presence of: |
on its behalf in the presence of: |
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Witness: |
Witness: |
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Signature: |
Signature: |
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Name: |
Name: |
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Address: |
Address: |
Executed
as a deed by
LIANOZOVO-SAMARA LLC
and signed and delivered as a deed by:
........................................................ | and | ........................................................ | ||
Chief Executive Officer |
Chief Accountant |
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on its behalf in the presence of: |
on its behalf in the presence of: |
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Witness: |
Witness: |
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Signature: |
Signature: |
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Name: |
Name: |
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Address: |
Address: |
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Executed
as a deed by
THE BANK OF NEW YORK, NEW YORK OFFICE
(as Paying Agent, Transfer Agent and Registrar)
and signed and delivered as a deed by:
.......................................................................
on its behalf in the presence of:
Witness:
Signature:
Name:
Address:
Executed
as a deed by
NEVSKIJ DAIRY TRADE HOUSE LTD.
and signed and delivered as a deed by:
By: |
/s/ • |
and |
/s/ • |
Chief Executive Officer |
Chief Accountant |
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on its behalf in the presence of: |
on its behalf in the presence of: |
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Witness: |
Witness: |
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Signature: |
Signature: |
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Name: Rabovie Irina |
Name: Xxxxxxx Xxxxxx |
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Address: Xxxxxxx xxx 0-000 Xxxxx-Xxxxxxxxxx, Xxxxxx |
Address: Xxxxxxxxxxx Xx. 00-0-00 Xxxxx-Xxxxxxxxxx, Xxxxxx |
Executed
as a deed by
LIANOZOVO-SAMARA LLC
and signed and delivered as a deed by:
........................................................ | and | ........................................................ | ||
Chief Executive Officer |
Chief Accountant |
|||
on its behalf in the presence of: |
on its behalf in the presence of: |
|||
Witness: |
Witness: |
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Signature: |
Signature: |
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Name: |
Name: |
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Address: |
Address: |
11
Executed
as a deed by
THE BANK OF NEW YORK, NEW YORK OFFICE
(as Paying Agent, Transfer Agent and Registrar)
and signed and delivered as a deed by:
.......................................................................
on its behalf in the presence of:
Witness:
Signature:
Name:
Address:
Executed
as a deed by
NEVSKIJ DAIRY TRADE HOUSE LTD.
and signed and delivered as a deed by:
........................................................ | and | ........................................................ | ||
Chief Executive Officer |
Chief Accountant |
|||
on its behalf in the presence of: |
on its behalf in the presence of: |
|||
Witness: |
Witness: |
|||
Signature: |
Signature: |
|||
Name: |
Name: |
|||
Address: |
Address: |
Executed
as a deed by
LIANOZOVO-SAMARA LLC
and signed and delivered as a deed by:
By: |
/s/ • |
and |
/s/ • |
Chief Executive Officer |
Chief Accountant |
|||
on its behalf in the presence of: |
on its behalf in the presence of: |
|||
Witness: |
Witness: |
|||
Signature: |
Signature: |
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Name: • |
Name: • |
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Address: • |
Address: • |
12
Executed
as a deed by
LIMITED LIABILITY COMPANY
URAL DAIRY TRAIDING HOUSE—WIMM-XXXX-XXXX
and signed and delivered as a deed by:
By: |
/s/ • |
and |
/s/ • |
Chief Executive Officer |
Chief Accountant |
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on its behalf in the presence of: |
on its behalf in the presence of: |
|||
Witness: |
Witness: |
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Signature: |
Signature: |
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Name: Xxxxx Zoedturine |
Name: Porceva Alla |
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Address: Xxxxxxxx 00, 00, Xxxxxxxxxxx, Xxxxxxx Federation |
Address: Xxxxxxxxx 00, Xxxxxxxxxx Xxxxxxxxxxxx, Russian Federation |
Executed
as a deed by
DONSKOI DAIRY TRADING HOUSE—WIMM-XXXX-XXXX LLC
and signed and delivered as a deed by:
........................................................ | and | ........................................................ | ||
Chief Executive Officer |
Chief Accountant |
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on its behalf in the presence of: |
on its behalf in the presence of: |
|||
Witness: |
Witness: |
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Signature: |
Signature: |
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Name: |
Name: |
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Address: |
Address: |
Executed
as a deed by
KRASNODAR DAIRY TRADE HOUSE—WIMM-XXXX-XXXX LLC
and signed and delivered as a deed by:
........................................................ | and | ........................................................ | ||
Chief Executive Officer |
Chief Accountant |
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on its behalf in the presence of: |
on its behalf in the presence of: |
|||
Witness: |
Witness: |
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Signature: |
Signature: |
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Name: |
Name: |
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Address: |
Address: |
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Executed
as a deed by
LIMITED LIABILITY COMPANY
URAL DAIRY TRAIDING HOUSE—WIMM-XXXX-XXXX
and signed and delivered as a deed by:
........................................................ | and | ........................................................ | ||
Chief Executive Officer |
Chief Accountant |
|||
on its behalf in the presence of: |
on its behalf in the presence of: |
|||
Witness: |
Witness: |
|||
Signature: |
Signature: |
|||
Name: |
Name: |
|||
Address: |
Address: |
Executed
as a deed by
DONSKOI DAIRY TRADING HOUSE—WIMM-XXXX-XXXX LLC
and signed and delivered as a deed by:
By: | /s/ • |
and | /s/ • |
Chief Executive Officer |
Chief Accountant |
|||
on its behalf in the presence of: |
on its behalf in the presence of: |
|||
Witness: |
Witness: |
|||
Signature: |
Signature: |
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Name: Uikhaylev K.A. |
Name: Tebedev B.V. |
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Address: Xxxxxxxx xxx, 00 000000, Xxxxxx-xx-Xxxx, Xxxxxx |
Address: Xxxxxxxx xxx, 00 000000, Xxxxxx-xx-Xxxx, Xxxxxx |
Executed
as a deed by
KRASNODAR DAIRY TRADE HOUSE—WIMM-XXXX-XXXX LLC
and signed and delivered as a deed by:
........................................................ | and | ........................................................ | ||
Chief Executive Officer |
Chief Accountant |
|||
on its behalf in the presence of: |
on its behalf in the presence of: |
|||
Witness: |
Witness: |
|||
Signature: |
Signature: |
|||
Name: |
Name: |
|||
Address: |
Address: |
14
Executed
as a deed by
LIMITED LIABILITY COMPANY
URAL DAIRY TRAIDING HOUSE—WIMM-XXXX-XXXX
and signed and delivered as a deed by:
........................................................ | and | ........................................................ | ||
Chief Executive Officer |
Chief Accountant |
|||
on its behalf in the presence of: |
on its behalf in the presence of: |
|||
Witness: |
Witness: |
|||
Signature: |
Signature: |
|||
Name: |
Name: |
|||
Address: |
Address: |
Executed
as a deed by
DONSKOI DAIRY TRADING HOUSE—WIMM-XXXX-XXXX LLC
and signed and delivered as a deed by:
........................................................ | and | ........................................................ | ||
Chief Executive Officer |
Chief Accountant |
|||
on its behalf in the presence of: |
on its behalf in the presence of: |
|||
Witness: |
Witness: |
|||
Signature: |
Signature: |
|||
Name: |
Name: |
|||
Address: |
Address: |
Executed
as a deed by
KRASNODAR DAIRY TRADE HOUSE—WIMM-XXXX-XXXX LLC
and signed and delivered as a deed by:
By: |
/s/ • |
and |
/s/ • |
Chief Executive Officer |
Chief Accountant |
|||
on its behalf in the presence of: |
on its behalf in the presence of: |
|||
Witness: |
Witness: |
|||
Signature: |
Signature: |
|||
Name: Mizoshnichenko O.S. |
Name: Wifadyeva T.A. |
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Address: xx. Xxxxxxxxxxx, 00 000000, Xxxxxx |
Address: xx. Xxxxxxxxxxx, 00 000000, Xxxxxx |
15
Executed
as a deed by
ROSKA OJSC
and signed and delivered as a deed by:
By: |
/s/ • |
and |
/s/ • |
Chief Executive Officer |
Chief Accountant |
|||
on its behalf in the presence of: |
on its behalf in the presence of: |
|||
Witness: |
Witness: |
|||
Signature: |
Signature: |
|||
Name: Rabovie Irina |
Name: Xxxxxxx Xxxxxx |
|||
Address: Xxxxxxx xxx 0-000 Xxxxx-Xxxxxxxxxx, Xxxxxx |
Address: Xxxxxxxxxxx Xx. 00-0-00 Xxxxx-Xxxxxxxxxx, Xxxxxx |
16
SCHEDULE
Contact details of the New Guarantors
NEVSKIJ DAIRY TRADE HOUSE LTD.
Address:
Shestoi Verchniy per., 1, promzona Pamas, 194292, St.-Petersburg, Russian Federation
Fax: 000-00-00
Telephone: 000-00-00
Contact Name: Xxx Xxxxxxx
LIANOZOVO-SAMARA LLC
Address:
proezd Malytseva, 9, 443022, Samara, Russian Federation
Fax: 000-00-00
Telephone: 000-00-00
Contact Name: Xxx Xxxxxxx
LIMITED LIABILITY COMPANY
URAL DAIRY TRAIDING HOUSE—WIMM-XXXX-XXXX
Address:
xx. Xxxxxxxxxxxxxxxx, 00, 000000, Xxxxxxxxxxxx, Russian Federation
Fax: 000-00-00
Telephone: 000-00-00
Contact Name: Xxx Xxxxxxx
DONSKOI DAIRY TRADING HOUSE—WIMM-XXXX-XXXX LLC
Address:
Bratskiy per, 17, 344082, Rostov-na-Dony, Russian Federation
Fax: 000-00-00
Telephone: 000-00-00
Contact Name: Xxx Xxxxxxx
KRASNODAR DAIRY TRADE HOUSE—WIMM-XXXX-XXXX LLC
Address:
xx. Xxxxxxxxxxx, 00, 000000, Xxxxxxxxx, Xxxxxxx Federation
Fax:000-00-00
Telephone: 000-00-00
Contact Name: Xxx Xxxxxxx
XXXXX OJSC
Address:
Shestoi Verchniy per., 1, promzona Pamas, 194292, St.-Petersburg, Russian Federation
Fax: 000-00-00
Telephone: 000-00-00
Contact Name: Xxx Xxxxxxx
17
SIDE LETTER
DEED OF ACCESSION
SCHEDULE Contact details of the New Guarantors