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Exhibit
10.1
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| To: |
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(1) |
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Lion
Capital LLP |
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21
Grosvenor Place |
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London |
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SW1X
7HF |
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acting
for and on behalf of each of: |
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(i) Lion
Capital Fund I L.P. |
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(ii) Lion
Capital Fund I A L.P. |
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(iii)
Lion Capital Fund I B L.P. |
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(iv) Lion
Capital Fund I C L.P. |
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(v) Lion
Capital Fund I SBS L.P.; and |
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(2) |
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Lion
Capital (Guernsey) Limited |
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c/o Aztec
Financial Services |
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Second
Floor |
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Tudor
House |
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Le
Bordage |
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St Peter
Port |
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Guernsey
GY1 3PP |
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(together, the “ Lion Funds ”) |
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| From: |
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Central
European Distribution Corporation (“ CEDC
”) |
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ul.
Bokserska 66 |
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02-690
Warszawa |
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Poland |
Date: 19 June 2008
Dear Sirs
Project Rally
| 1 |
We refer to the letter agreement dated 22 May 2008 and its
schedules attached to this letter agreement (this “
Letter ”) at Schedule 1 (the “ Signing Date
Commitment Letter ”). This Letter supercedes, amends, and
restates the Signing Date Commitment Letter. |
“ Revised
Articles ” means the articles of association, including
the schedule thereto, in a form identified by the parties to this
Letter;
“ Revised Equity
Documents ” means the Revised Shareholders’
Agreement, the Revised Articles and the Revised Loan
Note;
“ Revised Loan Note
Instrument ” means the instrument attached at Schedule 3;
and
“ Revised
Shareholders’ Agreement ” means the shareholders
agreement attached at Schedule 2.
References in this Letter to
a “ Schedule ” are to the schedules to this
Letter. Other capitalised terms used but not defined in this Letter
have the meaning given to them in the Signing Date Commitment
Letter.
| 3 |
This Letter is being entered into by the parties
to: |
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(i) |
provide comfort to the Lion Funds that CEDC has the ability to
satisfy its financial obligations under, and in accordance with,
the Revised Equity Documents; |
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(ii) |
provide comfort to CEDC that the Lion Funds will allow CEDC to
make the investments contemplated by the Revised Equity Documents
on the terms and conditions set forth therein (the “ CEDC
Investment ”); and |
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(iii) |
confirm the parties’ mutual understandings and agreements
with respect to the CEDC Investment and the
Acquisition. |
| 4 |
In consideration of the Lion Funds entering into the Revised
Equity Documents to which they are, or will be, parties, and in
consideration of CEDC entering into the Revised Equity
Documents: |
| 4.1 |
CEDC represents, warrants and undertakes to each of the Lion
Funds that: |
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(i) |
(a) CEDC has the corporate power and authority required to
enter into this Letter and each of the Revised Equity Documents and
the CEDC Documents to which it is or will be a party, (b) any
subsidiary of CEDC to which the obligation to fund the CEDC
Investment is transferred (“ CEDC Investment Vehicle
”) has or will have at the time of making the CEDC Investment
the corporate power and authority required to enter into each of
the Revised Equity Documents and the CEDC Documents to which it is
or will be a party, and (c) CEDC has and the CEDC Investment
Vehicle will have at the time of making the CEDC Investment the
corporate power and authority required to perform their obligations
under the Revised Equity Documents and the CEDC Documents in
accordance with their terms; |
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(ii) |
CEDC will,
and shall procure that the CEDC Investment Vehicle, if any, will
(and in such case, both of them where the relevant Revised Equity
Document so provides) upon Closing (as such term is defined in the
SPA (“ Closing ”)) and
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satisfaction of the
conditions set forth in paragraph 5 hereof: (x) enter into the
Revised Shareholders’ Agreement and perform its, or their,
obligations thereunder, including (but not limited to) those under
Clause 2 of the Revised Shareholders’ Agreement;
(y) subscribe for $181,500,000 of equity pursuant to the terms
of the Revised Shareholders’ Agreement; and
(z) subscribe for $103,500,000 of notes pursuant to the terms
of the Revised Loan Note Instrument (together with (x) and
(y), the “ Revised Commitment ”);
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(iii) |
it will have at Closing sufficient funds available to fund the
Revised Commitment; |
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(iv) |
if Closing takes place it will enter into the Revised
Commitment upon being given two business day’s notice by the
Lion Funds that it is required to do so; provided that the Revised
Commitment shall not be required to be funded earlier than 14
business days from the date of this Letter and for the purposes of
this paragraph, “business days” shall be days on which
banks in New York are open for general banking business and the
NASDAQ is open for trading); and |
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(v) |
there is not in existence any document, agreement, arrangement
or understanding in relation to any aspect of the financing of the
Acquisition to which CEDC or any of its connected persons or
affiliates is a party which might prejudice the ability of CEDC to
pay or procure to be paid the amounts payable by them in connection
with the Revised Commitment, or to enter into the Revised Equity
Documents or the CEDC Documents. |
| 4.2 |
The Lion Funds represent, warrant and undertake to CEDC
that: |
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(i) |
(a) they have the power and authority required to enter into
this Letter, and (b) they have or will procure that any of
their affiliates to which their obligations in respect of the
Acquisition and the Revised Equity Documents are transferred (the
“ Lion Parties ”) have the power and authority
to enter into each of the Revised Equity Documents to which they
are or will be a party, and the SPA, and to perform their
obligations under each of them in accordance with their terms, and
to complete the Acquisition on the terms and conditions set forth
in the SPA; |
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(ii) |
they will procure that the relevant Lion Parties will upon
Closing: (i) enter into the Revised Shareholders’
Agreement and perform their obligations thereunder, including (but
not limited to) those under Clause 2 of the Revised
Shareholders’ Agreement; and (ii) cause the subscription
of $201,000,000 of equity pursuant to the terms of the Revised
Shareholders’ Agreement (together with (i), the “
Lion Commitment ”); |
3
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(iii) |
they will have at Closing sufficient funds available to fund
the Lion Commitment; and |
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