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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 14D-1
(AMENDMENT NO. 1)
TENDER OFFER STATEMENT PURSUANT TO SECTION 14(D)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
UNDER THE SECURITIES EXCHANGE ACT OF 1934
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UNITED STATES FILTER CORPORATION
(Name of Subject Company)
VIVENDI
EAU ACQUISITION CORP.
(Bidders)
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COMMON STOCK, PAR VALUE $.01 PER SHARE
(AND ASSOCIATED PREFERRED SHARE PURCHASE RIGHTS)
(Title of Class of Securities)
911843209
(CUSIP Number of Class of Securities)
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MICHAEL AVENAS
EAU ACQUISITION CORP.
C/O VIVENDI NORTH AMERICA MANAGEMENT SERVICES, INC.
800 THIRD AVENUE, 38TH FLOOR
NEW YORK, NEW YORK 10022
(212) 753-2000
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications on Behalf Of Bidder)
COPIES TO:
DANIEL A. NEFF, ESQ.
TREVOR S. NORWITZ, ESQ.
WACHTELL, LIPTON, ROSEN & KATZ
51 WEST 52ND STREET
NEW YORK, NEW YORK 10019
(212) 403-1000
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<PAGE>
This Amendment (the "Amendment") amends and supplements the Tender
Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") filed with the
Securities and Exchange Commission on March 26, 1999 by Vivendi, a societe
anonyme organized under the laws of France ("Parent"), and Eau Acquisition Corp.
("Purchaser"), a Delaware corporation and wholly-owned subsidiary of Parent, to
purchase all outstanding shares of Common Stock, par value $.01 per share (the
"Shares") of United States Filter Corporation, a Delaware corporation (the
"Company") and the associated Preferred Share Purchase Rights (the "Rights")
issued pursuant to the Rights Agreement, dated as of November 27, 1998, between
the Company and The Bank of New York, as Rights Agent (as the same may be
amended, the "Rights Agreement"), at a purchase price of $31.50 per Share (and
associated Right), net to the seller in cash, without interest thereon, upon the
terms and subject to the conditions set forth in the Offer to Purchase, dated
March 26, 1999 (the "Offer to Purchase"), and in the related Letter of
Transmittal (which together constitute the "Offer"). Capitalized terms used and
not defined herein shall have the meanings assigned to such terms in the Offer
to Purchase and the Schedule 14D-1.
This Amendment also constitutes an amendment to the Statement on
Schedule 13D with respect to the beneficial ownership of Shares which has
previously been filed by Parent and Purchaser.
ITEM 3. PAST CONTACTS, TRANSACTIONS OR NEGOTIATIONS WITH THE
SUBJECT COMPANY.
Item 3 of the Schedule 14D-1 is hereby amended and supplemented by the
following disclosure:
Reference is hereby made to the information set forth in Sections 8
("Certain Information Concerning the Company") and 10 ("Background of the Offer;
Contacts with the Company") of the Offer to Purchase, which is incorporated
herein by reference. In the course of the discussions between representatives of
Parent and the Company, certain projections of future operating performance of
the Company were furnished to Parent's representatives. These projections were
not prepared with a view to public disclosure or compliance with published
guidelines of the Commission or the guidelines established by the American
Institute of Certified Public Accountants regarding projections, and are
included in this Offer to Purchase only because they were provided to Parent.
Neither Parent, nor the Purchaser, nor any of their advisors assumes any
responsibility for the accuracy of these projections. While presented with
numerical specificity, these projections are based upon a variety of assumptions
(including, without limitation, disposition of assets currently held for sale
and consummation of acquisitions of as yet unidentified companies in each of the
years covered by the projections) relating to the businesses of the Company (on
a stand alone basis) which may not be realized and are subject to significant
uncertainties and contingencies, many of which are beyond the control of the
Company. There can be no assurance that the projections will be realized, and
actual results may vary materially from those shown.
Set forth below is a summary of the material portions of the
projections. These projections should be read together with the financial
statements of the Company referred to herein.
-2-
<PAGE>
UNITED STATES FILTER CORPORATION
AND SUBSIDIARIES
PROJECTED FINANCIAL INFORMATION
(IN MILLIONS)
For the Year Ending March 31
------------------------------------
1999 2000 2001 2002
------ ------ ------ ------
Revenues............................... $4,870.9 $5,460.0 $6,138.1 $6,919.3
Operating Income....................... 478.4 562.6 679.2 866.0
Net Income............................. 245.0 298.2 388.3 520.6
EBITDA(1).............................. 640.8 725.0 841.6 1,028.4
(1) EBITDA is Operating Income (which equals Revenues decreased by Cost of Sales
and by Selling, General and Administrative expenses), plus depreciation and
amortization.
ITEM 4. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
Reference is hereby made to the information set forth in Section 12
("Source and Amount of Funds") of the Offer to Purchase, which is incorporated
herein by reference.
Parent and Bayerische Landesbank Girozentrale, a credit institution
subject to German law ("BLG"), have entered into a definitive credit agreement
(the "BLG Credit Agreement") pursuant to which BLG has agreed to lend to Parent
up to 13.2 billion French francs, or the equivalent amount in Euros or U.S.
dollars based on an exchange rate specified in the Credit Agreement. The loan
matures on October 29, 1999. Amounts can be drawn under the Credit Agreement
with initial interest periods (each, an "Interest Period") of one, two or three
months. The interest rate payable on amounts drawn equals (i) LIBOR for the
applicable Interest Period plus 8 basis points, if amounts drawn are in U.S.
dollars or (ii) EURIBOR for the applicable Interest Period plus 8 points, if
amounts drawn are in Euros. The loan from BLG is unsecured. The foregoing
description is qualified by reference to the full BLG Credit Agreement, an
English language translation of which is attached as Exhibit (b)(1) and is
incorporated herein by reference.
Parent, a wholly-owned subsidiary of Parent ("Finance Sub") and Societe
Generale have entered into a definitive bond issuance and underwriting agreement
(the "SG Loan Agreement") pursuant to which Societe Generale will provide a
2.286 billion Euro loan for a period of six months following date on which funds
are made available. Such borrowing will bear an interest rate equal to the
1-month EURIBOR rate plus 8 basis points, subject to adjustment at Finance Sub's
option. The funds may be drawn by Finance Sub at any time after April 22, 1999,
subject to the terms and conditions of the SG Loan Agreement. Finance Sub will
reloan amounts borrowed under the SG Loan Agreement to Parent, and Parent will
guarantee the obligations of Finance Sub under the SG Loan Agreement. The SG
Loan Agreement is unsecured. The foregoing description is qualified by reference
to the full SG Credit Agreement,
-3-
<PAGE>
an English language translation of which is attached as Exhibit (b)(2) and is
incorporated herein by reference.
On April 13, 1999, Parent announced that it would be launching an
offering of its convertible bonds with an aggregate principal amount of 2.5
billion Euros. The bonds will mature in six years, have an interest rate of 1.5%
and be convertible into shares of common stock of Parent or Vivendi Environment,
a newly formed subsidiary that Parent expects will hold the Company and certain
of its other utilities businesses. Parent expects to raise an additional 3.2
billion Euros through an equity offering of its shares which will follow the
convertible bond offering. The proceeds of the convertible bond offering and the
equity offering will be used to repay the BLG Credit Agreement and the SG Loan
Agreement and to otherwise provide funding in connection with Parent's
acquisition of the Company.
ITEM 10. ADDITIONAL INFORMATION
(e) On March 29, l999, and April 6, l999, two additional complaints
were filed in the Court of Chancery of the State of Delaware in and for New
Castle County. They are captioned Lerner v. Quayle, et al.(the" Lerner
complaint")(Case No.l7072 NC) and Gothelf v. Quayle, et al. (the "Gothelf
complaint")(Case No. l7094 NC). The allegations made in the Lerner and Gothelf
complaints, and the relief sought therein, are substantially identical to the
contents of the complaint described in the Schedule 14D-1.
(f) Reference is hereby made to the information set forth in Sections 1
("Terms of the Offer"), 2 ("Acceptance for Payment and Payment") and 14
("Certain Conditions of the Offer") of the Offer to Purchase. Each of Parent and
the Purchaser acknowledge that all conditions to the Offer, other than receipt
of government approvals, must be satisfied or waived prior to the Expiration
Date.
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS
(b)(1) Credit Agreement between Parent and Bayerische Landesbank
Girozentrale (English translation)
(b)(2) Bond Issuance and Underwriting Agreement among Societe Generale,
Parent and a wholly-owned subsidiary of Parent (English
translation)
-4-
<PAGE>
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this Statement is true, complete and
correct.
Dated: April 15, 1999
VIVENDI
By: /s/ Jean-Marie Messier
---------------------------------
Name: Jean-Marie Messier
Title: Chairman and Chief Executive
Officer
EAU ACQUISITION CORP.
By: /s/ Jean-Marie Messier
---------------------------------
Name: Jean-Marie Messier
Title: President
-5-
<PAGE>
EXHIBIT INDEX
EXHIBIT
NO. DESCRIPTION
- ------- -----------
(b)(1) Credit Agreement between Parent and Bayerische Landesbank
Girozentrale (English translation)
(b)(2) Bond Issuance and Underwriting Agreement among Societe Generale,
Parent and a wholly-owned subsidiary of Parent (English
translation)
Exhibit (b)(1)
BAYERISCHE LANDESBANK GIROZENTRALE
PARIS BRANCH
Lender
VIVENDI S.A.
Borrower
CREDIT AGREEMENT
FRESHFIELDS
<PAGE>
TABLE OF CONTENTS
ARTICLES PAGES
Article 1 - Definitions 2
Article 2 - Amount of the Loan 7
Article 3 - Purpose of the Loan 7
Article 4 - Term of the Loan 7
Article 5 - Availability of the Funds 8
Article 6 - Repayment 8
Article 7 - Interest 9
Article 8 - Payments 9
Article 9 - Borrower's Commitments 10
Article 10 - Borrower's Declarations and Guarantees 13
Article 11 - Early Payability 15
Article 12 - Late Penalties, Reimbursement of Costs, 16
Compound Interest
Article 13 - New Circumstances 16
Article 14 - Transfer 18
Article 15 - Divisibility 18
Article 16 - Prior Conditions 18
Article 17 - Exercise of Rights 19
Article 18 - Taxes, duties and costs 19
Article 19 - Notifications 19
Article 20 - Applicable law, Jurisdiction 20
Appendix 1 - Model Draw Notification 22
Appendix 2 - Model letter to notify APR 23
Appendix 3 - Model Notification of Change in Interest Period 24
<PAGE>
CREDIT AGREEMENT
BETWEEN THE UNDERSIGNED
VIVENDI S.A., a French societe anonyme, registered in the Register of Commerce
and Companies of Paris under number 780 129 961, with registered offices at 42,
avenue de Friedland, 75008 Paris, represented by Mr. [____________], duly
authorized for the purposes herein (the Borrower);
AND
BAYERISCHE LANDESBANK GIROZENTRALE, a credit institution subject to German law,
with registered offices at 20, Brienner Strasse, 80333 Munich, Germany, acting
for the purposes of this Agreement through its French branch, registered in the
Paris Register of Commerce and Companies under number 351 681 374 and located at
203, rue du Faubourg Saint-Honore, 75008 Paris, and represented by Messrs.
Jean-Louis Gleizes, Managing Director, and Jean-Michel Pezard, Assistant
Managing Director, duly authorized for the purposes herein (the Lender).
WHEREAS:
(A) The Vivendi Group (as defined hereinafter) plans to purchase all the
Shares (as this term is defined hereinafter) of the Target (as this term
is defined hereinafter) for an initial total price of USD 6,200,000,000
(six billion two hundred million U.S. dollars), and it is specified that:
(a) for the purposes of the Acquisition (as this term is defined
hereinafter), the Vivendi Group intends to use a holding company
subject to U.S. law, Vivendi North America Operations, Inc., in
which the Borrower holds 100% of the capital and voting rights, and
its newly formed, wholly owned subsidiary, Eau Acquisition Corp.
(the New Co.), intended to purchase and hold the Shares in the
Target; and
(b) the Acquisition and the payment of the purchase price for the Shares
in the Target should be completed on or after April 27, 1999.
(B) In order to allow the Vivendi Group to complete the Acquisition, the
Lender is disposed to grant to the Borrower under this Agreement a bridge
loan for a maximum term between the Draw Date and the Due Date (as these
terms are defined hereinafter), and it is specified that the Loan (as
defined hereinafter) must be refinanced by equity capital (capital
increases, issue (i) of financial instruments that give the right, through
conversion, exchange, redemption, or presentation of a warrant, to the
allocation of financial instruments representing a share in the capital of
the Borrower; or (ii) of other instruments classified as equity capital or
quasi equity capital) at the Borrower's initiative no later than the Due
Date.
<PAGE>
NOW, THEREFORE, IT HAS BEEN AGREED AS FOLLOWS:
ARTICLE 1 - DEFINITIONS
1.1 For the purposes of this Agreement, the terms hereinafter shall have the
following meanings unless the context requires otherwise, or they are defined
differently:
Shares refers to the securities representing a share of the capital stock of the
company that issues them and the attached voting rights;
Acquisition means the acquisition by NewCo of all or part of the common Shares
of the Target through a tender offer made in accordance with American law;
Arrears means any amount in capital, interest, commissions, costs or fees
payable (i) on a Payment Date and not paid by the Borrower on said Date or (ii)
upon the occurrence of any Case of Early Payability;
Draw Notification refers to a notification of draw delivered to the Lender by
the Borrower and prepared in accordance with the model provided in Appendix 1;
Reference Banks refers to the principal agency in Paris of the Banque Nationale
de Paris, the Credit Agricole-Indosuez, the Credit Commercial de France, the
Credit Lyonnais, Paribas, or any other credit institution proposed by the Lender
and accepted by the Borrower (who may not refuse without a legitimate and
serious reason) in the event that one of the reference banks can no longer act
as such or refuses to do so;
TARGET Schedule refers to the schedule for the transactions completed in Euros
on an organized interbank market by the European Banking Federation (FBE) in
accordance with Article 109 L of the treaty regarding the European Union.
Case of Early Payability refers to any one of the events cited in Article 11;
Target refers to United States Filter Corporation, a Delaware company subject to
U.S. law, the Shares of which are traded on the New York Stock Exchange, with
its headquarters at 40-004 Cook Street, Palm Desert CA 92211, United States;
Counter-value means the amount (rounded down, if applicable, to the next unit)
expressed in an exchange currency for an amount expressed in another currency as
determined by the Lender on the basis of the exchange rate of the first currency
in relation to the second currency communicated at about 4:30 p.m. (Paris time)
by the Banque de France and distributed through the Reuter's network or, if not
distributed by this network, through the Telerate network on the Business Day
preceding the day on which this must be determined. In the event that, for any
reason whatsoever, the rate of the first currency compared to the second
currency is not communicated by the Banque de France, the Lender shall determine
the counter-value in the first currency on the basis of the arithmetic average
of the buy and sell prices of the two currencies concerned offered to the Lender
by at least three of the Reference Banks at approximately 5:00 p.m. (Paris
time);
<PAGE>
Loan means, at any time, all principal amounts that are drawn and not yet
repaid;
Due Date means October 29, 1999;
Payment Date means a Payment Date for Interest and/or the Payment Date of the
Principal;
Payment Date of the Principal means, for each Draw, the last Interest Payment
Date immediately preceding the Due Date;
Interest Payment Date means the last Business Day of any Interest Period;
Draw Date means the date cited in any Notification of Draw delivered to the
Lender by the Borrower to obtain the corresponding funds from the Lender; it is
specified that, in any event, no Draw Date may be prior to April 27, 1999 or
after September 29, 1999;
Acquisition Documents refers to the Offer to Purchase and all documents related
to the Acquisition that have been filed with the Securities Exchange Commission;
Eonia (European overnight index average) means:
(a) the average of the overnight transaction rates on the interbank market in
Euros calculated by the European System of Central Banks, weighted by the
amount of the transactions processed, distributed on the Telerate screen
on page 247 (or on any other page or screen that replaces this screen for
this purpose) under the aegis of the Banking Federation of the European
Union (FBE) at 7:00 p.m. (Brussels time) on the Business Day (in Brussels)
on which deposits in Euros are offered on the European interbank market;
or
(b) in the event that, for a given Business Day (in Brussels), the average
cited in paragraph (a) hereinabove is not distributed, the average
overnight rate determined by the Lender, equal to the arithmetic average
(corrected for extremes), rounded up to the next 1/16th, of the rates
communicated to it by at least three of the Reference Banks that these
banks use on the interbank market in Paris at 11:00 a.m. (Paris time),
on said given Business Day;
EUR refers to the Euro, the single European currency that is legal tender in the
territory of the French Republic;
Euribor (European interbank offered rate) means:
(a) for any Interest Period, the annual rate applicable to said Interest
Period and distributed on the Telerate screen on page 248 (or on any other
page or screen that may replace this screen for this purpose) under the
aegis of the Banking Federation of the European Union (FBE) at 11:00 a.m.
(Brussels time) two Business Days (in Brussels) before the first day of
said Interest Period at which deposits in Euros are offered on the
European interbank market for a period equal to that of the Interest
Period in question; or
<PAGE>
(b) in the event that, for a given Interest Period, the rate cited in
paragraph (a) hereinabove is not distributed, the annual rate determined
by the Lender, equal to the arithmetic average (corrected for extremes),
rounded up to the next 1/16th, if necessary, of the rates communicated to
the Lender by at least three of the Reference Banks at which these banks
offers deposits in Euros for a period equal to that of the Interest Period
in question to leading banks on the Paris interbank market, at 11:00
(Paris time) two Business Days (in Paris) before the first day of said
Period;
Federal Fund means:
(a) the overnight "USD-Federal Fund" rate distributed on the Telerate screen
on page 120 or, if not distributed here, in the bulletin H.15 Daily Update
(update of H.15(519) published by the Federal Reserve System Board of
Governors), at 6:00 p.m. (New York time) on a given Business Day; or
(b) in the event that, for a given Business Day, the rate cited in paragraph
(a) hereinabove is not distributed, the overnight rate determined by the
Lender, equal to the arithmetic average (corrected for extremes), rounded
up to the next 1/16th, if applicable, of the rates that have been
communicated to the Lender at 11:00 a.m. (New York time) on said Business
Day (in Paris) by the Reference Dealers;
FRF refers to a subdivision of the Euro;
Vivendi Group refers to:
(a) prior to the Acquisition, the group composed of the (i) Borrower, (ii) the
American companies Vivendi North America Operations, Inc. and NewCo; and
(ii) French companies in which Vivendi holds more than two-thirds of the
capital and voting rights; and
(b) after the Acquisition, the companies described in paragraph (a)
hereinabove, plus the Target;
Index means the Reference Index and the Late Index;
Reference Index refers to:
(a) the Euribor for any Draw made in Euros; and
(b) the Libor for any Draw made in USD;
Late Index means:
(a) the Eonia for any sum denominated in Euros; and
(b) the Federal Fund for any sum denominated in USD;
<PAGE>
Interest means, for a given Draw, the amount of the interest owed by the
Borrower for any Interest Period and equal to the product of the following:
(a) the corresponding Interest Rate, and
(b) the corresponding Amount Drawn
on the basis of:
(i) the exact number of days elapsed during the related Interest Period
(ii) in relation to a 360-day year;
Business Day means, except where stipulated otherwise:
(a) with respect to any payment denominated in USD, any day (full) on which
the credit institutions are open in Paris, New York, and London for the
purpose of completing banking transactions and on which transactions on
the interbank market are performed; and
(b) with respect to any payment denominated in Euros, any business day of the
TARGET Schedule;
Libor means:
(a) for any Interest Period, the annual rate applicable to said Interest
Period as distributed on the Telerate screen (page 3750) under the aegis
of the British Bankers Association at 11:00 a.m. (London time) two
Business Days (in London) before the first day of said Period at which
deposits in USD are offered on the London international interbank market
for a period equal to that of the Interest Period in question; or
(b) in the event that, for a given Interest Period, the rate cited in
paragraph (a) hereinabove is not distributed, the annual rate determined
by the Lender, equal to the arithmetic average (corrected for extremes),
rounded up to the next 1/16th, if applicable, of the rates communicated to
the Lender by at least three of the Reference Banks at which these banks
offer deposits in USD for a period equal to the Interest Period in
question to leading banks on the London interbank market, at 11:00 a.m.
(London time) two Business Days before the first day of said Period;
Margin means 0.08% (eight hundredths of one percent) per year;
Maximum Amount means the maximum amount in principal of the Loan, which is the
sum of FRF 13,200,000,000 (thirteen billion two hundred million French francs)
or its counter-value in USD;
Amount Drawn means the fraction of the Maximum Amount that is drawn on one or
more occasions;
Interest Period means any period of one, two or three months, at the Borrower's
choice, starting on a Draw Date and ending on the last day of said period (not
included), at the end of which payment of the Interest owed by the Borrower is
due for the corresponding Draw; it is specified that if the last day of the
Interest Period is not a Business Day, said Interest Period shall end the
<PAGE>
following Business Day, except if this results in a carry over to the next
calendar month, in which case said Interest Period shall end on the preceding
Business Day. The Borrower must indicate its choice for:
(a) the initial Interest Period for a Draw in the Draw Notification, the model
for which is provided in Appendix 1; and
(b) subsequent Interest Periods for each of the corresponding Draws, at least
5 Business Days before the end of the corresponding current Interest
Period through a notification following the model provided in Appendix 3;
Redeployment of Funds means, in the event of early repayment (partial or total)
of the Loan, for any reason whatsoever, notably pursuant to Articles 6.2, 11 and
13, on a date that is not an Interest Payment Date, or in the case of the
revocation of a Draw, the total amount of the sums intended to indemnify the
Lender for any losses, costs and expenses of any kind paid by the Lender as a
result of said repayment (including, in particular, and not limited to, all
losses and all costs paid by the Lender for the liquidation or the re-use of the
deposits that it acquired to finance the Loan), which the Borrower must pay to
the Lender at its first request upon presentation of the appropriate supporting
documents;
Reference Dealers means three major brokers in USD-Federal Funds transactions on
the New York City market proposed by the Lender and accepted by the Borrower
(which may not refuse without a legitimate and serious reason);
Interest Rate means the annual interest rate applicable to the Loan, which is
equal to the sum of:
(a) The Reference Index applicable to each Draw for each corresponding
Interest Period; and
(b) The Margin;
Late Penalty Rate means the annual interest rate equal to the sum of:
(a) The applicable Late Index;
(b) The Margin; and
(c) 2% (two percent)
applicable to any arrears for a Draw; it is specified that the late penalty is:
(i) calculated daily from the Payment Date (included) for said Draw, or the
date of payability (in the event a Case of Early Payability occurs) in
question, until the actual payment date (excluded) of the Arrears by the
Borrower; and
(ii) in relation to a 360-day year;
<PAGE>
APR or annualized percentage rate means the annual rate proportional to the
period rate, at maturity and expressed as a percentage of monetary units,
calculated actuarially, ensuring, according to the method of compounded
interest, equality between the sums loaned and all payments including, in
accordance with the provisions of Articles L 313-1 and following of the Consumer
Code, in addition to interest, the direct or indirect costs, commissions or
remuneration of any kind owed by the Borrower for the Loan.
Draw refers to the use by the Borrower of the Loan through a Draw Notification
in accordance with the provisions of Article 5; it is specified that:
(a) The Loan may be taken in a maximum of five Draws;
(b) The Amount Drawn may not in any event exceed the Maximum Amount;
(c) The Amount Drawn for each Draw may not in any case be less than EUR
100,000,000 (one hundred million Euros) or its Counter-value in USD; and
(d) The Loan may be drawn by the Borrower only in EUR or in USD;
USD means the currency that is legal tender in the United States of America.
1.2 The titles and subtitles used in this Agreement shall have no effect on
its interpretation.
1.3 Words used in the singular must also be understood with these meanings in
the plural and vice-versa; French masculine words are also understood the same
way in the feminine and vice-versa.
1.4 The references made herein to Articles or Appendices must be understood to
mean references to articles and appendices of this Agreement, unless stipulated
otherwise.
ARTICLE 2 - AMOUNT OF THE LOAN
Subject to the stipulations of this Agreement, the Lender grants to the Borrower
a loan for a total maximum amount of FRF 13,200,000,000 (thirteen billion, two
hundred million French francs) or its Counter-value in USD.
ARTICLE 3 - PURPOSE OF THE LOAN
The purpose of the loan described in Article 2 hereinabove is to allow the
Vivendi Group to proceed with the purchase of the Shares of the Target up to a
level of 100% of the capital stock of this company.
The Lender shall in no way be required to ensure that the use of the funds by
the Borrower conforms to the allocation defined hereinabove, and shall not incur
any liability in this respect.
ARTICLE 4 - TERM OF THE LOAN
The Loan is granted until the Due Date on which it must be repaid in full,
subject to the occurrence of any Case of Early Payability.
<PAGE>
ARTICLE 5 - AVAILABILITY OF THE FUNDS
5.1 Draws
On or after April 27, 1999, and no later than September 29, 1999, the Loan may
be made available to the Borrower in a maximum of five Draws according to the
terms and conditions stipulated hereinafter.
5.2 Draw Notification
5.2.1 No later than 9:00 a.m. (Paris time) three Business Days before each Draw
Date, the Borrower shall send the Lender a Draw Notification following the model
given in Appendix 1. Any Draw Notification must be made for a minimum Amount
Drawn of EUR 100,000,000 (one hundred million Euros) or its Counter-value in
USD.
5.2.2 Each Draw Notification described in Article 5.2.1 hereinabove shall be
deemed an irrevocable commitment from the Borrower to make the Draw on the date
and according to the terms and conditions indicated in the Draw Notification.
5.3 Payment of the Funds
5.3.1 Subject to the stipulations of Articles 11 and 16, no later than 11:00
a.m. (Paris time) on each Draw Date, the Lender shall make available to the
Borrower the Amount Drawn (in the currency concerned) by transfer to the bank
account opened in the name of the Borrower in the books of a French bank and
kept in France, the reference information for which shall be indicated in the
corresponding Draw Notification.
5.3.2 If on September 29, 1999, the total Amount Drawn for all Draws made by the
Borrower is less than the Maximum Amount, said Maximum Amount shall officially
and irrevocably be reduced to the level of said total Amount Drawn on said date.
5.4 Non-use Commission
In the event that, for any reason whatsoever, the Loan does not result in any
Draw, the Borrower shall pay the Lender a non-use commission for the bridge loan
equal to FRF 1,000,000 (one million French francs) excluding taxes.
ARTICLE 6 - REPAYMENT
6.1 Repayments in fine
Subject to the stipulations of Articles 6.2, 11, 13.1 and 13.2, the Borrower
must repay the Amount Drawn for each Draw on the corresponding Principal Payment
Date in the currencies and proportions borrowed.
6.2 Early Repayment
The Borrower may, at any time, repay all or part of the Amount Draw early,
without penalty, subject to compliance with the following conditions:
<PAGE>
(a) The Borrower must irrevocably notify the Lender of its desire to make such
a repayment no later than 5:00 p.m. on the fifth Business Day before the
date on which said repayment is to be made and specify, in the case of
partial repayment, to which Draw or Draws the amount repaid is attached;
and
(b) the amount repaid early must be a whole multiple of EUR 100,000,000 (one
hundred million Euros) or its Counter-value in USD;
It is specified that, in the event the date of said early repayment is not an
Interest Payment Date, the Borrower must indemnify the Lender for the cost of
Redeployment of the Funds. In any event, no amount repaid early may be taken in
a new Draw.
ARTICLE 7 - INTEREST
7.1 Interest Rates and Interest Period
On each Interest Payment Date for each Draw, the Borrower shall pay the Lender
the interest accrued on the Amount Drawn under said Draw during the
corresponding Interest Period, calculated at the appropriate Interest Rate.
7.2 Annualized Percentage Rate
In order to comply with the provisions of Articles L 313-1 and following of the
Consumer Code, the parties hereto recognize that, because of the special
characteristics of the Loan, in particular the variable nature of the Interest
Rate, the APR may not be calculated over the total term of the Loan on the date
this Agreement is signed. However, the parties agree that the Lender shall
indicate to the Borrower, by way of example, the APR on the date of this
Agreement, on the basis of the elements known on this date, through a separate
letter following the model given in Appendix 2.
ARTICLE 8 - PAYMENTS
8.1 All sums owed by the Borrower to the Lender under this Agreement shall be
paid to the Lender no later than 11:00 a.m. (Paris time) on the Business Day
concerned by transfer (payment day value) to the bank accounts opened in the
name of the Lender under the following references:
"Euro" Account:
Bank Account No. 100649A Key: 76
Bank: Caisse des depots et consignations
Bank code: 40031 Agency code: 00001
<PAGE>
"USD" Account:
Bank Account No. 2000 - 19352938 G Bank: First Union New York
Swift Code: PNBPU33NNYC Favor: Bayerische Landesbank Paris (BYLAFRPP)
8.2 Any payment or repayment received from the Borrower by the Lender shall be
charged as follows:
(a) first, to repayment of all costs, taxes, duties and contributions of any
kind, stipulated to be paid by the Borrower under the terms of this
Agreement;
(b) second, against late penalties;
(c) third, against interest arrears;
(d) then, against Interest; and
(e) finally, against the principal.
ARTICLE 9 - BORROWER'S COMMITMENTS
9.1 Communication
As of the date this Agreement is signed and until it expires, the Borrower
undertakes to:
(a) provide the Lender, as soon as they are available and no later than 180
calendar days after the date this Agreement is signed, with the audited
consolidated annual financial statements (balance sheet, income statement,
notes and cash position, or the equivalent American financials concerning
the Target) for fiscal year 1998 for (i) the Borrower and (ii) the Target;
(b) provide the Lender within five (5) Business Days after May 11, 1999, a
certified true copy of the minutes of a Board of Directors Meeting of the
Borrower showing a resolution of said Board expressly authorizing the
issue of (i) Shares, (ii) financial instruments that give the right,
through conversion, exchange, redemption, or presentation of a warrant, to
the allocation of financial instruments representing a share in the
capital of the Borrower; or (iii) other instruments classified as equity
capital or quasi equity capital, in all cases in order to refinance the
Acquisition;
(c) inform the Lender of any change or inaccuracy affecting one of the
declarations stipulated in Article 10 hereinafter;
(d) immediately inform the Lender of the occurrence of any Case of Early
Payability; and
<PAGE>
(e) more generally, inform the Lender of any event (including any rescheduling
or moratorium it receives from a creditor) that may have a significant
unfavorable effect on the activity, legal structure, or financial position
of the Borrower, and may affect its capacity to fulfill its obligations
under the terms of this Agreement.
9.2 Other commitments
As of the date this Agreement is signed and until it expires, the Borrower
undertakes to:
(a) pay regularly on the appropriate dates all sums due in principal,
interest, commissions, costs and incidentals under this Agreement;
(b) comply with all legal, regulatory, and administrative provisions that
apply to it, and all contractual provisions that bind it and the legal,
administrative, arbitration or other decisions that involve it,
non-compliance with which could affect its ability to fulfill its
obligations under this Agreement;
(c) keep regular and accurate accounts in compliance with applicable general
accounting plan to give an accurate picture of its holdings, financial
position, and the earnings of its enterprise;
(d) declare any taxable earnings on the appropriate dates to the tax
authorities concerned, and pay all duties and taxes on the appropriate
dates (except if said payment is contested in good faith and sufficient
reserves have been established in accordance with generally accepted
accounting standards, and in the event said payment may be legally
deferred);
(e) not grant or allow any lien, secured debt, collateral or fiduciary
security (such as any assignment or pledge of professional claims pursuant
to Law No. 81-01 of January 2, 1981, or any delivery in freehold of
equities, securities, bills or sums of money as guarantee pursuant to
Article 52, section 4 of Law No. 96-597 of July 2, 1996, or any other
fiduciary security), or any charge or abnormal encumbrance in favor of a
third party on all or part of its assets, notably its business or all
other intangible assets, without the prior agreement of the Lender.
However, the Borrower may establish or allow any securities, pledges,
liens, restrictions, or encumbrances in the context of the current
operation of its business for a total amount less than EUR 80,000,000
(eighty million Euros) without requiring the prior consent of the Lender.
In addition, the commitments described in the two preceding paragraphs of
(e) do not apply to:
(i) any secured debt existing on the date of this Agreement that has been
granted on one of its assets recorded as a tangible asset to guarantee a
debt made before the date of this Agreement;
<PAGE>
(ii) any security existing on the date on which the Borrower takes actual
control of the Target and granted by the Target on its assets;
(iii) any lien or security that meets all of the following conditions:
(aa) results exclusively from the law and does not result from any
agreement or convention whatsoever;
(bb) would not involve or require the intervention of the Borrower; and
(cc) has not yet been the subject of forced execution or implementation
on the assets encumbered by said security or guarantee;
(iv) any security, clause reserving ownership, or any right of retention on
a tangible asset acquired or held by the Borrower, granted by the Borrower
in order to guarantee the purchase price of said asset, or a debt incurred
exclusively in order to finance its purchase (limited to the purchase
price of said asset), provided that said security, clause reserving
ownership or said right of retention concerns said tangible asset acquired
by the Borrower or the claims resulting (aa) from the loss of said asset,
or (bb) from damages caused to said asset, notably, insurance indemnities
or, finally, the rental or charter fees payable by a tenant or charterer
for said asset or the income from said asset;
(v) in the event that an entity becomes a subsidiary of the Vivendi Group
after the Acquisition, any security existing on the date said entity
enters the Group on any of its assets, excluding any security granted in
order to make said entity a subsidiary;
(f) not enter into any agreement for merger, split, partial contribution of
assets, or absorption except, however, to the extent that (1) the
surviving company would assume all the obligations of the Borrower under
this Agreement; and (ii) the Lender has first given its consent, which may
not be refused without a legitimate reasons; it is specified that the
Lender authorizes in advance all restructuring or reorganization measures
among the companies of the Vivendi Group that will not interfere with
rights of the Lender under this Agreement;
(g) ensure that its obligations under all its other debts, present and future,
do not benefit (aa) from a payment priority or (bb) preferred claims of
any kind from which its obligations under this Agreement would not
benefit, without prejudice, however, to obligations that benefit from a
higher rank according to law;
(h) directly or indirectly retain an interest in the capital and voting rights
of NewCo that is at least equal to 100% of the capital of this company,
and act so that NewCo directly retains an interest in the capital and
voting rights of the Target that is at least equal to the number of Shares
of the Target held by NewCo cited in the affidavit described in Article
16.2(c); and
<PAGE>
(i) not grant or allow, and ensure that NewCo does not grant or allow, a
pledge or security of any kind (including any delivery in freehold as
guarantee pursuant to Article 52, section 4 of Law No. 96-597 of July 2,
1996, or loan against pledged securities, or loan of securities or any
other security trust under French law or foreign laws), or encumbrance,
option or abnormal restriction, under French or foreign laws, in favor of
a third party on all or part of the Shares of the Target.
ARTICLE 10 - DECLARATIONS AND GUARANTEES OF THE BORROWER
10.1 On the date this Agreement is signed, the Borrower declares and guarantees
the Lender:
(a) that it is a legal entity duly registered in the register of commerce and
companies in the proper jurisdiction;
(b) that this Agreement has been properly signed by a representative legally
authorized by law to represent the Borrower, or by an agent of the
Borrower, duly authorized pursuant to a delegation of power granted by a
body legally authorized by law to represent it or, by an agent who has
himself received powers from a body legally authorized to represent the
Borrower for this purpose plus the ability to sub-delegate said power to
the signatory of this Agreement; that it constitutes a valid commitment of
the Borrower and binds the Borrower under its terms;
(c) that neither the signing of this Agreement nor the fulfillment of the
obligations arising herefrom is contrary to any provision of its bylaws,
its corporate purpose, legislative or regulatory provisions applicable to
the Borrower, provisions of a contract or commitment to which the Borrower
is a party or an administrative, arbitration, or legal decision resulting
from court or administrative orders that bind the Borrower;
(d) that it complies, in the context of its activities, with all legal and
regulatory provisions in force and all its contractual obligations;
(e) that no request has been presented, nor any resolution proposed or
adopted by a Meeting of Shareholders to cause the institution (i) of a
notification procedure or amicable settlement under the provisions of Law
No. 84-148 of March 1, 1984; or (ii) a collective procedure subject to the
provisions of Law No. 85-98 of January 25, 1985 (or any other equivalent
procedure concerning the Borrower), or in order to organize its amicable
liquidation or dissolution; no conciliator, court-ordered administrator,
ad hoc administrator, court-appointed agent for the liquidation of
enterprises, or ad hoc agent has been named, and the Borrower has not been
publicly recognized as unable to settle its debts or as being in state of
cessation of payments;
<PAGE>
(f) that no court, administrative or arbitration proceedings have, to its
knowledge, been or may be brought against it that could:
(aa) prevent the Borrower from entering into or executing this Agreement
or any document arising herefrom; or
(bb) prevent the Vivendi Group from making the Acquisition; or
(cc) affect the ability of the Borrower to comply with its obligations
under the terms of this Agreement;
(g) that it is not subject to any implementing measure under the provisions of
the Law of July 9, 1991, and the decree of July 31, 1992, notably a
garnishment or a notice to third party holder or any other measure
resulting from the protest of a bill or a certificate of non-payment for
collection of unpaid sums for a total amount greater than EUR 40,000,000
(forty million Euros);
(h) that no lien from the Treasury or general property lien from Social
Security has been filed with the clerk of court of the Tribunal of
Commerce with jurisdiction over the Borrower's headquarters to this date;
(i) that there are no facts or events that could constitute a Case of Early
Payability;
(j) that all taxes, duties, or contributions to notified social agencies or
to be declared by the Borrower were effectively paid on the appropriate
date (except if this payment is contested in good faith); any taxable
earnings by the Borrower were declared on the appropriate date to the
authorities concerned, and there has been no notification of assessment,
automatic taxation procedure, or demand for payment under any action for
collection, or any other disputes for the collection of taxes, duties or
other contributions that would affect the ability of the Borrower to
fulfill its obligations under this Agreement;
(k) that the annual and intermediate accounts (quarterly or six-month) of the
Borrower are correct and accurate and give a true picture of its holdings,
financial position, and earnings on the respective closing dates for the
years and periods that they represent; and
(l) that the Acquisition will be completed in strict compliance with the laws
applicable to companies and securities issued by companies in the United
States of America.
10.2 At any time and, in particular, on each Draw Date, the Borrower declares
and guarantees the Lender that the Amount Drawn does not exceed the amount
necessary to finance the payment by NewCo of the price for the Shares of the
Target purchased under the tender offer that has not already been financed by
any means whatsoever.
10.3 Each of the declarations and guarantees set forth in this Article 10 shall
be expressly reiterated on each Draw Date.
<PAGE>
ARTICLE 11 - EARLY PAYABILITY
11.1 If applicable, after the expiration of the periods cited hereinafter, the
total of the sums in principal, interest, commission, costs and incidental
expenses of any kind payable to the Lender under this Agreement will become
legally payable on simple written notification from the Lender sent to the
Borrower without requiring prior official notification, in the event that any of
the following Cases of Early Payability occur:
(a) total or partial non-payment at the end of three Business Days after a
Payment Date or its due date of any amount in principal, interest,
commission, costs or incidental expenses due under this Agreement;
(b) significant inaccuracy in any of the declarations made by the Borrower
under this Agreement; such inaccuracy will result in early payability of
the Loan only if it is not corrected within 30 calendar days from the date
it occurs, and it is specified that if it is manifestly impossible to
correct it, said inaccuracy will result in the immediate payability of the
Loan;
(c) concealment by the Borrower of relevant information and, more generally,
if the Borrower commits any fraudulent or injurious operation at the
Lender's expense;
(d) any event that could have a significant unfavorable effect on the
activity, the legal structure, or the financial position of the Borrower
that would affect its capacity to fulfill its obligations under this
Agreement;
(e) default of the Borrower under any obligation to pay a sum of money to a
third party for a total amount greater than EUR 40,000,000 (forty million
Euros);
(f) institution of a notification or amicable settlement procedure under
Chapters III and IV of Law No. 84-148 of March 1, 1984, or of a collective
procedure under Law No.
85-98 of January 25, 1985;
(g) exercise by any creditor of any enforcement method under the provisions
of the Law of July 9, 1991, and the decree of July 31, 1992, notably a
garnishment or a notice to third party holder, as well as in the event of
protest of a bill or certificate of non-payment concerning the collection
of unpaid sums for a total amount greater than EUR 40,000,000 (forty
million Euros) and for which no cancellation of garnishment has been
obtained within five Business Days unless, within the same period, the
Borrower is in a position to demonstrate, to the reasonable satisfaction
of the Lender, that these measures are contested in good faith by the
Borrower through the appropriate means;
(h) the filing of a Treasury lien or general property lien from the Social
Security with the clerk of court in the Tribunal of Commerce with
jurisdiction over the headquarters of the Borrower;
<PAGE>
(i) NewCo directly holds a number of Shares of the Target that is less than
the number of Shares of the Target cited in the affidavit described in
Article 16.2(c);
(j) non-compliance by the Borrower with the commitment stipulated in Article
9.1 (b);
(k) more generally, significant failure of the Borrower to comply with any of
the commitments stipulated in Article 9 of this Agreement.
11.2 Sums that have become due under this Article shall bear interest until
they are paid in full at the Late Penalty Rate, and the Borrower must indemnify
the Lender for the cost of Redeployment of the Funds.
ARTICLE 12 - LATE PENALTIES, REPAYMENT OF COSTS, COMPOUND INTEREST
12.1 Late penalty
Any Arrears shall legally result, without prior official notification, in the
additional payment by the Borrower of a late penalty calculated at the Late
Interest Rate.
The collection of late penalties by the Lender shall, under no circumstances,
imply that it has granted payment periods or waived any of its rights.
12.2 Repayment of costs
In addition to the late penalties described hereinabove, the Borrower must
immediately repay the Lender in full for any expenses that the Lender must incur
to collect said Arrears.
12.3 Compound interest
All interest due for a full year will be capitalized in accordance with Article
1154 of the Civil Code.
ARTICLE 13 - NEW CIRCUMSTANCES
13.1 Increase of costs
If, for any reason whatsoever, notably because of the adoption of a new
legislative, regulatory or other provisions (circular, directive, instruction,
etc.) or a change in the interpretation of any standard of any kind ( legal,
regulatory, professional or other), the net remuneration of the Lender (with the
exception of a simple change in gross rate of the tax on total net earnings of
the Lender) under this Agreement decreases or the cost of its commitment
increases, because of the following:
<PAGE>
(a) a tax, duty or withholding of any kind specifically levied on any sum owed
by the Borrower under this Agreement; or
(b) an obligation to establish reserves, deposits, limits on outstanding
amounts in relation to its assets or the deposits it holds, or a change in
the prudential ratios that must be met by credit institutions; or
(c) an obligation of quantitative limits notably for the tightening of credit,
or the mandatory reserves that affect the amount of loans outstanding that
the Lender may grant;
the Lender shall so notify the Borrower, and both parties shall work together in
good faith in order to arrive at a satisfactory solution for both parties. If,
at the end of a period of 30 calendar days after the date of said notification,
such a solution has not been found, the Borrower must assume the additional cost
described in this Article so that the Lender collects an amount net said
additional cost. However, in the event that, due to the applicable legislation,
the Borrower cannot assume said cost, it will be required to make immediate
early repayment of the Loan plus (i) all the costs related to the events
described hereinabove that have been paid by the Lender since the notification
cited above; and (ii) the cost of Redeployment of the Funds.
13.2 Illegality
In the event that there is either a change in the legislation or regulations (or
their interpretation) or a decision from any competent authority that would have
the effect of making the loan, this Agreement, or the fulfillment by the Lender
of its obligations under this Agreement illegal, the Lender shall so notify the
Borrower and the parties shall make every effort to find a satisfactory
replacement solution for both parties. If, at the end of a period of 30 calendar
days after the date of said notification, such a solution has not been found,
the Borrower must make early repayment of the Loan plus the cost of Redeployment
of the Funds.
13.3 Disturbance in the market
In the event of a change that affects the composition or the definition of one
(or more) indices, and in the event that said Index or Indices disappears and a
rate or rates of the same kind or equivalent are substituted, as well as in the
event of a change that affects the organizations that publish said rate or rates
or the methods for calculating or publishing the rates, the rate or rates
resulting from this change or this substitution will be legally applied to this
Agreement.
It is also specified that, as long as the substitution rate or rates described
above have not been determined, the interest will be calculated provisionally by
the Lender on the basis of the last known index or indices; the breakdown of the
sums definitively owed as interest will be established after the determination
of said substitution rate or rates.
<PAGE>
ARTICLE 14 - TRANSFER
14.1 The Borrower may not transfer or assign in any way all or part of its
rights or obligations under the Loan Agreement without obtaining the prior
agreement of the Lender.
14.2 The Lender may freely assign, transfer, or give as guarantee to all third
parties, including any mutual debt fund constituted pursuant to Law No. 88-1201
of December 23, 1988, in whole or in part, its rights and/or obligations under
the Loan Agreement, and sign all related participation or syndication
agreements, provided, however, that such a transfer:
(a) does not result in additional costs for the Loan to be paid by the
Borrower; and
(b) involves a minimum Loan amount of USD 50,000,000 (fifty million USD) or
its Counter-value in Euros.
ARTICLE 15 - DIVISIBILITY
In the event that any of the provisions of this Agreement are recognized to be
null or unenforceable under the applicable law, the validity, legality, and
enforceability of the other provisions of this Agreement shall not be affected
by this fact.
ARTICLE 16 - PRIOR CONDITIONS
16.1 Prior to the date of signature of this Agreement, the Lender must have
received all the documents listed hereinafter in the correct form and with the
correct information:
(a) A certified true copy of the updated bylaws of the Borrower, a K-Bis
Excerpt, and a certificate of non-bankruptcy of the Borrower, dated less
than 15 calendar days earlier;
(b) the copy of the Acquisition documents available at that time; and
(c) a written declaration from the Borrower attesting to the absence of any
event that constitutes a Case of Early Payability on the signing date;
(d) a legal opinion from the Borrower's legal counsel concerning its capacity,
the validity and enforceability of the obligations it has subscribed under
this Agreement against third parties and against the Borrower; and
(e) a certified true copy of the delegation of authority to the signatory of
the Borrower, dated [_______].
16.2 The Borrower may not, under any circumstances, make a Draw if one of the
following conditions has not been met:
(a) at the end of the tender offer initiated by NewCo on the Shares of the
Target, which are traded on the primary market of the New York Stock
Exchange, NewCo validly holds directly and in freehold all the Shares of
the Target that have been presented to it at the end of said tender offer,
free of any security, option, pledge or other similar and equivalent
restriction, and the documents relating to said tender offer and the
transactions
<PAGE>
described therein have not been substantially modified or amended or
canceled since they were signed;
(b) the tender offer or the acquisition of the Shares of the Target by the
Vivendi Group do not violate any French, European, or American anti-trust
regulations (notably, the Hart-Scot-Rodino Act) and the competent control
authorities do not challenge said tender offer or the acquisition of the
Target by the Vivendi Group;
(c) within 10 Business Days after the close of the tender offer for the Shares
of the Target, the Borrower has provided the Lender with an affidavit from
Lazard Freres, indicating the number of Shares of the Target held by
NewCo; or
(d) the Borrower has provided the Lender with the Acquisition Documents
available at that time that have not already been transmitted pursuant to
this Agreement and, in any event, a certified copy of the document titled
"Offer to purchase," which must not contain any incorrect or inaccurate
information concerning the description of (i) the Lender, (ii) the
involvement of the Lender in the operation; or (iii) the conditions of the
Loan that might interfere with the Lender's interests.
ARTICLE 17 - EXERCISE OF RIGHTS
The fact that the Lender does not exercise or delays in exercising any of the
rights it holds under this Agreement or the law does not constitute, nor may it
be construed as, a waiver of said rights.
The rights stipulated in this Agreement are not exclusive of all other rights
stipulated by law with which they may be combined.
ARTICLE 18 - TAXES, DUTIES AND COSTS
All duties, taxes, levies, present or future, of any kind and, generally, all
costs, including attorney's fees and costs related to this Agreement or
resulting therefrom or the reasonable result of this Agreement are the
responsibility of the Borrower and are therefore paid by the Borrower or repaid
to the Lender in the case of an advance by the Lender, and definitively paid by
the Borrower.
ARTICLE 19 - NOTIFICATIONS
Any notification, request or communication that may or must be made pursuant to
this Agreement must be made by letter sent by mail or hand delivered, by telex
or fax, to the address of the party indicated hereinafter, or to any other
address communicated subsequently:
<PAGE>
The Borrower:
VIVENDI S.A.
42, avenue de Friedland
75008 Paris
France
Fax: 01 71 71 10 47
Telephone: 01 71 71 11 04
Attention: Hubert Dupon Lhotelain
The Lender:
Bayerische Landesbank Girozentrale
203, rue du Faubourg Saint-Honore
75008 Paris
France
Fax: 01 44 21 14 94
Telephone: 01 44 21 14 13
Attention: Sharon Jones Gaden
Copy to Emmanuel Ballande
Fax: 01 44 21 14 95
Telephone: 01 44 21 14 47
ARTICLE 20 - APPLICABLE LAW, JURISDICTION
20.1 This Agreement is governed by French law.
20.2 The Tribunal of Commerce of Paris shall have sole jurisdiction for any
dispute under this agreement and all results and consequences thereof.
<PAGE>
Made in two originals in Paris
March 29, 1999
/s/ Jean-Louis Gleizes /s/ Jean-Michel Pezard
- ------------------------- -----------------------------
BAYERISCHE LANDESBANK BAYERISCHE LANDESBANK
GIROZENTRALE GIROZENTRALE
Name: Jean-Louis Gleizes Name: Jean-Michel Pezard
Title: Managing Director Title: Assistant Managing Director
-----------------------------
VIVENDI S.A.
Name:
Title:
<PAGE>
APPENDIX 1
MODEL DRAW NOTIFICATION
[Borrower's letterhead]
Paris, [date]
Bayerische Landesbank Girozentrale
203, rue du Faubourg Saint-Honore
75008 Paris
France
Attention: Sharon Jones Gaden
Dear Sir:
LOAN AGREEMENT FOR FRF 13,200,000,000 DATED March 29, 1999
In accordance with the provisions of the Agreement cited hereinabove, notably
Article 5.2, we are requesting a Draw with the following characteristics:
Amount Drawn: USD/EUR
Date of Draw:
Initial Interest Period (1, 2 or 3 months) months
In accordance with the provisions of Article 5.3 of the Agreement, the funds for
the Draw must be made available by transfer no later than 11:00 a.m. (Paris
time) on the Draw Date cited above to the bank account with the following
references:
Bank Account No.: Key:
Account Holder:
Bank code: Agency code:
We hereby expressly reiterate the declarations and guarantees cited in Article
10 of the Agreement, and confirm to you that none of the Cases of Early
Payability described in Article 11 of the Agreement exist or have occurred as of
this date.
We confirm to you that each of the conditions described in Article 16.2 of the
Agreement has been duly met.
The terms that are capitalized have the meaning assigned to them in the Loan
Agreement.
-----------------
THE BORROWER
Name:
Title:
<PAGE>
APPENDIX 2
MODEL APR NOTIFICATION LETTER
[Lender's letterhead]
Paris, March 24
VIVENDI S.A.
42, avenue de Friedland
75008 Paris
France
Attention:
Dear Sir:
LOAN AGREEMENT FOR FRF 13,200,000,000 DATED March 29, 1999
Pursuant to Article 7.2 of the Agreement cited above, we are indicating:
(a) first example: the APR is equal to [ ]%, given the following information
and assumptions:
(i) the one-month Euribor is equal to [ ]% and is assumed constant for the
entire term of the Agreement:
(ii) the one-month Libor is equal to [ ]% and is assumed constant for the
entire term of the Agreement:
(iii) the Amount Drawn is equal to USD/EUR [ ]; and
(a) second example: the APR is equal to [ ]%, given the following informa-
tion and assumptions:
(i) the one-month Euribor is equal to [ ]% and is assumed constant for the
entire term of the Agreement:
(ii) the one-month Libor is equal to [ ]% and is assumed constant for the
entire term of the Agreement:
(iii) the Amount Drawn is equal to USD/EUR [ ];
We remind you that the interest rates and the APR examples cited above are
purely indications and in no way bind the parties to the Loan Agreement for the
future.
The terms that are capitalized have the meaning assigned to them in the Loan
Agreement.
We remain,
Very truly yours,
- ---------------------
Bayerische Landesbank
Girozentrale
Name:
Title:
<PAGE>
APPENDIX 3
MODEL NOTICE OF CHANGE IN INTEREST PERIOD
[Borrower's letterhead]
Paris, [date]
Bayerische Landesbank Girozentrale
203, rue du Faubourg Saint-Honore
75008 Paris
France
Attention: Sharon Jones Gaden
Dear Sir:
LOAN AGREEMENT FOR FRF 13,200,000,000 DATED March 29, 1999
In accordance with the provisions of the Agreement cited above, we are informing
you of our choice of the following Interest Period:
Interest Period (1, 2 or 3 months) months
applicable to the Interest Period beginning on [ ], 1999 for the Draw made on
[ ], 1999, in the amount of [ ] and to the other following Interest Periods,
unless we make a change that would be communicated to you in accordance with the
definition of the "Interest Period."
The terms that are capitalized have the meaning assigned to them in the Loan
Agreement.
- --------------------
THE BORROWER
Name:
Title:
Exhibit (b)(2)
Free translation into English
for convenience only
COMPAGNIE GENERALE DES EAUX - SAHIDE
LOAN OF EUR 2,286,000,000
----------------------------------------------------------------------------
BOND ISSUANCE AND UNDERWRITING AGREEMENT
----------------------------------------------------------------------------
AMONG:
COMPAGNIE GENERALE DES EAUX - SAHIDE a French Societe en Commandite par Actions,
a limited partnership with share capital of FRF 5,238,130,300 having its
registered office located at 52, rue d'Anjou - 75008 Paris, registered in the
Register of Commerce and Companies of Paris under number 572 025 526.
Represented by Mister
hereafter, the "Issuer"
AND
SOCIETE GENERALE, a French Societe Anonyme (joint stock company) with share
capital of FRF 510,915,740, having its registered office located at 29,
boulevard Haussmann - 75009 Paris, registered in the Register of Commerce and
Companies of Paris under number 552 120 222.
Represented by Mister Jean-Paul OUDET, Director of Interest Rate,
Foreign Exchange, Commodities and Derivatives Markets, duly authorised for
these purposes,
hereafter, the "Underwriter"
AND
VIVENDI, a French Societe Anonyme (joint stock company) with share capital of
EUR 2,581,074,080, having its registered office located at 42, avenue Friedland
- - 75008 Paris, registered in the Register of Commerce and Companies under number
780 129 961.
Represented by Mister Guillaume HANNEZO, duly authorised for these
purposes,
hereafter, the "Guarantor"
PREAMBLE
The Ordinary General Meetings of the general and limited partners of the
Issuer shall authorize and decide on the bond issue by the Issuer in favour of
the Underwriter for a total cash value of EUR 2,286,000,000, i.e. a nominal cash
value, per Bond, of EUR 10,000.
The issued Bonds shall be reserved for the Underwriter who hereby agrees
to underwrite them according to the terms and conditions herein.
<PAGE>
The issuance of the Bonds shall occur without a public offering and the
Issuer and the Underwriter hereby agree not to offer the Bonds to the public,
for as long as the issue shall not have been subject to an initial public
offering on a regulated stock market.
The present agreement shall not take effect except under the condition
precedent of the authorization and the decision to issue taken by the ordinary
general meetings of the general and limited partners of the Issuer.
The Underwriter hereby agrees to underwrite the totality of the bond issue
insofar as the Guarantor, parent company of the Issuer, hereby agrees to secure
the Bondholders under those terms and conditions provided for hereunder in
Article 1, "Financial Characteristics".
Furthermore, the Issuer has undertaken, at the Underwriter's request, to
obtain from the rating agency S&P, an issuance rating equivalent to that of
Vivendi as of the date herein.
The present financing is granted subject to the appointment by the
Guarantor of the Underwriter as lead-manager or joint-lead-manager and sole book
runner or joint-book-runner with respect to the two refinancing transactions for
a global amount of approximately EUR 5 to 6 billion, anticipated by the
Guarantor (capital increase and issuance of convertible bonds in shares) within
the framework of its offer to purchase shares of the company United States
Filter Corporation (governed by the law of the state of Delaware, United States
of America, the shares of which in shares are on the New York Stock Exchange and
the registered office of which is located at 40-004 Cook Street, Palm Desert, CA
92211, USA).
It has been firmly agreed to among the parties that the drawdown of the
funds shall not take place until after:
- - the obtaining of a valid and binding power of attorney from the
Guarantor appointing the Issuer to those functions set forth
hereabove,
- - the obtaining by the Underwriter of a correspondence from the S&P Agency
confirming the attribution, with respect to the present Issue, of a rating
equivalent to that of the Guarantor as of the date herein,
- - the obtaining by the Underwriter of a copy of the minutes of the Board of
Directors' meeting of the Guarantor authorizing the President to secure
the present Issue under those terms and conditions set forth hereunder in
Article 1, "Financial Characteristics", in the paragraphs entitled
"Guarantee" and "Calling of the Guarantee".
It is furthermore expressly agreed to between the two parties that the
funds generated from the two transactions mentioned hereabove shall be
affected as a priority to the reimbursement of the present loan.
1 FINANCIAL CHARACTERISTICS
Issuer: COMPAGNIE GENERALE DES EAUX - SAHIDE
Underwriter: SOCIETE GENERALE
Guarantor: VIVENDI, a French Societe Anonyme (joint stock company)
with share capital of EUR 2,581,074,080, having its
registered office located at 42, avenue Friedland -
75008 Paris, registered in the Registry of Commerce and
Companies of Paris under number 780 129 961.
Maturity Date: Six (6) months following the Repayment and Enjoyment Date
of the issue, or the first Business Day thereafter if
such a day is not a Business Day.
<PAGE>
Currency: Euro (EUR)
Business Day: Any day, other than a Saturday or Sunday, where
"commercial" banks are open for business in Paris and
Luxembourg.
Bondholder: The Underwriter or any person having otherwise acquired
ownership of a Bond.
Loan Amount: EUR 2,286,000,000
Nominal Unit Amount: EUR 10,000
Repayment and
Enjoyment Date: As of 22 April 1999, the Loan Amount may be drawn down
and made available to the Issuer according to the
procedures set forth hereunder.
By no later than 9h00 (Paris time), the Issuer shall
address, via facsimile, to the Underwriter, a drawdown
notice for the Loan Amount.
The Underwriter shall make available to the Issuer, on
the Repayment and Enjoyment Date, i.e. three Business
Days following the drawdown notice date mentioned
hereinabove, the Loan Amount by wire transfer accredited
to that bank account, the references of which shall be
set forth in said notice.
Issue Price: 100% of the Nominal Unit Amount payable in full by the
Underwriter to the Issuer on the Repayment and Enjoyment
Date.
Early Repayment: The Issuer may proceed with, for the entire duration of
the loan, subject to prior five (5) Business Days'
notice, the early Repayment of the totality of the Bonds,
at par value increased by interest earned as of the
repayment date. In the event where the Early Repayment
Date would not be an interest payment date, the Issuer
shall indemnify the Underwriter for all losses, expenses
and fees of any nature (and notably the Issuer could be
obliged to indemnify the Underwriter for any balance
between the 1-month EURIBOR rate and the day-to-day
replacement rate for the remaining period of such early
reimbursed sum) borne by the latter as a result of said
repayment that the Issuer shall be obliged to pay to the
Underwriter, at the latter's first request, upon
presentation of appropriate receipts.
Interest: The Issuer shall pay to the Underwriter all interest
accrued monthly. The first monthly interest period shall
commence on the Repayment and Enjoyment Date and shall
end thirty days thereafter. The applicable interest rate
shall be the 1-month EURIBOR rate, as published two
Business Days prior to the beginning of the monthly
interest period, increased by a margin of 0.08%, provided
that, if such fixing of the date of interest rate were to
fall on the 23rd day of any month, it would be
rescheduled for the previous Business Day.
The Issuer may, with three (3) Business Days' notice
prior to the respective interest period, replace the
1-month EURIBOR rate by
<PAGE>
the EONIA rate, and such only once during the term of the
loan, and for a maximum period of one (1) month.
In such a case, the Issuer shall pay to the Underwriter
interest equal to the average of the EONIA rates for the
drawdown period increased by a margin of 0.08%.
Repayment Price: On the Maturity Date, the Issuer shall repay the Loan
Amount to the Underwriter.
Guarantee: The loan servicing in Interest and amortization is
unconditionally guaranteed for the entire term of the
loan by the Guarantor, joint and severally with the
Issuer.
Calling of the
Guarantee: In the event where the totality of the funds required
for the servicing of the loan were not paid to the
Underwriter on the dates fixed for payment of Interest
and the Maturity Date of the Bonds, the Guarantor
shall be immediately called to pay to the Underwriter,
three (3) Business Days following such dates, that amount
required for such loan servicing, it being understood
that the Guarantor shall never be obligated to carry out,
for any maturity date whatsoever, payment of an amount
greater than the total maturity amount due by the Issuer,
any partial repayment by the Issuer being furthermore
considered as a decrease in the amount due by the
Guarantor.
2 EVENT OF DEFAULT
Repayment of the Loan Amount shall become immediately due in the event where the
participation of the Guarantor, in the capital of the Issuer, would be less than
99%. If, on the Repayment and Enjoyment Date, the condition provided for in the
preceding paragraph were not fulfilled, then the Underwriter would be freed from
any and all payment obligations in favour of the Issuer.
3 FINANCIAL SERVICING
Financial servicing of the loan shall be ensured by Societe Generale Bank &
Trust - Luxembourg.
4 CALCULATION AGENT: Societe Generale Bank & Trust - Luxembourg
5 FORM OF SECURITIES
The Bonds pursuant to the present loan shall be issued under French law.
They shall take the form of bearer bonds and shall be recorded into an account
with SICOVAM as main depository.
6 LISTING
Luxembourg Stock Market.
7 BONDHOLDERS
Bondholders shall be grouped into one body enjoying civil personality in
accordance with article 293 of the law dated July 24, 1966 with respect to
commercial companies. The meetings shall take place at the Issuer's registered
office or at any other location fixed in the notices or letters of convening.
<PAGE>
8 RANKING OF CLAIM
The Bonds and interest thereon shall constitute direct, general, unconditional
and unsubordinated undertakings by the Issuer, having the same ranking among
them and the same ranking of all other debts and guarantees, present or future,
of the Issuer.
9 MAINTENANCE OF THE RANKING OF THE LOAN
The Issuer hereby agrees, until effective repayment of the totality of its
obligations hereunder, not to grant any mortgage on its real estate property or
rights that it could possess or come to possess, nor constitute any pledge on
its business in favour of any other obligations without granting the same
guarantees and the same ranking as with the present obligations. Such
undertaking is exclusively with respect to the issuing of Bonds and shall not
affect the freedom of the Issuer to dispose of its estate and property or to
grant any guaranty on such property under any other circumstances.
10 TAX REGIME
The payment of interest and the repayment of securities shall be carried out
with the deduction of withholding tax only or those taxes that the law
mandatorily charges or could charge the holders with.
11 APPLICABLE LAW - JURISDICTION
The present agreement is governed by the laws of France. All related disputes,
notably with respect to its validity, interpretation or performance shall be
subject to the competence of the jurisdiction of the Court of Appeals of Paris.
Executed in Paris on 2 April 1999
in three (3) original counterparts
The Issuer The Underwriter
COMPAGNIE GENERALE DES EAUX - SAHIDE SOCIETE GENERALE
Jean-Paul OUDET
The Guarantor
VIVENDI
Guillaume HANNEZO
