Exhibit (b)(2)
Free translation into English
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COMPAGNIE GENERALE DES EAUX - SAHIDE
LOAN OF EUR 2,286,000,000
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BOND ISSUANCE AND UNDERWRITING AGREEMENT
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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 00, xxx x'Xxxxx - 00000 Xxxxx, 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 00,
xxxxxxxxx Xxxxxxxxx - 00000 Xxxxx, registered in the Register of Commerce and
Companies of Paris under number 552 120 222.
Represented by Mister Xxxx-Xxxx XXXXX, 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 00, xxxxxx Xxxxxxxxx
- 00000 Xxxxx, 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.
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 00-000 Xxxx Xxxxxx, Xxxx Xxxxxx, XX
00000, XXX).
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 00, xxxxxx Xxxxxxxxx -
00000 Xxxxx, 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.
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
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.
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
Xxxx-Xxxx XXXXX
The Guarantor
VIVENDI
Guillaume HANNEZO
