EXECUTION COPY
REPUBLIC OF PERU
U.S.$500,000,000
8.750% U.S. Dollar-Denominated Global Bonds due 2033
UNDERWRITING AGREEMENT
November 14, 2003
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
as Representative of the several Underwriters listed herein
Ladies and Gentlemen:
THE REPUBLIC OF PERU ("Peru") proposes to issue and sell to
the underwriters whose names are set forth on Schedule I hereto, acting
severally, not jointly (each an "Underwriter" and, collectively, the
"Underwriters"), for whom X. X. Xxxxxx Securities Inc. is acting as
representative (in such capacity, the "Representative"), U.S.$500,000,000
aggregate principal amount of its 8.750% U.S. Dollar-Denominated Global Bonds
due 2033 (the "Global Bonds") to be issued pursuant to a Fiscal Agency
Agreement, dated as of February 6, 2003 (as it may be amended from time to time,
the "Fiscal Agency Agreement"), between Peru and XX Xxxxxx Xxxxx Bank (the
"Fiscal Agent"). The transaction contemplated by this Agreement, including the
issuance, sale and delivery of the Global Bonds and the resale thereof by the
Underwriters, is referred to in this Agreement as the "Cash Offering".
To the extent there are no additional Underwriters listed on
Schedule I other than you, the term Representative as used herein shall mean
you, as Underwriter, and the term Underwriters shall mean either the singular or
plural as the context requires. The Global Bonds to be issued by Peru will be
evidenced initially by one or more registered securities (each a "Registered
Bond") representing the Global Bonds sold or resold pursuant to a registration
statement under Schedule B of the Securities Act of 1933, as amended (the
"Securities Act"), dated November 12, 2003. The Global Bonds will be in
registered form without coupons and will be issued in denominations of
U.S.$1,000 and integral multiples of U.S.$1,000 in excess thereof. Except where
the context otherwise requires, terms not otherwise defined in this Agreement
shall have the meanings specified in the Fiscal Agency Agreement or in the
Global Bonds.
1. Issue of Global Bonds, Prospectus and Publicity. (a) Peru agrees to
issue and sell the Global Bonds on November 21, 2003, or such later date, not
being later than November 28, 2003, as Peru and the Representative may agree
(the "Closing Date") to the Underwriters or as the Underwriters may direct. Each
Underwriter, severally and not jointly, agrees to purchase at a price equal to
99.099% of the aggregate principal amount thereof plus accrued interest, if any,
from November 21, 2003 to the Closing Date (the aggregate amount of the purchase
price paid by the Underwriters being the "Purchase Price"), subject to the
adjustments referred to in Section 6(c), the principal amount of the Global
Bonds set forth opposite its name on Schedule I, as such amount may be adjusted
pursuant to Section 11.
(b) The Global Bonds will be issued in accordance with the
terms of the Fiscal Agency Agreement and will be in the forms and contain such
terms as set forth therein.
(c) Peru confirms the arrangements made on its behalf by the
Representative for announcements in respect of the Global Bonds to be published
on such dates and in such newspapers or other publications as the Representative
may determine.
2. Stabilization. (a) The Underwriters, for their own accounts, may to
the extent permitted by applicable law, engage in transactions that stabilize,
maintain, or otherwise affect the price of the Global Bonds, including without
limitation, overalloting the offering, creating a short position and bidding for
and purchasing Global Bonds to cover such short positions, and bidding for and
purchasing Global Bonds to stabilize the price of the Global Bonds. In doing so,
the Underwriters shall act as principals and not as agents of Peru and any loss
resulting from over-allotment or stabilization will be borne, and any profit
arising therefrom shall be retained, by the Underwriters. Such transactions may
be effected on the Luxembourg Stock Exchange, in the over-the-counter market or
otherwise. The Underwriters are not required to engage in these activities and
may end these activities at any time.
(b) Nothing in this Section 2 shall be construed as requiring
Peru to issue more than U.S.$500,000,000 in principal amount of the Global
Bonds.
3. Agreements by the Underwriters. (a) The Underwriters agree
severally, and not jointly, to purchase the Global Bonds at the Purchase Price
on the Closing Date subject to the terms of this Agreement.
(b) Each of the Underwriters represents, warrants and agrees
that it and, where applicable, each of its affiliates that participate in the
distribution of the Global Bonds has complied and will comply with the terms set
out in the Prospectus Supplement (as defined in Section 5(a)).
(c) Peru acknowledges and agrees that the Underwriters may
sell to any of their affiliates Global Bonds purchased by any Underwriter, and
that any of such affiliates may sell to other such affiliates or to the
Underwriters Global Bonds purchased by such affiliates.
4. Listing. (a) Peru confirms that it has authorized the Representative
to make or cause to be made an application for the Global Bonds, on behalf of
Peru, to be listed on the Luxembourg Stock Exchange (the "Stock Exchange").
(b) Peru agrees to supply to the Representative for delivery
to the Stock Exchange copies of the Final Prospectus (as defined in Section
5(a)(i)), on behalf of Peru, and such other documents, information and
undertakings as may be required for the purpose of obtaining such listing.
5. Representations, Warranties and Covenants of Peru. Peru represents,
warrants and covenants to each of the Underwriters that:
(a) (i) Peru meets the requirements for use of Schedule B
under the Securities Act and is a "seasoned" foreign government issuer within
the meaning of Securities and Exchange Commission (the "Commission") Release No.
33-6424 (the "Release"). Peru has filed with the Commission a registration
statement on Schedule B (File No. 333-110394) covering the registration of debt
securities and warrants, including the Global Bonds (together, the "Debt
Securities") under the Securities Act; such registration statement and any
post-effective amendments thereto, have been declared effective by the
Commission; no other document with respect to such registration statement has
heretofore been filed with the Commission; and no stop order preventing or
suspending the effectiveness of any such registration statement has been issued
and no proceeding for this purpose has been initiated or threatened by the
Commission. Such registration statement, as amended to the date hereof
(including the prospectus constituting a part thereof, any prospectus supplement
relating to the Debt Securities and all documents incorporated by reference
thereto, as from time to time amended or supplemented by the filing of documents
pursuant to the Securities and Exchange Act of 1934, as amended (the "Exchange
Act")) meets the requirements set forth in the Release and Schedule B under the
Securities Act. The various parts of such registration statement, including all
exhibits thereto and any documents incorporated by reference in the prospectus
contained in the registration statement at the time such part of the
registration statement became effective and any registration statement, if any,
increasing the size of the offering filed pursuant to Rule 462(b) under the
Securities Act, each as amended at the time such part of the registration
statement became effective, are hereinafter collectively called the
"Registration Statement" and the base prospectus relating to the Debt Securities
contained in the Registration Statement is, in the form in which it has most
recently been filed with the Commission on or prior to the date hereof, is
hereinafter called the "Base Prospectus." Peru proposes to file with the
Commission pursuant to Rule 424(b) under the Securities Act a supplement to the
Base Prospectus (the "Prospectus Supplement") relating to the Global Bonds and
the plan of distribution thereof. The Base Prospectus, as supplemented by the
Prospectus Supplement, is hereinafter called the "Final Prospectus". Any
reference to either the Prospectus Supplement or the Base Prospectus as amended
or supplemented shall be deemed to refer, as appropriate, to either the
Prospectus Supplement or the Base Prospectus as amended or supplemented in
relation to the Invitation in the form in which it is filed with the Commission
pursuant to Rule 424(b) under the Securities Act; any reference herein to the
Prospectus Supplement or the Base Prospectus shall be deemed to refer to and
include any documents incorporated by reference therein as of the respective
dates of the Prospectus Supplement and the Base Prospectus. Peru has adequately
disseminated the Base Prospectus a reasonable period before the offering of the
Global Bonds in accordance with the Release. References to the "effective date"
of the Registration Statement shall be deemed to refer to the date the
Registration Statement was declared effective by the Commission.
(ii) Prior to the termination of the Cash Offering, Peru will
not file any amendment to the Registration Statement or supplement to
the Final Prospectus which shall not have previously been furnished to
the Representative or of which the Representative shall not previously
have been advised or to which the Representative shall have reasonably
objected in writing.
(b) The Registration Statement, the Base Prospectus, the
Prospectus Supplement, and any amendment or supplement to the Registration
Statement, the Base Prospectus or the Prospectus Supplement, comply or will
comply in all material respects with the provisions of the Securities Act and
the rules and regulations thereunder. None of the Registration Statement, as
amended as of any such time, or the Base Prospectus and the Prospectus
Supplement, as amended or supplemented as of any such time, contains or will
contain any untrue statement of a material fact or omits or will omit to state
any material fact required to be stated therein or necessary to make the
statements therein (with respect to the Base Prospectus and the Prospectus
Supplement in the light of the circumstances under which they were made) not
misleading; provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to Peru by you expressly for use in the
Registration Statement, the Base Prospectus or the Prospectus Supplement.
(c) Since the respective dates as of which information is
given in the Final Prospectus and the Registration Statement, there has not been
any material adverse change, or any event that would reasonably be expected to
result in a prospective material adverse change in the financial, economic or
political condition of Peru, or in the ability of Peru to perform its
obligations under this Agreement, the Fiscal Agency Agreement or the Global
Bonds, otherwise than as set forth in or contemplated in the Registration
Statement or the Final Prospectus.
(d) The execution and delivery of this Agreement, the Fiscal
Agency Agreement and all other documents to be executed and delivered by Peru
hereunder or thereunder, the issuance and delivery of the Global Bonds and the
performance of the terms of the Global Bonds have been duly authorized by Peru,
and have been or will be duly executed and delivered by Peru; and this
Agreement, the Fiscal Agency Agreement and, upon due authentication by the
fiscal agent under the Fiscal Agency Agreement, the Global Bonds constitute or
will constitute valid and binding obligations of Peru, enforceable against Peru
in accordance with their respective terms and, in the case of the Global Bonds,
entitled to the benefits provided by the Fiscal Agency Agreement, subject to
bankruptcy, insolvency, reorganization, moratorium and similar laws affecting
creditors' rights generally, to general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law) and to
possible judicial action giving effect to foreign governmental actions or
sovereign laws affecting creditors' rights.
(e) The execution and delivery of this Agreement, the Fiscal
Agency Agreement, the issuance and delivery of the Global Bonds and the
performance of the terms of the Global Bonds constitute private and commercial
acts rather than public or governmental acts, as such terms are defined under
the U.S. Foreign Sovereign Immunities Act. Under the laws of Peru, neither Peru
nor any of its property, except for (i) property used by a diplomatic or
consular mission of Peru; (ii) property of a military character and under the
control of a military authority or defense agency of Peru; (iii) public
property; (iv) shares of Peruvian public sector entities or shares of Peruvian
private sector entities owned or controlled by Peru or by a Peruvian public
sector entity, or revenues collected from the sale of such shares, to the extent
such shares or revenues are exempt by Peruvian law from attachment or execution;
or (v) funds deposited in Peru's accounts held in the Peruvian financial system,
has any immunity from jurisdiction of any court or from set-off or from
execution, attachment or any other legal process. The waivers of immunity by
Peru contained in this Agreement, the Fiscal Agency Agreement and the Global
Bonds, the appointment of the process agent in this Agreement, the Fiscal Agency
Agreement and the Global Bonds, the consent by Peru to the jurisdiction of the
courts specified in this Agreement, the Fiscal Agency Agreement, and the terms
and conditions of the Global Bonds and the provision that the laws of the State
of New York govern this Agreement, the Fiscal Agency Agreement and the Global
Bonds, are irrevocably binding on Peru.
(f) The Fiscal Agency Agreement and the Global Bonds conform
or will conform in all material respects to the descriptions thereof contained
in the Final Prospectus, and the statements made under the captions "Description
of the Global Bonds" in the Final Prospectus, insofar as such statements purport
to summarize the terms of the Global Bonds, constitute accurate and fair
summaries in all material respects of such terms.
(g) There is no constitutional provision, or any provision of
any treaty, convention, statute, law, regulation, decree, court order or similar
authority binding upon Peru, or any provision of any contract, agreement or
instrument to which Peru or any Governmental Agency (as defined below) is a
party, which would be materially contravened or breached, or which would result
in the creation of any lien or encumbrance, or under which a default would arise
or a moratorium in respect of any obligations of Peru or any Governmental Agency
be effected, as a result of the execution and delivery by Peru of this
Agreement, the Fiscal Agency Agreement, or the issuance and delivery of the
Global Bonds as contemplated in this Agreement, or as a result of the
performance or observance by Peru of any of the terms of this Agreement, the
Fiscal Agency Agreement, or the Global Bonds. "Governmental Agency" means each
agency, department, ministry, authority, municipality, statutory corporation or
statutory body or judicial entity of Peru or any political subdivision thereof
or therein, now existing or hereafter created, and any bank, corporation or
other legal entity 51% or more of the capital or voting stock or other ownership
interest of which is now or hereafter owned or controlled, directly or
indirectly, by Peru or by any state or municipality of Peru.
(h) No Governmental Approval (as defined below) is required
for the due execution, delivery and performance by Peru of this Agreement, the
Global Bonds, the Fiscal Agency Agreement, or the issuance and delivery of the
Global Bonds as contemplated in this Agreement, or for the validity or
enforceability of this Agreement, the Global Bonds or the Fiscal Agency
Agreement against Peru, other than those Governmental Approvals that have been
duly obtained and are in full force and effect on the date hereof and all of
which will be in full force and effect on the Closing Date and provided that,
only in respect of the performance of the Global Bonds, any payment of principal
or interest arising from such performance is and will be included by Peru in the
Budget Law corresponding to the fiscal year in which such payment is to be due.
"Governmental Approval" means any approval, authorization, permit, consent,
exemption or license and other action of or by, and any notice to or filing or
registration with, Peru, any Governmental Agency or any other governmental
authority or agency or regulatory or administrative body of Peru or any
political subdivision thereof or therein (including, without limitation, any
thereof relating to budget approvals and exchange controls).
(i) There is no pending or, to the knowledge of Peru,
threatened action or proceeding affecting Peru or any Governmental Agency before
any court, governmental agency or arbitrator which may, individually or in the
aggregate, materially adversely affect the financial condition of Peru or its
ability to perform its obligations under this Agreement, the Fiscal Agency
Agreement, or the Global Bonds, which purports to affect the legality, validity
or enforceability of this Agreement, the Fiscal Agency Agreement, or the Global
Bonds, except as otherwise disclosed in the Final Prospectus.
(j) Peru is a member of, and is eligible to use the general
resources of, the International Monetary Fund (the "IMF"), the Inter-American
Development Bank (the "IDB") and the International Bank for Reconstruction and
Development (the "World Bank"). The IMF, the IDB and the World Bank have not
limited, pursuant to their Articles of Agreement or Rules and Regulations, the
use by Peru of the general resources of the IMF, the IDB or the World Bank.
(k) Other than as set forth in the Final Prospectus, Peru is
not in default in the payment of principal, interest or any other amount owing
on any obligation in respect of indebtedness for money borrowed, and Peru has
not received any notice of default or acceleration with respect to any
obligation in respect of indebtedness for money borrowed, in each case or in the
aggregate, which would have a material adverse effect on the financial condition
of Peru or its ability to perform its obligations under this Agreement, the
Fiscal Agency Agreement, or the Global Bonds, or which is otherwise material to
the rights of the holders of the Global Bonds; the issue and sale of the Global
Bonds and the compliance by Peru with all of the provisions of this Agreement,
the Fiscal Agency Agreement, or the Global Bonds and the consummation of the
transactions herein and therein contemplated will not conflict with or result in
a breach of any of the terms or provisions of, or constitute a default under,
the Constitution of Peru, as amended to the date hereof, any statutes, laws,
decrees or regulations of Peru or any treaty, convention or material agreement
to which Peru is a party and which default, in each case or in the aggregate,
would have a material adverse effect on the financial, fiscal or economic
condition of Peru or its ability to perform its obligations under this
Agreement, the Fiscal Agency Agreement, or the Global Bonds or which is
otherwise material to the rights of the holders of the Global Bonds.
(l) This Agreement and the Fiscal Agency Agreement are, and
upon authentication by the fiscal agent, the Global Bonds will be, in proper
legal form under the laws of Peru for the enforcement thereof in Peru against
Peru. Any judgment issued by a New York court under this Agreement, the Fiscal
Agency Agreement, or the Global Bonds will be recognized as legally binding and
may be enforced or executed in Peru against Peru without the local court
reopening the case; provided that the following requirements are met: (i) the
judgment does not resolve matters under the exclusive jurisdiction of Peruvian
courts (such as matters involving Peruvian real estate property); (ii) such
court had jurisdiction under its own conflicts of law rules and under general
principles of international procedural jurisdiction; (iii) the defendant was
served in accordance with the laws of the place where the proceeding took place,
was granted reasonable opportunity to appear before such foreign court, and was
guaranteed due process rights; (iv) the judgment has the status of res judicata
as defined in the jurisdiction of the court rendering such judgment; (v) there
is no pending litigation in Peru between the same parties for the same dispute,
which shall have been initiated before the commencement of the proceeding that
concluded with the foreign judgment; (vi) the judgment is not incompatible with
another judgment that fulfills the requirements of recognition and
enforceability established by Peruvian law and such foreign judgment was
rendered first; (vii) the judgment is not contrary to public order or good
morals; and (viii) it is not proven that such foreign court denies enforcement
of Peruvian judgments or engages in a review of the merits thereof.
Notwithstanding the above, the execution by Peruvian courts of any judgment
ordering payment of any principal or interest arising from the Global Bonds by
Peru will be subject to availability of funds according to the Budget Law
corresponding to the fiscal year on which such payment is to be due.
(m) To ensure the legality, validity, enforceability, priority
or admissibility in evidence in Peru of this Agreement, the Fiscal Agency
Agreement, or the Global Bonds, it is not necessary that this Agreement, the
Fiscal Agency Agreement, the Global Bonds or any other document or instrument
hereunder or thereunder be registered, recorded or filed with any court or other
authority in Peru (except that an official translation to Spanish of such
documents would be required for purposes of enforcement proceedings in Peru) or
be notarized or that any documentary, stamp or similar tax, imposition or charge
be paid on or in respect of this Agreement, the Fiscal Agency Agreement, the
Global Bonds or any other document or instrument hereunder or thereunder, other
than any court tax of such amount as may apply from time to time under
applicable Peruvian law in respect of this Agreement, the Fiscal Agency
Agreement, the Global Bonds or any other document or instrument hereunder or
thereunder brought before the Peruvian courts.
(n) The Global Bonds, when duly authenticated by the fiscal
agent, will constitute direct, unconditional, unsecured and unsubordinated
obligations of Peru; the full faith and credit of Peru will be pledged for the
due and punctual payment of the principal of, interest on, and any additional
amount with respect to, the Global Bonds and the performance of the covenants
therein contained; the Global Bonds will at all times rank pari passu in
priority of payment, in right to security and in all other respects with all
other existing and future External Indebtedness (as defined in the Global Bonds)
of Peru.
(o) There is no tax, levy, deduction, charge or withholding
imposed by Peru or any political subdivision thereof either (i) on or by virtue
of the execution, delivery or enforcement of this Agreement, the Fiscal Agency
Agreement, or the Global Bonds or in connection with the issuance of the Global
Bonds or (ii) on any payment to be made by Peru thereunder or under the Global
Bonds, provided that the current exemption from Peruvian income tax on interest
accrued in connection with the Global Bonds, which elapses on December 31, 2006,
is extended and maintained thereafter through the life of the Global Bonds.
(p) The execution and delivery of this Agreement, the Fiscal
Agency Agreement, the Global Bonds and all other documents to be executed and
delivered by Peru hereunder or thereunder, the incurrence of the obligations
herein and therein set forth, the consummation of the transactions herein and
therein contemplated and the issuance and delivery of the Global Bonds do not,
and will not, result in the exercise of, or right to exercise, any put, call or
other option which, if exercised, might result in a material adverse change in
the financial condition of Peru, and there are no puts, calls or other options
to which Peru is subject which if exercised would result in such a change.
(q) Peru has applied or will apply for the listing of the
Global Bonds on the Luxembourg Stock Exchange and will use its best efforts to
cause such listing to be approved.
(r) Peru is not aware that either Standard & Poor's Ratings
Service ("Standard & Poor's") or Xxxxx'x Investors Service, Inc. ("Moody's") has
made any announcement that it will have under surveillance or review, with
possible negative implications, its rating of any of Peru's debt securities; and
Peru has not been informed by either Standard & Poor's or Moody's that it
intends or is contemplating any downgrading in any rating accorded to Peru's
debt securities or any announcement that it will have under surveillance or
review, with possible negative implications, its rating of any of Peru's debt
securities.
(s) Other than as permitted by Regulation M under the Exchange
Act, neither Peru nor any person acting on its behalf has taken, directly or
indirectly, any action which might reasonably be expected to cause or result in
stabilization of the price of any security of Peru to facilitate the Cash
Offering or the sale or resale of the Global Bonds; provided, however, that no
representation or warranty is given by Peru with respect to any of your actions
(other than those made on Peru's behalf).
(t) The statements with respect to matters of Peruvian law set
forth in the Final Prospectus are correct in all material respects.
6. Sale and Purchase of Global Bonds. (a) Not later than 10:00 a.m.,
New York City time (or such other time as may be agreed between the
Representative, on behalf of the Underwriters, and Peru), on the Closing Date,
Peru will issue and deliver one or more duly executed and authenticated
Registered Bonds in an aggregate principal amount of U.S.$500,000,000. The
Representative shall instruct DTC as to the allocation of interests in the
Registered Bond among the accounts of DTC participants. Peru agrees to have the
Global Bonds available for inspection by the Representative at the offices of
Cleary, Gottlieb, Xxxxx & Xxxxxxxx, United States counsel to Peru, not later
than 1:00 p.m. on the calendar day prior to the Closing Date.
(b) Against such delivery, the Underwriters will pay the
Representative and the Representative will transfer or cause to be transferred
to Peru in same day funds the Purchase Price for the Global Bonds, less the
amounts referred to in Section 6(c) below, on the Closing Date in U.S. dollars
to such U.S. dollar account as shall be designated by Peru not later than three
Business Days prior to the Closing Date.
(c) As compensation to the Underwriters for their commitments
hereunder, Peru agrees to pay to the Underwriters a combined management and
underwriting commission of 0.30% of the aggregate principal amount of the Global
Bonds. Such commission and concession shall be paid by Peru in U.S. dollars, in
immediately available funds, on the Closing Date, to the U.S. dollar account
designated by the Representative. The designation of such account shall be
notified to Peru not later than three Business Days prior to the Closing Date.
The commission and concession mentioned above shall be paid free and clear of
any taxes, duties, governmental charges, levies, deductions or withholdings of
any nature imposed by Peru or any political subdivision or taxing authority
thereof or therein. If, however, any payment, withholding or deduction for or on
account of such taxes, duties, assessments or government charges were required
by law in the future, Peru shall provide you with a detailed statement
reflecting such payment, withholding or deduction in a manner reasonably
satisfactory to you and shall pay such additional amounts as will result in
receipt by the Underwriters of such amounts as would have been received by them
hereunder had no such payment, withholding or deduction been required.
7. Resales of Global Bonds. Upon the authorization by you of the
release of the Global Bonds to be delivered hereunder, the Underwriters are
offering the Global Bonds for sale upon the terms and conditions set forth in
the Final Prospectus. Each of the Underwriters and its affiliates represents,
warrants and agrees that the Underwriters' offers and solicitations must be made
and conducted (including, without limitation, in respect of the use and
distribution of the Final Prospectus) in compliance with the limitations and
qualifications set forth in the Final Xxxxxxxxxx.
0. Xxxxxxxxx xx Xxxx. Xxxx agrees with each of the several Underwriters
as follows:
(a) Peru will notify the Representative promptly if at any
time prior to payment of the Purchase Price to Peru and fulfillment of all of
the conditions precedent set forth in Section 9 anything occurs which renders or
may render untrue or incorrect in any material respect any of the
representations and warranties contained in Section 5 and will forthwith take
such steps as the Representative may reasonably require to remedy the fact.
(b) Promptly after the execution and delivery of this
Agreement and the effective date of the Registration Statement, Peru will file
the Prospectus Supplement, in a form approved by the Representative, such
approval not to be unreasonably withheld, with the Commission pursuant to Rule
424 of the Securities Act, within the applicable time period prescribed for such
filing by the rules and regulations under the Securities Act setting forth,
among other things, the necessary information with respect to the terms of the
Cash Offering. Peru will furnish to the Representative prior to the filing
thereof with the Commission, a copy of any amendment or supplement to the
Registration Statement, the Prospectus Supplement or the Final Prospectus (other
than any amendment or supplement to the Registration Statement relating to an
offering of securities other than the Global Bonds) providing reasonable
opportunity for comment. Peru will promptly deliver to each of the Underwriters
and to their counsel copies of the Registration Statement in the form when it
becomes effective and all amendments or supplements thereto hereafter made,
which relate to the Global Bonds including any post effective amendment (in each
case including all exhibits filed therewith and all documents incorporated
therein not previously furnished to the Underwriters), including signed copies
of each consent and certificate included therein or filed as an exhibit thereto,
and will deliver to each of the Underwriters as many unsigned copies of the
foregoing (excluding the exhibits) as the Underwriters may reasonably request.
Peru will also send to the Underwriters as soon as practicable after the date of
this Agreement and thereafter from time to time as many copies of the Final
Prospectus as any of the Underwriters or dealers may reasonably request for the
purposes required by the Securities Act.
(c) During such period (not exceeding nine months) after the
commencement of the Cash Offering as the Underwriters or any dealer may be
required by law to deliver a prospectus, if any event relating to or affecting
Peru, or of which Peru, shall be advised in writing by the Representative, shall
occur, which should be set forth in a supplement to or an amendment of the Final
Prospectus in order to make the statements set forth in the Final Prospectus, in
the light of the circumstances under which they were made, not misleading, or if
it is necessary to amend the Final Prospectus to comply with the Securities Act,
Peru will forthwith at its expense prepare and furnish to the Underwriters and
the dealers named by any of the Underwriters a reasonable number of copies of a
supplement or supplements or an amendment or amendments to the Final Prospectus
which will supplement or amend the Final Prospectus so that as supplemented or
amended it will comply with the Securities Act and will not contain any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading (the purchaser not knowing of such untruth
or omission). In case any Underwriter or dealer is required to deliver a
prospectus after the expiration of nine months after the commencement of the
Cash Offering, Peru, upon the request of such Underwriter or dealer, will
furnish to such Underwriter or dealer, a reasonable quantity of a supplemented
or amended Final Prospectus, or supplements or amendments to the Final
Prospectus, complying with Section 10(a) of the Securities Act.
(d) Peru will use its best efforts promptly to do and perform
all things to be done and performed by it hereunder prior to the Closing Date
and to satisfy all conditions precedent to the delivery by it of the Global
Bonds.
(e) Peru will advise the Representative promptly of the filing
of the Prospectus Supplement pursuant to Rule 424(b) or otherwise and of any
amendment or supplement to the Final Prospectus or Registration Statement or of
notice of institution of proceeding for, or the entry of, a stop order or of any
order preventing or suspending the effectiveness of the Registration Statement
or for any request by the Commission for amending or supplementing of the
Registration Statement, the Prospectus Supplement or the Final Prospectus or for
additional information, in each case in respect of the Cash Offering and, in the
event of the issuance of any stop order or of any order preventing or suspending
the use of the Final Prospectus or suspending any such qualification, use its
best efforts to obtain the prompt withdrawal thereof.
(f) Peru will take such actions as the Representative may
reasonably request to qualify the Global Bonds for offer and sale under the Blue
Sky or legal investment laws of such jurisdictions in the United States and
under the legal investment laws of such jurisdictions outside the United States
as the Representative may reasonably designate, and will file and make in each
year such statements or reports as are or may be reasonably required by the laws
of such jurisdictions inside or outside the United States and to maintain such
qualifications; provided, however, that Peru shall not be required to qualify as
a foreign corporation or dealer in securities under the laws of any jurisdiction
other than as set forth in this Agreement and the Fiscal Agency Agreement or to
file a general consent to service of process in any jurisdiction.
(g) (i) The payment by Peru of principal of or interest on the
Global Bonds will be made without withholding or deduction for or on account of
any present or future taxes, duties, assessments or governmental charges of
whatever nature imposed or levied by Peru, any political subdivision thereof or
any taxing authority in Peru. If Peru is required by law to make any such
withholding or deduction, it will pay such additional amounts ("Additional
Amounts") as may be necessary in order to ensure that the net amounts receivable
by the holders of Global Bonds after such withholding or deduction shall equal
the amount that would have been receivable in respect of the Global Bonds in the
absence of such withholding or deduction; except that no such additional amounts
shall be payable with respect to any Security to or on behalf of a holder who is
liable for taxes or duties in respect of such Security (a) by reason of such
holder having some connection with Peru other than the mere holding of such
Security or the receipt of principal of or interest on any Security; (b) by
reason of the failure to comply with any reasonable certification,
identification or other reporting requirement concerning the nationality,
residence, identity or connection with Peru, or any political subdivision or
taxing authority thereof or therein, of the holder of a Security or any interest
therein or rights in respect thereof, if compliance is required by Peru, or any
political subdivision or taxing authority thereof or therein, pursuant to
applicable law or to any international treaty in effect, as a precondition to
exemption from such deduction or withholding; or (c) by reason of the failure of
such holder to present such holder's Security for payment within 30 days after
the principal of or interest on any Security is first made available to payment
to the holder.
(ii) No Additional Amounts shall be payable in respect of any
Security to a holder that is a fiduciary or partnership or other than
the sole beneficial owner of such Security, to the extent the
beneficiary or settlor with respect to such fiduciary or a member of
such partnership or a beneficial owner would not have been entitled to
receive payment of the Additional Amounts had such beneficiary,
settlor, member or beneficial owner been the holder of such Security.
(h) From the date hereof through the period ending 30 days
after the Closing Date, Peru will ensure that no other dollar-denominated debt
securities of Peru (other than debt securities with a maturity of one year or
less) are placed or sold in the international capital markets, directly or
indirectly on its behalf, in any manner which might, in the reasonable opinion
of the Representative, have a detrimental effect on the successful offering and
distribution of the Global Bonds, unless the Representative otherwise agrees in
writing.
9. Conditions. The obligations of the Underwriters hereunder are
subject, in their discretion, to the following conditions:
(a) All representations and warranties and other statements of
Peru contained in this Agreement are, on the date hereof, and on the Closing
Date will be, true and correct.
(b) Prior to the Closing Date, Peru must have performed all of
its obligations hereunder theretofore required to have been performed.
(c) The Registration Statement shall have been declared
effective and no stop order suspending the effectiveness of the Registration
Statement shall be in effect on the Closing Date and no proceedings for that
purpose shall be pending before, or threatened by, the Commission on the Closing
Date; all requests for additional information on the part of the Commission
shall have been complied with to the Representative's reasonable satisfaction;
and if Peru has elected to rely upon Rule 462(b) under the Securities Act, the
registration statement filed pursuant to such Rule shall have become effective
by 10:00 p.m., Washington, D.C. time, on the date of this Agreement.
(d) On the Closing Date, Xxxxxxxx & Xxxxxxxx LLP, your United
States counsel, must have furnished to you such written opinion or opinions,
dated the date of delivery thereof, in form and substance reasonably
satisfactorily to you, and such counsel must have received such papers and
information as they may request to enable them to pass upon such matters. In
rendering such opinion or opinions, Xxxxxxxx & Xxxxxxxx LLP may rely as to all
matters of Peruvian law upon the opinions referred to in paragraphs (e) and (f)
of this Section 9.
(e) On the Closing Date, Estudio Xxxxx, Xxxxxx, Xxxxxxx &
Asociados, your Peruvian counsel, must have furnished to you such written
opinion or opinions, dated the date of delivery thereof, in form and substance
reasonably satisfactory to you, and such counsel must have received such papers
and information as they may request to enable them to pass upon such matters. In
rendering such opinion or opinions, such counsel may rely as to all matters of
United States Federal and New York law upon the opinion of Xxxxxxxx & Xxxxxxxx
LLP, referred to in paragraph (d) of this Section 9.
(f) On the Closing Date, Estudio Echecopar, Peruvian counsel
for Peru, must have furnished to you a written opinion, dated the date of
delivery thereof, of, in form and substance reasonably satisfactory to you. In
rendering such opinion, such counsel may rely as to all matters of United States
Federal and New York law upon the opinion of Cleary, Gottlieb, Xxxxx & Xxxxxxxx,
referred to in paragraph (g) of this Section 9.
(g) On the Closing Date, Cleary, Gottlieb, Xxxxx & Xxxxxxxx,
United States counsel for Peru, must have furnished to you their written opinion
or opinions, dated the date of delivery thereof, in form and substance
reasonably satisfactory to you. In rendering such opinion or opinions, such
counsel may rely as to all matters of Peruvian law upon the opinion or opinions
of Estudio Echecopar, referred to in paragraph (f) of this Section 9.
(h) On the Closing Date, Peru must have furnished to you, a
certificate in English, dated the date of delivery thereof, signed by a duly
authorized official of Peru, in which such official shall state that, to the
best of his or her knowledge after reasonable investigation: (i) the
representations and warranties of Peru in this Agreement are true and correct
with the same effect as though such representations and warranties had been made
at and as of the respective date of such certificate (other than such
representations and warranties which are made as of a specified date), (ii) Peru
has complied with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to the respective date of such certificate
and (iii) no proceeding has been initiated, or to the best of her knowledge,
threatened to restrain or enjoin the issuance or delivery of the Global Bonds or
in any manner to question the laws, proceedings, directives, resolutions,
approvals, consents or orders under which the issuance of the Global Bonds will
be effected or the Global Bonds will be issued or to question the validity of
the Global Bonds and none of said laws, proceedings, directives, resolutions,
approvals, consents or orders has been repealed, revoked or rescinded in whole
or in relevant part.
(i) Since the respective dates as of which information is
given in the Final Prospectus, on each of the date hereof and on or prior to the
Closing Date, there shall not have been any material adverse change, or any
prospective material adverse change, in or affecting the financial, economic or
political condition of Peru, in Peruvian currency exchange rates or exchange
controls, or in Peruvian taxation affecting the Global Bonds, otherwise than as
set forth in or contemplated in the Final Prospectus, on each of the date hereof
and at or prior to the Closing Date, the effect of which, in any such case, is
in your judgment such as to make it impracticable or inadvisable to proceed with
the issuance or the delivery of the Global Bonds on the terms and in the manner
contemplated by the Final Prospectus.
(j) Subsequent to the date hereof and on or prior to the
Closing Date, none of the following shall have occurred (if the effect of any
such event in your judgment makes it impracticable or inadvisable to proceed
with the issuance or the delivery of the Global Bonds on the terms and in the
manner contemplated by the Final Prospectus, on each of the date hereof and on
or prior to the Closing Date, or would materially and adversely affect the
international financial markets or the market for the Global Bonds): (i) a
suspension or material limitation in trading in securities generally on the New
York Stock Exchange, the London Stock Exchange or the Luxembourg Stock Exchange;
(ii) a suspension or material limitation in trading any securities of Peru on
any international exchange; (iii) a general moratorium on commercial banking
activities in New York, London or Peru declared by either United States or New
York State authorities or authorities of London or Peru, respectively or a
material disruption in the commercial banking or securities settlement or
clearance services in the United States or elsewhere; (iv) the outbreak or
escalation of hostilities involving the United States or Peru or the declaration
by the United States or Peru of a national emergency or war; or (v) the
occurrence of any calamity or crisis or change in the existing financial,
political or economic conditions in the United States, Peru or elsewhere.
(k) On or after the date hereof and on or prior to the Closing
Date, (i) no downgrading must have occurred in the rating accorded Peru's debt
securities by Standard & Poor's or Moody's; (ii) no such organization must have
publicly announced that it has under surveillance or review, with possible
negative implications, its rating of any of Peru's debt securities; (iii) Peru
must not have been aware that either Standard & Poor's or Moody's has announced
that it will have under surveillance or review, with possible negative
implications, its rating of any of Peru's debt securities; and (iv) Peru must
not have been informed by Standard & Poor's or Moody's that it intends or is
contemplating any downgrading in any rating accorded to Peru's debt securities
or any announcement that it will have under surveillance or review, with
possible negative implications, its rating of any of Peru's debt securities.
(l) On each of the date hereof and the Closing Date, Peru must
have furnished to you such further information, certificates and documents as
you may reasonably request in order to evidence the accuracy and completeness of
any of the representations and warranties, or the fulfillment of any of the
conditions contained in this Agreement.
(m) The Representative on behalf of the Underwriters may
waive, at its sole discretion and upon such terms as it deems appropriate, any
of the conditions set forth above.
The documents required to be delivered by this Section 9 shall
be delivered at the offices of Xxxxxxxx & Xxxxxxxx LLP, counsel for the
Underwriters on the Closing Date.
10. Indemnification. (a) Peru shall indemnify and hold harmless each
Underwriter and each of its affiliates against (and, if applicable, reimburse
them for): any loss, damage, reasonable and documented expense, liability or
claim (or action in respect thereof) that arises out of or is based upon any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement as originally filed or in any amendment thereof, or in
the Base Prospectus or Final Prospectus or any preliminary prospectus or in any
amendment thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
including any and all reasonable and documented expenses whatsoever (including
legal and other fees and reasonable and documented expenses) reasonably incurred
by you in connection with investigating, preparing for or defending against any
such losses, damages, reasonable and documented expenses, liabilities or claims
(or actions in respect thereof), within a reasonable time after such expenses
are incurred and a detailed itemized statement thereof has been submitted to
Peru; provided, however, that Peru shall not be liable in any such case to the
extent that any such loss, claim, damage, expense or liability arises out of or
is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written
information furnished to Peru by such Underwriter expressly for use therein;
provided, further, that such indemnity with respect to any preliminary
prospectus shall not inure to the benefit of any of the Underwriters (or to the
benefit of any of their affiliates) from whom the person asserting any such
loss, claim, damage or liability purchased the securities which are the subject
thereof if such person did not receive a copy of the Final Prospectus (or any
amendments thereof or supplements thereto), at or prior to the confirmation of
the sale of such Global Bonds to such person in any case where such delivery is
required by the Securities Act and the untrue statement or omission of a
material fact in such preliminary prospectus was corrected in the Final
Prospectus (or any amendments thereof or supplements thereto) and Peru
previously furnished copies thereof to such Underwriter.
(b) Each of the Underwriters severally, and not jointly, shall
indemnify and hold harmless Peru and each of its officials who signs the
Registration Statement against any and all losses, liabilities, claims, damages
and expenses as incurred which are based on and arise from written information
relating to such Underwriters which was furnished to Peru by such Underwriters
specifically for use in the preparation of the documents referred to in the
foregoing indemnity and will reimburse Peru for any and all reasonable and
documented expenses whatsoever (including legal and other fees and reasonable
and documented expenses) reasonably incurred by Peru in connection with
investigating, preparing for or defending against any such losses, damages,
reasonable and documented expenses, liabilities or claims (or actions in respect
thereof) within a reasonable time after such expenses are incurred and a
detailed itemized statement thereof has been submitted to the Underwriters.
(c) Promptly after receipt by an indemnified party under this
Section 10 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 10, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under Section 10(a) or (b), as the case may be. In case any such
action is brought against any indemnified party and it notifies the indemnifying
party of the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may elect by written notice
delivered to the indemnified party promptly after receiving the aforesaid notice
from such indemnified party, to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified party, provided, however, that if
the defendants in any such action include both the indemnified party and the
indemnifying party, and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assume such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 10 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the next preceding sentence (it being understood, however, that the
indemnifying party shall not, in connection with any such action or a related
proceeding in the same jurisdiction, be liable for the fees and expenses of more
than one separate counsel (in additional to any local counsel), approved by you
in the case of paragraph (a) of this Section 10, representing the indemnified
parties under such paragraph who are parties to such action), (ii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of commencement of the action or (iii) the indemnifying party
has authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party; and except that, if clause (i) or (iii) is
applicable, such liability shall be only in respect of the counsel referred to
in such clauses (i) and (iii).
(d) If the indemnification provided for in this Section 10 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative economic benefits received by the indemnifying party on the one hand
and the indemnified party on the other. If, however, the allocation provided by
the immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under subsection (c) above,
then each indemnifying party shall contribute to such amount paid or payable by
such indemnified party in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of Peru on the one hand and
you on the other in connection with the statements or omissions which resulted
in such losses, claims, damages or liabilities (or actions in respect thereof),
as well as any other relevant equitable considerations. The relative economic
benefits of Peru on the one hand and you on the other shall be deemed to be in
the same proportion as the total net proceeds from the Cash Offering (before
deducting expenses) received by Peru bears to the total underwriting discounts
and commissions received by the Underwriters with respect to the Global Bonds
purchased under this Agreement. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by Peru on the one hand or you on the other and
Peru's or your relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. Peru and you agree that it
would not be just and equitable if contribution pursuant to this subsection (d)
were determined by pro rata allocation (even if you were treated as one entity
for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to above in this subsection
(d). The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions in respect thereof) referred
to above in this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
foregoing, (i) in no case shall any Underwriter (except as may be provided in
any Agreement Among Underwriters) be responsible for any amount in excess of the
total underwriting discounts or commissions received by such Underwriter in
respect of the Global Bonds purchased by such Underwriter hereunder and (ii) no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. Your obligations in this subsection
(d) to contribute are several in proportion to your respective obligations
hereunder and not joint.
(e) The reimbursement, indemnity and contribution obligations
under this Section 10 shall be in addition to any liability that any
indemnifying party may otherwise have, shall extend upon the same terms and
conditions to the affiliates, partners, directors, agents, employees and
controlling persons (if any), as the case may be, of each indemnifying party,
and shall be binding upon and inure to the benefit of any successors, assigns,
heirs and personal representatives of Peru, you, any such affiliate and any such
person. If the obligations of Peru or you set forth in this Section 10 are not
assumed by operation of law or by contract by a party or parties satisfactory to
you, Peru and you agree to arrange alternative means of providing for such
obligations, including providing insurance or creating an escrow, in each case
in an amount and upon terms and conditions reasonably satisfactory to you.
11. Default by an Underwriter. (a) If any Underwriter shall default in
its obligation to purchase the Global Bonds which it has agreed to purchase
hereunder, you may in your discretion arrange for you or another party or other
parties, reasonably satisfactory to Peru, to purchase the Global Bonds on the
terms contained in this Agreement. If within 36 hours after such default by any
Underwriter you do not arrange for the purchase of the Global Bonds, then Peru
shall be entitled to a further period of 36 hours within which to procure
another party or other parties satisfactory to you to purchase the Global Bonds
on such terms. In the event that, within the respective prescribed periods, you
notify Peru that you have so arranged for the purchase of the Global Bonds, or
Peru notifies you that it has so arranged for the purchase of the Global Bonds,
you or Peru shall have the right to postpone the Closing Date for a period of
not more than seven days, in order to effect whatever changes may thereby be
made necessary in the Registration Statement or Final Prospectus or in any other
documents or arrangements, and Peru agrees to make promptly any amendments to
the Registration Statement or Final Prospectus that in the reasonable opinion of
either you or Peru's counsel may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this subsection (a) with like effect as if such person had originally been
a party to this Agreement with respect to the Global Bonds.
(b) If, after giving effect to any arrangements for the
purchase of the Global Bonds of a defaulting Underwriter or Underwriters by you
and Peru as provided in subsection (a) above, the aggregate principal amount of
the Global Bonds to be issued pursuant to this Agreement which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of
all such Global Bonds, then Peru shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of such Global Bonds
which such Underwriter agreed to purchase hereunder and, in addition, to require
each non-defaulting Underwriter to purchase its pro rata share (based on the
principal amount of such Global Bonds which such Underwriter agreed to purchase
hereunder) of the Global Bonds of such defaulting Underwriter or Underwriters
for which such arrangements have not been made; but nothing in this Section 11
shall relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Global Bonds of a defaulting Underwriter or Underwriters by you
and Peru as provided in subsection (a) above, the aggregate principal amount of
Global Bonds which remains unpurchased exceeds one-eleventh of the aggregate
principal amount of all the Global Bonds, or if Peru shall not exercise the
right described in subsection (b) above to require non-defaulting Underwriters
to purchase Global Bonds of a defaulting Underwriter or Underwriters, then this
Agreement shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or Peru, except for the expenses to be borne by Peru
and the Underwriters as provided in Section 12 hereof and the indemnity and
contribution agreements in this Section 11; but nothing in this Section 11 shall
relieve a defaulting Underwriter from liability for its default.
12. Expenses. You covenant and agree with Peru that Peru shall pay or
reimburse you for the following costs and expenses incurred in connection with
the Cash Offering: (x) any fees charged by rating agencies for rating the Global
Bonds, (y) the fee payable to the Commission in connection with the filing of
the Registration Statement with the Commission, and (z) the fees of Peruvian and
United States counsel for Peru. In addition, Peru shall pay or reimburse you for
up to an aggregate amount of U.S.$250,000 of any other reasonable and documented
costs and expenses incurred in connection with the Cash Offering, including but
not limited to: (a) costs and expenses in connection with the preparation and
printing of the Registration Statement, the Base Prospectus and any Prospectus
Supplement, (b) costs and expenses of distributing the Registration Statement,
the Base Prospectus and any Prospectus Supplement, (c) costs and expenses of
preparing, printing, reproducing and distributing this Agreement, the Fiscal
Agency Agreement, the Global Bonds, closing documents and any other documents in
connection with the offering, purchase, sale and delivery of the Global Bonds,
(d) fees (including the initial, up-front fees) and expenses of the fiscal agent
and any paying agent (including related fees and expenses of any counsel for
such parties), (e) expenses and fees incurred in connection with the clearance
of the Global Bonds for book-entry transfer through DTC, the Euroclear System
and Clearstream Banking, societe anonyme, (f) fees and expenses incurred in
listing the Global Bonds on the Luxembourg Stock Exchange, including any fees
charged by the listing agent, (g) fees and expenses (including out-of-pocket
expenses) of your Peruvian and United States counsel in connection with the
transactions contemplated by the Cash Offering, (h) fees and expenses of
qualifying the Global Bonds under any applicable securities laws (other than the
securities laws of the United States and Peru), and preparing, printing and
distributing a Blue Sky memorandum (including related filing fees and fees and
expenses of counsel), (i) filing fees incident to any required review by the
National Association of Securities Dealers, Inc. of the terms of the Global
Bonds, (j) fees and disbursements of your counsel in connection with any
required review by the National Association of Securities Dealers, Inc. of the
terms of the Global Bonds, (k) the reasonable and documented costs of obtaining
any CUSIP numbers, ISIN numbers, common codes or other identification numbers
for the Global Bonds, and (l) costs and expenses of any "road show" (including a
Bloomberg or Internet based road show) conducted by you and Peru to generate
investor interest in the Global Bonds, including, without limitation, expenses
associated with the production of road show slides and graphics, fees and
expenses of any consultants engaged in connection with the road show
presentations, the travel and lodging expenses of you and Peru; provided that
you covenant and agree with Peru that you shall pay or reimburse Peru for any of
the foregoing reasonable and documented costs and expenses incurred in
connection with the Cash Offering in excess of the aggregate amount of
U.S.$250,000 to be borne by Peru. All payments to be made pursuant to this
Section 12 for the reimbursement of expenses must be paid promptly, but no later
than 30 days after an itemized invoice specifying the expenses to be reimbursed
has been received by the party making such reimbursement. The parties shall
perform their respective obligations set forth in this Section 12 whether or not
Peru issues any Global Bonds pursuant to the Cash Offering.
13. Survival. The respective indemnities, agreements, representations,
warranties and other statements of Peru and the several Underwriters, as set
forth in this Agreement or made by or on behalf of them, respectively, pursuant
to this Agreement, shall remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or any controlling person
of any Underwriter, or Peru, or any official of Peru, and shall survive delivery
of and payment for the Global Bonds.
14. Effects of Termination. If this Agreement is terminated pursuant to
Xxxxxxx 00 xxxxxx, Xxxx shall not then be under any liability to any Underwriter
except as provided in Section 10 hereof; but, if for any other reason the Global
Bonds to be issued pursuant to this Agreement are not delivered by or on behalf
of Peru as provided herein, Peru shall pay, or reimburse the Underwriters for,
all reasonable and documented costs and expenses incurred by the Underwriters in
connection with the preparation for the preparation, sale and delivery of the
Global Bonds including, without limitation, all of the fees and expenses listed
in Section 12 hereof, but Peru shall then be under no further liability to any
Underwriter except as provided in Section 10 hereof.
15. Notices. All notices and other communications required or permitted
to be given under this Agreement shall be in writing and shall be deemed to have
been duly given if delivered personally or sent by reputable international
courier (postage prepaid) or facsimile transmission (with transmission
confirmed), to the parties hereto as follows:
(a) If to you:
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Latin America New Issue Execution
Facsimile: (000) 000-0000
(b) If to Peru:
Ministerio de Economia y Xxxxxxxx xxx Xxxx
Xx. Xxxxx Xx. 000
Xxxx, Xxxx
Attn: Director General of Public Credit
Telecopier: (00-0) 000-0000
Telephone: (00-0) 000-0000
16. Binding Effect. This Agreement, including any right to indemnity or
contribution hereunder, shall inure solely to the benefit of and be binding upon
Peru, you and the other indemnified parties, and each of your and their
respective successors and assigns, and no other person or entity shall acquire
or have any right under or by virtue of this Agreement. No purchaser of any of
the Global Bonds from any Underwriter shall be deemed a successor or assign by
reason merely of such purchase.
17. Severability. If any provision hereof is determined to be invalid,
illegal or unenforceable in any respect, such determination will not affect any
other provision hereof, which will remain in full force and effect so long as
the economic or legal substance of the issuance of Global Bonds and this
Agreement, the Fiscal Agency Agreement contained herein are not affected in any
manner adverse to any party.
18. Consent to Jurisdiction.
(a) Peru agrees that any suit, action or proceeding against it
or its properties, assets or revenues with respect to this Agreement (a "Related
Proceeding") shall be brought exclusively in the courts of the State of New York
(the "Specified Courts"). Peru also agrees that any judgment obtained in the
Specified Courts arising out of any Related Proceeding may be enforced or
executed in any other court of competent jurisdiction whatsoever, and any
judgment obtained in any such other court as a result of such enforcement or
execution may be enforced or executed in any such other court of competent
jurisdiction (all such courts other than Specified Courts being called herein
"Other Courts"), by means of a suit on the judgment or in any other manner
provided by law; provided, however, that, in respect of such enforcement or
execution by Peruvian courts of any such judgment ordering any payment by Peru,
such payment is included in the Budget Law corresponding to the fiscal year on
which such payment is to be due (but Peru will use its best efforts to cause
such payment to be included in such Budget Law). Peru hereby irrevocably submits
to the exclusive jurisdiction of the Specified Courts for the purpose of any
Related Proceeding and, solely for the purpose of enforcing or executing any
judgment referred to in the preceding sentence (a "Related Judgment"), of the
Specified Courts and each Other Court.
(b) Peru agrees that service of all writs, process and
summonses in any Related Proceeding or any suit, action or proceeding to enforce
or execute any Related Judgment brought against it in the State of New York may
be made upon CT Corporation, presently located at 000 Xxxxxx Xxxxxx, 00xx xxxxx,
Xxx Xxxx, Xxx Xxxx, as its authorized agent (the "Process Agent"), and Peru
irrevocably appoints the Process Agent as its agent to accept such service of
any and all such writs, process and summonses, and agrees that the failure of
the Process Agent to give any notice to it of any such service of process shall
not impair or affect the validity of such service or of any judgment based
thereon. Peru agrees to maintain at all times an agent with offices in New York
to act as its Process Agent. Nothing herein shall in any way be deemed to limit
the ability to serve any such writs, process or summonses in any other manner
permitted by applicable law.
(c) Peru irrevocably consents to and waives any objection
which it may now or hereafter have to the laying of venue of any Related
Proceeding brought in the Specified Courts or to the laying of venue of any
suit, action or proceeding brought solely for the purpose of enforcing or
executing any Related Judgment in the Specified Courts or Other Courts, and
further irrevocably waives, to the fullest extent it may effectively do so, the
defense of an inconvenient forum to the maintenance of any Related Proceeding or
any such suit, action or proceeding in any such court.
(d) To the extent that Peru or any of its revenues, assets or
properties shall be entitled, with respect to any Related Proceeding at any time
brought against Peru or any of its revenues, assets or properties, or with
respect to any suit, action or proceeding at any time brought solely for the
purpose of enforcing or executing any Related Judgment in the Specified Courts
or in any jurisdiction in which any Other Court is located, to any immunity from
suit, from the jurisdiction of any such court, from attachment prior to
judgment, from attachment in aid of execution of judgment, from execution of a
judgment or from any other legal or judicial process or remedy, and to the
extent that in any such jurisdiction there shall be attributed such an immunity,
Peru irrevocably agrees not to claim and irrevocably waives such immunity to the
fullest extent permitted by the laws of such jurisdiction (including, without
limitation, the Foreign Sovereign Immunities Act of 1976 of the United States;
provided, however, that Peru hereby reserves the right to plead sovereign
immunity under the United States Foreign Sovereign Immunities Act of 1976 with
respect to actions brought against it under the United States securities laws or
any state securities laws) and consents generally for the purposes of the State
Immunity Act of 1978 of the United Kingdom to the giving of any relief or the
issue of any process in connection with any Related Proceeding or Related
Judgment. In addition, to the extent that Peru or any of its revenues, assets or
properties shall be entitled, in any jurisdiction, to any immunity from setoff,
banker's lien or any similar right or remedy, and to the extent that there shall
be attributed, in any jurisdiction, such an immunity, Peru hereby irrevocably
agrees not to claim and irrevocably waives such immunity to the fullest extent
permitted by the laws of such jurisdiction with respect to any claim, suit,
action, proceeding, right or remedy arising out of or in connection with the
Agreement.
(e) The submission to jurisdiction and the waiver of immunity
by Peru contained herein is for the exclusive benefit of you (and your
affiliates referred to in Section 10 above) and shall not extend to any other
persons.
19. Currency. The payment of any amount due hereunder in U.S. dollars
or any other specified currency (the "Relevant Currency") is of the essence. To
the fullest extent permitted by law, the obligation of Peru in respect of any
amount due under this Agreement must, notwithstanding any payment in any other
currency (whether pursuant to a judgment or otherwise), be discharged only to
the extent of the amount in the Relevant Currency that the party entitled to
receive such payment may, in accordance with its normal procedures, purchase
with the sum paid in such other currency (after any premium and costs of
exchange on the business day immediately following the day on which such party
receives such payment). If the amount in the Relevant Currency that may be so
purchased for any reason falls short of the amount originally due, Peru shall
pay such additional amounts, in the Relevant Currency, as may be necessary to
compensate for the shortfall. Any obligation of Peru not discharged by such
payment shall, to the fullest extent permitted by applicable law, be due as a
separate and independent obligation and, until discharged as provided herein,
shall continue in full force and effect.
20. Time of Essence. Time is of the essence of this Agreement. As used
in this Agreement, the term "business day" means any day other than a Saturday
or a Sunday which is not a day on which banking institutions in New York are
generally authorized or obligated by law or executive order to close.
21. Governing Law. This Agreement is governed by and must be
interpreted in accordance with the laws of the State of New York, without regard
to principles of conflicts of law.
22. Counterparts. This Agreement may be executed by any one or more of
the parties hereto in any number of counterparts, each of which shall be deemed
to be an original, but all such respective counterparts shall together
constitute one and the same instrument.
* * * * * * *
Please indicate your acceptance of the foregoing provisions by
signing in the space provided below for that purpose and returning to us a copy
of this Agreement, whereupon this Agreement and your acceptance shall constitute
a binding agreement between Peru and the Underwriters.
Very truly yours,
THE REPUBLIC OF PERU
By: /s/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx
Title: Directora General de Credito
Publico of the Republic of Peru
Accepted on behalf of themselves, and as Representative of the Underwriters
whose names are set forth on Schedule I hereto.
X. X. XXXXXX SECURITIES INC.
By: /s/ Xxxxxxxx Xxxxxxx
------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Vice President
SCHEDULE I
Underwriter Global Bonds
----------- ------------
X. X. Xxxxxx Securities Inc. U.S.$465,000,000
Citigroup Global Markets Inc. U.S.$17,500,000
Deutsche Bank Securities Inc. U.S.$17,500,000
