DEALER MANAGER AGREEMENT
Exhibit
1.2
EXECUTION
COPY
May 8,
2007
Barclays Capital
Inc.
000 Xxxx
Xxxxxx
Xxx Xxxx, Xxx Xxxx
00000
Citigroup Global
Markets Inc.
000 Xxxxxxxxx
Xxxxxx
Xxx Xxxx, Xxx Xxxx
00000
Ladies and
Gentlemen:
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0
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Xxxxxxx
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Xxx Xxxxxxxx xx
Xxxxx Xxxxxx (the “Republic”) proposes
to make an invitation to (a) holders of the Republic’s (i) 9 1/8% Notes
due 2009, (ii) 7 3/8% Notes due 2012, (iii) 6 1/2% Notes due 2014 and (iv) 8
1/2% Notes due 2017 (the notes referred to in (i) through (iv), collectively,
the “USD
Eligible Notes”) to submit
offers to exchange USD Eligible Notes for U.S. Dollar-Denominated Notes due
2022 (the “New
Notes”) and a U.S.
dollar amount of cash and/or offers to sell USD Eligible Notes for a U.S.
dollar amount of cash, subject to the acceptance priority levels and maximum
repurchase amounts specified in the Prospectus Supplement (as defined below)
(the “Tender and
Exchange”) and (b)
holders of the Republic’s (i) 7% Notes due 2008 and (ii) 5 1/4% Notes due
2013 (the notes referred to in (i) and (ii), together, the “Euro
Eligible Notes”) to submit
offers to sell Euro Eligible Notes for a Euro cash amount, subject to the
acceptance priority levels and maximum repurchase amounts specified in the
Prospectus Supplement (as defined below) (the “Tender
Only”, and
together with the Tender and Exchange, the “Invitation”). In
addition, the Republic may make an offering for cash of New Notes (the
“Cash
Offering”, and
together with the Invitation, the “Global
Note Offering”). The
holders of the USD Eligible Notes and the Euro Eligible Notes (together, the
“Eligible
Notes”) are
hereinafter referred to as the “Holders”.
The Invitation
will be made on the terms and subject to the conditions set forth in the
Prospectus Supplement (including the accompanying prospectus dated August 20,
2003 and the documents incorporated by reference therein, the
“Prospectus
Supplement”) attached
hereto as Exhibit A. The closing date of the Global Note Offering shall be
referred to herein as the “Closing
Date.” This
agreement between the Republic and you as set forth herein shall hereinafter be
referred to as the “Agreement.”
Capitalized terms used but not otherwise defined herein shall have the meanings
ascribed to them in the Prospectus Supplement.
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Engagement
as Dealer Managers |
The Republic
hereby engages Barclays Capital Inc. and Citigroup Global Markets Inc. to act
as exclusive dealer managers (collectively, the “Dealer
Managers” or
“you”), and
authorizes the Dealer Managers to act as such in connection with the Invitation
and agrees that each Dealer Manager shall act as an independent contractor with
its duties arising out of this Agreement
owed solely to the
Republic. The Dealer Managers accept their appointment as exclusive dealer
managers in connection with the Invitation, and the Dealer Managers agree (to
the extent permitted by and in accordance with applicable law) to perform the
following services in connection with the Invitation:
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(a)
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use their
reasonable efforts to identify and contact Holders (but subject to applicable
law), present the Invitation to Holders on behalf of the Republic (including
making copies of the Invitation Material (as defined below) available to
Holders) and, on behalf of the Republic, to solicit from Holders Invitations to
tender and/or exchange the Eligible Notes. It is agreed that the Republic has
given full authority to the Dealer Managers to identify Holders by such means
as the Dealer Managers consider necessary or desirable (but subject to
applicable law); |
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(b)
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make their
employees available at all reasonable times to answer reasonable queries from
Holders in connection with the Invitation; |
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(c)
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assist the
Republic as and when requested by the Republic in relation to any decision to
amend, terminate or extend the Invitation; |
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(d)
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make or arrange
for the making on behalf of the Republic of such announcements as are agreed
between the Republic and the Dealer Managers in connection with the Invitation;
and |
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(e)
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provide such other
assistance and undertake such other duties (including, but not limited to,
those duties specifically ascribed to the Dealer Managers in the Invitation
Material (as defined in Section 4 below)) in connection with the Invitation as
agreed in writing between the parties hereto from time to time.
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No
Liability for Acts of Brokers, Dealers, Banks, Trust Registrants and Other
Nominees |
No Dealer Manager
or any of its affiliated companies or any director, officer, agent or employee
of such Dealer Manager or any such affiliated company shall have any liability
(whether direct or indirect, in contract or tort or otherwise) to the Republic
or any other person for any losses, claims, damages, liabilities and expenses
(each, a “Loss” and
collectively, the “Losses”) arising
from any act or omission on the part of any broker or dealer in securities
(other than a Dealer Manager or any of such Dealer Manager’s affiliated
companies), bank, trust company, any other nominees or any other person, and no
Dealer Manager nor any of its affiliated companies or any director, officer,
agent or employee of such Dealer Manager or any such affiliated company shall
be liable for any Losses arising from your own acts or omissions in performing
your obligations as Dealer Manager hereunder, except to the extent that it
shall be determined by a court of competent jurisdiction in a judgment that has
become final in that it is no longer subject to appeal or other review that any
Losses incurred by the Republic resulted from such Dealer Manager’s gross
negligence, bad faith or willful misconduct in performing the services that are
the subject of this Agreement. In soliciting or obtaining tenders and/or
exchanges pursuant to the Invitation, no dealer, bank, trust company or other
nominee is to be deemed to be acting as agent of any Dealer Manager or the
agent of the Republic, and no Dealer Manager is to be deemed the agent of any
dealer, bank, trust company or other nominee or the agent or fiduciary
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of the Republic,
any of its security holders, creditors or of any other person. In soliciting or
obtaining tenders and/or exchanges pursuant to the Invitation, no Dealer
Manager shall be or shall be deemed for any purpose to act as a partner or
joint venturer of or a member of a syndicate or group with the Republic in
connection with the Invitation and the Republic shall not be deemed to act as
agent for any Dealer Manager. The Republic shall have sole authority for the
acceptance or rejection of any and all tenders and/or exchanges pursuant to the
Invitation.
The Republic
acknowledges that the Dealer Managers and their affiliates are engaged in a
broad range of securities activities and financial services. In the ordinary
course of the Dealer Managers’ business, the Dealers Managers or their
affiliates (i) may at any time hold long or short positions, and may trade or
otherwise effect transactions, for the Dealer Managers’ own account or the
accounts of customers, in debt securities or related derivative instruments of
the Republic and (ii) may at any time be providing or arranging financing and
other financial services to companies that may be involved in a competing
transaction.
The obligations of
the Dealer Managers under this Agreement are several and not joint, and each
Dealer Manager may exercise its rights under this Agreement separately. No
Dealer Manager shall be deemed to be the agent, partner, or joint venturer of
any other Dealer Manager, and no Dealer Manager shall be liable or responsible
for any acts or omissions of any other Dealer Manager.
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Invitation
Material; Free Writing Prospectuses; Withdrawal |
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(a)
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In connection with
the Invitation, the Republic authorizes each of you to reproduce and
distribute, as you may deem necessary or advisable, the Prospectus Supplement
and any amendments or supplements thereto, the related letters transmitted
electronically through the Invitation Website (the “Letters of
Transmittal”), the
related letter from the Republic to brokers, dealers, commercial banks, trust
companies and other nominees and the form of the letter from any of them to
clients, any “issuer free writing prospectus” as defined in Rule 433
under the United States Securities Act of 1933, as amended (the
“Act”), used in
connection with the Invitation (an “Issuer
Free Writing Prospectus”), and any
press releases and newspaper advertisements that have been delivered to you by
the Republic in final and approved form (collectively, including any amendments
or supplements thereto provided by or on behalf of the Republic in accordance
with this Agreement, the roadshow, and all the material available in the
Invitation Website, the “Invitation
Material”), and any
permitted “free
writing prospectus” specified
in Section 4(b) hereof, for use by you in connection with the Invitation. The
Republic and the Dealer Managers expressly agree that Offers shall be
transmitted electronically through the Invitation Website pursuant to the
procedures described in the Invitation Material. The Republic further agrees to
cause to be furnished to each of you (in New York City) as many copies as you
may reasonably request of the Invitation Material and shall cause to be mailed
(or distributed electronically) to each registered holder of any Eligible Note,
as soon as practicable, a reasonable number of copies of the Invitation
Material. Thereafter, to the extent practicable until the Expiration Date (as
defined in the Prospectus Supplement), the Republic shall use its best efforts
to cause copies of the Invitation Material to be mailed to each person who
becomes a holder of record of any Eligible Note upon its request
therefore. |
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(b)
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The Republic shall
not amend or supplement the Invitation Material without your consent, which
consent shall not be unreasonably withheld. Except for any “free writing
prospectus” (as defined in Rule 405 under the Act) (a “Free
Writing Prospectus”) containing
customary information and prepared by the Dealer Managers for use by them on
Bloomberg screens or similar communication and that is not (i) an Issuer Free
Writing Prospectus or (ii) a Free Writing Prospectus containing “issuer
information” (as defined in Rule 433(h)(2) under the Act), you shall not
prepare or approve any other press releases or other offering material (other
than material prepared solely for the internal use of a Dealer Manager) for use
in connection with the Invitation, without the Republic’s consent, which
consent shall not be unreasonably withheld. The Republic agrees that, a
reasonable time prior to using or filing with the United States Securities and
Exchange Commission (the “Commission”) or with
any other Federal or other governmental agency, authority or instrumentality,
domestic or foreign (each, including the Commission, an “Agency”), any
Invitation Material (whether preliminary or otherwise), the Republic will
submit or cause to be submitted copies of such material to you for your
approval, which approval shall not be unreasonably withheld. |
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(c)
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The Republic will
advise you promptly of (i) the occurrence of any event which could cause the
Republic to withdraw, rescind, terminate or modify the Invitation or would
permit the Republic to exercise any right not to purchase or exchange the
Eligible Notes tendered pursuant to the Invitation, (ii) any requirement to
amend or supplement any Invitation Material, (iii) the issuance of any
communication, comment or order relevant to the Invitation by any Agency (and,
if in writing, will furnish you a copy thereof), (iv) any litigation or
administrative or governmental action with respect to the Invitation of which
the Republic becomes aware, and (v) any other information relating to the
Invitation which you may from time to time reasonably request in the
performance of your duties hereunder. The Republic shall have complete
authority to, and in its discretion may, terminate the Invitation at any time
on or prior to the close of business on the business day following the
Expiration Date; provided that once the
Republic announces its acceptance of Offers as set forth in the Prospectus
Supplement, the Republic’s acceptance will be irrevocable. You will
promptly inform the Republic of any litigation or administrative or
governmental action with respect to the Invitation of which you become
aware. |
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(d)
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The Republic
agrees (i) to prepare or cause to be prepared the Prospectus Supplement and any
amendment or supplement thereto in a form approved by you and to file such
Prospectus Supplement or any amendment or supplement thereto pursuant to Rule
424(b) under the Act not later than, in the case of the Prospectus Supplement,
the Commission’s close of business on the second business day following
the Commencement Date, and in the case of any amendment or supplement which
contains information relating to the results of the Invitation and such
additional information as might be required under the Act, the
Commission’s close of business on the second business day following the
Announcement Date; to advise you, promptly after it receives notice thereof, of
the issuance by the Commission of any stop order or of any order preventing or
suspending the use of any Free Writing Prospectus, the Prospectus Supplement or
any amendment or supplement thereto, of the suspension of the qualification of
the New Notes for offering or sale in any jurisdiction in the United
States |
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| or any jurisdiction identified under the caption “Jurisdictional Restrictions” in the Prospectus Supplement, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement (as defined below), any Free Writing Prospectus or the Prospectus Supplement or any amendment or supplement thereto or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of the Basic Prospectus, the Prospectus Supplement any Free Writing Prospectus or suspending any such qualification, to promptly use its best efforts to obtain the withdrawal of such order; and (ii) promptly from time to time during and following the Expiration Date of the Invitation, to take such action as you may reasonably request to qualify the Invitation and the New Notes for offering and sale under the securities laws of the United States of America and such jurisdictions set forth under the caption “Jurisdictional Restrictions” in the Prospectus Supplement as you may reasonably request and to comply with such laws so as to permit the continuance of the Invitation and sales and dealings in the New Notes in such jurisdictions for as long as may be necessary to complete the Invitation and the distribution of the New Notes, provided that in connection therewith the Republic shall not be required to file a general consent to service of process in any jurisdiction. Likewise, with respect to the jurisdictions identified under the caption “Jurisdictional Restrictions” in the Prospectus Supplement, each of the Republic and you shall take actions reasonably available to it or you, respectively, to permit the continuance of the Invitation and the distribution of the New Notes on the terms and conditions contemplated by such document, provided that if either the Republic or you believe that the cost or burden of any such actions make them unreasonable, you and the Republic shall consult in good faith with a view to restructuring the conduct of the Invitation and the distribution of the New Notes in such jurisdiction in such a way that permits, to the extent possible, the continuance of the Invitation and the distribution of the New Notes in such jurisdiction. |
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(e)
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The Republic
agrees, if the delivery of a prospectus is required under the Act (including
any of the rules promulgated by the Commission thereunder) or the laws of any
jurisdiction identified under the caption “Jurisdictional
Restrictions” in the Prospectus Supplement at any time prior to the
expiration of nine months after the time of issue of the Prospectus Supplement
in connection with the Invitation and if at such time any event shall have
occurred as a result of which the Prospectus Supplement as then amended or
supplemented would include an 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 when such Prospectus
Supplement is delivered, not misleading, or, if for any other reason it shall
be necessary during such same period to amend or supplement the Prospectus
Supplement in order to comply with the Act or the laws of any jurisdiction
identified under the caption “Jurisdictional Restrictions” in the
Prospectus Supplement, to notify you and upon your request to prepare and
furnish to each Dealer Manager and to any dealer in securities as many copies
as you may from time to time reasonably request of an amended Prospectus
Supplement or a supplement to the Prospectus Supplement which will correct such
statement or omission or effect such compliance; and in case you are required
to deliver a prospectus in connection with sales of any of the New Notes at any
time under the |
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| Act, upon your request, to prepare and deliver to such Dealer Manager as many copies as it may reasonably request of an amended or supplemented Prospectus Supplement complying with Section 10(a)(3) of the Act. |
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(f)
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Our offers and
solicitations and your solicitations shall be made only in the United States
and the jurisdictions identified under the caption “Jurisdictional
Restrictions” in the Prospectus Supplement, and shall be conducted
(including, without limitation, in respect of the use and distribution of the
Invitation Material) in compliance with the limitations and qualifications set
forth in the Prospectus Supplement under the caption “Jurisdictional
Restrictions”. No offers, distributions of the Invitation Material or
solicitation shall be made in any other jurisdiction without your and the
Republic’s prior written consent. You agree that all material published in
the United Kingdom in connection with the Invitation will be issued on behalf
of the Republic. |
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(g)
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The Republic
represents and agrees that it has not made and will not make any offer relating
to the Invitation that would constitute a Free Writing Prospectus or portion
thereof required to be filed by the Republic with the Commission or retained by
the Republic under Rule 433 under the Act without your prior written consent
(which shall not be unreasonably withheld) and that Schedule 1 hereto is a
complete list of any Issuer Free Writing Prospectuses used on or prior to the
date hereof for which the Republic has received such consent. The Republic has
complied and will comply with the requirements of Rule 433 under the Act
applicable to any Issuer Free Writing Prospectus, including timely filing with
the Commission or retention where required and legending. The Republic agrees
that if at any time following issuance of an Issuer Free Writing Prospectus any
event occurred or occurs as a result of which such Issuer Free Writing
Prospectus (i) would conflict with the information in the Registration
Statement (as defined below) or the Prospectus Supplement or (ii) when taken
together with the Prospectus Supplement, would include an 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 then prevailing, not
misleading, the Republic will give you prompt notice thereof, and if you so
request, will prepare and furnish without charge to each of you an Issuer Free
Writing Prospectus or other document which will correct such conflict,
statement or omission; provided, however, that this representation and warranty
shall not apply to any statements or omissions in an Issuer Free Writing
Prospectus made in reliance upon and in conformity with information furnished
in writing to the Republic by you expressly for use therein. |
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(h)
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Each Dealer
Manager represents and agrees that it has not made and will not make any offer
relating to the Invitation that constitutes or would constitute an Issuer Free
Writing Prospectus or that otherwise constitutes or would constitute a Free
Writing Prospectus or a portion thereof, required to be filed by the Republic
under Rule 433 under the Act, without the Republic’s prior written consent
(which shall not be unreasonably withheld). |
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(i)
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The Republic
agrees to furnish each Dealer Manager with as many copies as it may reasonably
request of the Invitation Material to be used by the Republic in connection
with the Invitation. The Invitation Material has been or will be prepared and
approved by and is the sole responsibility of the Republic, other than as
provided in Section 12. The Republic agrees that, within a reasonable time
prior to using any Invitation Material |
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| (other than the filing with the Commission) of any documents incorporated by reference therein), it will submit copies of such material to the Dealer Managers and their counsel and will not use any such material to which the Dealer Managers reasonably object. Further, the Republic shall inform each Dealer Manager promptly after the National Treasury of the Republic, the Ministry of Finance of the Republic or the Chief State Law Adviser of the Republic receives notice or becomes aware of the happening of any event, or the discovery of any fact, that would require the making of any change in any Invitation Material then being used, or that would affect the truth or completeness of any representation or warranty contained in this Agreement if such representation or warranty were being made promptly after the happening of such event or the discovery of such fact. |
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(j)
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Each of the Dealer
Managers, in its sole discretion, may continue to own or dispose of, in any
manner it may elect, any Eligible Notes it may beneficially own at the date of
this Agreement or hereafter acquire, in any such case subject to applicable law
and, in particular, the Dealer Managers have no obligations to the Republic
pursuant to this Agreement, or otherwise, to Invitation to sell or exchange or
refrain from offering to sell or exchange the Eligible Notes beneficially owned
by them pursuant to the Invitation. |
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(k)
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The Republic
agrees to provide the Dealer Mangers and their professional advisers with all
information and data concerning the Republic that the Dealer Managers may
reasonably consider relevant or necessary to complete the Invitation or that is
material to the Republic in connection therewith. |
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(l)
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In the event that
(i) the Republic uses or permits the use of any Invitation Material (a) which
has not been submitted to each Dealer Manager for its comments as required by
this Agreement or (b) which has been so submitted as required and with respect
to which such Dealer Manager has made comments, but which comments have not
resulted in a response reasonably satisfactory to such Dealer Manager and its
counsel, and in each case which makes such Invitation Material materially
inaccurate or makes it materially more difficult to consummate the Invitation,
(ii) the Republic shall have breached, in any material respect, any of its
representations, warranties, agreements or covenants herein or failed to
satisfy any of the conditions specified in Section 10, (iii) the Invitation is
terminated or withdrawn for any reason, or any stop order, restraining order,
injunction or denial of an application for approval has been issued and not
thereafter stayed or vacated with respect thereto, (iv) any proceeding,
litigation or investigation has been initiated that would have a material
adverse effect on the Republic’s ability to carry out the Invitation or
the performance of this Agreement, then in any such case such Dealer Manager
shall be entitled to withdraw as Dealer Manager without any liability or
penalty to such Dealer Manager or any other indemnified party (as described in
Section 12), it being understood that each Dealer Manager may determine in its
sole discretion whether to exercise its withdrawal right hereunder without
regard as to whether the other Dealer Managers have exercised such right;
provided that in any event a withdrawing Dealer Manager shall not be entitled
to the payment of any fee as provided in Section 5 below. |
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Compensation
and Expenses |
The Republic
agrees to pay (i) all fees and expenses of the Republic’s counsel, (ii)
all other fees and expenses incurred by the Republic in connection with the
Global Note Offering, including those of the Information and Exchange Agent and
the Luxembourg Exchange Agent (as defined in Section 6) and any other person
rendering services in connection therewith, (iii) the fees and expenses of
Linklaters LLP and Xxxxxx Xxxxxx Sonnenbergs Inc., acting as counsel to the
Dealer Managers, (iv) all fees and expenses incurred by the Dealer Managers in
connection with the Global Note Offering, to the extent that such fees and
expenses have been agreed to be paid by the Republic pursuant to this Section
5, (v) as consideration for you acting as Dealer Managers, 0.15% of the
aggregate principal amount of the New Notes issued by the Republic pursuant to
the Global Note Offering (for allocation equally between Barclays Capital Inc.
and Citigroup Global Markets Inc.) and (vi) any applicable VAT, sales or other
similar taxes which may be payable on the items listed in (i) to
(v).
All payments to be
made by the Republic pursuant to subsections (iv), (v) and (vi) above shall be
made promptly after the Closing Date in accordance with the payment
instructions of the Dealer Managers. All payments pursuant to this Section 5
shall be made in United States dollars and in full without set off, condition,
restriction, counterclaim, deduction or withholding.
The Republic shall
perform its obligations set forth in this Section 5 whether or not the
Invitation is commenced or any Eligible Notes are tendered or exchanged
pursuant to the Invitation or otherwise.
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Information
and Exchange Agent and Luxembourg Exchange Agent |
The Republic shall
provide you, or, to the extent possible, cause the Fiscal Agent under the
Amended and Restated Fiscal Agency Agreement, dated as of May 15, 2003,
relating to the Notes, as amended or supplemented from time to time (the
“Fiscal
Agency Agreement”), and cause
The Depository Trust Company (“DTC”) to provide
you with, copies of the records or other lists showing the names of the
beneficial Holders of the Eligible Notes, together with their addresses and the
principal amount of Eligible Notes held by them. In addition, the Republic
shall update such information from time to time during the term of this
Agreement as reasonably requested by you, and to the extent such information is
reasonably available to the Republic within the time constraints specified. The
Dealer Managers agree to use such information only in connection with the
Invitation and not to furnish such information to any persons except in
connection with the Invitation. The Republic will arrange for Bondholder
Communications Group to serve as information and exchange agent (the
“Information
and Exchange Agent”) in
connection with the Invitation and, as such, to advise you as to such matters
relating to the Invitation as you may reasonably request and to furnish you
with any written reports concerning any such information as you may reasonably
request. The Republic will also arrange for Deutsche Bank Luxembourg S.A. to
serve as the Luxembourg exchange agent (the “Luxembourg
Exchange Agent”). The
Republic hereby authorizes the Dealer Managers to communicate with the
Information and Exchange Agent and the Luxembourg Exchange Agent with respect
to matters relating to the Invitation.
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Payment
and Exchange of the Eligible Notes |
The Republic
agrees to pay promptly, in accordance with the terms of the Invitation
Material, the applicable repurchase price for the Eligible Notes to the Holders
entitled thereto. The Republic also agrees to exchange promptly, in accordance
with the terms of the Invitation Material, Eligible Notes accepted for exchange
for New Notes. The Republic agrees not to purchase or exchange any Eligible
Notes during the term of this Agreement except pursuant to and in accordance
with the Invitation or as otherwise agreed in writing by the Republic and the
Dealer Managers and permitted under applicable laws and
regulations.
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Representations,
Warranties and Certain Agreements of the Republic |
The Republic
represents and warrants to each Dealer Manager, and agrees with each Dealer
Manager, as of the Commencement Date (as defined below) and as of the Closing
Date, that:
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(a)
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the Republic meets
the requirements for use of Schedule B under the Act, is a “seasoned”
foreign government issuer within the meaning of Commission Release No. 33-6424
and has filed with the Commission a registration statement on Schedule B (File
No. 333-107393) relating to debt securities and warrants, including the New
Notes (together, the “Debt
Securities”); such
registration statement and any post-effective amendment thereto, each in the
form heretofore delivered to you or your counsel, have been declared effective
by the Commission in such form; no other document with respect to such
registration statement or document incorporated by reference therein has
heretofore been filed with the Commission, other than the documents
incorporated therein by reference and prospectuses filed pursuant to Rule
424(b) of the rules and regulations of the Commission under the Act, each in
the form heretofore delivered to you or your counsel; and no stop order
suspending the effectiveness of either such registration statement, and no
order preventing or suspending use of the Prospectus Supplement or any
amendment or supplement thereto has been issued and no proceeding for that
purpose has been initiated or threatened by the Commission. The various parts
of such registration statement, including all exhibits thereto and the
documents incorporated by reference in the prospectus and prospectus supplement
contained in such registration statement at the time such part of the
registration statement became effective, each as amended at the time such part
of the registration statement became effective, are collectively referred to
herein as the “Registration
Statement”; the basic
prospectus relating to the Debt Securities contained in the Registration
Statement, in the form in which it was filed with the Commission on August 20,
2003, is referred to herein as the “Basic
Prospectus”; for
purposes of this Section 8 only, the Basic Prospectus, as supplemented by the
Prospectus Supplement is herein called the “Prospectus”; any
reference to the Prospectus Supplement or the Prospectus shall be deemed to
refer to and include any documents incorporated by reference therein as of the
respective dates of such Prospectus Supplement and Basic Prospectus; any
reference to any amendment or supplement to the Prospectus Supplement or the
Prospectus shall be deemed to refer to and include any annual reports on Form
18-K and any amendments to such Form 18-K on Form 18-K/A (including all
exhibits thereto) (collectively, a “Form
18-K”) filed
after the date of such Prospectus Supplement or Prospectus, as the case may be,
under the United States |
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| Securities Exchange Act of 1934, as amended (the “Exchange Act”), and incorporated by reference in such Prospectus Supplement or Prospectus; and any reference herein to any amendment to the Registration Statement shall be deemed to refer to and include any Form 18-K filed after the effective date of the Registration Statement that is incorporated by reference in the Registration Statement. |
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(b)
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the (i)
Prospectus, as amended and supplemented to the Applicable Time (as defined
below), (ii) the Preliminary Prospectus, if any, used most recently prior to
the Applicable Time (as defined below), (iii) the Issuer Free Writing
Prospectuses and (iv) any other “free writing prospectus” that the
parties hereto shall hereafter expressly agree in writing to treat as part of
the Disclosure Package (collectively, the “Disclosure
Package”), as of the
Applicable Time (as defined below), will not include 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, provided, however, that this
representation and warranty shall not apply to statements or omissions made in
an Issuer Free Writing Prospectus in reliance upon and in conformity with
information furnished in writing to the Republic by any Dealer Manager
expressly for use in the Invitation Material; and each Issuer Free Writing
Prospectus does not conflict with the information contained in the Registration
Statement or the Disclosure Package as of the Applicable Time (as defined
below); for the purposes of this Agreement, the “Applicable
Time” shall mean
the date and time at which Exchange Offers submitted pursuant to the Invitation
become irrevocable on the Expiration Date, which, unless extended or earlier
terminated by the Republic, shall be 3:00 P.M., New York City time, on May 15,
2007. |
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(c)
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any documents
filed with the Commission and incorporated by reference in the Prospectus or
any further amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be, conforms or
will conform in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder and do not and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that this
representation and warranty shall not apply to any statement or omissions made
in reliance upon and in conformity with information furnished in writing to the
Republic by you expressly for use in the Invitation Material as amended or
supplemented; |
|
(d)
|
the Registration
Statement and the Prospectus conform, and any further amendments or supplements
to the Registration Statement or the Prospectus will conform, in all material
respects, to the requirements of the Act and the rules and regulations of the
Commission thereunder; the Registration Statement does not, and any further
amendments or supplements to the Registration Statement will not, as of the
applicable effective date and as of the Applicable Time and as of the Closing
Date, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading; the Prospectus does not, and any amendment or
supplement to the Prospectus will not, as of the date thereof and as of the
Applicable Time and as of the Closing Date, contain an untrue statement of a
|
10
| material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties contained in this Section 8(d) shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Republic expressly for use in the Invitation Material; |
|
(e)
|
since the
respective dates as of which information is given in the Registration Statement
and the Prospectus, there has not been any material adverse change, or any
development involving a prospective material adverse change, in or affecting
the condition, financial, economic, political or other, of the Republic,
otherwise than as set forth in or contemplated by the Prospectus;
|
|
(f)
|
(i) at the time of
filing the Registration Statement, (ii) at the time of filing the most recent
post-effective amendment thereto, (iii) at the earliest time that the Republic
or another offering participant made a bona
fide offer (within the
meaning of Rule 164(h)(2) under the Act) and (iv) as of the date hereof, the
Republic was not and is not an “ineligible
issuer” (as defined
in Rule 405 under the Act), without taking into account any determination by
the Commission pursuant to Rule 405 that it is not necessary that The Republic
be considered an “ineligible
issuer”.
|
|
(g)
|
the New Notes have
been duly authorized, and, when issued and delivered pursuant to the Prospectus
and the Fiscal Agency Agreement, will have been duly executed, authenticated,
issued and delivered and will constitute valid and legally binding direct,
general and unconditional obligations of the Republic enforceable in accordance
with their terms and entitled to the benefits provided by the Fiscal Agency
Agreement, subject, as to enforcement, to legal and equitable limitations
relating to or affecting enforceability applicable generally to obligations of
sovereigns; the Fiscal Agency Agreement has been duly authorized and, at the
Applicable Time, the Fiscal Agency Agreement will constitute a valid and
legally binding, direct and unconditional obligation of the Republic,
enforceable in accordance with its terms, subject, as to enforcement, to legal
and equitable limitations relating to or affecting enforceability applicable
generally to obligations of sovereigns; and the Fiscal Agency Agreement
conforms, and the New Notes will conform, to the descriptions thereof contained
in the Prospectus as amended or supplemented with respect to such New
Notes; |
|
(h)
|
all
authorizations, approvals or consents of any court, ministry, government
department, branch of government, or regulatory body required by the Republic
for the execution and delivery of this Agreement, the making and consummation
of the Invitation and the offer, execution, issue, sale and delivery of the New
Notes and the performance of the terms of the New Notes, this Agreement and the
Invitation have been obtained or will be obtained prior to the execution and
delivery of the same are or will be in full force and effect;
|
|
(i)
|
other than as set
forth or contemplated in the Prospectus, there are no legal or governmental
proceedings pending to which the Republic is a party or of which any of its
properties is the subject which, if determined adversely to the Republic, would
individually or in the aggregate have a material adverse effect on the
transactions herein |
11
| contemplated or on the Republic’s ability to perform its obligations under the New Notes, this Agreement, the Invitation or the Fiscal Agency Agreement; and, to the best of the Republic’s knowledge, no such proceedings are threatened or contemplated; |
|
(j)
|
other than as set
forth or contemplated in the Prospectus, the Republic is not in default under
the provisions of any agreement or instrument evidencing or relating to any
outstanding indebtedness for borrowed money, and neither the execution and
delivery of the Fiscal Agency Agreement, the New Notes, this Agreement or the
Invitation, nor the consummation of the transactions therein or herein
contemplated, nor compliance with the terms and provisions of the Fiscal Agency
Agreement, the New Notes, this Agreement or the Invitation, including
performance of each of the obligations contained in the Securities (i) will
conflict with, violate or result in a breach of any of the Constitution of
South Africa or any law or administrative regulation of or applicable to the
Republic, (ii) will conflict with, violate or result in a breach of any of the
terms, conditions or provisions of any treaty, convention, material agreement
or material instrument to which the Republic is a party or of which the
Republic is bound or constitute a default thereunder or (iii) will result in
the creation of any mortgage, lien, charge or encumbrance of any nature
whatsoever upon any of the revenues or assets of the Republic under any such
agreement or instrument; |
|
(k)
|
the full faith and
credit of the Republic has been pledged for the due and punctual payment of the
New Notes and for the due and timely performance of the obligations of the
Republic with respect thereto; and the New Notes will rank pari
passu, without any
preference one over the other by reason of priority of date of issue, currency
of payment or otherwise, with all other unsecured and unsubordinated
indebtedness of the Republic in respect of money borrowed by the Republic and
guarantees given by the Republic in respect of money borrowed by
others; |
|
(l)
|
other than as set
forth in the Disclosure Package and the Prospectus, there is no tax, levy,
deduction, charge or withholding imposed by the Republic or any political
subdivision thereof either (i) on or by virtue of the execution, delivery or
enforcement of the New Notes, this Agreement or the Invitation or the Fiscal
Agency Agreement or (ii) on any payment to be made by the Republic hereunder,
under the Invitation, under the Fiscal Agency Agreement or under the New
Notes; |
|
(m)
|
this Agreement,
the Fiscal Agency Agreement and the New Notes, are and will be, in proper legal
form under the laws of the Republic for enforcement thereof against the
Republic under the laws of the Republic; and |
|
(n)
|
a currency
transfer guarantee by the South African Reserve Bank (the “Currency Transfer
Guarantee”) has been
obtained, constitutes a valid authorization on behalf of the Republic, and is
in full force and effect; |
|
(o)
|
the Invitation
Material has been furnished to you or will be furnished to you no later than
the date the Invitation is commenced (the “Commencement
Date”);
|
|
(p)
|
the Republic has
made or will make any arrangements necessary to be made by it to permit
settlement to occur through the clearing systems contemplated by the Invitation
Material; |
12
|
(q)
|
any documents
filed with the Commission and incorporated by reference in the Invitation
Material or any further amendment or supplement thereto, when such documents
become effective or are filed with the Commission, as the case may be, conform
or will conform in all material respects to the requirements of the Act, as
applicable, and the rules and regulations of the Commission thereunder and do
not and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading; provided,
however, that this
representation and warranty shall not apply to any statement or omissions made
in reliance upon and in conformity with information furnished in writing to the
Republic by a Dealer Manager expressly for use in the Invitation Material as
amended or supplemented relating to the Invitation; |
|
(r)
|
the Invitation
Material complies and (as amended or supplemented, if amended or supplemented)
will comply in all material respects with all applicable requirements of the
Exchange Act, as amended, and the rules and regulations promulgated thereunder
and with the securities laws of all other relevant jurisdictions, and the
Invitation Material does not and (as amended or supplemented, if amended or
supplemented) 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; |
|
(s)
|
the Republic has
all necessary power and authority to execute and deliver this Agreement and to
perform all its obligations thereunder and to make and consummate the
Invitation in accordance with its terms; |
|
(t)
|
the Republic has
taken all necessary action to authorize the making and consummation of the
Invitation and the execution, delivery and performance by the Republic of this
Agreement; and this Agreement has been duly executed and delivered by the
Republic and, assuming due authorization, execution and delivery by the other
parties thereto, this Agreement constitutes a valid and legally binding
agreement of the Republic, enforceable against the Republic in accordance with
its terms; |
|
(u)
|
the Republic is
not in breach or violation of or in default under, any of the provisions of the
Fiscal Agency Agreement or the Eligible Notes; and the Invitation does not
violate the Constitution of the Republic; |
|
(v)
|
no consent,
approval, authorization or order of any court or governmental, legislative,
judicial, administrative or regulatory agency, authority or body is required
for the making of the Invitation, the execution, delivery and performance by
the Republic of this Agreement or the consummation of the other transactions
contemplated in this Agreement, except such as have been obtained on or prior
the Commencement Date; |
|
(w)
|
neither the
execution, delivery and performance of this Agreement, nor the consummation of
the transactions contemplated herein or in the Invitation Material, nor
compliance with the terms and provisions of this Agreement or the Invitation
Material, including performance of each of the obligations contained herein and
therein (i) will conflict with, violate or result in a breach of the Fiscal
Agency Agreement, of the Constitution of the Republic or any law or
administrative regulation of or applicable to the Republic, (ii) will conflict
with, violate or result in a breach of any of the terms, |
13
| conditions or provisions of any treaty, convention, or any contract to which the Republic is a party or of which the Republic is bound or constitute a default thereunder or (iii) will conflict with any law, rule or regulation, or any order of any court or of any other agency or instrumentality having jurisdiction over the Republic or any of its properties or assets; and |
|
(x)
|
the statements in
the Prospectus Supplement under the heading “Taxation - South African
Taxation” contain a fair summary of the matters described therein in all
material respects. |
Any certificate
signed by any competent official of the Republic and delivered to the Dealer
Managers or counsel for the Dealer Managers in connection with the Invitation
shall be deemed a representation and warranty by the Republic as to matters
covered thereby to the Dealer Managers.
|
9
|
Representations,
Warranties and Agreements of the Dealer Managers |
Each Dealer
Manager represents and warrants to the Republic, and agrees with the Republic,
that such Dealer Manager shall not use any written material in connection with
soliciting tenders or exchanges pursuant to the Invitation other than the
Invitation Material.
|
10
|
Conditions
|
Your obligations
to act as Dealer Manager pursuant to the terms of this Agreement, and to
consummate your obligations in connection with the transactions contemplated in
this Agreement, are subject to the following conditions, it being understood
that each Dealer Manager may determine in its sole discretion whether such
conditions have been satisfied and may exercise any rights or remedies with
respect thereto without regard to whether the other Dealer Managers have
exercised their rights or remedies:
|
(a)
|
no stop order,
restraining order, injunction or other order issued by any court or
governmental or regulatory authority having jurisdiction over the Republic
shall be in effect with respect to the Invitation; |
|
(b)
|
all
representations and warranties and other statements of the Republic contained
herein are now, and on the
Announcement Date, at all times
during the Invitation and on the Settlement
Date will be, true and correct; |
|
(c)
|
the Republic at
all times during the Invitation shall have performed all of its obligations
hereunder theretofore required to have been performed; |
|
(d)
|
the Prospectus
Supplement and any amendment or supplement thereto with respect to the
Invitation shall have been filed with the Commission by post-effective
amendment or pursuant to Rule 424(b) under the Act within the applicable time
period prescribed for such filing by the rules and regulations under the Act
and in accordance with Section 4(d) hereof; no stop order suspending the
effectiveness of the Registration Statement or any part thereof and no order
preventing or suspending use of any Issuer Free Writing Prospectus, the
Prospectus or any amendment or supplement thereto shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
|
14
| Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction; and any Issuer Free Writing Prospectus and any other material required to be filed by the Republic pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; |
|
(e)
|
no stop order,
restraining order, injunction or other order issued by any court or
governmental or regulatory authority shall be in effect with respect to (i)
this Agreement, (ii) the making or the consummation of the Invitation (other
than as contemplated by clause (a) above) or any of the other transactions
contemplated by this Agreement or (iii) the execution, delivery or performance
by the Republic of this Agreement, which is, in your judgment, so material and
adverse as to make it inadvisable for you to act, or continue to act, as Dealer
Manager hereunder; and it shall not have otherwise become unlawful under any
law or regulation, federal, state, local or otherwise, in any relevant
jurisdiction for you to so act, or continue to so act; |
|
(f)
|
except as set
forth in the Invitation Material, as amended and supplemented, and including
any information incorporated by reference therein, no litigation shall have
been commenced before any court or governmental or regulatory authority with
respect to (i) the making or the consummation of the Invitation or the other
transactions contemplated by this Agreement or (ii) the execution, delivery or
performance by the Republic of this Agreement which, in your judgment after
consultation with counsel, is so material and adverse to make it inadvisable
for you to act, or continue to act, as Dealer Manager hereunder;
|
|
(g)
|
you shall have
received on the Commencement Date and the Closing Date an opinion reasonably
satisfactory to you, dated the Commencement Date, of Xxxxx Xxxxxxx, Chief State
Law Adviser of the Republic, substantially in the form set forth in Exhibit B
attached hereto; |
|
(h)
|
you shall have
received on the Commencement Date and the Closing Date the favorable opinion of
Linklaters, counsel for the Dealer Managers, dated the Commencement Date,
addressed to you in form and substance reasonably satisfactory to
you; |
|
(i)
|
you shall have
received on the Commencement Date and the Closing Date the favorable opinion of
Xxxxxx Xxxxxx Sonnenbergs, counsel for the Dealer Managers, substantially in
the form set forth in Exhibit C attached hereto; |
|
(j)
|
on the Closing
Date, the Republic shall have furnished to the Dealer Managers certificates of
the Republic, signed by an authorized official of the Republic, dated as of the
Closing Date, to the effect that such official has carefully examined the
Invitation Material, any amendment or supplement thereto and this Agreement and
that: |
|
(i)
|
to the best
knowledge of such official, the representations and warranties of the Republic
in this Agreement are true and correct in all respects as if made on and as of
the Closing Date (other than to the extent any such representation or warranty
is expressly made as of a certain date) and the Republic has complied in all
material respects with this Agreement and all obligations |
15
| thereunder and satisfied in all material respects all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and |
|
(ii)
|
since the date of
the most recent selected financial data included or incorporated by reference
in the Invitation Material, to the best knowledge of such officials, there has
been no material adverse change, or any development involving a prospective
material adverse change, in or affecting the condition, financial, economic,
political or other, of the Republic, taken as a whole (a “Material
Adverse Change”), except as
set forth in or contemplated in the Invitation Material; |
|
(k)
|
subsequent to the
Commencement Date or, if earlier, the dates as of which information is given in
the Invitation Material, there shall not have been any Material Adverse Change,
except as set forth in or contemplated in the Invitation Material, the effect
of which is, in the judgment of the Dealer Managers, so material and adverse as
to make it inadvisable to solicit tenders or exchanges of the Eligible Notes or
consents of the Holders as contemplated by the Invitation
Material; |
|
(l)
|
subsequent to the
Commencement Date and on or before the Settlement Date there shall not have
occurred any of the following: (A) a suspension or material limitation in
trading in securities generally on the New York Stock Exchange or the
Luxembourg Stock Exchange; (B) trading of any securities of the Republic shall
have been formally suspended or limited on any international exchange; (C) a
general moratorium on commercial banking activities in New York or the Republic
declared by either United States or New York State authorities or authorities
of the Republic, respectively; (D) a material failure in the computerized
systems used to operate and maintain The Depository Trust Company’s
Automated Tender Offer Program or comparable systems for Euroclear or
Clearstream, Luxembourg; or (E) the outbreak or escalation of hostilities
involving the United States or the Republic or the declaration by the United
States or the Republic of a national emergency or war, if the effect of any
such event specified in clause (E) is in your reasonable judgment, so material
and adverse as to make it impracticable or inadvisable to proceed with the
Global Note Offering on the terms and in the manner contemplated by the
Prospectus Supplement as amended or supplemented;
|
|
(m)
|
each of the
representations and warranties set forth in this Agreement shall be true and
correct in all respects on and as of the Closing Date (other than to the extent
any such representation or warranty is expressly made as of a certain date);
|
|
(n)
|
on the Closing
Date, the Republic shall have furnished to you a copy of the acceptance of
Ambassador Xxxxxxx
Xxxxxxxx to her
appointment as Authorized Agent (as defined in Section 23); and
|
|
(o)
|
the Republic shall
have obtained all consents, approvals, authorizations and orders of, and shall
have duly made all registrations, qualifications and filing with, any court or
regulatory authority or other governmental agency or instrumentality required
in connection with the making and consummation of the Invitation and the
execution, delivery and performance of this Agreement. |
16
|
11
|
Covenants
of the Republic |
|
(a)
|
From the
Commencement Date until the Closing Date, the Republic will advise you promptly
of (i) the Republic’s decision not to accept any Eligible Notes Offered
for tender or exchange, (ii) any proposal by the Republic to amend or
supplement in any material respect the Invitation Material, (iii) the issuance
of any material order or the taking of any other material action by any
administrative or judicial tribunal or other governmental agency or
instrumentality concerning the Invitation (and, if in writing, will furnish you
a copy thereof) and (iv) any other information relating to the Invitation which
you may from time to time reasonably request. The Republic agrees that if any
event occurs or condition exists as a result of which the Invitation Material
would, in its reasonable judgment, include an untrue statement of a material
fact, or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances when the Invitation Material is
delivered to a Holder, not misleading, the Republic shall immediately notify
you, prepare an amendment or supplement to the Invitation Material that will
correct such statement or omission, and supply such amended or supplemented
Invitation Material to you immediately prior to distribution of such amendment
or supplement to the Invitation Material to Holders; |
|
(b)
|
The Republic will
not amend or supplement in any material respect the Prospectus Supplement,
other than by filing documents with the Commission that are incorporated by
reference therein, without the prior written consent of each Dealer Manager
(which consent will not be unreasonably withheld). The Republic will promptly
advise each Dealer Manager when any document that is incorporated by reference
in the Prospectus Supplement is filed with the Commission (it being understood
that the Republic is not obligated to provide drafts of any such documents to
the Dealer Managers prior to filing); and |
|
(c)
|
The Republic
further agrees it will not take, directly or indirectly, any action that is
designed to cause or result in stabilization or manipulation of the price of
any securities to facilitate the tender exchange of the Eligible Notes in the
Invitation. |
|
12
|
Indemnification
and Contribution |
|
(a)
|
The Republic
agrees to indemnify and hold harmless each Dealer Manager against any losses,
claims, damages or liabilities, joint or several, to which such Dealer Manager
may become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material fact
contained in the Invitation Material or any amendment 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, and will reimburse each Dealer Manager for
any legal or other expenses reasonably incurred by such Dealer Manager in
connection with investigating or defending any such action or claim as such
expenses are incurred; provided,
however, that the
Republic shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement
or alleged untrue statement or omission or |
17
| alleged omission made therein in reliance upon and in conformity with written information furnished to the Republic by a Dealer Manager expressly for use therein (it being understood that such written information shall be limited to the Dealer Managers’ names indicated thereon); |
|
(b)
|
Each Dealer
Manager agrees to indemnify and hold harmless the Republic against any losses,
claims, damages or liabilities to which the Republic may become subject, under
the Act or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in the
Invitation Material, or any amendment 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, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission
was made therein in reliance upon and in conformity with written information
furnished to the Republic by such Dealer Manager expressly for use therein; and
will reimburse the Republic for any legal or other expenses reasonably incurred
by the Republic in connection with investigating or defending any such action
or claim as such expenses are incurred; |
|
(c)
|
Promptly after
receipt by an indemnified party under subsection (a) or (b) above of notice of
the commencement of any action, such indemnified party shall, if a claim in
respect thereof is to be made against the indemnifying party under such
subsection, notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party shall not relieve
it from any liability which it may have to any indemnified party otherwise than
under such subsection. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses
of other counsel or any other expenses, in each case subsequently incurred by
such indemnified party, in connection with the defense thereof other than
reasonable costs of investigation; |
|
(d)
|
Notwithstanding
the provisions of subsection (c) above, the indemnified party or parties shall
have the right to employ its or their own counsel in any such case, but the
fees and expenses of such counsel shall be at the expense of such indemnified
party or parties unless (i) the employment of such counsel shall have been
authorized in writing by one of the indemnifying parties in connection with the
defense of such action, (ii) the indemnifying parties shall not have employed
counsel to have charge of the defense of such action within a reasonable time
after notice of commencement of the action, (iii) the indemnifying parties do
not diligently defend such action after the assumption thereof, (iv) the
representation of the indemnified parties by the counsel engaged by the
|
18
| indemnifying parties shall present a conflict of interest for such counsel, or (v) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to one or all of the indemnifying parties (in which case the indemnifying parties shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events such fees and expenses shall be borne by the indemnifying parties. An indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if a proceeding is settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify any indemnified party from and against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of the indemnified parties (which consent shall not be unreasonably withheld), effect any settlement or compromise of, or consent to the entry of judgment with respect to, any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could have been sought under this Section 12 (whether or not the indemnified parties are actual or potential parties thereto), unless such settlement, compromise or consent (A) includes an unconditional release of the indemnified party from all liability arising out of such litigation, investigation, proceeding or claim, (B) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of the indemnified party, and (C) the indemnifying parties reaffirm their obligations to the indemnified parties to indemnify such parties pursuant to this Section 12; and |
|
(e)
|
If the
indemnification provided for in this Section 12 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 benefits from the
transactions set forth in the Invitation Material received by the Republic on
the one hand and the Dealer Managers on the other; provided, however, that in
no case shall any Dealer Manager be responsible for any amount in excess of the
consideration due (or anticipated to be due) to such Dealer Manager under
Section 5 of this Agreement. 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 the
Republic on the one hand and the Dealer Managers 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. Benefits received (or anticipated to be received) by
the Republic and the Dealer Managers shall be deemed to be equal to, in the
case of the Republic, the principal amount of the Eligible Notes in respect of
which: (a) if the Invitation is consummated, valid tenders and exchanges of the
Eligible Notes, or (b) if the Invitation is not consummated, valid tenders and
exchanges are or |
19
| were sought pursuant to the Invitation, and, in the case of the Dealer Managers, the consideration paid by the Republic to you hereunder (exclusive of amounts paid for reimbursement of expenses or paid under this Agreement). Relative fault shall be determined by reference to, among other things, whether any untrue or any alleged untrue statement of a material fact or the omission or alleged omission to state a material fact or any other alleged conduct relates to information provided by the Republic or other conduct by the Republic on the one hand or the Dealer Managers on the other, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Republic and the Dealer Managers agree that it would not be just and equitable if contribution pursuant to this subsection (e) were determined by pro rata allocation (even if the Dealer Managers 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 (e). 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 (e) 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. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation, where such fraudulent misrepresentation has given rise to any loss, claim damage or liability in respect of which a contribution is claimed. The obligations of the Dealer Managers in this subsection (e) to contribute are several in proportion to their respective obligations with respect to the Invitation and not joint. |
|
13
|
Termination;
Survival of Indemnities, Representations, Warranties,
Etc. |
This Agreement
shall terminate upon the expiration, termination, withdrawal or consummation of
the Invitation or, with respect to any Dealer Manager, upon withdrawal by such
Dealer Manager pursuant to Section 4 hereof, it being understood that the
indemnity, contribution, and expense agreements contained in Section 12,
Section 3, and Section 5, and the representations and warranties of the
Republic and your representations and warranties set forth in this Agreement
shall remain operative and in full force and effect, regardless of (i) the
expiration, termination, withdrawal or consummation of the Invitation or the
termination of this Agreement, (ii) any investigation made by or on behalf of
the Republic or any Indemnified Person and (iii) your withdrawal pursuant to
Section 4.
|
14
|
Severability
|
In the event that
any provision hereof shall be determined to be invalid or unenforceable in any
respect, such determination shall not affect such provision in any other
respect or any other provision hereof, which shall remain in full force and
effect.
20
|
15
|
Counterparts
|
This Agreement may
be executed in two or more separate counterparts, each of which shall be deemed
an original, but all of which together shall constitute one and the same
instrument.
|
16
|
Binding
Effect |
This Agreement,
including any right to indemnity or contribution hereunder, shall inure to the
benefit of and be binding upon the Republic, you and the other indemnified
persons (as used in Section 12) and their respective successors and assigns.
Nothing in this Agreement is intended, or shall be construed, to give to any
other person or entity any right hereunder or by virtue hereof.
|
17
|
Governing
Law |
This Agreement
shall be governed by and construed in accordance with the laws of the State of
New York. This Agreement constitutes the entire agreement among the parties
hereto with respect to the subject matter hereof.
|
18
|
References
to Dealer Managers |
The Republic
agrees that any reference to you in the Invitation Material, or in any other
public release or communication relating to the Invitation, is subject to your
prior written approval, which approval shall not be unreasonably
withheld.
|
19
|
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 faxed (with written confirmation of receipt) to the parties
hereto as follows:
| (a) |
If to
you: |
Barclays Capital
Inc.
000 Xxxx
Xxxxxx
Xxx Xxxx, Xxx Xxxx
00000
Xxxxxx Xxxxxx of
America
Attention:
Liability Management Group
Fax: x0 (000)
000-0000
Citigroup Global
Markets Inc.
000 Xxxxxxxxx
Xxxxxx
Xxx Xxxx, Xxx Xxxx
00000
Xxxxxx Xxxxxx of
America
Attention:
Liability Management Group
Fax: x0 (000)
000-0000
21
with a copy
to:
Linklaters
LLP
0000 Xxxxxx xx xxx
Xxxxxxxx
Xxx Xxxx, Xxx Xxxx
00000
Attention: Xxxxxxx X.
Xxxxx
Fax: (000)
000-0000
| (b) |
If to the
Republic: |
National
Treasury
Foreign Debt
Management
Private Xxx
X000
Xxxxxxxx
0000
Xxxxxxxx xx Xxxxx
Xxxxxx
Attention:
Director-General
Fax: x0000 000
0000
with a copy
to:
Office of the
Chief State Law Adviser
Private Xxx
X00
Xxxxxxxx
0000
Xxxxxxxx xx Xxxxx
Xxxxxx
Attention: Chief
State Law Adviser
Fax: x0000 000
0000
|
20
|
Entire
Agreement |
This Agreement
constitutes the entire agreement between the parties hereto with respect to the
subject matter hereof. This Agreement may not be amended, modified or
supplemented except in writing, duly executed and delivered by the parties
hereto.
|
21
|
Waiver of
Right to Jury Trial; Submission to Jurisdiction |
You and the
Republic each waive any right to trial by jury in any action, claim, suit or
proceeding with respect to your engagement hereunder. The Republic hereby (a)
waives sovereign immunity, to the fullest extent permitted by law, and
undertakes that it will not be entitled to plead, or cause to be pleaded on its
behalf, sovereign immunity from the jurisdiction of any court in respect of any
action, arising out of or relating to its obligations or performance under the
this Agreement or the Invitation Material, and under South African law, neither
the Republic nor any of its property has any immunity from set-off or any legal
process (whether through service or notice, attachment prior to judgment,
attachment in aid of execution or otherwise) except that should action be
brought against the Republic, no execution, attachment, or process in the
nature thereof, shall be issued against the defendant or respondent in claims
against the Republic or against any property of the Republic, but the amount,
if any, which may be required to satisfy any judgment or order given or made
against the defendant or respondent in ay action or proceeding shall be paid
out of the National Revenue Fund in terms of Section 3 of the South
22
African State
Liability Act No. 20 of 1957, as amended; (b) submits to the exclusive
jurisdiction of any New York State or federal court sitting in New York City
with respect to any actions and proceedings arising out of or relating to this
Agreement, (c) agrees that all claims with respect to such actions or
proceedings may be heard and determined in such New York State or federal
court, (d) waives the defense of any inconvenient forum and (e) agrees that a
final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Furthermore, the
Republic hereby represents that the execution and delivery of this Agreement
and the performance of the transactions contemplated hereby constitute private
and commercial acts, rather than public or governmental acts, of the
Republic.
|
22
|
Taxes
|
All payments under
this Agreement shall be made without any set-off or counter-claim and free and
clear of any withholding or deduction of or on account of applicable tax save
as may be required by law. If the Republic is required by law to make any
deduction or withholding from any sum payable hereunder, the sum in respect of
which the deduction or withholding is required to be made shall be increased to
the extent necessary to ensure that the Dealer Managers receive and retain a
new sum equal to that which they would have received had no such deduction or
withholding been required to be made.
|
23
|
Service of
Process |
The Republic
hereby appoints Ambassador Xxxxxxx
Xxxxxxxx, Embassy of the Republic of South Africa, 0000 Xxxxxxxxxxxxx Xxxxxx,
X.X., Xxxxxxxxxx, X.X. 00000 as its authorized
agent (the “Authorized
Agent”) upon whom
process may be served in any action arising out of or based upon this Agreement
that may be instituted in any State or Federal court in The City of New York by
you or by any persons controlling you. Such appointment shall be irrevocable,
except that, if for any reason, Ambassador Xxxxxxx
Xxxxxxxx ceases to be able
to act as Authorized Agent or ceases to have an address in the United States,
the Republic will appoint another person in Washington, D.C., or The City of
New York, selected in its discretion, as such Authorized Agent.
|
24
|
Subheadings
|
The descriptive
headings contained in this Agreement are for convenience of reference only and
shall not affect in any way the meaning or interpretation of this
Agreement.
Please indicate
your willingness to act as Dealer Manager on the terms set forth herein and
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 shall constitute a binding agreement between us.
[Signature page
follows]
23
|
Very truly
yours,
|
|||
| By: | /s/ Xxxxx X. Xxxxxx | ||
|
Name: Xxxxx X. Xxxxxx |
|
|
|
| Title: Chief Director Liability Management | |||
Accepted as of the
date
first above
written:
|
BARCLAYS
CAPITAL INC. |
|||
| By: | /s/ Xxxxx Xxx Xxxxxxx | ||
|
Name: Xxxxx Xxx Xxxxxxx |
|
|
|
| Title: Director | |||
|
CITIGROUP
GLOBAL MARKETS INC. |
|||
| By: | /s/ Xxxxxxx Xxxxxx | ||
|
Name: Xxxxxxx Xxxxxx |
|
|
|
| Title: Managing Director | |||
Signature
Page to Dealer Manager Agreement
EXHIBIT
A
PROSPECTUS
SUPPLEMENT
A-1
EXHIBIT
B
FORM OF
OPINION OF CHIEF STATE LAW ADVISER
B-1
EXHIBIT
C
FORM OF
OPINION OF XXXXXX XXXXXX SONNENBERGS
C-1
SCHEDULE
1: ISSUER FREE WRITING PROSPECTUSES
None
