The Republic of Turkey Form of Underwriting Agreement
Exhibit 1
Form of
Underwriting Agreement
[Representatives]
(As representatives of the
Underwriters named in Schedule
II hereto)
Ladies and Gentlemen:
The Republic of Turkey (“The Republic” or the
“State”) acting by and through its Minister of
State, proposes to sell to the underwriters named in
Schedule II hereto (the “Underwriters”),
for whom you (the “Representatives”) are acting
as representatives, the principal amount of its securities
identified in Schedule I hereto (the
“Securities”), to be issued under a fiscal
agency agreement identified in Schedule I hereto (the
“Fiscal Agency Agreement”) between The Republic
and the fiscal agent identified in Schedule I hereto (the
“Fiscal Agent”). If the firm or firms listed in
Schedule II hereto include only the firm or firms listed in
Schedule I hereto, then the terms “Underwriters”
and “Representatives”, as used herein, shall each be
deemed to refer to such firm or firms.
1. Representations and
Warranties. The Republic represents and
warrants to, and agrees with, each Underwriter as set forth
below in this Section 1. Certain terms used in this
Agreement are defined in paragraph (l) below.
(a) The Republic meets the requirements for use of
Schedule B under the Securities Act of 1933 (the
“Act”), is a “seasoned foreign
government” within the meaning of the Release and has filed
with the Securities and Exchange Commission (the
“Commission”) a registration statement (the
file number of which is set forth in Schedule I hereto),
including a form of Basic Prospectus, for registration under the
Act of the offering and sale of the Securities. The Republic may
have filed with the Commission one or more amendments to such
registration statement, and may have used a Preliminary Final
Prospectus, each of which has previously been furnished to the
Representatives. Such registration statement, as so amended,
initially became effective on August 10, 2006. At the time
and to the extent required under the Act, the Republic will file
a new shelf registration statement relating to the Securities,
in a form satisfactory to the Representatives, will use its best
efforts to cause such registration statement to be declared
effective within 180 days of filing, and will take all
other action necessary or appropriate to permit the public
offering and sale of the Securities to continue as contemplated
in the expired registration statement relating to the Securities.
(b) (i) At the earliest time after the filing of the
Registration Statement that The Republic or another offering
participant made a bona fide offer (within the meaning of
Rule 164(h)(2)) of the Securities and (ii) at the date
hereof, The Republic was not and is not an “ineligible
issuer,” as defined in Rule 405, 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.” Although the Basic
Prospectus may not include all the information with respect to
the Securities and the offering thereof required by the Act and
the rules thereunder to be included in the Final Prospectus, the
Basic Prospectus includes all such information required by the
Act and the rules thereunder as applicable pursuant to the
Release to be included therein as of the Effective Date. The
Republic will hereafter file with the Commission pursuant to the
Release and Rule 415 and 424(b)(2) or (5) either
(x) a final supplement to the Basic Prospectus, or
(y) an amendment to such registration statement, including
such final prospectus supplement. In the case of clause (x), The
Republic has included in such registration statement, as amended
at the most recent Effective Date, the information required for
making such a filing pursuant to the Release. As filed, such
final prospectus supplement or such amendment and final
prospectus supplement shall include all such required
information with respect to the Securities and the offering
thereof and, except to the extent the Representatives shall
agree in writing to any modification thereof, shall be in all
substantive respects in the form furnished to the
Representatives prior to the Execution Time or, to the extent
not completed at the Execution Time, shall be in such form with
only such specific additional information and other changes
(beyond that contained in the Basic Prospectus and any
Preliminary Final
Prospectus) as The Republic has advised the Representatives,
prior to the Execution Time, will be included or made therein
and to which the Representatives shall have agreed.
(c) On the Effective Date, the Registration Statement did
or will, and, when the Final Prospectus is first filed (if
required) in accordance with Rule 424(b) and on the Closing
Date, the Final Prospectus (as supplemented in the case of the
Closing Date) will, comply in all material respects with the
applicable requirements of the Act, the rules thereunder and the
Release; on the Effective Date, the Registration Statement did
not or will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein not
misleading; and, on the Effective Date, the Final Prospectus, if
not filed pursuant to Rule 424(b), did not or will not,
and, on the date of any filing pursuant to Rule 424(b) and
on the Closing Date, the Final Prospectus (as supplemented in
the case of the Closing Date) will not, include any untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
as of the Applicable Time, neither (i) the Republic General
Free Writing Prospectus(es) issued at or prior to the Applicable
Time, the Statutory Prospectus and the pricing term sheet filed
on the date hereof, with an effective filing date
of • and attached as Schedule IV hereto,
together with the ratings of the Securities described in the
Preliminary Final Prospectus in the Section entitled “Risk
Factors”, all considered together (collectively, the
“General Disclosure Package”), nor
(ii) any individual Republic Limited-Use Free Writing
Prospectus, when considered together with the General Disclosure
Package, included any untrue statement of a material fact or
omitted 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 The
Republic makes no representations or warranties as to the
information contained in or omitted from the Registration
Statement or the Final Prospectus (or any supplement thereto) in
reliance upon and in conformity with information furnished in
writing to The Republic by or on behalf of any Underwriter
through the Representatives specifically for inclusion in the
Registration Statement or the Final Prospectus (or any
supplement thereto).
(d) Each Republic Free Writing Prospectus, as of its issue
date and at all subsequent times through the completion of the
public offer and sale of the Securities or until any earlier
date that The Republic notified or notifies the Representative
as described in the next sentence, did not, does not and will
not include any information that conflicted, conflicts or will
conflict with the information contained in the Registration
Statement, including any document incorporated by reference
therein and any prospectus supplement deemed to be a part
thereof that has not been superseded or modified. If at any time
following issuance of a Republic Free Writing Prospectus there
occurred or occurs an event or development as a result of which
such Republic Free Writing Prospectus conflicted or would
conflict with the information contained in the Registration
Statement or included or would include an untrue statement of a
material fact or omitted or would omit to state a material fact
necessary in order to make the statements therein, in the light
of the circumstances prevailing at that subsequent time, not
misleading, The Republic has promptly notified or will promptly
notify the Representative and has promptly amended or will
promptly amend or supplement, as its own expense, such Republic
Free Writing Prospectus to eliminate or correct such conflict,
untrue statement or omission; provided, however,
that The Republic makes no representations or warranties as to
the information contained in or omitted from any Republic Free
Writing Prospectus based upon and in conformity with written
information furnished to the Republic by or on behalf of any
Underwriter through the Representative specifically for
inclusion in such Republic Free Writing Prospectus.
(e) The issuance and sale of the Securities have been duly
authorized, and when duly executed, authenticated, issued and
delivered as provided in the Fiscal Agency Agreement and paid
for in accordance with the terms hereof, will be duly and
validly issued and outstanding, and will constitute valid and
binding obligations of The Republic for the payment and
performance of which the full faith and credit of The Republic
will be pledged; the Securities will rank at least 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 External
Indebtedness (as defined in the Securities) of The Republic; and
the Securities, when issued and delivered, will conform to the
description thereof contained in the Final Prospectus.
(f) The Republic is a member of the International Monetary
Fund.
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(g) All necessary action by or on behalf of The Republic
has been taken and any necessary authorizations, approvals or
consents required under the laws of The Republic have been or
will, by the Closing Date, be duly obtained, and are or will, by
the Closing Date, be in full force and effect, for the
authorization, execution and delivery of this Agreement, the
Fiscal Agency Agreement, the distribution of any prospectus or
other offering materials and for the issuance and sale of
Securities by The Republic under this Agreement.
(h) The obligations of The Republic under this Agreement,
the Fiscal Agency Agreement and the Securities are legal and
valid obligations binding on The Republic in accordance with
their respective terms.
(i) The issuance and sale of the Securities and the
execution, delivery and performance of this Agreement, the
Fiscal Agency Agreement and the Securities by The Republic do
not and will not (i) violate any treaty, convention, law,
decree, regulation, communiqué, ordinance or similar
enactment that applies to The Republic or any of The
Republic’s property or (ii) violate any decision or
judgment of any court or other tribunal or regulatory authority
or any arbitral award in each case binding on The Republic or
any of The Republic’s properties or (iii) violate or
contravene, conflict with or result in a breach of any existing
agreement or other instrument to which The Republic is a party
or which is binding on The Republic or any of The
Republic’s properties or (iv) result in the creation
or imposition of any lien upon any of the present or future
revenues or assets of The Republic.
(j) No litigation or administrative proceeding is pending
or, to its knowledge, threatened against or affecting it
(i) in which there is a reasonable possibility of an
adverse decision which would materially affect its ability to
perform its obligations in respect of this Agreement, the Fiscal
Agency Agreement or the Securities or (ii) which questions
the legality, validity or binding effect of any material
provision of this Agreement, the Fiscal Agency Agreement or the
Securities.
(k) Article 30 of the Corporation Tax Law of The
Republic (Law No. 5520) requires The Republic to
withhold 15% (fifteen percent) withholding tax from the interest
on the Securities received by limited tax liability persons,
being legal entities resident outside The Republic.
Article 94 of the Income Tax Law (Law
No. 193) requires The Republic to withhold 25%
(twenty-five percent) withholding tax from the interest on the
Securities received by limited tax liability persons, being
individuals resident outside the Republic. However, as a result
of the decrees of the Council of Ministers of The Republic
(Decree Nos. 2009/14593 and 2009/14592) as currently in effect,
such Turkish withholding taxes have been reduced to 0%.
Furthermore, according to Article 15(b) of the Law
Regarding the Regulation of Public Finance and Debt Management
(Law No. 4749), the principal amount of the Securities and
the interest thereon on each interest payment date shall be
considered part of the consolidated debt of the State and as a
result shall be exempt from any and all Turkish taxes, including
withholding tax.
(l) The Republic and its affiliated purchasers (as defined
in Regulation M under the Securities Exchange Act of 1934,
as amended (“Regulation M”)) (other than
the Representatives, as to which The Republic makes no
representation), have not taken and will not take, directly or
indirectly, any action prohibited by Regulation M.
(m) Under the laws of Turkey, The Republic is subject to
civil and commercial law with respect to its obligations under
the Securities, this Agreement, and the Fiscal Agency Agreement
and the issue, sale and delivery of the Securities and the
execution, delivery and performance by The Republic of its
obligations under this Agreement, the Fiscal Agency Agreement
and the Securities constitute, and The Republic’s exercise
of its rights and performance of any and all of its payment
obligations here or thereunder will constitute, private and
commercial acts rather than governmental or public acts. The
Republic hereby irrevocably waives, to the fullest extent
permitted by law, with respect to any of its property, any right
of immunity (sovereign or otherwise) from the jurisdiction of
courts, suit, execution upon a judgment, from attachment prior
to judgment or in aid of execution upon a judgment or any other
legal process with respect to its obligations under this
Agreement, the Fiscal Agency Agreement or the Securities, and
such waiver is effective and fully enforceable under the laws of
The Republic, except that under the laws of The Republic, assets
of The Republic are immune from attachment or other forms of
execution, whether before or after judgment. Notwithstanding the
foregoing, no such waiver of immunity shall be interpreted to
include actions brought under the United States federal
securities laws or any securities laws of any state of the
United States.
(n) The Securities are backed by the full faith and credit
of The Republic.
(o) The Republic is a “foreign government” within
the meaning of
Rule 3b-4
under the Exchange Act.
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(p) Neither The Republic, nor any person acting on its
behalf (other than the Underwriters, as to whom The Republic
makes no representation) has engaged or will engage in any
directed selling efforts, within the meaning of
Rule 902(c)(1) of Regulation S under the Securities
Act, with respect to the Securities that are not registered by
The Republic under the registration statement referred to in
subsection 1(a) above.
(q) The terms which follow, when used in this Agreement,
shall have the meanings indicated.
“Applicable Time” shall mean • p.m.
New York City time on the date of this Agreement.
“Basic Prospectus” shall mean the prospectus
referred to in paragraph (a) above contained in the
Registration Statement at the Effective Date.
“Effective Date” shall mean each date that the
Registration Statement and any post-effective amendment or
amendments thereto became or becomes effective and each deemed
effective date with respect to the Underwriters pursuant to
Rule 430B(f)(2).
“Execution Time” shall mean the date and time
that this Agreement is executed and delivered by the parties
hereto.
“Final Prospectus” shall mean the prospectus
supplement relating to the Securities that is first filed
pursuant to Rule 424(b) after the Execution Time, together
with the Basic Prospectus or, if no filing pursuant to
Rule 424(b) is required, shall mean the form of final
prospectus relating to the Securities, including the Basic
Prospectus, included in the Registration Statement at the
Effective Date.
“Preliminary Final Prospectus” shall mean any
preliminary prospectus supplement to the Basic Prospectus which
describes the Securities and the offering thereof and is used
prior to filing of the Final Prospectus.
“Registration Statement” shall mean the
registration statement referred to in paragraph (a) above,
as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective)
and, in the event any post-effective amendment thereto becomes
effective prior to the Closing Date (as hereinafter defined),
shall also mean such registration statement as so amended. Such
term shall include any Rule 430B Information deemed to be
included therein at the Effective Date as provided by
Rule 430B. References to the “Registration
Statement” shall include any new shelf registration
statement relating to the Securities which is filed prior to the
completion of the offering of these Securities.
“Release” shall mean Release
No. 33-6424
under the Act relating to delayed offerings by foreign
governments or political subdivisions thereof.
“Republic Free Writing Prospectus” shall mean
any “issuer free writing prospectus,” as defined in
Rule 433, relating to the Securities in the form filed or
required to be filed with the Commission or, if not required to
be filed, in the form retained in The Republic’s records
pursuant to Rule 433(g).
“Republic General Free Writing Prospectus”
shall mean any Republic Free Writing Prospectus that is intended
for general distribution to prospective investors, as evidenced
by its being specified in Schedule III hereto.
“Republic Limited-Use Free Writing Prospectus”
shall mean any Republic Free Writing Prospectus that is not a
Republic General Free Writing Prospectus.
“Rule 415”,
“Rule 424” and
“Rule 430B” refer to such rules under the
Act as applicable to registration statements subject to
Schedule B under the Act in accordance with the Release
and, to the extent any such rule is not directly applicable,
means the provisions thereunder as made applicable by the
Release.
“Rule 430B Information” means information
with respect to the Securities and the offering thereof
permitted to be omitted from the Registration Statement when it
becomes effective pursuant to Rule 430B.
“Statutory Prospectus” as of any time shall
mean the prospectus relating to the Securities that is included
in the Registration Statement immediately prior to that time,
including any document incorporated by reference therein and any
prospectus supplement or preliminary prospectus supplement
deemed to be a part thereof. For purposes of this definition,
information contained in a form of prospectus that is deemed
retroactively to be a part of the
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Registration Statement pursuant to Rule 430B shall be
considered to be included in the Statutory Prospectus as of the
actual time that form of prospectus is filed with the Commission
pursuant to Rule 424(b).
2. Purchase and Sale. Subject to
the terms and conditions and in reliance upon the
representations and warranties herein set forth, The Republic
agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from The Republic, at the
purchase price set forth in Schedule I hereto the principal
amount of the Securities set forth opposite such
Underwriter’s name in Schedule II hereto.
3. Delivery and Payment. Delivery
of and payment for the Securities shall be made on the date and
at the time specified in Schedule I hereto (or such later
date or time not later than five business days after such
specified date on such date and at such time as the
Representatives shall designate), which date and time may be
postponed by agreement between the Representatives and The
Republic or as provided in Section 8 hereof (such date and
time of delivery and payment for the Securities being herein
called the “Closing Date”). Delivery of the
Securities shall be made to the Representatives for the
respective accounts of the several Underwriters against payment
by the several Underwriters through the Representatives of the
purchase price thereof to or upon the order of The Republic by
official bank check or wire transfer payable in immediately
available funds. Delivery of and payment for the Securities
shall be made at the location specified in Schedule I
hereto or as the Representatives shall reasonably designate
otherwise at least one business day in advance of the Closing
Date. Certificates for the Securities shall be in fully
registered form and shall be registered in such names and in
such denominations as the Representatives may request not less
than three full business days in advance of the Closing Date.
Upon the request of the Representatives, The Republic agrees to
have the Securities available for inspection, checking and any
packaging by the Representatives in New York, New York, not
later than 1:00 p.m. on the business day prior to the
Closing Date.
4A. Agreements. The Republic
agrees with the several Underwriters that:
(a) The Republic will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time,
and any amendment thereto, to become effective as soon as
reasonably practicable thereafter. Prior to the termination of
the offering of the Securities, The Republic will not file any
amendment of the Registration Statement or supplement (including
the Final Prospectus or any Preliminary Final Prospectus) to the
Basic Prospectus unless The Republic has furnished the
Representatives a copy for their review prior to filing and will
not file any such proposed amendment or supplement to which the
Representatives reasonably object, unless The Republic is
otherwise advised by its U.S. counsel that such filing is
required under the Act. Subject to the foregoing sentence, The
Republic will cause the Final Prospectus, properly completed,
and any supplement thereto to be filed with the Commission
pursuant to the applicable paragraph of Rule 424(b) within
the time period prescribed and will provide evidence
satisfactory to the Representatives of such timely filing. The
Republic will promptly advise the Representatives (i) when
the Registration Statement, if not effective at the Execution
Time, and any amendment thereto, shall have become effective,
(ii) when the Final Prospectus, and any supplement thereto,
shall have been filed with the Commission pursuant to
Rule 424(b), (iii) when, prior to termination of the
offering of the Securities, any amendment to the Registration
Statement shall have been filed or become effective,
(iv) of any request by the Commission for any amendment of
the Registration Statement or supplement to the Final Prospectus
or for any additional information, (v) of the issuance by
the Commission of any stop order suspending the effectiveness of
the Registration Statement or the institution or threatening of
any proceeding for that purpose and (vi) of the receipt by
The Republic of any notification with respect to the suspension
of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding
for such purpose. The Republic will use its best efforts to
prevent the issuance of any such stop order or the suspension of
any such qualification and, if issued or suspended, to obtain as
soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event
occurs as a result of which the Final Prospectus as then
supplemented would include any 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 under which
they were made not misleading, or if it shall be necessary to
amend the Registration Statement or supplement the Final
Prospectus to comply with the Act or the respective rules
thereunder, The Republic promptly will (i) prepare and file
with the Commission, subject to the second
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sentence of paragraph (a) of this section 4, an
amendment or supplement which will correct such statement or
omission or effect such compliance and (ii) supply any
supplemented Final Prospectus to the Representatives in such
quantities as they may reasonably request.
(c) The prospectus to be submitted for admission for
listing on the Official List of the Luxembourg Stock Exchange
will contain all information which, according to the particular
nature of The Republic and of the Securities being offered to
the public or admitted to trading on a regulated market, is
necessary to enable investors to make an informed assessment of
the assets and liabilities, financial position, profit and
losses, and prospects of The Republic, and of the rights
attaching to the Securities.
(d) As soon as practicable, The Republic will make
generally available to the holders of the Securities in the
United States and to the Representatives a statement in
reasonable detail in the English language of the revenues and
expenditures of The Republic covering the first full fiscal year
of The Republic commencing after the date of this Agreement,
which will satisfy the provisions of Section 11(a) of the
Act.
(e) The Republic will furnish to the Representatives and
counsel for the Underwriters, without charge, copies of the
Registration Statement (including exhibits thereto) and, so long
as delivery of a prospectus by an Underwriter or dealer may be
required by the Act, as many copies of any Preliminary Final
Prospectus, Republic Free Writing Prospectus and the Final
Prospectus and any supplement thereto as the Representatives may
reasonably request. The Republic will pay the expenses of
printing or other production of all documents relating to the
offering of Securities pursuant to this Agreement.
(f) The Republic will endeavour to qualify the Securities
for sale under the laws of such jurisdictions as the
Representatives may designate, will maintain such qualifications
in effect so long as required for the distribution of the
Securities, provided that The Republic shall not be required to
take any action which would subject it to general or unlimited
service of process in any jurisdiction, and will arrange for the
determination of the legality of the Securities for purchase by
institutional investors.
(g) Subject to a limit on total expenses as may otherwise
have been agreed in writing between The Republic and the
Representatives, The Republic shall pay all costs and expenses
incident to the performance of its obligations hereunder,
including without limiting the generality of the foregoing,
(i) all costs and expenses, including any tax, incident to
the preparation, engraving, issuance, execution, authentication
and delivery of the Securities, including the fees and expenses
of the Fiscal Agent, (ii) all costs and expenses incident
to the preparing, printing and filing under the Act of the
Registration Statement, the Basic Prospectus, the Final
Prospectus, any Republic Free Writing Prospectus and any
preliminary prospectus (including in each case all exhibits,
amendments and supplements thereto) (iii) all costs and
expenses incurred in accordance with paragraph (e) above in
connection with the registration or qualification and
determination of eligibility for investment of the Securities
under the laws of such jurisdictions as the Underwriters may
designate (including fees of United States counsel for the
Underwriters and their disbursements), (iv) all costs and
expenses related to the eligibility and acceptance of the
Securities for deposit with The Depository Trust Company
(including fees of counsel to The Republic
and/or the
Underwriters and their disbursements in connection therewith),
(v) any fees and expenses in connection with the listing
and registration of the Securities if so listed and registered,
(vi) all costs and expenses in connection with the printing
(including word processing and duplication costs) and delivery
of this Agreement, the Fiscal Agency Agreement, the Preliminary
and Supplemental Blue Sky Memoranda and the furnishing to the
Underwriters and dealers of copies of the Registration Statement
and the Prospectus, including mailing and shipping, as herein
provided, (vii) any fees payable to rating agencies in
connection with the rating of the securities, (viii) costs
and expenses of advertising, (ix) all costs of travel and
other expenses related to investor presentations (excluding
travel expenses of the Representatives but including the costs
of presentations, room rentals and other similar expenses) and
(x) any fee of the Financial Industry Regulatory Authority,
Inc., in connection with its review of the offering.
(h) To pay the Underwriters on the Closing Date the amount
specified in Schedule I in respect of out of pocket
expenses (including fees and expenses of their counsel) incurred
by the Underwriters in connection with this Agreement and the
offering contemplated hereunder.
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(i) So long as the Securities are outstanding, The Republic
will furnish to the Representatives copies of all reports and
financial statements, if any, filed with the Commission or any
national securities exchange in the United States.
(j) The Republic will use its best efforts to obtain the
admission of the Securities on the Official List of the
Luxembourg Stock Exchange (the “Stock
Exchange”) as soon as practicable after the Closing
Date, shall furnish to such Stock Exchange all documents,
information and undertakings and publish all advertisements or
other material that may be necessary in order to effect such
listing and shall cause such listing to be continued so long as
any of the Securities remain outstanding; provided,
however, that if, in the opinion of The Republic, the
continuation of such listing shall become unduly onerous, then
The Republic may delist the Securities from any such Stock
Exchange, in which case, at the request of the Representatives,
The Republic will use its best efforts to obtain the listing of
the Securities on another recognized stock exchange reasonably
acceptable to the Representatives.
(k) All payments made by The Republic under this Agreement
shall be made in U.S. dollars, free and clear of, and
without withholding or deduction for, any taxes, duties,
assessments or governmental charges of whatever nature, unless
such withholding or deduction is required by law, in which event
The Republic shall pay such additional amounts as will result in
the receipt by the recipient of such amounts as would have been
received by it if no such withholding or deduction had been
required. In the event any transaction or payment made pursuant
to this Agreement or in connection with the enforcement of this
Agreement should be subject to any stamp duty, or other issue,
transaction, value added or any other tax or duty (including
court charges) payable in Turkey, The Republic will pay such
additional amounts as may be necessary to ensure that the actual
amount received equals the amount that would have been received
had the payments not been subject to such duty or tax.
4B. Issuer free writing
prospectuses. The Republic represents and
agrees that, unless it obtains the prior written consent of the
Representatives, and each Underwriter represents and agrees
that, unless it obtains the prior written consent of The
Republic and the Representatives, it has not made and will not
make any offer relating the Securities that (a) would
constitute an “issuer free writing prospectus,” as
defined in Rule 433, or (b) would otherwise constitute
a “free writing prospectus,” as defined in
Rule 405, required to be filed with the Commission. Any
such free writing prospectus consented to by The Republic and
the Representatives is hereinafter referred to as a
“Permitted Free Writing Prospectus”. The
Republic represents that it has treated each Permitted Free
Writing Prospectus as an “issuer free writing
prospectus,” as defined in Rule 433, and has complied
and will comply, as the case may be, with the requirements of
Rules 164 and 433 applicable to any Permitted Free Writing
Prospectus, including timely Commission filing where required,
legending and record keeping.
5. Conditions to the Obligations of the
Underwriters. The obligations of the
Underwriters to purchase the Securities shall be subject to the
accuracy of the representations and warranties on the part of
The Republic contained herein as of the Execution Time and the
Closing Date, to the accuracy of the statements of The Republic
made in any certificates pursuant to the provisions hereof, to
the performance by The Republic of its obligations hereunder and
to the following additional conditions:
(a) If the Registration Statement has not become effective
prior to the Execution Time, unless the Representatives agree in
writing to a later time, the Registration Statement will become
effective not later than (i) 6:00 p.m. New York City
time, on the date of determination of the public offering price,
if such determination occurred at or prior to 3:00 p.m. New
York City time on such date or (ii) 12:00 Noon on the
business day following the day on which the public offering
price was determined, if such determination occurred after
3:00 p.m. New York City time on such date; if filing of the
Final Prospectus, or any supplement thereto, is required
pursuant to Rule 424(b), the Final Prospectus, and any such
supplement, shall have been filed in the manner within the time
period required by Rule 424(b) and in accordance with
Section 4(a) of this Agreement; no stop order suspending
the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been
instituted or threatened; and any request of the Commission for
additional information shall have been complied with to the
satisfaction of the Representatives.
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(b) The Republic shall have furnished to the
Representatives the written opinion, satisfactory to the
Representatives, of the First Legal Advisor, Undersecretariat of
Treasury, Prime Ministry of The Republic of Turkey (the
“First Legal Advisor”), dated the Closing Date,
to the effect that:
(i) the securities have been duly and validly authorized
and executed in accordance with the Constitution and laws of The
Republic and, when duly authenticated in accordance with the
terms of the Fiscal Agency Agreement and delivered and paid for
in accordance with the terms of this Agreement, the Securities
will be valid and binding obligations of The Republic entitled
to the benefits of the Fiscal Agency Agreement;
(ii) the obligations of The Republic under the Fiscal
Agency Agreement, this Agreement and the Securities are and will
be direct, general and unconditional obligations of The
Republic, are subject to civil and commercial substantive and
procedural law and to the procedural requirements relating to
enforcement and recognition of foreign judgments set forth in
Articles 50 through 63 of the Act on International Private
Law and Procedural Law (Law No. 5718), except that, under
the laws of The Republic, assets of The Republic are immune from
attachment or other forms of execution, whether before or after
judgment, and, in the case of payment obligations hereunder or
thereunder, will rank at least 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 External Indebtedness (as defined
in the Securities) of The Republic; the full faith and credit of
The Republic has been pledged for the due and punctual payment
of the principal of and interest on the Securities and for the
performance of the obligations of The Republic with respect
thereto;
(iii) the Securities and the Fiscal Agency Agreement
conform to the descriptions thereof in the Final Prospectus;
(iv) The Republic has the power and authority required for
the execution and delivery of the Fiscal Agency Agreement, this
Agreement, the issuance of the Securities and the performance by
The Republic of its obligations thereunder and hereunder and
qualifies as “seasoned foreign government” pursuant to
the Release; and all authorizations, approvals, waivers or
consents (including, without limitation, the authorisation under
Articles 4, 5 and 7 of the Law of the Republic Regarding
the Regulation Public Finance and Debt Management (Law
No. 4749)) and all registrations and qualifications with,
any court or governmental agency, body or official of The
Republic required for the execution and delivery of the Fiscal
Agency Agreement and this Agreement, the issuance of the
Securities and the performance by The Republic of its
obligations thereunder and hereunder have been obtained and are
in full force and effect and all conditions contained therein
(if any) required to be satisfied on or prior to the Closing
Date have been duly satisfied, and all authorizations,
approvals, consents, waivers, registrations and filings, if any,
which are required under the laws of The Republic to permit the
purchase by The Republic of the United States dollars
needed to pay the principal of and interest on the Securities
have been obtained and are in full force and effect;
(v) the Fiscal Agency Agreement has been duly authorized,
executed and delivered by The Republic in accordance with the
Constitution and laws of The Republic and is a valid and binding
agreement of The Republic;
(vi) this Agreement has been duly authorized, executed and
delivered by The Republic in accordance with the Constitution
and laws of The Republic;
(vii) all statements in the Registration Statement, the
Final Prospectus and the General Disclosure Package with respect
to or involving the Constitution, laws, statutes and regulations
of or pertaining to The Republic are accurate and complete and
fairly present the information purported to be shown;
(viii) under the laws of The Republic, The Republic would
not be entitled to plead, or cause to be pleaded on its behalf,
immunity (sovereign or otherwise) from the jurisdiction of the
courts of The Republic and the State and Federal courts in New
York, New York, in respect of any suit, action or proceeding
arising out of or relating to its obligations under or by virtue
of the Securities, the Fiscal Agency Agreement, or this
Agreement, and such courts would have jurisdiction in respect of
such suits,
8
actions or proceedings, except that, under the laws of The
Republic, assets of The Republic are immune from attachment or
other forms of execution, whether before or after judgment;
(ix) no stamp or similar taxes under the laws of The
Republic are payable in connection with the issuance of the
Securities or the execution and delivery of this Agreement or
the Fiscal Agency Agreement and no transfer taxes or similar
taxes under the laws of The Republic are payable in connection
with the transfer of the Securities;
(x) the choice of New York law to govern the validity,
construction and performance of this Agreement, the Securities
and the Fiscal Agency Agreement would be upheld by a Turkish
court as a valid and effective choice of law under the laws of
The Republic;
(xi) the execution, issuance, sale and delivery of the
Securities, compliance by The Republic with all of the
provisions of the Fiscal Agency Agreement, this Agreement and
the Securities and the consummation of the transactions
contemplated by the Fiscal Agency Agreement and this Agreement
do not conflict with or result in a breach or violation of any
of the terms or provisions of, or constitute a default under, or
create or result in any lien, security interest or other
encumbrance upon any assets of The Republic under the provisions
of, any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument in respect of borrowed money known
to such First Legal Advisor to which The Republic is a party or
by which The Republic is bound, nor do such actions result in a
violation of any provision of the Constitution or laws of The
Republic or any order, rule or regulation of any court or
governmental agency or body of The Republic;
(xii) other than as may be set forth in the Final
Prospectus and in the General Disclosure Package, there are no
material legal or governmental proceedings pending to which The
Republic is a party or to which any property of The Republic is
subject, and to the knowledge of such First Legal Advisor no
such proceedings are threatened or contemplated by governmental
authorities or threatened by others and there is no contract or
other document which is required to be described in the
Registration Statement or the Final Prospectus or to be filed as
an exhibit to the Registration Statement which is not described
or filed as required;
(xiii) The Republic has validly submitted to the
nonexclusive jurisdiction of the Federal and State courts
located in the City of New York in any suit, action or
proceeding for the enforcement of the Fiscal Agency Agreement,
this Agreement or the Securities; a final judgment against The
Republic in any such suit, action or proceeding brought in any
such courts would be conclusive and binding upon The Republic
and may be enforced in the courts of The Republic, without
retrial or re-examination but subject to the procedural
requirements relating to enforcement and recognition of foreign
judgments set forth in Articles 50 through 63 of the Act on
International Private Law and Procedural Law (Law No. 5718),
except that under the laws of the Republic, assets of the
Republic are immune from attachment or other forms of execution,
whether before or after judgment;
(xiv) to ensure the legality, validity and enforceability
of this Agreement, the Fiscal Agency Agreement or the
Securities, or admissibility in evidence of this Agreement, the
Fiscal Agency Agreement or the Securities, it is not necessary
that this Agreement, the Fiscal Agency Agreement or the
Securities or any other document be filed, registered or
recorded with, or executed or notarized before, any court or
other authority in The Republic, or that any registration charge
or stamp or similar tax be paid on or in respect of this
Agreement, the Fiscal Agency Agreement or the Securities, or any
other document other than (i) court charges imposed
pursuant to the Law on Charges (Law No. 492) in the
amount of 5.94% of the Turkish Lira equivalent of the amount in
controversy (one quarter of which is payable at the commencement
of any suit or action and the remainder of which is payable upon
the entry of judgment), (ii) court charges payable in
connection with the making of an appeal for an adverse judgment,
(iii) the deposit, at the court’s discretion, of
security for costs and (iv) lawyer’s fees payable in
accordance with the most recent tariff in force at the time of
judgment as published in the Official Gazette of The Republic
together with other court expenses;
9
(xv) Article 30 of the Corporation Tax Law (Law
No. 5520) requires the Republic to withhold 15%
(fifteen per cent.) withholding tax from the interest on the
Securities received by limited tax liability persons, whom are
legal entities resident outside the Republic. Article 94 of
the Income Tax Law (Law No. 193) requires the Republic
to withhold 25% (twenty-five per cent.) withholding tax from the
interest on the Securities received by limited tax liability
persons, whom are individuals resident outside the Republic.
However, as a result of the Decrees of the Council of Ministers
of the Republic (Decree Nos. 2009/14593 and 2009/14592) as
currently in effect, such Turkish withholding taxes have been
reduced to 0%. Furthermore, according to Article 15(b) of
the Law Regarding the Regulation of Public Finance and Debt
Management (Law No. 4749), the principal amount of the
Securities and the interest thereon on each interest payment
date shall be considered part of the consolidated State debt and
as a result shall be exempt from any and all Turkish taxes,
including withholding tax;
(xvi) the Registration Statement, as amended, the Final
Prospectus, as supplemented, and any Republic Free Writing
Prospectus, and their filing with the Commission have been duly
authorized by and on behalf of The Republic, the Registration
Statement has been duly executed on behalf of The Republic and
become effective under the Act and, to the best of the knowledge
of such First Legal Advisor, no stop order suspending the
effectiveness of the Registration Statement has been issued and
no proceedings for that purpose are pending before or threatened
by the Commission;
(xvii) such First Legal Advisor believes that (except as to
the financial statements and other financial and statistical
data contained therein as to which such First Legal Advisor need
not express any belief) the Registration Statement and the
prospectus included therein at the time the Registration
Statement became effective did not contain any untrue statement
of a material fact or omit to state a material fact required to
be stated therein or necessary to make statements therein not
misleading, and the Final Prospectus, as of its date and the
Closing Date does not contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading;
(xviii) such First Legal Advisor believes that (except as
to the financial statements and other financial and statistical
data contained therein as to which such First Legal Advisor need
not express any belief) the documents specified in a schedule to
its opinion, consisting of those included in the General
Disclosure Package, as of the Applicable Time and as of the
Closing Date, did not contain any untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not
misleading;
(xix) the information contained in the Final Prospectus, as
of its date and the Closing Date, and in the General Disclosure
Package, as of the Applicable Time and the Closing Date, under
the captions “Taxation — The Republic of
Turkey”, “Debt Securities — Governing Law
and Consent to Service” are accurate in all material
respects and fairly summarize the provisions of Turkish law
therein described;
(xx) the appointment of the Authorized Agent in
Section 15 below and any waiver in that section by The
Republic in respect thereto are legal, valid and binding in
accordance with their respective terms; and
(xxi) any judgment obtained against The Republic in the
foreign courts mentioned in this Agreement, the Fiscal Agency
Agreement and the Securities in respect of any sum payable by it
under such agreements would be recognized and enforced by the
courts in The Republic without re-examination of the issues as
long as the judgment is not clearly against public policy rules
of The Republic and where the person against whom enforcement is
sought does not raise objections in the Turkish courts to the
effect that such person was not duly summoned to or represented
at the foreign court or that the judgment was rendered in such
person’s absence in violation of the laws of the foreign
country. In the opinion of the First Legal Advisor, none of the
terms of this Agreement, the Fiscal Agency Agreement and the
Securities violates public policy rules of The Republic and,
accordingly, a judgment to enforce any such terms would not
violate public policy rules of The Republic.
10
In rendering such opinion, such First Legal Advisor may rely
without independent investigation on the opinion pursuant to
paragraph (c) below as to matters of New York and United
States Federal law. References to the Final Prospectus in this
paragraph (b) include any supplements thereto at the
Closing Date.
(c) The Representatives shall have received an opinion
dated the Closing Date, satisfactory to the Representatives, of
Xxxxxx & Xxxxxx LLP, special United States counsel to
The Republic, to the effect that:
(i) the statements in the Registration Statement under the
caption “Debt Securities” and “Collective Action
Securities” and in the Final Prospectus and in the General
Disclosure Package under the caption “Description of the
Notes” are accurate in all material respects and fairly
summarize the provisions of the Securities and the Fiscal Agency
Agreement purported to be summarized therein;
(ii) the statements in the Registration Statement, the
Final Prospectus and the General Disclosure Package under the
caption “Taxation — United States” are
accurate in all material respects and fairly present the
information purported to be shown therein;
(iii) this Agreement is a legal, valid and binding
obligation of The Republic;
(iv) the Fiscal Agency Agreement is a legal, valid and
binding obligation of The Republic enforceable against The
Republic in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors’ rights generally and to the
possible judicial application of laws or governmental action
affecting the enforcement of creditors’ rights;
(v) the Securities, when duly authenticated in accordance
with the terms of the Fiscal Agency Agreement and delivered and
paid for in accordance with the terms of this Agreement, will
constitute legal, valid and binding obligations of The Republic
enforceable against The Republic in accordance with their terms
and entitled to the benefits of the Fiscal Agency Agreement,
subject to applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors’ rights
generally and to the possible judicial application of laws or
governmental action affecting the enforcement of creditors’
rights;
(vi) The Republic has validly submitted, under the laws of
the State of New York, and the Federal Laws of the United
States, to the nonexclusive jurisdiction of the State and
Federal courts in New York, New York in any suit, action or
proceeding arising out of or based on this Agreement, the Fiscal
Agency Agreement or the Securities, has to the fullest extent
permitted by law, validly and irrevocably waived any objection
to the laying of venue of any such action, suit or proceeding in
any such court, and the appointment of the Authorized Agent (as
defined in this Agreement) as its authorized agent for purposes
described in Section 15 of this Agreement is valid and
legally binding on the Republic and any service of process
effected on such agent in the manner set for therein will be
effective to confer valid personal jurisdiction over the
Republic to the extent of any action referred to therein,
subject to the limitations of the Foreign Sovereign Immunities
Act of 1976, as amended;
(vii) the agreement of The Republic contained in the
Agreement, the Securities and the Fiscal Agency Agreement that
each will be governed and construed in accordance with the laws
of the State of New York, except with respect to its
authorization and execution by and on behalf of The Republic, is
valid and binding;
(viii) the Securities are exempt from the provision of the
Trust Indenture Act of 1939, as amended, under
Section 304(a)(6) of said Act and no indenture in respect
of the Securities need be qualified under said Act; and
(ix) considered in light of such counsel’s
understanding of the applicable law (including the requirements
of Schedule B and the Release and the character of the
Final Prospectus) and such counsel’s experience thereunder,
the Registration Statement and the Final Prospectus (other than
financial statements and other financial and statistical
information as to which such counsel need not express any
opinion) appeared on their face to be appropriately responsive
in all material respects to the Act, the rules thereunder and
the Release.
11
We confirm that the Registration Statement has become effective
under the Act as of the date and time specified in such opinion,
and, to the best of the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose are pending
before or threatened by the Commission.
In giving such opinion, Xxxxxx & Xxxxxx LLP may
(i) assume that the Fiscal Agency Agreement, the Securities
and this Agreement have been duly authorized, executed and
delivered by the appropriate party or parties thereto and that
each such party has adequate power and authority to enter
thereinto and (ii) rely without independent investigation
on the opinion delivered pursuant to paragraph (b) above as
to matters governed by the laws of The Republic and such opinion
shall be subject to any limitations and exceptions contained in
the opinion delivered pursuant to paragraph (b) above.
References to the Final Prospectus in this paragraph
(c) include any supplements thereto at the Closing Date.
In addition, Xxxxxx & Xxxxxx LLP shall confirm that
(except as to the financial statements and other financial and
statistical information and data contained therein as to which
counsel need not express any belief) nothing has come to such
counsel’s attention that would lead such counsel to believe
that the Registration Statement and the prospectus included
therein at the time the Registration Statement became effective
contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary
to make statements therein not misleading, that the Final
Prospectus, as of its date and the Closing Date as applicable,
contains or contained any untrue statement of a material fact or
omits or omitted to state a material fact, necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading, or that the
documents specified in a schedule to its opinion, consisting of
those included in the General Disclosure Package, as of the
Applicable Time and as of the Closing Date, did not contain any
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under
which they were made, not misleading. Reference to the Final
Prospectus in this paragraph (c) includes any supplements
thereto at the Closing Date.
(d) The Representatives shall have received from Xxxxxxxx
Chance LLP, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date, with respect to the issuance
and sale of the Securities, the Fiscal Agency Agreement, the
Registration Statement, the Final Prospectus (together with any
supplement thereto), the General Disclosure Package and other
related matters as the Representatives may reasonably require,
and The Republic shall have furnished to such counsel such
documents as they request for the purpose of enabling them to
pass upon such matters. In giving such opinion, Xxxxxxxx Chance
LLP may rely without independent investigation on the opinion
delivered pursuant to paragraph 5(b) above as to the
matters governed by the laws of The Republic and such opinion
shall be subject to any limitations and exceptions contained in
the opinion delivered pursuant to paragraph (b) above.
(e) The Representatives shall have received from
Pekin & Pekin, Turkish counsel to the Representatives,
an opinion or opinions, dated the Closing Date, in form and
substance reasonably satisfactory to the Representatives. In
rendering any such opinion, such Turkish counsel may rely,
without independent investigation on its part, as to matters
governed by United States Federal and New York law upon New York
counsel to the Representatives.
(f) The Republic shall have furnished to the
Representatives a certificate of The Republic, signed by the
Undersecretariat of the Treasury, Prime Ministry of The Republic
of Turkey, dated the Closing Date, to the effect that the signer
of such certificate has carefully examined the Registration
Statement, the Final Prospectus, any supplement to the Final
Prospectus, the General Disclosure Package and this Agreement
and that:
(i) the representations and warranties of The Republic in
this Agreement are true and correct in all material respects on
and as of the Closing Date with the same effect as if made on
the Closing Date and were true and correct in all material
respects on and as of the Time of Sale with the same effect as
if made at the Time of Sale and The Republic has complied with
all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to the Closing Date;
12
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose have been instituted or, to The Republic’s
knowledge, threatened; and
(iii) there has been no material adverse change or any
development which would reasonably be expected to result in a
material adverse change in the condition (financial, economic or
political) of The Republic from that set forth in the Final
Prospectus (exclusive of any supplement thereto).
(g) Subsequent to the Execution Time or, if earlier, the
dates as of which information is given in the Registration
Statement (exclusive of any amendment thereof) and the Final
Prospectus (exclusive of any supplement thereto), there shall
not have been any change or any development which would
reasonably be expected to result in a change in the condition
(financial, economic or political) or foreign exchange controls
of The Republic from that set forth in the Registration
Statement that, in the judgment of the Representatives, is
material and adverse and makes it impractical or inadvisable to
proceed with the offering or delivery of the Securities as
contemplated by the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any
supplement thereto).
(h) Subsequent to the Execution Time, there shall not have
been (A) any downgrading in the rating accorded The
Republic’s debt securities by any rating agency set forth
in Schedule I hereto or (B) any public announcement
that the rating of any of The Republic’s debt securities is
under surveillance or review, with possible negative
implications, by any rating agency set forth in Schedule I
hereto.
(i) Subsequent to the Execution Time, no proceeding shall
be pending or threatened to restrain or enjoin the issuance,
sale or delivery of the Securities or in any manner to question
the laws, proceedings, directives, resolutions, approvals,
consents or orders under which the Securities are to be issued
or to question the validity of the Securities, and none of such
laws, proceedings, directives, resolutions, approvals, consents
or orders shall have been repealed, revoked or rescinded in
whole or in part.
(j) Subsequent to the Execution Time, The Republic shall
have not ceased to be a member of the International Monetary
Fund.
(k) Prior to the Closing Date, The Republic shall have
furnished to the Representatives such further information,
certificates, opinions and other documents as the
Representatives may reasonably request.
(l) The Representatives shall have received letters
confirming on the Closing Date the rating of the Securities
described in the Preliminary Final Prospectus in the Section
entitled “Risk Factors” by the rating agencies set
forth on Schedule I hereto.
If any of the conditions specified in this Section 5 shall
not have been fulfilled in all material respects when and as
provided in this Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement
shall not be in all material respects reasonably satisfactory in
form and substance to the Representatives and counsel for the
Underwriters, this Agreement and all obligations of the
Underwriters hereunder may be cancelled at, or at any time prior
to, the Closing Date by the Representatives. Notice of such
cancellation shall be given to The Republic in writing or by
telephone or telegraph confirmed in writing.
6. Reimbursement of Underwriters’
Expenses. If the sale of the Securities
provided for herein is not consummated because any condition to
the obligations of the Underwriters set forth in Section 5
hereof is not satisfied, because of any termination pursuant to
Section 9 hereof or because of any refusal, inability or
failure on the part of The Republic to perform any agreement
herein or comply with any provision hereof, The Republic will
reimburse the Underwriters severally upon demand in writing for
all reasonably documented reasonable
out-of-pocket
expenses (including reasonable fees and disbursements of
counsel) that shall have been incurred by them in connection
with the proposed purchase and sale of the Securities.
7. Indemnification and
Contribution. (a) The Republic shall
indemnify and hold harmless each Underwriter and each person, if
any, who controls any Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Securities
Exchange Act of 1934, from and against any loss, claim, damage
or liability, joint or several, or any action in respect thereof
(including, but not limited to, any loss, claim, damage,
liability or action relating to purchases and sales of
Securities), to which that Underwriter or controlling person may
become subject, under the Act or otherwise, insofar as such
loss, claim, damage, liability (or any action in respect
thereof) arises out of, or is
13
based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained in the Basic Prospectus,
any Preliminary Final Prospectus, any Republic Free Writing
Prospectus, the Registration Statement, the General Disclosure
Package or the Final Prospectus or in any amendment or
supplement thereto or (ii) 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
shall reimburse each Underwriter and each such controlling
person promptly upon demand in writing for any legal or other
expenses reasonably incurred by that Underwriter or controlling
person in connection with investigating or defending or
preparing to defend against any such loss, claim, damage,
liability or action 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, liability or action arises out of, or is based upon, any
untrue statement or alleged untrue statement or omission or
alleged omission made in the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus or in any such
amendment or supplement in reliance upon and in conformity with
written information furnished to The Republic through the
Representatives by or on behalf of any Underwriter specifically
for inclusion therein. The foregoing indemnity agreement is in
addition to any liability that The Republic may otherwise have
to any Underwriter or to any controlling person of that
Underwriter. The Republic further agrees to indemnify and hold
harmless each Underwriter against any requirement under the laws
of The Republic to pay any stamp or similar taxes in connection
with the issuance of the Securities to such Underwriter by The
Republic.
(b) Each Underwriter, severally and not jointly, shall
indemnify and hold harmless The Republic and each of its
officials from and against any loss, claim, damage or liability,
joint or several, or any action in respect thereof (including,
but not limited to, any loss, claim, damage, liability or action
relating to purchases and sales of Securities), to which The
Republic or any such official may become subject, under the Act
or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, (i) any untrue
statement or alleged untrue statement of a material fact
contained in the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus or in any amendment or
supplement thereto or (ii) 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, but
in each case only to the extent that the untrue statement or
alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with written information
furnished to The Republic through the Representatives by or on
behalf of that Underwriter specifically for inclusion therein,
and shall promptly reimburse The Republic and any such official
for any legal or other expenses reasonably incurred by The
Republic or any such official in connection with investigating
or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are
incurred. The foregoing indemnity agreement is in addition to
any liability that any Underwriter may otherwise have to The
Republic or any such official.
(c) Promptly after receipt of an indemnified party under
this Section 7 of notice of any claim or the commencement
of any action, the indemnified party shall, if a claim in
respect thereof is to be made against the indemnifying party
under this Section 7, notify the indemnifying party in
writing of the claim or the commencement of that action;
provided, however, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have
under this Section 7 except to the extent it has been
materially prejudiced by such failure; and provided further that
the failure to notify the indemnifying party shall not relieve
it from any liability which it may have to an indemnified party
otherwise than under this Section 7. If any such claim or
action shall be brought against any indemnified party, and it
shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the
extent that it wishes, jointly with any other similarly notified
indemnifying party, to assume the defense thereof with counsel
reasonably satisfactory to the indemnified party. After notice
from the indemnifying party to the indemnified party of its
election to assume the defense of such claim or action, the
indemnifying party shall not be liable to the indemnified party
under this Section 7 for any legal or other expenses
subsequently incurred by the indemnified party in connection
with the defense thereof other than reasonable costs of
investigation; provided, however, that the Representatives shall
have the right to employ counsel to represent jointly the
Representatives and those other Underwriters and their
respective controlling persons who may be subject to liability
arising out of any claim in respect of which indemnity may be
sought by the Underwriters against The Republic under this
Section 7 if (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties in any such
proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation
of both parties by the same counsel would in the judgment of any
such party or counsel thereto be inappropriate due to the actual
or potential
14
differing interests between such parties, and in each such event
the fees and expenses of such separate counsel shall be paid by
The Republic. It is understood that the indemnifying party shall
not, in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for fees and expenses of more
than one separate counsel (in addition to any local counsel) for
all indemnified parties.
(d) If the indemnification provided for in this
Section 7 shall for any reason be unavailable to or
insufficient to hold harmless an indemnified party under
Section 7(a) or 7(b) in respect of any loss, claim, damage
or liability, or any action in respect thereof, referred to
therein, then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount
paid or payable by such indemnified party as a result of such
loss, claim, damage or liability, or action in respect thereof,
(i) in such proportion as shall be appropriate to reflect
the relative benefits received by The Republic on the one hand
and the Underwriters on the other from the offering of the
Securities or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law or if
the indemnified party failed to give the notice required under
Section 7(c) and as a result is not entitled to
indemnification thereunder, in such proportion as is appropriate
to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of The
Republic on the one hand and the Underwriters on the other with
respect to the statements or omissions which resulted in such
loss, claim, damage or liability, or action in respect thereof,
as well as any other relevant equitable considerations. The
relative benefits received by The Republic on the one hand and
the Underwriters on the other with respect to such offering
shall be deemed to be in the same proportion as the total net
proceeds from the offering of the Securities purchased under
this Agreement (before deducting expenses) received by The
Republic bear to the total underwriting discounts and
commissions received by the Underwriters with respect to the
shares of the Securities purchased under this Agreement, in each
case as set forth in the table on the cover page of the Final
Prospectus. The relative fault shall be determined by reference
to whether the untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact
relates to information supplied by The Republic or the
Underwriters, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Republic and the
Underwriters agree that it would not be just and equitable if
contributions pursuant to this Section 7(d) were to be
determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by
any other method of allocation which does not take into account
the equitable considerations referred to herein. The amount paid
or payable by an indemnified party as a result of the loss,
claim, damage or liability, or action in respect thereof,
referred to above in this Section 7(d) shall be deemed to
include, for purposes of this Section 7(d), any legal or
other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 7(d),
no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the
Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which
such Underwriter has otherwise paid or become liable to pay by
reason of any untrue or alleged untrue statement or omission or
alleged omission. 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. The
Underwriters’ obligations to contribute as provided in this
Section 7(d) are several in proportion to their respective
underwriting obligations and not joint. Each party entitled to
contribution agrees that, upon the service of a summons or other
initial legal process upon it in any action instituted against
it in respect to which contribution may be sought, it shall
promptly give written notice of such service to the party or
parties from whom contribution may be sought, but the omission
so to notify such party or parties of any such service shall not
relieve the party from whom contribution may be sought from any
obligation it may have hereunder or otherwise (except as
specifically set forth in subsection (c) hereof).
(e) The Underwriters severally confirm that the statements
with respect to distribution by the Underwriters of the
Securities set forth on the cover page of, and under the caption
“Underwriting” or “Plan of Distribution” in,
the Final Prospectus are correct and constitute the only
information furnished in writing to The Republic by or on behalf
of the Underwriters specifically for inclusion in the
Registration Statement and the Final Prospectus.
8. Default by an Underwriter. If
any one or more Underwriters shall fail to purchase and pay for
any of the Securities agreed to be purchased by such Underwriter
or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their
obligations under this Agreement, the remaining non-defaulting
Underwriters shall be obligated severally to purchase and pay
for (in the respective proportions which the
15
amount of Securities set forth opposite their names in
Schedule II hereto bears to the aggregate amount of
Securities set forth opposite the names of all the remaining
Underwriters) the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however,
that the remaining non-defaulting Underwriters shall not be
obligated to purchase any of the Securities if the aggregate
principal amount of Securities which the defaulting Underwriter
or Underwriters agreed but failed to purchase exceeds 9.09% of
the aggregate principal amount of Securities and any remaining
non-defaulting Underwriter shall not be obligated to purchase
more than 110% of the principal amount of Securities set forth
opposite its name in Schedule II hereto. If the foregoing
maximums are exceeded, the remaining non-defaulting
Underwriters, or those other underwriters satisfactory to the
Representatives who so agree, shall have the right, but shall
not be obligated, to purchase, in such proportion as may be
agreed upon among them, all the Securities to be purchased by
the defaulting Underwriter or Underwriters. If the remaining
Underwriters or other underwriters satisfactory to the
Representatives do not elect to purchase Securities that the
defaulting Underwriter or Underwriters agreed but failed to
purchase within 36 hours after such default, this Agreement
shall terminate without liability on the part of any
non-defaulting Underwriter or The Republic. As used in this
Agreement, the term “Underwriter” includes, for all
purposes of this Agreement unless the context requires
otherwise, any party not listed in Schedule II hereto who,
pursuant to this Section 8, purchases Securities that a
defaulting Underwriter agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting Underwriter
of any liability it may have to The Republic for damages caused
by its default. If other underwriters are obligated or agree to
purchase the Securities of a defaulting or withdrawing
Underwriter, either the Representatives or The Republic may
postpone the Closing Date for up to seven full business days in
order to effect any changes that in the opinion of counsel for
The Republic or counsel for the Underwriters may be necessary in
the Registration Statement, the Final Prospectus or in any other
document or arrangement.
9. Termination. This Agreement
shall be subject to termination in the absolute discretion of
the Representatives, by notice given to The Republic prior to
delivery of and payment for the Securities, if prior to such
time (i) trading in securities generally on the New York
Stock Exchange, the American Stock Exchange or the
over-the-counter
market shall have been suspended or limited or minimum prices
shall have been established on either of such exchanges or such
market by the Commission or by any other regulatory body or
governmental authority having jurisdiction, (ii) a banking
moratorium shall have been declared by United States Federal or
New York, California or Illinois state authorities, or
authorities of The Republic, (iii) there shall have been
any outbreak of or escalation in hostilities involving The
Republic or the United States or there shall have been a
declaration of a national emergency or war by The Republic or
the United States or (iv) there shall have occurred such a
material adverse change in general economic, political or
financial conditions, or foreign exchange controls, of The
Republic or the United States (or the effect of international
conditions on the financial markets in the United States shall
be such) as to make it, in the judgment of the Representatives,
impracticable or inadvisable to proceed with the public offering
or delivery of the Securities on the terms and in the manner
contemplated by the Final Prospectus (exclusive of any
supplement thereto).
10. Representations and Indemnities to
Survive. The respective agreements,
representations, warranties, indemnities and other statements of
The Republic or its officials and of the Underwriters set forth
in or made pursuant to this Agreement will remain in full force
and effect, regardless of any investigation made by or on behalf
of any Underwriter or The Republic or any of the officials or
controlling persons referred to in Section 7 hereof, and
will survive delivery of and payment for the Securities. The
provisions of Sections 4(g), 6 and 7 hereof shall survive
the termination or cancellation of this Agreement.
11. Notices. All communications
hereunder will be in writing and effective only on receipt, and,
if sent to the Representatives, will be mailed, delivered or
telegraphed and confirmed to them, at the address specified in
Schedule I hereto; or, if sent to The Republic, will be
mailed, delivered or telegraphed and confirmed to it at:
attention of General Directorate of Foreign Economic Relations
(facsimile: 90 312 212 8550) and General Directorate of
Public Finance (facsimile: 90 312 212 8786).
12. Successors. This Agreement
will inure to the benefit of and be binding upon the parties
hereto and their respective successors and the officials and
controlling persons referred to in Section 7 hereof, and no
other person will have any right or obligation hereunder.
16
13. Applicable Law. This Agreement
will be governed by and construed in accordance with the laws of
the State of New York except with respect to its authorization
and execution by and on behalf of The Republic.
14. Language. All communications
hereunder and all documents to be furnished hereunder will be in
the English language or accompanied by an English translation
thereof.
15. Jurisdiction; Service of Process,
Etc. The Republic hereby appoints The
Economic Counsellor, The Republic of Turkey, 000 Xxxxxx Xxxxxxx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 and the Economic Counsellor, The
Republic of Turkey, 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 by the Representatives, or by any persons
controlling the Representatives, arising out of or based upon
this Agreement which may be instituted in any State or Federal
court in the Borough of Manhattan, The City of New York, and
each of the parties hereto irrevocably submits to the
jurisdiction of any such court in respect of any such action and
irrevocably waives any objection which it may now or hereafter
have to the laying of venue of any such action in any such court
and The Republic waives any right to which it may be entitled on
account of residence or domicile. The Republic hereby
irrevocably agrees that a final judgment in any such suit,
action or proceeding brought in any such courts shall be
conclusive and binding upon The Republic and, to the fullest
extent permitted by law, may be enforced in the competent courts
of any other jurisdiction, including The Republic. The Republic
hereby irrevocably and expressly waives the diplomatic immunity
of The Economic Counsellor at the Embassy of The Republic of
Turkey in New York and Washington, D.C. with respect to the
acceptance of the service of process referred to herein pursuant
to Article 32 of the Vienna Convention of Diplomatic
Relations. The Republic will maintain at all times in the
Borough of Manhattan, The City of New York, a person acting as
or discharging the function of Economic Counsellor as long as
any of the Securities remain outstanding. The Republic will take
any and all action, including the filing of any and all
documents and instruments, which may be necessary to continue
such appointment in full force and effect as aforesaid. Service
of process upon either Authorized Agent at the address indicated
for such agent in this Section 15, or at such other address
in New York, New York or Washington, D.C. as may be the
office of The Economic Counsellor, The Republic of Turkey at the
time of the service and written notice of such service mailed or
delivered to The Republic at its address set forth in
Section 11 hereof shall be deemed, in every respect,
effective service of process upon The Republic in New York. Upon
receipt of such service of process, the Authorized Agent shall
advise the Ambassador of The Republic to the United States of
America and the Undersecretariat of Treasury, Prime Ministry of
The Republic of Turkey promptly by telex of its receipt thereof,
but the failure to so advise shall have no effect on the
validity or timeliness of such service. Notwithstanding the
foregoing, any such action may be instituted in any competent
court in The Republic. The Republic hereby irrevocably waives,
to the fullest extent permitted by law, any immunity from
jurisdiction to which it might otherwise be entitled (including
sovereign immunity and immunity from pre judgment attachment,
post judgment attachment and execution) in any such action in
any state or federal court in the Borough of Manhattan, The City
of New York, or in any competent court in The Republic. It is
understood that the foregoing waiver does not apply to any
assets of The Republic located in The Republic and also does not
apply to the assets of The Republic outside The Republic that
are used in the exercise of sovereign authority. No waiver of
immunity by The Republic shall be interpreted to include a
waiver of immunity against actions brought under the
U.S. federal securities laws or any securities laws of any
state of the United States. In addition, except that, under the
laws of The Republic, assets of The Republic are immune from
attachment or other forms of execution, whether before or after
judgment.
Without limiting the generality of any of the foregoing, The
Republic agrees, without prejudice to the enforcement of a
judgment obtained in New York, or in any other jurisdiction
other than The Republic according to the provision of
Article 54 of the Act on International Private Law and
Procedural Law of The Republic (Law No. 5718), that in the
event that The Republic is sued in a court in The Republic in
connection with this Agreement, such judgment shall constitute
conclusive evidence of the existence and amount of the claim
against The Republic, pursuant to the provision of the second
sentence of Article 287 of the Civil Procedure Code of The
Republic (Law No. 1086) and Articles 58 and 59 of
the Act on International Private Law and Procedural Law of The
Republic (Law No. 5718).
16. Judgment Currency. If, under
any applicable law and whether pursuant to a judgment being made
or registered against The Republic or for any other reason, any
payment under or in connection with this Agreement is made or
fails to be satisfied in a currency (the “other
currency”) other than that in which the relevant
payment is
17
expressed to be due (the “required currency”)
under this Agreement, then, to the extent that the payment (when
converted into the required currency at the rate of exchange on
the date of payment or, if it is not practicable for the
relevant recipient of the payment to purchase the required
currency with the other currency on the date of payment, at the
rate of exchange as soon thereafter as it is practicable for it
to do so) actually received by the relevant recipient of the
payment falls short of the amount due under the terms of this
Agreement, to the extent permitted by law, The Republic
undertakes that it shall as a separate and independent
obligation, indemnify and hold harmless each relevant recipient
of the payment against the amount of such shortfall. For the
purpose of this Section 16, “rate of exchange”
shall take into account any premium and other reasonable costs
of exchange.
17. No Fiduciary Obligation. For
the avoidance of doubt, neither Underwriter has a fiduciary duty
to The Republic or its employees in connection with this
Agreement.
18. Counterparts. This Agreement
may be signed in two or more counterparts, which together shall
constitute one and the same instruments.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate
hereof, whereupon this letter and your acceptance shall
represent a binding agreement among The Republic and the several
Underwriters.
Very truly yours,
THE REPUBLIC OF
TURKEY
acting by and through its
Minister of State
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The foregoing Agreement is hereby confirmed and accepted as of
the date specified in Schedule I hereto.
[Representative]
Acting on behalf of itself and as the Representative of the
several Underwriters listed in Schedule II hereto
By:
Title:
[Representative]
By:
Title:
20
SCHEDULE I
Underwriting Agreement dated
Registration Statement No.
Representative(s):
Fiscal Agency Agreement dated as of December 15, 1998, as
amended by Amendment No. 1 to the Fiscal Agency Agreement,
dated as of September 17, 2003, and Amendment No. 2 to
the Fiscal Agency Agreement, dated as of January 7, 2004
Fiscal Agent: The Bank of New York
(successor-in-interest
to JPMorgan Chase Bank, N.A.)
Title, Purchase Price and Description of Securities:
Closing Date, Time and Location:
Rating Agencies referred to in Section 5(h):
SCHEDULE II
|
Principal Amount of |
||||
|
Underwriter
|
Securities to be Purchased | |||
SCHEDULE III
Republic
General Free Writing Prospectuses
SCHEDULE IV
Pricing
Term Sheet
Filed
pursuant to Rule 433
File
No. 333-133956
FINAL
PRICING TERMS
