EXHIBIT 1
| CONFORMED COPY |
Pricing Agreement
April 11, 2022
Absa Bank Limited
Deutsche Bank AG, London Branch
HSBC Bank plc
Nedbank Limited
Rand Merchant Bank, a division of FirstRand Bank Limited (London Branch)
As Representatives of the several
Underwriters named in Schedule II hereto
| c/o | HSBC
Bank plc 8 Canada Square London, E14 5HQ United Kingdom |
Ladies and Gentlemen:
The Republic of South Africa (“South Africa”) proposes, subject to the terms and conditions stated herein and in the Underwriting Agreement, dated December 13, 2013 (the “Underwriting Agreement”), a copy of which is attached hereto as Schedule I, to issue and sell to the Underwriters named in Schedule II hereto (the “Underwriters”) the Securities specified in Schedule III hereto (the “Designated Securities”).
Except as set forth herein, each of the provisions of the Underwriting Agreement is incorporated herein by reference in its entirety, and shall be deemed to be a part of this Agreement to the same extent as if such provisions had been set forth in full herein; and each of the representations and warranties set forth therein shall be deemed to have been made at and as of the date of this Pricing Agreement, except that each representation and warranty which refers to the Base Prospectus, Preliminary Prospectus and Final Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be a representation or warranty as of the date of the Underwriting Agreement in relation to the Base Prospectus, Preliminary Prospectus and Final Prospectus (as therein defined), and also a representation and warranty as of the date of this Pricing Agreement in relation to the Base Prospectus, Preliminary Prospectus and Final Prospectus as amended or supplemented relating to the Designated Securities which are the subject of this Pricing Agreement.
Each reference to the Representatives herein and in the provisions of the Underwriting Agreement so incorporated by reference shall be deemed to refer to you.
Unless otherwise defined herein, terms defined in the Underwriting Agreement are used herein as therein defined. The Representatives designated to act on behalf of each of the Underwriters of the Designated Securities pursuant to Section 13 of the Underwriting Agreement and the address of the Representatives referred to in such Section 13 are set forth at the end of Schedule III hereto. An amendment to the Registration Statement, or a supplement to the Base Prospectus, Preliminary Prospectus and Final Prospectus, as the case may be, relating to the Designated Securities, in the form heretofore delivered to you is now proposed to be filed with the Commission.
Subject to the terms and conditions set forth herein and in the Underwriting Agreement incorporated herein by reference, South Africa agrees to issue and sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from South Africa, at the offices of U.S. counsel to the Underwriters set forth in Schedule V on April 20, 2022 or such other time and place as may be agreed by South Africa and the Representatives (such time and date being the “Time of Delivery” for purposes of the Underwriting Agreement) and at the purchase price to the Underwriters set forth in Schedule III hereto, the principal amount of Designated Securities set forth opposite the name of such Underwriter in Schedule II hereto.
Set forth in Schedule IV hereto is a complete list of Issuer Free Writing Prospectuses used in connection with offers relating to the Designated Securities.
Set forth in Schedule V hereto are the addresses of the Underwriters for notices pursuant to this Pricing Agreement and the Underwriting Agreement.
The term “Applicable Time”, as used in the Underwriting Agreement, shall mean 6:06 p.m. New York City time on the date of this Pricing Agreement.
Each reference to U.S. counsel to the Underwriters shall mean White & Case LLP.
Each reference to South African counsel to the Underwriters shall mean White & Case LLP.
The provisions of the Underwriting Agreement incorporated herein by reference are hereby amended as follows:
The second paragraph of the Underwriting Agreement is amended as follows: “The terms and rights of any particular issuance of Designated Securities shall be as specified in the Pricing Agreement relating thereto and in or pursuant to the Amended and Restated Fiscal Agency Agreement, dated as of February 10, 2017 (the “Fiscal Agency Agreement”), between, among others, South Africa and Citibank, N.A., London Branch, as fiscal agent (the “Fiscal Agent”).”
Subparagraph (b) of Section 2 (Representations and Warranties of South Africa) is amended as follows: “The (i) Base Prospectus, as of the applicable effective date of the Registration Statement and any amendment or supplement thereto, (ii) the Preliminary Prospectus, if any, used most recently prior to the Applicable Time (as defined below) and as of the Applicable Time, (iii) the Issuer Free Writing Prospectuses (as hereinafter defined in Section 2(f)), if any, listed on Schedule IV to the applicable Pricing Agreement and as of the Applicable Time, (iv) any other “free writing prospectus” (as defined by Rule 405 under the Act) that the parties hereto shall expressly agree in writing to treat as part of the Disclosure Package ((ii) to (iv) herein being, collectively, the “Disclosure Package”) as of the Applicable Time, and (v) each electronic roadshow or other supplemental issuer information listed on Schedule IV to the applicable Pricing Agreement (the “Supplemental Issuer Information”), when taken together as a whole with the Disclosure Package and as at the Applicable Time, each do 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 the Disclosure Package in reliance upon and in conformity with information furnished in writing to South Africa by or on behalf of any Underwriter of Designated Securities through the Representatives expressly for use therein, it being understood and agreed that the only such information furnished in writing to South Africa by or on behalf of any Underwriter of Designated Securities through the Representatives expressly for use therein consists of the information described in Schedule V to such Pricing Agreement (if any) (“Underwriter Information”); and each Issuer Free Writing Prospectus listed on Schedule IV to such Pricing Agreement (if any) 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 specified in the applicable Pricing Agreement;”
Subparagraph (k) of Section 2 (Representations and Warranties of South Africa) is amended as follows: “South Africa 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 Securities, this Agreement or any Pricing Agreement, nor the consummation of the transactions therein or herein contemplated, nor compliance with the terms and provisions of the Fiscal Agency Agreement, the Securities, this Agreement or any Pricing Agreement, 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 South Africa, (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 debt instrument to which South Africa is a party or of which South Africa is bound or constitute a default thereunder or (iii)
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will result in the creation of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the revenues or assets of South Africa under any such agreement or instrument;”
Subparagraph (l) of Section 2 (Representations and Warranties of South Africa) is amended as follows: “The Securities constitute and will constitute direct, general, unconditional, and unsecured external indebtedness of South Africa and will rank, without any preference among themselves and equally, with all other external indebtedness of South Africa in respect of moneys borrowed by South Africa and guarantees given by South Africa for moneys borrowed by others which is expressed or denominated in a currency or currencies other than South African rand or which is, at the option of the person entitled thereto, payable in a currency or currencies other than South African rand. It is understood that this provision shall not be construed so as to require South Africa to make payments under the Securities ratably with payments being made under any other external indebtedness. The full faith and credit of South Africa has been pledged for the due and punctual payment of, and the due and timely performance of all of South Africa’s obligations relating to, the Securities;”
Subparagraph (o) of Section 2 (Representations and Warranties of South Africa) is amended as follows:
“Neither South Africa, the national government of South Africa (the “National Government”), its subdivisions, ministries and state-owned entities, nor, to the best of its knowledge, any official, director, officer, agent, employee, affiliate of or person acting on behalf of South Africa, the National Government or its state-owned entities, ministries or subdivisions (other than the Underwriters and their Representatives as to whom no representation is made) is (a) included on the U.S. Treasury Department’s List of Specially Designated Nationals or otherwise subject to any U.S. economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by any U.S. government agency, including the U.S. Treasury Department's Office of Foreign Assets Control or the U.S. State Department, (including, without limitation, the Sectoral Sanctions List and Foreign Sanctions Evaders List) or sanctions administered by the United Nations Security Council, the United Kingdom (including Her Majesty’s Treasury), the European Union or any other relevant sanctions authority (collectively, the “Sanctions”), (b) located, organized or resident in a country or territory that is, or whose government is, the target of Sanctions, including, without limitation, Belarus, Burundi, Central African Republic, the Crimea Region of Ukraine, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, Cuba, Iran, Libya, North Korea, Russia, Somalia, Sudan, Syria, Venezuela and Zimbabwe (each, a “Sanctioned Country”), (c) conducting or otherwise involved in (or have any present intention to conduct or be involved in) any business dealings involving any government, person, entity or project targeted by any Sanctions or located in any Sanctioned Country or (d) owned 50% or more by or otherwise controlled by one or more officials, directors, officers, agents, employees or entities subject to Sanctions, except in the case of (b) and (c) other than ordinary course diplomatic and ambassadorial relations; South Africa neither knows nor has reason to believe that it is or may become the subject of Sanctions-related investigations or juridical proceedings; South Africa will not use, and will procure that the National Government, its subdivisions, ministries and state-owned entities and any official, director, officer, agent, employee, affiliate of or person acting on behalf of South Africa, the National Government or its state-owned entities, ministries or subdivisions shall not use, directly or indirectly, the proceeds of the offering of the Designated Securities, or lend, contribute or otherwise make available such proceeds for the purpose of financing the activities of or business with any person or entity currently subject to any Sanctions or with any activities in any Sanctioned Country, to any person owned or controlled by any person or entity subject to Sanctions or in any manner that would result in the violation of any Sanctions applicable to any person (including any person participating in the offering as underwriter, investor or otherwise); and the National Government will maintain in effect and enforce policies and procedures designed to ensure compliance by the National Government, its subdivisions, ministries and state-owned entities and their officials, directors, officers, agents, employees and affiliates or persons acting on behalf of South Africa, the National Government and its state-owned entities, ministries or subdivisions with applicable Sanctions; and”
The following paragraphs are added to Section 2 (Representations and Warranties of South Africa): “South Africa, the National Government, its subdivisions, ministries and state-owned entities are in compliance with all financial record keeping, reporting requirements and anti-money laundering laws and regulations, including but not limited to the U.S. Currency and Foreign Transactions Reporting
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Act of 1970 (the “Anti-Money Laundering Laws”) to which they are subject and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving South Africa, the National Government, its subdivisions, ministries and state-owned entities and their officials, directors, officers, agents, employees and affiliates and persons acting on behalf of South Africa, the National Government or any of its subdivisions, ministries or state-owned entities with respect to the Anti-Money Laundering Laws is ongoing, pending and, to the best of knowledge of South Africa, no such actions, suits or proceedings are threatened or contemplated. South Africa, the National Government, its subdivisions, ministries and state-owned entities have instituted and will maintain and enforce policies and procedures designed to ensure compliance by South Africa, the National Government, its subdivisions, ministries and state-owned entities and their officials, directors, officers, agents, employees and affiliates and persons acting on behalf of South Africa, the National Government and its state-owned entities, ministries or subdivisions, with the Anti-Money Laundering Laws. South Africa will not use, and will procure that the National Government, its subdivisions, ministries and state-owned entities and any official, director, officer, agent, employee, affiliate of or person acting on behalf of South Africa, the National Government or its state-owned entities, ministries or subdivisions shall not use, directly or indirectly, the proceeds of the offering of the Designated Securities, or lend, contribute or otherwise make available such proceeds for any purpose that would breach Anti-Money Laundering Laws. Neither South Africa, the National Government, its subdivisions, ministries and state-owned entities nor (to the best of the knowledge of South Africa) any of their officials, directors, officers, agents, employees and affiliates or persons acting on behalf of South Africa, the National Government or any of its subdivisions, ministries or state-owned entities has engaged in any activity or conduct which would violate any applicable Anti-Money Laundering Laws.
Other than as disclosed in the Disclosure Package, neither South Africa, the National Government, its subdivisions, ministries and state-owned entities, nor (to the best of the knowledge of South Africa) any official, director, officer, agent, employee, affiliate of or person acting on behalf of South Africa, the National Government or its state-owned entities, ministries or subdivisions (other than the Underwriters and their Representatives as to whom no representation is made), has engaged in any activity or conduct which would violate any applicable anti-bribery or anti-corruption law or regulation (including, without limitation, the US Foreign Corrupt Practices Act of 1977 and the UK Bribery Act 2010). To the best of the knowledge of South Africa, no actions or investigations by any governmental or regulatory agency are ongoing or threatened or contemplated against South Africa, the National Government, its subdivisions, ministries and state-owned entities or their officials, directors, officers, agents, employees or affiliates or persons acting on behalf of South Africa, the National Government or any of its subdivisions, ministries or state-owned entities in relation to a breach of any applicable anti-bribery or anti-corruption laws or regulations.
South Africa has instituted and maintains policies and procedures designed to prevent violation of such laws and regulations by South Africa, the National Government, its subdivisions, ministries and state-owned entities and their officials, directors, officers, agents, employees and affiliates and persons acting on behalf of South Africa, the National Government and its state-owned entities, ministries or subdivisions. South Africa will not use, and will procure that the National Government, its subdivisions, ministries and state-owned entities and any official, director, officer, agent, employee, affiliate of or person acting on behalf of South Africa, the National Government or its state-owned entities, ministries or subdivisions shall not use, directly or indirectly, the proceeds of the offering of the Designated Securities, or lend, contribute or otherwise make available such proceeds in furtherance of any offer, payment, promise to pay or authorisation of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-bribery or anti-corruption laws or regulations.”
Section 6 (Expenses) is amended as follows:
“South Africa covenants and agrees with the several Underwriters that South Africa will pay or cause to be paid the following: (i) the fees, disbursements and expenses of counsel to South Africa and counsel (other than Canadian counsel) to the Underwriters in connection with the offering of the Designated Securities and the registration of the Securities under the Act and all other expenses in connection with the preparation, printing and filing of the Registration Statement, any Preliminary Prospectus, any Final Prospectus and amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers; (ii) the cost of printing, preparing and/or
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producing any Agreement among Underwriters, this Agreement, any Pricing Agreement, the Fiscal Agency Agreement, any Blue Sky and Legal Investment Memoranda and any other documents in connection with the offering, purchase, sale and delivery of the Securities; (iii) all expenses in connection with the qualification of the Securities for offering and sale under State securities laws as provided in Section 5(b) hereof, including the fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection with the Blue Sky and legal investment surveys; (iv) any fees charged by securities rating services for rating the Securities; (v) any filing fees incident to any required review by the Financial Industry Regulatory Authority (“FINRA”) of the terms of the sale of the Securities; (vi) the cost of preparing the Securities; (vii) the fees and expenses of the Fiscal Agent and any agent of the Fiscal Agent and the fees and disbursements of counsel for the Fiscal Agent in connection with the Fiscal Agency Agreement and the Securities; (viii) the fees and expenses of counsel to South Africa; (ix) any fees and expenses in connection with any listing of the Securities; and (x) all other costs and expenses incident to the performance of its obligations hereunder which are not otherwise specifically provided for in this Section. To the extent provided in any Pricing Agreement, South Africa also agrees to pay such sum as may be therein provided in partial reimbursement of the Representatives’ expenses and to reimburse the Underwriters for any intra-day interest cost incurred by the Underwriters at the Time of Delivery under such Pricing Agreement in connection with the purchase of the applicable Designated Securities. It is understood, however, that, except as provided in this Section, Section 8 and Section 11 hereof, and except as may be provided in any other arrangements separately agreed between the parties to such Pricing Agreement (if any), the Underwriters will pay all of their own costs and expenses, including the fees, disbursements and expenses of Canadian counsel to the Underwriters (to be split pro rata to their underwriting commitments), the transfer taxes on resale of any of the Securities by them and any advertising expenses connected with any offers they may make. South Africa shall reimburse the Underwriters for all expenses payable pursuant to this Section and shall pay the fees payable to the Underwriters pursuant to clause 6.1 of the engagement letter entered into between South Africa and the Underwriters dated February 28, 2022 in respect of the offering of the Designated Securities, in each case within 90 days from receipt of the relevant invoice.”
Subparagraph (h) of Section 7 (Conditions) is deleted.
The following subparagraph (j) is added to Section 7 (Conditions): “(j) Allen & Overy LLP, U.S. counsel for South Africa, shall have furnished to the Representatives a 10b-5 disclosure letter, dated the Time of Delivery for such Designated Securities, with respect to the Registration Statement, including the Base Prospectus, the Preliminary Prospectus, the Final Prospectus, as amended or supplemented, the Disclosure Package and other related matters as the Representatives may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters.”
The following sentence is added to Section 19 (Governing Law): “The parties hereto irrevocably and unconditionally consent to submit to the exclusive jurisdiction of the courts of the State of New York and of the United States District Courts located in the County of New York for any lawsuits, actions or other proceedings arising out of or relating to this Agreement and agree not to commence any such lawsuit, action or other proceeding except in such courts. The parties hereto irrevocably and unconditionally waive any objection to the laying of venue of any lawsuit, action or other proceeding arising out of or relating to this Agreement in the courts of the State of New York or the United States District Courts located in the County of New York, and hereby further irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such lawsuit, action or other proceeding brought in any such court has been brought in an inconvenient forum. Any right to trial by jury with respect to any lawsuit, claim or other proceeding arising out of or relating to this Agreement or the services to be rendered by the Underwriters hereunder is expressly and irrevocably waived.”
Section 22 is added to the Underwriting Agreement: “Acknowledgement and Consent to Bail-In of EEA Financial Institutions. Notwithstanding and to the exclusion of any other term of this Agreement or any other agreements, arrangements or understanding between the Underwriters and South Africa, South Africa acknowledges and accepts that a BRRD Liability arising under this Agreement may be subject to the exercise of Bail-in Powers by the Relevant Resolution Authority, and acknowledges, accepts, and agrees to be bound by:
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| (a) | the effect of the exercise of Bail-in Powers by the Relevant Resolution Authority in relation to any BRRD Liability of any Underwriter to South Africa under this Agreement, that (without limitation) may include and result in any of the following, or some combination thereof: |
| (i) | the reduction of all, or a portion, of the BRRD Liability or outstanding amounts due thereon; |
| (ii) | the conversion of all, or a portion, of the BRRD Liability into shares, other securities or other obligations of any such Underwriter or another person (and the issue to or conferral on South Africa of such shares, securities or obligations); |
| (iii) | the cancellation of the BRRD Liability; or |
| (iv) | the amendment or alteration of any interest, if applicable, thereon, the maturity or the dates on which any payments are due, including by suspending payment for a temporary period; and |
| (b) | the variation of the terms of this Agreement, as deemed necessary by the Relevant Resolution Authority, to give effect to the exercise of Bail-in Powers by the Relevant Resolution Authority. |
The following definitions apply for purposes of this Section 22:
“Bail-in Legislation” means in relation to a member state of the European Economic Area which has implemented, or which at any time implements, the BRRD, the relevant implementing law, regulation, rule or requirement as described in the EU Bail-in Legislation Schedule from time to time.
“Bail-in Powers” means any Write-down and Conversion Powers as defined in the EU Bail-in Legislation Schedule, in relation to the relevant Bail-in Legislation.
“BRRD” means Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms.
“BRRD Liability” means a liability in respect of which the relevant Write Down and Conversion Powers in the applicable Bail-in Legislation may be exercised.
“EU Bail-in Legislation Schedule” means the document described as such, then in effect, and published by the Loan Market Association (or any successor person) from time to time at http://www.lma.eu.com/pages.aspx?p=499.
“Relevant Resolution Authority” means the resolution authority with the ability to exercise any Bail-in Powers in relation to any Underwriter.”
Section 23 is added to the Underwriting Agreement: “Acknowledgement and Consent to Bail-In of UK Financial Institutions. Notwithstanding and to the exclusion of any other term of this Agreement or any other agreements, arrangements or understanding between the Underwriters and South Africa, South Africa acknowledges and accepts that a UK Bail-in Liability arising under this Agreement may be subject to the exercise of UK Bail-in Powers by the relevant UK resolution authority, and acknowledges, accepts, and agrees to be bound by:
| (a) | the effect of the exercise of UK Bail-in Powers by the relevant UK resolution authority in relation to any UK Bail-in Liability of any Underwriter to South Africa under this Agreement, that (without limitation) may include and result in any of the following, or some combination thereof: |
| (i) | the reduction of all, or a portion, of the UK Bail-in Liability or outstanding amounts due thereon; |
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| (ii) | the conversion of all, or a portion, of the UK Bail-in Liability into shares, other securities or other obligations of any such Underwriter or another person (and the issue to or conferral on South Africa of such shares, securities or obligations); |
| (iii) | the cancellation of the UK Bail-in Liability; or |
| (iv) | the amendment or alteration of any interest, if applicable, thereon, the maturity or the dates on which any payments are due, including by suspending payment for a temporary period; and |
| (b) | the variation of the terms of this Agreement, as deemed necessary by the relevant UK resolution authority, to give effect to the exercise of UK Bail-in Powers by the relevant UK resolution authority. |
The following definitions apply for purposes of this Section 23:
“UK Bail-in Legislation” means Part I of the UK Banking Act 2009 and any other law or regulation applicable in the UK relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (otherwise than through liquidation, administration or other insolvency proceedings).
“UK Bail-in Liability” means a liability in respect of which the UK Bail-in Powers may be exercised.
“UK Bail-in Powers” means the powers under the UK Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or affiliate of a bank or investment firm, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability.”
Section 24 is added to the Underwriting Agreement: “MiFID Co-Manufacturing Agreement. Solely for the purposes of the requirements of Article 9(8) of the Product Governance Rules under EU Delegated Directive 2017/593 (the “MiFID Product Governance Rules”) regarding the mutual responsibilities of manufacturers under the MiFID Product Governance Rules:
| (a) | Deutsche Bank AG, London Branch (the “MiFID II Manufacturer”) understands the responsibilities conferred upon it under the MiFID Product Governance Rules relating to each of the product approval process, the target market and the proposed distribution channels as applying to the Designated Securities and the related information set out in the Disclosure Package and any announcements relating to the offering prepared by the Issuer in connection with the Designated Securities; and |
| (b) | Absa Bank Limited, HSBC Bank plc, Nedbank Limited, Rand Merchant Bank, a division of FirstRand Bank Limited (London Branch) and the Issuer note the application of the MiFID Product Governance Rules and acknowledge the target market and distribution channels identified as applying to the Designated Securities by the MiFID II Manufacturer and the related information set out in the Disclosure Package and any announcements relating to the offering prepared by the Issuer in connection with the Designated Securities.” |
Section 25 is added to the Underwriting Agreement: “UK MiFIR Co-Manufacturing Agreement. Solely for the purposes of the requirements of the FCA Handbook Product Intervention and Product Governance Sourcebook (the “UK MiFIR Product Governance Rules”) regarding the mutual responsibilities of manufacturers under the UK MiFIR Product Governance Rules:
| (a) | each of Deutsche Bank AG, London Branch, HSBC Bank plc and Rand Merchant Bank, a division of FirstRand Bank Limited (London Branch) (each a “UK Manufacturer” |
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and together the “UK Manufacturers”) acknowledges to each other UK Manufacturer that it understands the responsibilities conferred upon it under the UK MiFIR Product Governance Rules relating to each of the product approval process, the target market and the proposed distribution channels as applying to the Designated Securities and the related information set out in the Disclosure Package and any announcements relating to the offering prepared by the Issuer in connection with the Designated Securities; and
| (b) | Absa Bank Limited, Nedbank Limited and the Issuer note the application of the UK MiFIR Product Governance Rules and acknowledge the target market and distribution channels identified as applying to the Designated Securities by the UK Manufacturers and the related information set out in the Disclosure Package and any announcements relating to the offering prepared by the Issuer in connection with the Designated Securities.” |
Section 26 is added to the Underwriting Agreement: “Recognition of the U.S. Special Resolution Regimes. (a) In the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Underwriter of this Underwriting Agreement, and any interest and obligation in or under this Underwriting Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Underwriting Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
| (b) | In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Underwriting Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Underwriting Agreement were governed by the laws of the United States or a state of the United States. |
The following definitions apply for purposes of this Section 24:
“BHC Act Affiliate”
has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C.
§ 1841(k).
“Covered Entity” means any of the following:
| (i) | a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); |
| (ii) | a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or |
| (iii) | a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b). |
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.”
The benefit of the representation, warranty and undertaking contained in the clauses under Section 2(o) of the Underwriting Agreement is only sought by Deutsche Bank AG, London Branch to the extent that to do so does not result in a violation of the Council Regulation (EC) no. 2271/96 of 22 November 1996, section 7 of the German Foreign Trade Ordinance (Außenwirtschaftsverordnung – AWV) or any other applicable anti-boycott or similar laws or regulations and is only sought by any Underwriter incorporated or organised under the laws of the United Kingdom to the extent that to do so
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does not result in any violation of the Council Regulation (EC) no. 2271/96 of 22 November 1996 as it forms part of domestic law of the United Kingdom by virtue of the European Union (Withdrawal) Act 2018.
If the foregoing is in accordance with your understanding, please sign and return to us five counterparts hereof, and upon acceptance hereof by you, on behalf of each of the Underwriters, this letter and such acceptance hereof, including the provisions of the Underwriting Agreement incorporated herein by reference, shall constitute a binding agreement between each of the Underwriters and South Africa.
It is understood that your acceptance of this letter on behalf of each of the Underwriters will constitute the Underwriters’ acceptance of the ICMA Agreement Among Managers Version 1/New York Schedule subject to any amendment notified to the Underwriters in writing at any time prior to the execution of this letter. References to the “Managers” shall be deemed to refer to the Underwriters, references to the “Lead Manager” shall be deemed to refer to Absa Bank Limited, Deutsche Bank AG, London Branch, HSBC Bank plc, Nedbank Limited and Rand Merchant Bank, a division of FirstRand Bank Limited (London Branch) and references to “Settlement Lead Manager” shall be deemed to refer to HSBC Bank plc. As applicable to the Underwriters, Clause 3 of the ICMA Agreement Among Managers Version 1/New York Schedule shall be deemed to be deleted in its entirety and replaced with Section 9 of the Underwriting Agreement.
[Signature pages follow]
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Very truly yours,
REPUBLIC OF SOUTH AFRICA
By /s/ Terry Msomi_____________________
Name: Terry Msomi
Title: Director: Debt Issuance and Management, Liability Management
National Treasury of the Republic of South Africa
| [Signature page to Pricing Agreement] |
Accepted as of the date hereof,
ABSA BANK LIMITED
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By /s/ Kumeshen Naidoo Name: Kumeshen Naidoo Title: Authorised |
By /s/ Marcus Veller Name: Marcus Veller Title: Authorised |
Deutsche Bank AG, London Branch
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By /s/ Adit Mathur Name: Adit Mathur Title: Director |
By /s/ Claes Homenius Name: Claes Homenius Title: Managing Director |
HSBC BANK PLC
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By /s/ Paula Popescu Name: Paula Popescu Title: Senior Legal Counsel |
Nedbank Limited
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By /s/ Bruce Stewart Name: Bruce Stewart Title: Authorised Signatory |
By /s/ Allister Lamont-Smith Name: Allister Lamont-Smith Title: Authorised Signatory |
Rand Merchant Bank, a division of FirstRand Bank Limited (London Branch)
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By /s/ Gareth Buchner Name: Gareth Buchner Title: Authorised Signatory |
By /s/ Colin Wakefield Name: Colin Wakefield Title: Authorised Signatory |
| [Signature page to Pricing Agreement] |
EXECUTION VERSION
SCHEDULE I
UNDERWRITING AGREEMENT
Republic of South Africa
Debt Securities
December 13, 2013
To the Representatives of
the Several Underwriters
named in the respective Pricing
Agreements hereinafter described.
Ladies and Gentlemen:
From time to time the Republic of South Africa (“South Africa”) proposes to enter into one or more Pricing Agreements in the form of Annex I hereto, with such additions and deletions as the parties thereto may determine, and, subject to the terms and conditions stated herein and therein, to issue and sell to the firms named in Schedule II to the applicable Pricing Agreement (such firms constituting the “Underwriters” with respect to such Pricing Agreement and the securities specified therein) certain of its debt securities (the “Securities”) specified in Schedule III to such Pricing Agreement (with respect to such Pricing Agreement, the “Designated Securities”).
The terms and rights of any particular issuance of Designated Securities shall be as specified in the Pricing Agreement relating thereto and in or pursuant to the Fiscal Agency Agreement, dated as of December 13, 2013 (the “Fiscal Agency Agreement”), between, among others, South Africa and Citibank London, N.A., as fiscal agent (the “Fiscal Agent”).
| 1 | Pricing Agreement. Particular sales of Designated Securities may be made from time to time to the Underwriters of such securities, for whom the firms designated as representatives of the Underwriters of such securities in the Pricing Agreement relating thereto will act as representatives (the “Representatives”). The term “Representatives” also refers to a single firm acting as sole representative of the Underwriters and to Underwriters who act without any firm being designated as their representative. This Underwriting Agreement shall not be construed as an obligation of South Africa to sell any of the Securities or as an obligation of any of the Underwriters to purchase the Securities. The obligation of South Africa to issue and sell any of the Securities and the obligation of any of the Underwriters to purchase any of the Securities shall be evidenced by the Pricing Agreement with respect to the Designated Securities specified therein. Each Pricing Agreement shall specify the aggregate principal amount of such Designated Securities, the initial public offering price of such Designated Securities, the purchase price to the Underwriters of such Designated Securities, the names of the Underwriters of such Designated Securities, the names of the Representatives of such Underwriters and the principal amount of such Designated Securities to be purchased by each Underwriter and shall set forth the date, time and manner of delivery of such Designated Securities and payment therefor. The Pricing Agreement shall also specify (to the extent not set forth in the Fiscal Agency Agreement and the registration statement and prospectus with respect thereto) the terms of such Designated Securities. A Pricing Agreement shall be in the form of an executed writing (which may be in counterparts), and may be evidenced by an exchange of telegraphic communications or any other rapid transmission device designed to produce a written record of communications transmitted. The obligations of the Underwriters under this Agreement and each Pricing Agreement shall be several and not joint. |
| 2 | Representations and Warranties of South Africa. South Africa represents and warrants to, and agrees with, each of the Underwriters that: |
| (a) | South Africa meets the requirements for use of Schedule B under the Securities Act of 1933, as amended (the “Act”) and is a “seasoned foreign government” within the meaning of Release no. 33-6424 under the Act related to delayed offerings by foreign governments or political subdivisions thereunder. A registration statement in respect of the Securities has |
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been filed with the Securities and Exchange Commission (the “Commission”); such registration statement and any post-effective amendment thereto, each in the form heretofore delivered or to be delivered to the Representatives and, excluding exhibits to such registration statement, but including all documents incorporated by reference in the prospectus contained therein, to the Representatives for each of the other Underwriters, have been declared effective by the Commission in such form; and no stop order suspending the effectiveness of such registration statement 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 contained in the registration statement at the time such part of the registration statement becomes effective, each as amended at the time such part of the registration statement becomes effective, being hereinafter called the “Registration Statement”; the prospectus relating to the Securities, in the form in which it has most recently been filed, or transmitted for filing, with the Commission on or prior to the date of this Agreement, being hereinafter called the “Base Prospectus”; any preliminary prospectus supplement to the Base Prospectus which is used prior to the filing of the Final Prospectus (defined below), together with the Base Prospectus included in such registration statement or filed with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission under the Act, being hereinafter called a “Preliminary Prospectus”; the final prospectus supplement relating to the Designated Securities that was first filed pursuant to Rule 424(b) after the date this Agreement is executed and delivered by the parties hereto (the “Execution Time”), together with the Base Prospectus, being hereinafter called the “Final Prospectus”; any reference herein to any Registration Statement, Base Prospectus, the Preliminary Prospectus and the Final Prospectus shall be deemed to refer to and include the documents incorporated by reference therein, as of the date of such Base Prospectus, Preliminary Prospectus or Final Prospectus, as the case may be; any reference to any amendment or supplement to any Base Prospectus, Preliminary Prospectus or Final Prospectus shall be deemed to refer to and include any documents filed after the date of such Base Prospectus, Preliminary Prospectus or Final Prospectus, as the case may be, under the Act or the Securities Exchange Act of 1934, as amended (the “Exchange Act”), as applicable, and incorporated by reference in such Base Prospectus, Preliminary Prospectus or Final Prospectus, as the case may be; any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report of South Africa on Form 18-K (including any amendments thereto on Form 18-K/A) filed after the effective date of the Registration Statement that is incorporated by reference in the Registration Statement; and any reference to the Base Prospectus, Preliminary Prospectus or Final Prospectus as amended or supplemented shall be deemed to refer to the Base Prospectus, Preliminary Prospectus or Final Prospectus as amended or supplemented in relation to the applicable Designated Securities in the form in which it is filed with the Commission pursuant to Rule 424(b) under the Act in accordance with Section 5(a) hereof, including any documents incorporated by reference therein as of the date of such filing;
| (b) | The (i) Base Prospectus, as of the applicable effective date of the Registration Statement and any amendment or supplement thereto, (ii) the Preliminary Prospectus, if any, used most recently prior to the Applicable Time (as defined below) and as of the Applicable Time, (iii) the Issuer Free Writing Prospectuses (as hereinafter defined in Section 2(f)), if any, listed on Schedule IV to the applicable Pricing Agreement and as of the Applicable Time, (iv) any other “free writing prospectus” (as defined by Rule 405 under the Act) that the parties hereto shall expressly agree in writing to treat as part of the Disclosure Package ((ii) to (iv) herein being, collectively, the “Disclosure Package”) as of the Applicable Time, and (v) each electronic roadshow or other supplemental issuer information listed on Schedule IV to the applicable Pricing Agreement (the “Supplemental Issuer Information”), when taken together as a whole with the Disclosure Package and as at the Applicable Time, each do 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 the Disclosure Package in reliance upon and in conformity with information furnished in writing to South Africa by or on behalf of any Underwriter of Designated Securities through the Representatives expressly for use therein (“Underwriter Information”); and each Issuer Free Writing Prospectus listed on Schedule IV to such Pricing Agreement (if any) does not conflict with the information contained in the Registration |
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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 specified in the applicable Pricing Agreement;
| (c) | Any documents filed with the Commission and incorporated by reference in the Base Prospectus, Preliminary Prospectus or Final 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, in the light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to any statement or omissions made in reliance upon and in conformity with information furnished in writing to South Africa by or on behalf of an Underwriter of Designated Securities through the Representatives expressly for use in the Disclosure Package or the Final Prospectus relating to such Designated Securities; |
| (e) | Since the respective dates as of which information is given in the Registration Statement, the Base Prospectus, the Preliminary Prospectus and the Final 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 South Africa, otherwise than as set forth in or contemplated by the Disclosure Package and the Final Prospectus (notwithstanding any subsequent amendment or supplement thereto); |
| (g) | (i) At the time of filing the Registration Statement, (ii) at the time of filing the most recent post-effective amendment thereto, if any, (iii) at the earliest time that South Africa 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, South Africa was not and is not an “ineligible issuer” (as defined in Rule 405 under the Securities Act), without taking into account any determination by the Commission pursuant to Rule 405 that it is not necessary that South Africa be considered an “ineligible issuer”; |
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| (h) | The Designated Securities have been duly authorized, and, when Designated Securities are issued and delivered pursuant to this Agreement and the Pricing Agreement with respect to such Designated Securities, such Designated Securities will have been duly executed, authenticated, issued and delivered and will constitute valid and legally binding direct, general and unconditional obligations of South Africa 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 Time of Delivery (as defined in Section 4 below) for such Designated Securities, the Fiscal Agency Agreement will constitute a valid and legally binding, direct and unconditional obligation of South Africa, 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 Designated Securities will conform, to the descriptions thereof contained in the Preliminary and Final Prospectuses as amended or supplemented with respect to such Designated Securities; |
| (i) | All authorizations, approvals or consents of any court, ministry, government department, branch of government, or regulatory body required by South Africa for the execution and delivery of this Agreement and any Pricing Agreement and the Fiscal Agency Agreement and the offer, execution, issue, sale and delivery of the Designated Securities and the performance of the terms of the Designated Securities, this Agreement and any Pricing Agreement and the Fiscal Agency Agreement have been obtained or (as to any Pricing Agreement) will be obtained prior to the execution and delivery of such Pricing Agreement and are or will be in full force and effect; |
| (j) | Other than as set forth or contemplated in the Registration Statement, Base Prospectus, Preliminary Prospectus or Final Prospectus, there are no legal or governmental proceedings pending to which South Africa is a party or of which any of its properties is the subject which, if determined adversely to South Africa, would individually or in the aggregate have a material adverse effect on the transactions herein contemplated or on South Africa’s ability to perform its obligations under the Securities, this Agreement or any Pricing Agreement or the Fiscal Agency Agreement; and, to the best of South Africa’s knowledge, no such proceedings are threatened or contemplated; |
| (k) | Other than as set forth or contemplated in the Registration Statement, Base Prospectus, Preliminary Prospectus or Final Prospectus, South Africa 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 Securities, this Agreement or any Pricing Agreement, nor the consummation of the transactions therein or herein contemplated, nor compliance with the terms and provisions of the Fiscal Agency Agreement, the Securities, this Agreement or any Pricing Agreement, 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 South Africa, (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 debt instrument to which South Africa is a party or of which South Africa 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 South Africa under any such agreement or instrument; |
| (l) | The Securities will constitute direct, unconditional, general and unsecured obligations of South Africa and will rank equally, without any preference among themselves, with all present and future unsecured and unsubordinated general obligations of South Africa for moneys borrowed and guarantees given by it in respect of money borrowed from others. The full faith and credit of South Africa has been pledged for the due and punctual payment of, and the due and timely performance of all of South Africa’s obligations relating to, the Securities; |
| (m) | Other than as set forth in the Disclosure Package and the Final Prospectus, under the laws of South Africa in force as at the Time of Delivery, there is no tax, levy, deduction, charge or |
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withholding imposed by South Africa or any political subdivision thereof either (i) on or by virtue of the execution, delivery or enforcement of the Securities, this Agreement or any Pricing Agreement or the Fiscal Agency Agreement or (ii) on any payment to be made by South Africa hereunder, under any Pricing Agreement, under the Fiscal Agency Agreement or under the Designated Securities;
| (n) | This Agreement and the Fiscal Agency Agreement are, and any Securities and Pricing Agreement will be, in proper legal form under the laws of South Africa for enforcement thereof against South Africa under the laws of South Africa; |
| (o) | To the best of its knowledge, no official, agent, employee, affiliate or person acting on behalf of South Africa (other than the Underwriters and their Representatives, as to whom no representation is made) is currently identified on the "Specially Designated Nationals and Blocked Persons" list maintained by the Office of Foreign Assets Control of the United States Department of the Treasury (“OFAC”) and South Africa is not otherwise subject to any sanctions (collectively, “Sanctions”) administered by OFAC, the U.S. Department of State, Her Majesty's Treasury, the E.U. or the U.N.; and South Africa will not use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any person or entity, for the purpose of financing the activities of any person currently subject to any Sanctions; and |
| (p) | A currency transfer guarantee by the South African Reserve Bank (the “Currency Transfer Guarantee”) has been obtained, constitutes a valid authorization on behalf of South Africa, and is in full force and effect. |
| 3 | Purchase and Sale. Upon the execution of the Pricing Agreement applicable to any Designated Securities and authorization by the Representatives of the release of such Designated Securities, the several Underwriters shall purchase from South Africa and offer for sale such Designated Securities upon the terms and conditions set forth in the Base Prospectus, Preliminary Prospectus or Final Prospectus as amended or supplemented, as the case may be. Each Underwriter with respect to any Designated Securities severally represents and warrants to, and agrees with, South Africa to the effect of the provisions, if any, set forth under “Selling restrictions” in the Pricing Agreement with respect to such Designated Securities. |
| 5 | Agreements. South Africa agrees with each of the Underwriters of any Designated Securities: |
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and during such same period to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Base Prospectus or any amended Base Prospectus has been filed with the Commission, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any prospectus relating to the Securities, of the suspension of the qualification of such Securities for offering or sale in any jurisdiction, 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 or Base Prospectus or for additional information; and, in the event of the issuance of any such stop order or of any such order preventing or suspending the use of any prospectus relating to the Securities or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
| (c) | To (i) not make any offer relating to the applicable Designated Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Act) required to be filed by South Africa with the Commission under Rule 433 under the Act unless the Representatives approve its use in writing prior to first use (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) listed on Schedule IV to the applicable Pricing Agreement, (ii) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, (iii) comply with the requirements of Rules 164 and 433 under the Act applicable to any Issuer Free Writing Prospectus, including the requirements relating to concurrent or prior delivery of a prospectus, timely filing with the Commission, legending and record keeping and (iv) not take any action that would result in an Underwriter or the Issuer being required to file with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of such Underwriter that the Underwriter otherwise would not have been required to file thereunder; |
| (d) | To file the applicable Pricing Agreement, the form of which is attached as Annex I hereto, as an Issuer Free Writing Prospectus pursuant to Rule 433 under the Act prior to 5:30 p.m. (New York time) two business days after the execution of any such Pricing Agreement; |
| (e) | If any part of the Disclosure Package is being used to solicit offers to buy the Designated Securities at a time when the Preliminary Prospectus is not yet available to prospective purchasers and any event shall occur as a result of which, in the opinion of internal or external counsel to the Underwriters or South Africa, it becomes necessary to amend or supplement the Disclosure Package in order to make the statements therein, in the light of the circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the Disclosure Package to comply with the Act, the Exchange Act or the rules and regulations of the Commission, promptly either (i) prepare and file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to the Disclosure Package or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the Disclosure Package so that in the case of either (i) or (ii) above the Disclosure Package as so amended or supplemented will not, in the light of the circumstances, be misleading or conflict with the Registration Statement then on file, or so that the Disclosure Package will comply with the Act, the Exchange Act and/or the rules and regulations of the Commission; |
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| (f) | To furnish the Underwriters with copies of the Preliminary Prospectus and Final Prospectus, as amended or supplemented, in such quantities as the Representatives may from time to time reasonably request, and, if the delivery of a prospectus is required at any time in connection with the offering or sale of the Securities and if at such time any event shall have occurred as a result of which the Preliminary Prospectus or Final Prospectus 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 Preliminary Prospectus or Final Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary during such same period to amend or supplement the Base Prospectus, Preliminary Prospectus or Final Prospectus or to file under the Act or the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Act or the Exchange Act, to notify the Representatives and upon their request to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of such amended prospectus or a supplement to such prospectus which will correct such statement or omission or effect such compliance; |
| (g) | To make generally available to its security holders in the United States and to the Representatives as soon as practicable, but in any event not later than twenty-four months after the effective date of the Registration Statement, a statement in the English language of revenues and expenditures of South Africa (which need not be audited) covering the first full fiscal year of South Africa commencing after the date hereof that will satisfy Section 11(a) of the Act and the rules and regulations of the Commission thereunder; |
| (h) | During the period beginning from the date of the Pricing Agreement for such Designated Securities and continuing to and including the later of (i) the termination of trading restrictions for such Designated Securities, as notified to South Africa by the Representatives and (ii) the Time of Delivery for such Designated Securities, not to offer, sell, contract to sell or otherwise dispose outside of South Africa of any debt securities of South Africa with a maturity of one year or more and which are substantially similar to such Designated Securities, without the prior written consent of the Representatives; |
| (i) | So long as any Securities are outstanding and unless otherwise publicly available, to furnish to the Representatives, upon request, as soon as practicable after the determination thereof, copies of all reports and financial statements (in each case which need not be audited) filed with the Commission or any securities exchange on which Designated Securities are listed; |
| (j) | So long as any Securities are outstanding, to obtain and maintain in full force and effect all governmental approvals (including but not limited to the Currency Transfer Guarantee) which may be necessary under the laws of South Africa for the performance of South Africa’s obligations under the Securities or for the validity or enforceability thereof or hereof and duly take all necessary and appropriate governmental and administrative action in South Africa in order to permit all payments to be made under the Securities in accordance with their terms; and |
| (k) | To apply for listing of the Designated Securities on each securities exchange, if any, listed in the Pricing Agreement with respect to such Designated Securities, and to use its reasonable best efforts to cause each such listing to be approved and, if required in connection with any such listing, to register such Designated Securities under the Exchange Act as soon as practicable after the applicable Time of Delivery. |
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other documents in connection with the offering, purchase, sale and delivery of the Securities; (iii) all expenses in connection with the qualification of the Securities for offering and sale under State securities laws as provided in Section 5(b) hereof, including the fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection with the Blue Sky and legal investment surveys; (iv) any fees charged by securities rating services for rating the Securities; (v) any filing fees incident to any required review by the Financial Industry Regulatory Authority (“FINRA”) of the terms of the sale of the Securities; (vi) the cost of preparing the Securities; (vii) the fees and expenses of the Fiscal Agent and any agent of the Fiscal Agent and the fees and disbursements of counsel for the Fiscal Agent in connection with the Fiscal Agency Agreement and the Securities; (viii) the fees and expenses of counsel to South Africa; (ix) any fees and expenses in connection with any listing of the Securities; and (x) all other costs and expenses incident to the performance of its obligations hereunder which are not otherwise specifically provided for in this Section. To the extent provided in any Pricing Agreement, South Africa also agrees to pay such sum as may be therein provided in partial reimbursement of the Representatives’ expenses and to reimburse the Underwriters for any intra-day interest cost incurred by the Underwriters at the Time of Delivery under such Pricing Agreement in connection with the purchase of the applicable Designated Securities. It is understood, however, that, except as provided in this Section, Section 8 and Section 11 hereof, the Underwriters will pay all of their own costs and expenses, including the fees and expenses of their counsel, the transfer taxes on resale of any of the Securities by them, and any advertising expenses connected with any offers they may make.
| 7 | Conditions. The obligations of the Underwriters of any Designated Securities under the Pricing Agreement relating to such Designated Securities shall be subject, in the discretion of the Representatives, to the condition that all representations and warranties and other statements of South Africa in or incorporated by reference in the Pricing Agreement relating to such Designated Securities are, at and as of the Time of Delivery for such Designated Securities, true and correct, the condition that South Africa shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions: |
| (a) | The Preliminary Prospectus as amended or supplemented in relation to the applicable Designated Securities shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the Representatives’ reasonable satisfaction; |
| (c) | South African counsel for the Underwriters and the Chief State Law Adviser of the Republic of South Africa shall have furnished to the Representatives their written opinions, dated the Time of Delivery for such Designated Securities, in form and substance satisfactory to the Representatives, to the effect that: |
| (i) | This Agreement and the Pricing Agreement with respect to the Designated Securities have been duly authorized, executed and delivered by South Africa and, assuming that this Agreement and such Pricing Agreement constitute valid and legally binding agreements under New York law, this Agreement and such Pricing Agreement constitute valid and legally binding agreements of South Africa; |
| (ii) | The Designated Securities have been duly authorized and executed in accordance with the laws of the Republic of South Africa and, assuming due authentication by |
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the Fiscal Agent, have been duly and validly issued and delivered and constitute the valid, legally binding, direct, unconditional and general obligations of South Africa enforceable in accordance with their terms and entitled to the benefits of the Fiscal Agency Agreement, subject, as to enforcement, to laws of general applicability relating to or affecting creditors’ rights and to general equity principles; the Designated Securities constitute direct, unconditional, general and unsecured obligations of South Africa and rank equally, without any preference among themselves, with all present and future unsecured and unsubordinated general obligations of South Africa for moneys borrowed and guarantees given by it in respect of money borrowed from others; and the full faith and credit of South Africa has been pledged for the due and punctual payment of, and the due and timely performance of all of South Africa’s obligations relating to, the Designated Securities;
| (iii) | The Fiscal Agency Agreement has been duly authorized, executed and delivered by South Africa and, assuming due authorization, execution and delivery thereof by the Fiscal Agent, will constitute a valid and legally binding, direct and unconditional obligation of South Africa, enforceable in accordance with its terms, subject, as to enforcement, to laws of general applicability relating to or affecting creditors’ rights and to general equity principles; |
| (iv) | The Currency Transfer Guarantee has been obtained, constitutes a valid authorization on behalf of South Africa and is in full force and effect; |
| (v) | Neither the execution and delivery of the Fiscal Agency Agreement, the Designated Securities, this Agreement or the Pricing Agreement with respect to the Designated Securities, nor the consummation of the transactions therein or herein contemplated nor compliance with all the terms and provisions thereof or hereof, including performance of each of the obligations contained in the Designated Securities (A) will conflict with, violate or result in a breach of the Constitution of South Africa or any law or administrative regulation of or applicable to South Africa, (B) will conflict with or result in a breach of any of the terms, conditions or provisions of any treaty, convention, material agreement or material instrument (including but not limited to any of the Debt Arrangements) to which South Africa is a party or by which South Africa is bound or constitute a default thereunder or (C) will result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the revenues or assets of South Africa under any such agreement or instrument; |
| (vi) | The Registration Statement, the Base Prospectus, the Preliminary Prospectus and the Final Prospectus as amended or supplemented and any other documents incorporated by reference in such prospectus as amended or supplemented and their filing with the Commission have been duly authorized by and on behalf of South Africa, and the Registration Statement has been duly executed by and on behalf of South Africa; the information in the Registration Statement, the Base Prospectus, the Preliminary Prospectus and the Final Prospectus as amended or supplemented and any other documents incorporated by reference in such prospectus as amended or supplemented stated on the authority of public officials of South Africa has been stated in their official capacities thereunto duly authorized by South Africa; all statements with respect to or involving matters of South African law set forth in the Registration Statement, the Base Prospectus, the Preliminary Prospectus and the Final Prospectus as amended or supplemented and any other document incorporated by reference in such prospectus as amended or supplemented are true and correct in all material respects; and such counsel has no reason to believe that (A) as of its effective date, the Registration Statement or any further amendment thereto made by South Africa prior to the applicable Time of Delivery contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (B) as of its respective date, the Preliminary Prospectus and the Final Prospectus, each as amended or supplemented and any other documents incorporated by reference in such prospectuses as amended |
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or supplemented or any further amendment or supplement thereto made by South Africa prior to the applicable Time of Delivery, contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in the light of the circumstances in which they were made, not misleading; (C) as of the applicable Time of Delivery, none of the Registration Statement or the Final Prospectus as amended or supplemented or any document incorporated by reference in the Final Prospectus as amended or supplemented or any further amendment or supplement thereto made by South Africa prior to the applicable Time of Delivery contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in the light of the circumstances in which they were made, not misleading; or (D) as of the Applicable Time, the Disclosure Package contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in the light of the circumstances in which they were made, not misleading (such statement need not express any opinion or belief as to the statistical, accounting or financial data contained in the Registration Statement or the Prospectus as amended or supplemented or any other documents incorporated by reference in the Prospectus as amended or supplemented);
| (vii) | All authorizations, approvals and consents (which shall be specified in such opinion and certified copies of which shall be furnished to U.S. counsel for the Underwriters) of any court, ministry, government department, branch of government or other regulatory body required for South Africa for the execution and delivery of this Agreement and the Pricing Agreement with respect to the Designated Securities and the Fiscal Agency Agreement, and for the execution, issuance, sale and delivery of the Designated Securities hereunder and thereunder and the performance of the terms of the Designated Securities, this Agreement, the Pricing Agreement with respect to such Designated Securities and the Fiscal Agency Agreement have been obtained and are in full force and effect; |
| (viii) | Under the laws of South Africa, South Africa would not be entitled to plead, or cause to be pleaded on its behalf, immunity from the jurisdiction of the South African courts in respect of any action arising out of or relating to its obligations under this Agreement or the Pricing Agreement with respect to the Designated Securities, the Fiscal Agency Agreement or the Designated Securities, and such courts would have jurisdiction in respect of such actions; and under the laws of South Africa, except to the extent described in such opinion, neither South Africa 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); |
| (ix) | The choice of New York law in this Agreement and the Pricing Agreement with respect to the Designated Securities, the Fiscal Agency Agreement and the Designated Securities is a valid choice of law under the laws of South Africa and, accordingly, would be applied by the courts of South Africa if this Agreement or such Pricing Agreement, the Fiscal Agency Agreement or any of the Designated Securities or any claim made thereunder is brought before any such court upon proof of the relevant provisions of New York law and provided that such provisions are not contrary to the public policy of South Africa; no provision in this Agreement or such Pricing Agreement, the Fiscal Agency Agreement or the Designated Securities conflicts with the public policy of South Africa; the irrevocable submission of South Africa pursuant to Section 17 hereof, Section 12 of the Fiscal Agency Agreement and the terms and conditions of the Securities to the jurisdiction of any State or Federal court in The City of New York and the waiver by South Africa of any objection to the venue of a proceeding in any such court are legal, valid and binding; the waiver by South Africa pursuant to Section 17 hereof, Section 12 of the Fiscal Agency Agreement and the terms and conditions of the Securities of any immunity to jurisdiction to which it may otherwise be entitled (including sovereign immunity) or to any right to which it may be entitled based upon place of residence or domicile, is legal, valid and binding; service of process effected in the manner set forth in Section 17 hereof, Section 13 of the Fiscal Agency Agreement and the terms and conditions |
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of the Securities, assuming its validity under New York law, will be effective, insofar as South African law is concerned, to confer valid personal jurisdiction over South Africa; any judgment obtained in a New York State or Federal court sitting in The City of New York arising out of or in relation to the obligations of South Africa under this Agreement or the Pricing Agreement with respect to the Designated Securities would be enforceable against South Africa in the courts of South Africa, provided that such judgment is not in conflict with public policy in South Africa;
| (x) | To ensure the legality, validity, enforceability or admissibility in evidence of this Agreement or the Pricing Agreement with respect to the Designated Securities, the Fiscal Agency Agreement or the Designated Securities, it is not necessary that this Agreement or such Pricing Agreement, the Fiscal Agency Agreement or the Designated Securities or any other document be filed, registered or recorded with, or executed or notarized before, any court or other authority in South Africa, or that any registration charge or stamp or similar tax be paid on or in respect of this Agreement or such Pricing Agreement, the Fiscal Agency Agreement or the Designated Securities; |
| (xi) | There is no tax, levy, deduction, charge or withholding imposed by South Africa or any political subdivision thereof either (A) on or by virtue of the execution, delivery or enforcement of the Designated Securities, this Agreement, the Pricing Agreement with respect to the Designated Securities or the Fiscal Agency Agreement or (B) on any payment to be made by South Africa hereunder or under the Designated Securities; |
| (xii) | This Agreement, the Pricing Agreement with respect to the Designated Securities, the Fiscal Agency Agreement and the Designated Securities are in proper legal form under the laws of South Africa for the enforcement thereof against South Africa under the laws of South Africa; and |
| (xiii) | The statements in the Base Prospectus, Preliminary Prospectus and Final Prospectus as amended or supplemented, as the case may be, under the caption “Description of Debt Securities — South African Taxation” fairly summarize the provisions of South African tax law therein described. |
Such counsel may rely as to all matters of New York and United States federal law upon the opinion or opinions referred to under subsection (b) above;
| (d) | South Africa shall have furnished to the Representatives a certificate in English, dated the Time of Delivery for the Designated Securities, of the Minister of Finance of the Republic of South Africa or a Director-General of the Department of Finance of the Republic of South Africa, in which such official shall state that, to the best of his knowledge after reasonable investigation: (i) the representations and warranties of South Africa in this Agreement are true and correct with the same effect as though such representations and warranties had been made at and as of such Time of Delivery, (ii) South Africa has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to such Time of Delivery, (iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission, (iv) no proceeding has been initiated or threatened to restrain or enjoin the issuance or delivery of the Designated Securities by South Africa or in any manner to question the laws, proceedings, directives, resolutions, approvals, consents or orders under which the Designated Securities have been issued or to question the validity of the Designated Securities and none of said laws, proceedings, directives, resolutions, approvals, consents or orders have been repealed, revoked or rescinded in whole or in part, (v) the Currency Transfer Guarantee is in full force and effect, and (vi) since the respective dates as of which information is given in the Disclosure Package, there has been no material adverse change, nor any development involving a prospective material adverse change, in or affecting the condition, financial, economic, political or other, of South Africa, except as set forth in or contemplated by the Disclosure Package; |
| SCH I - 11 |
| (e) | Since the respective dates as of which information is given in the Disclosure Package there shall not have been any change, or any development involving a prospective material adverse change, in or affecting the condition, financial, economic, political or other, of South Africa, otherwise than as set forth in or contemplated by the Disclosure Package, the effect of which, in any such case, is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Designated Securities on the terms and in the manner contemplated by the Disclosure Package; |
| (f) | On or after the date of the Pricing Agreement relating to the Designated Securities (i) no downgrading shall have occurred in the rating accorded South Africa’s debt securities by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of South Africa’s debt securities; |
| (g) | On or after the date of the Pricing Agreement relating to the Designated Securities there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on or by the New York Stock Exchange; (ii) trading of any securities of South Africa shall have been formally suspended on any exchange or in any over-the-counter market; (iii) a general moratorium on commercial banking activities in New York or South Africa declared by either United States or New York State authorities or authorities of South Africa, respectively; or (iv) the outbreak or escalation of hostilities involving the United States or South Africa or the declaration by the United States or South Africa of a national emergency or war, if the effect of any such event specified in this clause (iv) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Designated Securities on the terms and in the manner contemplated by the Preliminary Prospectus as amended or supplemented; |
| (h) | Each securities exchange (if any) listed in such Pricing Agreement shall have approved such Designated Securities for listing; and |
| (i) | South Africa shall have furnished to the Representatives such further information, certificates and documents as they may reasonably request. |
| 8 | Indemnification and Contribution. |
| (a) | South Africa agrees to indemnify and hold harmless each Underwriter against any losses, claims, damages or liabilities, joint or several, to which such Underwriter 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 Registration Statement, the Base Prospectus, any Preliminary Prospectus, any Final Prospectus, and any other prospectus relating to the Securities, or any amendment or supplement to any of the foregoing, the applicable Pricing Agreement or any Issuer Free Writing Prospectus or any “issuer information” (as defined by Rule 433(h)(2) under the Act) filed or required to be filed pursuant to Rule 433(d) under the Act, 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 Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that South Africa 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 alleged omission made therein in reliance upon and in conformity with any Underwriter Information. |
| SCH I - 12 |
any Final Prospectus, and any other prospectus relating to the Securities, or any amendment or supplement to any of the foregoing, 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 any Underwriter Information; and will reimburse South Africa for any legal or other expenses reasonably incurred by South Africa in connection with investigating or defending any such action or claim as such expenses are incurred.
| (e) | If the indemnification provided for in this Section 8 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 |
| SCH I - 13 |
proportion as is appropriate to reflect the relative benefits received by South Africa on the one hand and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities to which such loss, claim, damage or liability (or action in respect thereof) relates. 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 South Africa on the one hand and the Underwriters of the Designated Securities on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by South Africa on the one hand and such Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from such offering (before deducting expenses) received by South Africa bear to the total underwriting discounts and commissions received by such Underwriters. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by South Africa on the one hand or such Underwriters on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. South Africa and the Underwriters 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 Underwriters 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. Notwithstanding the provisions of this subsection (e), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated 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 been required to pay by reason of such 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 obligations of the Underwriters of Designated Securities in this subsection (e) to contribute are several in proportion to their respective underwriting obligations with respect to such Securities and not joint.
| (f) | The obligations of South Africa under this Section 8 shall be in addition to any liability which South Africa may otherwise have and shall extend, upon the same terms and conditions, to each person, if any, who controls any Underwriter within the meaning of the Act; and the obligations of the Underwriters under this Section 8 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each person who has signed the Registration Statement or any post-effective amendment thereto. |
| 9 | Underwriter Default. |
| (a) | If any Underwriter shall default in its obligation to purchase the Designated Securities which it has agreed to purchase under the Pricing Agreement relating to such Designated Securities, the Representatives may in their discretion arrange for themselves or another party or other parties to purchase such Designated Securities on the terms contained herein. If within thirty-six hours after such default by any Underwriter the Representatives do not arrange for the purchase of such Designated Securities, then South Africa shall be entitled to a further period of thirty-six hours within which to procure another party or other parties satisfactory to the Representatives to purchase such Designated Securities on such terms. In the event that, within the respective prescribed period, the Representatives notify South Africa that they have so arranged for the purchase of such Designated Securities, or South Africa notifies the Representatives that it has so arranged for the purchase of such Designated Securities, the Representatives or South Africa shall have the right to postpone the Time of Delivery for such |
| SCH I - 14 |
Designated Securities for a period of not more than seven days, in order to effect whatever changes may thereby be made necessary in the Registration Statement or the Final Prospectus as amended or supplemented, or in any other documents or arrangements, and South Africa agrees to file promptly any amendments or supplements to the Registration Statement or the Final Prospectus which in the opinion of the Representatives may thereby be made necessary. The term “Underwriter” as used in this Agreement shall include any person substituted under this Section with like effect as if such person had originally been a party to the Pricing Agreement with respect to such Designated Securities.
| (c) | If, after giving effect to any arrangements for the purchase of the Designated Securities of a defaulting Underwriter or Underwriters by the Representatives and South Africa as provided in subsection (a) above, the aggregate principal amount of Designated Securities which remains unpurchased exceeds one-eleventh of the aggregate principal amount of the Designated Securities, as referred to in subsection (b) above, or if South Africa shall not exercise the right described in subsection (b) above to require non-defaulting Underwriters to purchase Designated Securities of a defaulting Underwriter or Underwriters, then the Pricing Agreement relating to such Designated Securities shall thereupon terminate, without liability on the part of any non-defaulting Underwriter or South Africa, except for the expenses to be borne by South Africa and the Underwriters as provided in Section 6 hereof and the indemnity and contribution agreements in Section 8 hereof; but nothing herein shall relieve a defaulting Underwriter from liability for its default. |
| 12 | Free Writing Prospectuses. |
| (a) | (i) | South Africa and each Underwriter agree that the Underwriters may prepare and use one or more preliminary or final term sheets relating to the Securities containing customary information; |
| SCH I - 15 |
| (ii) | South Africa represents and agrees that it has not made and will not make any offer relating to the Designated Securities that would constitute an Issuer Free Writing Prospectus without the prior consent of the Representatives and that each Pricing Agreement will contain a complete list of any Issuer Free Writing Prospectuses for which South Africa has received such consent; and |
| (iii) | Each Underwriter represents and agrees that (A) except for any “free writing prospectus” (as defined by Rule 405 under the Act) containing customary information and prepared by the Underwriters for use by the Underwriters on Bloomberg screens or similar communications and which is not (x) an Issuer Free Writing Prospectus or (y) a free writing prospectus containing “issuer information” (as defined by Rule 433(h)(2) under the Act), it has not made and will not make any offer relating to the Securities that would constitute a free writing prospectus without the prior consent of South Africa, which consent shall not be unreasonably withheld and (B) that each Pricing Agreement will contain a complete list of any free writing prospectuses for which the Underwriters have received such consent; |
| (b) | South Africa 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, retention where required and legending; and |
| (c) | South Africa 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 would conflict with the information in the Registration Statement, the Base Prospectus, the Preliminary Prospectus, or the Final Prospectus 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, South Africa will give prompt notice thereof to the Representatives and, if requested by the Representatives, will prepare and furnish without charge to each Underwriter 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 any Underwriter Information. |
All statements, requests, notices and agreements hereunder shall be in writing, and if to the Underwriters shall be delivered or sent by mail or facsimile transmission to the address of the Representatives as set forth in the Pricing Agreement; and if to South Africa shall be delivered or sent by mail, facsimile transmission or telex to Director-General: National Treasury, Foreign Debt Management, Private Bag X115, Pretoria 0001, Fax No. +2712 315 5314; provided, however, that any notice to an Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by mail or facsimile transmission to such Underwriter at its address set forth in the respective Pricing Agreement, which address will be supplied to South Africa by the Representatives upon request. Any such statements, requests, notices or agreements shall take effect upon receipt thereof.
| 14 | Successors. This Agreement and each Pricing Agreement shall be binding upon, and inure solely to the benefit of, the Underwriters, South Africa and, to the extent provided in Section 8 and Section 10 hereof, each person who controls any Underwriter and any person who signed the Registration Statement or any post-effective amendment thereto, and their respective heirs, executors, administrators, successors and assigns, and no other person shall acquire or have any right under or by virtue of this Agreement or any such Pricing Agreement. No purchaser of any of the Securities from any Underwriter shall be deemed a successor or assign by reason merely of such purchase. |
| SCH I - 16 |
other, (ii) the Underwriters are acting as principal and not as an agent or fiduciary of South Africa and (iii) South Africa’s engagement of the Underwriters in connection with the offering and the process leading up to the offering is as independent contractors and not in any other capacity. Furthermore, South Africa agrees that it is solely responsible for making its own judgments in connection with the offering (irrespective of whether any of the Underwriters has advised or is currently advising South Africa on related or other matters). South Africa agrees that it will not claim that the Underwriters have rendered advisory services of any nature or respect, or owe an agency, fiduciary or similar duty to South Africa, in connection with such transaction or the process leading thereto.
| 16 | Currency. The obligation of the parties to make payments hereunder is in U.S. dollars (the “Obligation Currency”) and such obligation shall not be discharged or satisfied by any tender or recovery pursuant to any judgment expressed in any currency other than the Obligation Currency or any other realization in such other currency, whether as proceeds of set-off, security, guarantee, distributions, or otherwise, except to the extent to which such tender, recovery or realization shall result in the receipt by the party which is to receive such payment of the full amount of the Obligation Currency expressed to be payable hereunder. The party liable to make such payment agrees to indemnify the party which is to receive such payment for the amount (if any) by which such receipt shall exceed the full amount of the Obligation Currency, and, in each case, such obligation shall not be affected by judgment being obtained for any other sums due under this Agreement. The parties agree that the rate of exchange which shall be used to determine if such tender, recovery or realization shall result in the receipt by the party which is to receive such payment of the full amount of the Obligation Currency expressed to be payable hereunder shall be the noon buying rate in New York City for cable transfers in such foreign currency as certified for customs purposes by the Federal Reserve Bank of New York for the business day preceding that on which the judgment becomes a final judgment or, if such noon buying rate is not available, the rate of exchange shall be the rate at which in accordance with normal banking procedures the Underwriters could purchase United States dollars with such foreign currency on the business day preceding that on which the judgment becomes a final judgment. |
| 17 | Agent. South Africa hereby appoints the Ambassador of the Republic of South Africa, Embassy of the Republic of South Africa, 3051 Massachusetts Avenue, N.W., Washington, D.C. 20008 as its authorized agent (the “Authorized Agent”) upon whom process may be served in any action arising out of or based upon this Agreement or the Pricing Agreement with respect to any Designated Securities which may be instituted in any State or Federal court in The City of New York by any Underwriter or by any persons controlling such Underwriter, and South Africa hereby irrevocably submits to the jurisdiction of any such court in respect of any such action. South Africa hereby irrevocably waives any immunity to service of process and any objection to venue in respect of any such action to which it might otherwise be entitled in any action arising out of or based on this Agreement or such Pricing Agreement which may be instituted by any Underwriter or by any persons controlling such Underwriter in any such court or in any competent court in South Africa, and South Africa waives any right to which it may be entitled on account of residence or domicile. Such appointment shall be irrevocable until all amounts in respect of the principal of (and premium, if any) and any interest due and to become due on or in respect of all the Securities have been provided to the Fiscal Agent pursuant to the terms of the Fiscal Agency Agreement and either paid or returned to South Africa as provided in the Fiscal Agency Agreement, except that, if for any reason, the Ambassador ceases to be able to act as Authorized Agent or ceases to have an address in the United States, South Africa will appoint another person in Washington, D.C., or The City of New York, selected in its discretion, as such Authorized Agent. Prior to the Time of Delivery for such Designated Securities, South Africa shall obtain the acceptance of the Ambassador to his or her appointment as such Authorized Agent, a copy of which acceptance it shall provide to you. South Africa shall take any and all action, including the filing of any and all documents and instruments, that may be necessary to continue such appointment or appointments in full force and effect as aforesaid. Service of process upon the Authorized Agent at the address indicated above, as such address may be changed within Washington, D.C., or The City of New York by notice given by the Authorized Agent to each party hereto, shall be deemed, in every respect, effective service of process upon South Africa. Notwithstanding the foregoing, any action arising out of or based on the Securities may be instituted by any Underwriter or any persons controlling such Underwriter in any competent court in South Africa. South Africa hereby irrevocably waives any immunity from jurisdiction (including sovereign immunity but not any immunity from execution or attachment or process in the nature thereof) to which it might otherwise be entitled in any action arising out of or based on this Agreement or such Pricing |
| SCH I - 17 |
Agreement which may be instituted by any Underwriter or any persons controlling such Underwriter in any State or Federal court in The City of New York or in any competent court in South Africa.
| 18 | Time of the Essence. Time shall be of the essence of each Pricing Agreement. As used herein, “business day” shall mean any day when the Commission’s office in Washington, D.C. is open for business. |
| 19 | Governing Law. This Agreement and each Pricing Agreement shall be governed by and construed in accordance with the laws of the State of New York. |
| 20 | Counterparts. This Agreement and each Pricing Agreement may be executed by any one or more of the parties hereto and thereto in any number of original or facsimile counterparts, each of which shall be deemed to be an original, but all such respective counterparts shall together constitute one and the same instrument. |
| 21 | Headings. The section headings used herein are for convenience only and shall not affect the construction hereof. |
[Remainder of page intentionally left blank; signature page follows]
| SCH I - 18 |
Very truly yours,
REPUBLIC OF SOUTH AFRICA
By: /s/ Monale Ratsoma
Name: Monale Ratsoma
Title: Chief Director: Liability Management
National Treasury
Republic of South Africa
| SCH I - 19 |
Pricing Agreement
[Names of Representatives]
As Representatives of the several
Underwriters named in Schedule II hereto,
c/o [Representative]
[DATE]
Ladies and Gentlemen:
The Republic of South Africa (“South Africa”) proposes, subject to the terms and conditions stated herein and in the Underwriting Agreement, dated December 13, 2013 (the “Underwriting Agreement”), a copy of which is attached hereto as Schedule I, to issue and sell to the Underwriters named in Schedule II hereto (the “Underwriters”) the Securities specified in Schedule III hereto (the “Designated Securities”).
Except as set forth herein, each of the provisions of the Underwriting Agreement is incorporated herein by reference in its entirety, and shall be deemed to be a part of this Agreement to the same extent as if such provisions had been set forth in full herein; and each of the representations and warranties set forth therein shall be deemed to have been made at and as of the date of this Pricing Agreement, except that each representation and warranty which refers to the Base Prospectus, Preliminary Prospectus and Final Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be a representation or warranty as of the date of the Underwriting Agreement in relation to the Base Prospectus, Preliminary Prospectus and Final Prospectus (as therein defined), and also a representation and warranty as of the date of this Pricing Agreement in relation to the Base Prospectus, Preliminary Prospectus and Final Prospectus as amended or supplemented relating to the Designated Securities which are the subject of this Pricing Agreement.
Each reference to the [Representatives][Underwriters][delete Representatives if only using Underwriters] herein and in the provisions of the Underwriting Agreement so incorporated by reference shall be deemed to refer to you.
Unless otherwise defined herein, terms defined in the Underwriting Agreement are used herein as therein defined. [The Representatives designated to act on behalf of the Representatives and on behalf of each of the Underwriters of the Designated Securities pursuant to Section 13 of the Underwriting Agreement and the address of the Representatives referred to in such Section 13 are set forth at the end of Schedule III hereto.][delete if not using Representatives] An amendment to the Registration Statement, or a supplement to the Base Prospectus, Preliminary Prospectus and Final Prospectus, as the case may be, relating to the Designated Securities, in the form heretofore delivered to you is now proposed to be filed with the Commission.
Subject to the terms and conditions set forth herein and in the Underwriting Agreement incorporated herein by reference, South Africa agrees to issue and sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from South Africa, at the offices of U.S. counsel to the Underwriters set forth in Schedule V on [insert settlement date] or such other time and place as may be agreed by South Africa and the Representatives (such time and date being the “Time of Delivery” for purposes of the Underwriting Agreement) and at the purchase price to the Underwriters set forth in Schedule III hereto, the principal amount of Designated Securities set forth opposite the name of such Underwriter in Schedule II hereto.
Set forth in Schedule IV hereto is a complete list of Issuer Free Writing Prospectuses used in connection with offers relating to the Designated Securities.
Set forth in Schedule V hereto are the addresses of the Underwriters for notices pursuant to this Pricing Agreement and the Underwriting Agreement.
The term “Applicable Time,” as used in the Underwriting Agreement, shall mean [l] [a.m.][p.m.] [New York City] time on the date of this Pricing Agreement.
| SCH I - 20 |
Each reference to U.S. counsel to the Underwriters shall mean [l].
Each reference to South African counsel to the Underwriters shall mean [l and l].
[The provisions of the Underwriting Agreement incorporated herein by reference are hereby amended as follows: [insert if applicable]
1. [[l]]
2. [[l]]]
If the foregoing is in accordance with your understanding, please sign and return to us [l] counterparts hereof, and upon acceptance hereof by you, on behalf of each of the Underwriters, this letter and such acceptance hereof, including the provisions of the Underwriting Agreement incorporated herein by reference, shall constitute a binding agreement between each of the Underwriters and South Africa. It is understood that your acceptance of this letter on behalf of each of the Underwriters is or will be pursuant to the authority set forth in a form of Agreement among Underwriters, the form of which shall be submitted to South Africa for examination upon request, but without warranty on the part of the Representatives as to the authority of the signers thereof.
[Remainder of page intentionally left blank; signature page follows]
| SCH I - 21 |
Very truly yours,
REPUBLIC OF SOUTH AFRICA
By:_______________________________
Name:
Title:
Accepted as of the date hereof:
[Names of Representatives]
On behalf of each of the Underwriters
By:_______________________________
Name:
Title:
| SCH I - 22 |
[Insert Underwriting Agreement]
| SCH I - 23 |
Schedule II
|
Underwriter(s) |
Principal Amount of Designated Securities to be Purchased |
| [Names of Underwriters] | $ |
| Total |
$ |
| SCH I - 24 |
[Insert pricing term sheet]
| SCH I - 25 |
Schedule IV
Issuer Free Writing Prospectuses
[List to be inserted]
| SCH I - 26 |
Additional Information
Names and addresses of underwriters
[to be inserted]
Closing location
[to be inserted]
| SCH I - 27 |
|
Designated Securities | ||
|
Underwriters |
Principal Amount of 2032 Notes to be Purchased |
Principal Amount of 2052 Notes to be Purchased |
| Absa Bank Limited | US$233,333,000 | US$266,667,000 |
| Deutsche Bank AG, London Branch | US$233,333,000 | US$266,667,000 |
| HSBC Bank plc | US$233,334,000 | US$266,666,000 |
| Nedbank Limited | US$233,333,000 | US$266,667,000 |
| Rand Merchant Bank, a division of FirstRand Bank Limited (London Branch) |
US$466,667,000 |
US$533,333,000 |
| Total |
US$1,400,000,000 |
US$1,600,000,000 |
| SCH II |
SCHEDULE III-A
Filed pursuant to Rule 433
April 11, 2022
Relating to Preliminary Prospectus
Supplement dated April 11, 2022 to
Registration Statement No. 333-237299
REPUBLIC OF SOUTH AFRICA
U.S.$1,400,000,000
5.875% Notes due 2032 (the “2032 Notes”)
U.S.$1,600,000,000 7.300% Notes due 2052 (the “2052 Notes”)
Pricing Term Sheet
| Issuer: | Republic of South Africa |
| Securities: |
2032 Notes: U.S.$1,400,000,000 5.875% Notes due 2032 2052 Notes: U.S.$1,600,000,000 7.300% Notes due 2052 |
| Principal Amount: |
2032 Notes: U.S.$1,400,000,000 2052 Notes: U.S.$1,600,000,000 |
| Maturity Date: |
2032 Notes: April 20, 2032 2052 Notes: April 20, 2052 |
| Coupon: |
2032 Notes: 5.875% per annum (payable semi-annually in arrear) 2052 Notes: 7.300% per annum (payable semi-annually in arrear) |
| Ranking: | Senior unsecured |
| Settlement Date:* | April 20, 2022 (T+5) |
| Offering Format: | SEC-registered |
| Interest Payment Dates: | April 20 and October 20 in each year, beginning October 20, 2022 |
| Benchmark Treasury: |
2032 Notes: UST 1.875% due February 15, 2032 2052 Notes: UST 1.875% due November 15, 2051 |
| Benchmark Treasury Yield: |
2032 Notes: 2.784% 2052 Notes: 2.826% |
| Re-offer Spread over Benchmark Treasury: |
2032 Notes: +309.1 bps 2052 Notes: +447.4 bps |
| Re-offer Yield: |
2032 Notes: 5.875% 2052 Notes: 7.300% |
| Re-offer Price: |
2032 Notes: 100% 2052 Notes: 100% |
| Optional Redemption: | None |
| Day Count: | 30/360 |
| SCH III - A |
| Expected Listing: | Luxembourg Stock Exchange |
| Minimum Denominations: | U.S.$200,000 and integral multiples of U.S.$1,000 in excess thereof |
| CUSIP: |
2032 Notes: 836205 BC7 2052 Notes: 836205 BE3 |
| ISIN: |
2032 Notes: US836205BC70 2052 Notes: US836205BE37 |
| Common Code: |
2032 Notes: 245396619 2052 Notes: 245396678 |
| Governing Law: | State of New York |
| Joint Bookrunners: |
Absa Bank Limited Deutsche Bank AG, London Branch HSBC Bank plc Nedbank Limited Rand Merchant Bank, a division of FirstRand Bank Limited (London Branch) |
| B&D: | HSBC Bank plc |
| Expected Security Ratings:** | Ba2 (Moody’s) / BB- (S&P) / BB- (Fitch) |
*We expect that delivery of the Notes will be made to investors on or about April 20, 2022, which will be the fifth business day, as observed in the United Kingdom and the European Union, following the date of this pricing term sheet. Under Rule 15c6-1 under the Securities Exchange Act of 1934, as amended (the ‘‘Exchange Act’’), trades in the secondary market generally are required to settle in two business days, unless the parties to any such trade expressly agree otherwise. Accordingly, the purchasers who wish to trade the Notes on the date of this pricing term sheet or the next succeeding business days will be required to specify an alternate settlement cycle at the time of any such trade to prevent failed settlement. Purchasers of the Notes who wish to trade the Notes on the date of this pricing term sheet or the next succeeding business days should consult their own adviser.
**Note: A securities rating is not a recommendation to buy, sell or hold securities and may be subject to revision or withdrawal at any time.
The Issuer has filed a registration statement (including a prospectus) with the U.S. Securities and Exchange Commission (“SEC”) for the offering to which this communication relates. Before you invest, you should read the prospectus in that registration statement and other documents the Issuer has filed with the SEC, including the Preliminary Prospectus Supplement to which this communication relates, for more complete information about the Issuer and this offering. You may get these documents for free by visiting EDGAR on the SEC website at www.sec.gov. Alternatively, the Issuer, any underwriter or any dealer participating in the offering will arrange to send you the prospectus if you request it by calling Absa Bank Limited at +27 11 895 6555, Deutsche Bank AG, London Branch at +44 (0)20 7547 7896, HSBC Bank plc at +1-866-811-8049, Nedbank Limited at +27 (0)11 294 4481 or Rand Merchant Bank, a division of FirstRand Bank Limited (London Branch) at +44 (0)207 939 1730.
In connection with Section 309B of the Securities and Futures Act (Chapter 289) of Singapore (the “SFA”) and the Securities and Futures (Capital Markets Products) Regulations 2018 of Singapore (the “CMP Regulations 2018”), the Issuer has determined, and hereby notifies all relevant persons (as defined in Section 309A(1) of the SFA), that the Notes are ‘prescribed capital markets products’ (as defined in the CMP Regulations 2018) and Excluded Investment Products (as defined in MAS Notice SFA 04-N12: Notice on the Sale of Investment Products and MAS Notice FAA-N16: Notice on Recommendations on Investment Products).
MiFID II product governance / Professional investors and ECPs only target market – Solely for the purposes of the manufacturer's product approval process, the target market assessment in respect of the Notes has led to the conclusion that: (i) the target market for the Notes is eligible counterparties and professional clients only, each as defined in MiFID II; and (ii) all channels for distribution of the Notes to eligible counterparties and professional clients are appropriate. Any person subsequently offering, selling or recommending the Notes (a “distributor”) should take into consideration the manufacturer’s target market assessment; however, a distributor subject to MiFID II is responsible for undertaking its own target market assessment in respect of the Notes (by either adopting or refining the manufacturer’s target market assessment) and determining appropriate distribution channels.
| SCH III - A |
UK MiFIR product governance / Professional investors and ECPs only target market – Solely for the purposes of each manufacturer’s product approval process, the target market assessment in respect of the Notes has led to the conclusion that: (i) the target market for the Notes is eligible counterparties, as defined in the FCA Handbook Conduct of Business Sourcebook and professional clients only, as defined in Regulation (EU) No 600/2014 as it forms part of domestic law by virtue of the European Union (Withdrawal) Act 2018; and (ii) all channels for distribution of the Notes to eligible counterparties and professional clients are appropriate. Any person subsequently offering, selling or recommending the Notes (a “distributor”) should take into consideration the manufacturers’ target market assessment; however, a distributor subject to the FCA Handbook Product Intervention and Product Governance Sourcebook is responsible for undertaking its own target market assessment in respect of the Notes (by either adopting or refining the manufacturers’ target market assessment) and determining appropriate distribution channels.
ANY DISCLAIMERS OR OTHER NOTICES THAT MAY APPEAR BELOW ARE NOT APPLICABLE TO THIS COMMUNICATION AND SHOULD BE DISREGARDED. SUCH DISCLAIMERS OR OTHER NOTICES WERE AUTOMATICALLY GENERATED AS A RESULT OF THIS COMMUNICATION BEING SENT VIA BLOOMBERG OR ANOTHER EMAIL SYSTEM.
| SCH III - A |
SCHEDULE III-B
Price to Underwriters:
2032 Notes: 100% of principal amount
2052 Notes: 100% of principal amount
| SCH III - B |
SCHEDULE IV
Issuer Free Writing Prospectuses
Final Term Sheet dated April 11, 2022 containing the final terms of the Designated Securities substantially in the form set forth in Schedule III hereto and filed with the Commission under Rule 433 under the Securities Act of 1933.
| SCH IV |
SCHEDULE V
Additional Information
Absa Bank Limited
15 Alice Lane
Sandton 2196
South Africa
Email: Kumeshen.Naidoo@absa.africa
Attention: Absa Debt Capital Markets / Kumeshen Naidoo
Deutsche Bank AG, London Branch
Winchester House
1 Great Winchester Street
London EC2N 2DB
United Kingdom
Fax: +44 (0) 207 545 4455
Attention: Syndicate Desk
HSBC Bank plc
8 Canada Square
London, E14 5HQ
United Kingdom
Fax: +44 20 7992 4973
Email: transaction.management@hsbcib.com
Attention: Head of DCM Legal
Nedbank Limited
Fourth Floor Block F
135 Rivonia Rd
Sandown 2196
South Africa
Fax: +27 (0) 86 505 7855
Attention: Head DCM Origination
Rand Merchant Bank,
a division of FirstRand Bank Limited (London Branch)
2 - 6 Austin Friars
London EC2N 2HD
United Kingdom
Fax: +44 (0) 173 277 9522
Attention: Head of International Debt Capital Markets
Closing location:
White & Case LLP
5 Old Broad Street
London, EC2N 1DW
United Kingdom
| SCH V |
