DEALER MANAGERS AGREEMENT
Exhibit 4
EXECUTION COPY
January 8, 2007
Barclays Capital Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
1. Invitation. The United Mexican States, acting through the Ministry of Finance and Public
Credit (“UMS”), plans to make an Invitation (as defined below) to owners of its outstanding debt
securities listed in Schedule I hereto (collectively, the “Old Bonds”) to submit one or more offers
to (i) exchange Old Bonds for UMS’s U.S. dollar-denominated 6.75% Global Notes due 2034 (the
“Reopened Notes”) and, in the case of the 2031 Notes and the 2033 Notes (each as defined in
Schedule I), a cash payment; or (ii) sell Old Bonds to UMS for a U.S. dollar amount in cash; (each
such offer, an “Offer”) in a modified Dutch auction, on the terms and subject to the conditions set
forth in the Invitation Supplement (as defined in Section 9(a) hereof) and the related letters
transmitted electronically through the Invitation Website (the “Letters of Transmittal”), which,
together with the Prospectus (as defined in Section 9(a) hereof), constitute the “Invitation”.
Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in
the Invitation Supplement.
2. Appointment as Dealer Managers. UMS hereby appoints each of Barclays Capital Inc. and
Xxxxxx Xxxxxxx & Co. Incorporated as exclusive dealer managers (the “Dealer Managers”) in
connection with the Invitation and authorizes each of you to act as such on its behalf, in
accordance with this Dealer Managers Agreement (this “Agreement”). You agree to (i) use your
reasonable best efforts to solicit Offers pursuant to the Invitation, (ii) communicate with
brokers, dealers, commercial banks and trust
companies with respect to the Invitation, and (iii) perform the duties ascribed to you in the
Invitation Material (as defined in Section 4(a) hereof).
3. No Liability for Acts of Dealers, Commercial Banks and Trust Companies. Neither you nor
any partners, officers, directors, agents, employees or controlling persons (if any) of you or any
of your affiliates, shall have any liability (in tort, contract or otherwise) to UMS or any other
person asserting claims on behalf of or in right of UMS for any act or omission on the part of any
broker or dealer in securities (each, a “Dealer”) (other than yourselves) or any commercial bank or
trust company that solicits Offers. Further, no Dealer Manager shall have any liability (in tort,
contract or otherwise) to UMS or any other person asserting claims on behalf of or in right of UMS
for any losses, claims, damages, expenses or liabilities arising in connection with or as a result
of either your engagement or any matter referred to in this Agreement, except for any such losses,
claims, damages, expenses or liabilities incurred by UMS or any other person asserting claims on
behalf of or in right of UMS that result from such Dealer Manager’s bad faith, gross negligence or
willful misconduct in performing the services that are the subject of this Agreement. In
soliciting or obtaining Offers, you, as Dealer Managers, shall act as independent contractors, and
no Dealer, commercial bank or trust company is to be deemed to be acting as your agent or the agent
of UMS, and you, as Dealer Managers, are not to be deemed the agent of each other, UMS, any Dealer,
commercial bank or trust company or any other person. It is understood that nothing in this
Agreement nor the nature of your services shall be deemed to create a fiduciary duty or agency
relationship between you and UMS.
4. The Invitation Material; Free Writing Prospectuses.
(a) In connection with the Invitation, UMS authorizes each of you to reproduce and distribute,
as you may deem necessary or advisable, the Invitation Supplement, the Prospectus, the Letters of
Transmittal, the related letter from UMS to brokers, dealers, commercial banks, trust companies and
other nominees and the form of the letter from any of them to clients, any “issuer free writing
prospectus” as defined in Rule 433 under the United States Securities Act of 1933, as amended (the
“Act”), used in connection with the Invitation (an “Issuer Free Writing Prospectus”), and any press
releases and newspaper advertisements that have been delivered to you by UMS in final and approved
form (collectively, including any amendments or supplements thereto provided by or on behalf of UMS
in accordance with this Agreement and all the material available in the Invitation Website, the
“Invitation Material”), and any permitted “free writing prospectus” specified in Section 4(b)
hereof, for use by you in connection with the Invitation. Any other offering materials and
information relating to the Invitation that UMS may cause to be prepared or may approve shall be
called “Additional Material”. UMS and the Dealer Managers expressly agree that Offers shall be
transmitted electronically through the Invitation Website pursuant to the procedures described in
the Invitation. UMS further agrees to
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cause to be furnished to each of you (in New York City) as many copies as you may reasonably
request of the Invitation Material and the Additional Material and shall cause to be mailed (or
distributed electronically) to each registered holder of any Old Bond, as soon as practicable, a
reasonable number of copies of the Invitation Material and the Additional Material. Thereafter, to
the extent practicable until the Expiration Date (as defined in the Invitation), UMS shall use its
best efforts to cause copies of the Invitation Material to be mailed to each person who becomes a
holder of record of any Old Bond upon its request therefore.
(b) UMS shall not amend or supplement the Invitation Material, or prepare or approve any
Additional Material for use in connection with the Invitation, without your consent, which consent
shall not be unreasonably withheld. Except for any “free writing prospectus” (as defined in Rule
405 under the Act) (a “Free Writing Prospectus”) containing customary information and prepared by
the Dealer Managers for use by them on Bloomberg screens or similar communication and that is not
(i) an Issuer Free Writing Prospectus or (ii) a Free Writing Prospectus containing “Issuer
information” (as defined in Rule 433(h)(2) under the Act), you shall not prepare or approve any
other press releases or other offering material (other than material prepared solely for the
internal use of a Dealer Manager) for use in connection with the Invitation, without UMS’s consent,
which consent shall not be unreasonably withheld. UMS agrees that, a reasonable time prior to using
or filing with the United States Securities and Exchange Commission (the “Commission”) or with any
other Federal or other governmental agency, authority or instrumentality, domestic or foreign
(each, including the Commission, an “Agency”), any Invitation Material or Additional Material
(whether preliminary or otherwise), or a Form 18-K (as defined in Section 9(a) hereof), UMS will
submit or cause to be submitted copies of such material to you for your approval, which approval
shall not be unreasonably withheld.
(c) UMS will advise you promptly of (i) the occurrence of any event which could cause UMS to
withdraw, rescind, terminate or modify the Invitation or would permit UMS to exercise any right not
to purchase or exchange the Old Bonds tendered pursuant to the Invitation, (ii) any requirement to
amend or supplement any Invitation Material or Additional Material, (iii) the issuance of any
communication, comment or order relevant to the Invitation by any Agency (and, if in writing, will
furnish you a copy thereof), (iv) any litigation or administrative or governmental action with
respect to the Invitation of which UMS becomes aware, and (v) any other information relating to the
Invitation which you may from time to time reasonably request in the performance of your duties
hereunder. UMS shall have complete authority to, and in its discretion may, terminate the
Invitation at any time on or prior to the close of business on the business day following the
Expiration Date; provided that once UMS announces its acceptance of Offers as set forth in the
Invitation Supplement, UMS’s acceptance will be irrevocable. You will promptly inform UMS of any
litigation or administrative or governmental action with respect to the Invitation of which you
become aware.
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(d) UMS agrees (i) to prepare or cause to be prepared the Invitation Supplement and any
amendment or supplement thereto in a form approved by you and to file such Invitation Supplement or
any amendment or supplement thereto pursuant to Rule 424(b) under the Act not later than, in the
case of the Invitation Supplement, the Commission’s close of business on the second business day
following the Commencement Date, and in the case of any amendment or supplement which contains
information relating to the results of the Invitation and such additional information as might be
required under the Act, the Commission’s close of business on the second business day following the
Announcement Date; to advise you, promptly after it receives notice thereof, of the issuance by the
Commission of any stop order or of any order preventing or suspending the use of any Free Writing
Prospectus, the Prospectus or any amendment or supplement thereto, of the suspension of the
qualification of the Reopened Notes for offering or sale in any jurisdiction in the United States
or any jurisdiction identified in Annex III hereto, 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, any Free Writing Prospectus or the Prospectus or any
amendment or supplement thereto or for additional information; and, in the event of the issuance of
any stop order or of any order preventing or suspending the use of the Basic Prospectus, the
Prospectus Supplement, any Free Writing Prospectus or the Invitation Supplement or suspending any
such qualification, to promptly use its best efforts to obtain the withdrawal of such order; and
(ii) promptly from time to time during and following the Expiration Date of the Invitation, to take
such action as you may reasonably request to qualify the Invitation and the Reopened Notes for
offering and sale under the securities laws of the United States of America and such jurisdictions
set forth in Annex III hereto as you may reasonably request and to comply with such laws so as to
permit the continuance of the Invitation and sales and dealings in the Reopened Notes in such
jurisdictions for as long as may be necessary to complete the Invitation and the distribution of
the Reopened Notes, provided that in connection therewith UMS shall not be required to file a
general consent to service of process in any jurisdiction. Likewise, with respect to the
jurisdictions identified in Annex III hereto, each of UMS and you shall take actions reasonably
available to it or you, respectively, to permit the continuance of the Invitation and the
distribution of the Reopened Notes on the terms and conditions contemplated by such document,
provided that if either UMS or you believe that the cost or burden of any such actions make them
unreasonable, you and UMS shall consult in good faith with a view to restructuring the conduct of
the Invitation and the distribution of the Reopened Notes in such jurisdiction in such a way that
permits, to the extent possible, the continuance of the Invitation and the distribution of the
Reopened Notes in such jurisdiction.
(e) UMS agrees, if the delivery of a prospectus is required under the Act (including any of
the rules promulgated by the Commission thereunder) or the laws of any jurisdiction identified in
Annex III hereto at any time prior to the expiration of nine months after the time of issue of the
Prospectus in connection with the Invitation and if at such
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time any event shall have occurred as a result of which the 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 Prospectus is delivered, not misleading, or, if for any other reason
it shall be necessary during such same period to amend or supplement the Prospectus in order to
comply with the Act or the laws of any jurisdiction identified in Annex III hereto, to notify you
and upon your request to prepare and furnish to each Dealer Manager and to any dealer in securities
as many copies as you may from time to time reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such statement or omission or effect such
compliance; and in case you are required to deliver a prospectus in connection with sales of any of
the Reopened Notes at any time under the Act, upon your request, to prepare and deliver to such
Dealer Manager as many copies as it may reasonably request of an amended or supplemented Prospectus
complying with Section 10(a)(3) of the Act.
(f) Our offers and solicitations and your solicitations shall be made only in the United
States and the jurisdictions identified in Annex III hereto, and shall be conducted (including,
without limitation, in respect of the use and distribution of the Invitation Material and
Additional Material) in compliance with the limitations and qualifications set forth in the
document dated the date hereof captioned “Foreign Jurisdiction Investment Restrictions”. No
offers, distributions of the Invitation Material or Additional Material or solicitation shall be
made in any other jurisdiction without your and UMS’s prior written consent. You agree that all
material published in the United Kingdom in connection with the Invitation will be issued on behalf
of UMS.
(g) UMS represents and agrees that it has not made and will not make any offer relating to the
Invitation that would constitute a Free Writing Prospectus or portion thereof required to be filed
by UMS with the Commission or retained by UMS under Rule 433 under the Act without your prior
written consent (which shall not be unreasonably withheld) and that Annex IV hereto is a complete
list of any Issuer Free Writing Prospectuses used on or prior to the date hereof for which UMS has
received such consent. UMS has complied and will comply with the requirements of Rule 433 under the
Act applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission
or retention where required and legending. UMS agrees that if at any time following issuance of an
Issuer Free Writing Prospectus any event occurred or occurs as a result of which such Issuer Free
Writing Prospectus (i) would conflict with the information in the Registration Statement or the
Prospectus or (ii) when taken together with the 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, UMS will give you prompt notice
thereof, and if you so request, will prepare and furnish without charge to each of you an Issuer
Free Writing Prospectus or other document which will correct such conflict, statement or
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omission; provided, however, that this representation and warranty shall not apply to any
statements or omissions in an Issuer Free Writing Prospectus made in reliance upon and in
conformity with information furnished in writing to UMS by you expressly for use therein.
(h) Each Dealer Manager represents and agrees that it has not made and will not make any offer
relating to the Invitation that constitutes or would constitute an Issuer Free Writing Prospectus
or that otherwise constitutes or would constitute a Free Writing Prospectus or a portion thereof,
required to be filed by UMS under Rule 433 under the Act, without UMS’s prior written consent
(which shall not be unreasonably withheld).
5. Participation by Dealer Managers. UMS and the Dealer Managers agree to the matters
described in the Invitation Supplement under the caption “The Invitation — Participation by Mexico
and the Dealer Managers”.
6. Compensation. UMS agrees to pay you as compensation for your services as Dealer Managers
and for your advisory services in structuring and arranging the transaction contemplated hereby a
total amount equal to 0.25% of the aggregate principal amount of the Reopened Notes issued on the
settlement date for the Invitation (the “Settlement Date”). Any such fees shall be shared between
the Dealer Managers as follows: 50% to Barclays Capital Inc. and 50% to Xxxxxx Xxxxxxx & Co.
Incorporated. Such fees shall be payable in U.S. dollars on the Settlement Date, in immediately
available funds, to an account or accounts in New York City designated by the Dealer Managers and
free and clear of any and all withholding or other similar taxes imposed by UMS; if any such taxes
are payable, the fees payable hereunder shall be increased so that the amount paid shall be equal
to the amount that would have been payable had such taxes not been applicable.
7. Expenses. UMS and you agree to pay and/or reimburse each other for documented costs and
expenses incurred in connection with the transactions contemplated hereby to the extent and as set
forth in Schedule II hereto; provided, however, that this sentence shall in no way affect UMS’s
obligations as set forth in Section 11 to this Agreement. All payments to be made pursuant to this
Section 7 for the reimbursement of expenses shall be payable promptly after an itemized invoice
specifying the expenses to be reimbursed has been received by the party making such reimbursement.
The parties shall perform their respective obligations set forth in this Section 7 regardless of
whether or not the Invitation is commenced, UMS terminates the Invitation prior to the business day
following the Expiration Date, or UMS issues any Reopened Notes or purchases any Old Bonds pursuant
to the Invitation or whether a Dealer Manager withdraws pursuant to Section 10 hereof.
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8. Exchange Agent and Luxembourg Exchange Agent; Information Agent; Securityholder Lists.
(a) UMS will appoint Bondholder Communications Group as information agent in connection with
the Invitation (the “Information Agent”) and exchange agent in connection with the Invitation (the
“Exchange Agent”) and will appoint Kredietbank S.A. Luxembourgeoise to serve as Luxembourg exchange
agent in connection with the Invitation (the “Luxembourg Exchange Agent”) pursuant to an exchange
and information agent agreement (the “Exchange and Information Agent Agreement”). The Dealer
Managers are authorized to communicate directly with the Exchange Agent, the Luxembourg Exchange
Agent and the Information Agent (and any other depositary, information agent, exchange agent or
depositary or other agent designated or retained by UMS) with respect to matters relating to the
Invitation.
(b) UMS agrees to cause to be furnished to you, to the extent the same is available to UMS,
cards or lists or copies thereof showing the names and addresses of, and principal amount of Old
Bonds held by, the registered holders or beneficial owners of such Old Bonds as of a recent date,
and shall use its reasonable best efforts to cause you to be advised from day to day during the
period of the Invitation as to any changes in identity of the registered or beneficial owners of
the Old Bonds. UMS shall include a provision in its agreement with the Exchange Agent to inform
each of you during each business day during the Invitation, of Offers received pursuant to the
Invitation and such other information as you may reasonably require in connection with your
services hereunder. You agree to use such information only in connection with the Invitation and
not to furnish such information to any other person except in connection with the Invitation.
9. Representations, Warranties and Covenants of UMS.
UMS represents, warrants and covenants to you that:
(a) UMS meets the requirements for use of Schedule B under the Act, is a “seasoned” foreign
government issuer within the meaning of Commission Release No. 33-6424 and has filed with the
Commission registration statements on Schedule B (Files No. 333-122616, 333-131901 and 333-132126)
relating to debt securities and warrants, including the Reopened Notes (together, the “Debt
Securities”); such registration statements and any post-effective amendment thereto, each in the
form heretofore delivered to you or your counsel, have been declared effective by the Commission in
such form; no other document with respect to such registration statements or document incorporated
by reference therein has heretofore been filed with the Commission, other than the documents
incorporated therein by reference and prospectuses filed pursuant to Rule 424(b) of the rules and
regulations of the Commission under the Act, each in the form
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heretofore delivered to you or your counsel; and no stop order suspending the effectiveness of
either such registration statements, and no order preventing or suspending use of the Prospectus or
any amendment or supplement thereto has been issued and no proceeding for that purpose has been
initiated or threatened by the Commission. The invitation supplement, dated January 8, 2007,
relating to the Invitation and filed with the Commission pursuant to Rule 424(b) of the Act is
referred to herein as the “Invitation Supplement”. The various parts of such registration
statements (not including each prospectus and prospectus supplement contained in registration
statement File No. 333-122616, which, pursuant to Rule 429 under the Act, have been superseded by
the prospectus and prospectus supplement contained in registration statement File No. 333-132126),
including all exhibits thereto and the documents incorporated by reference in the prospectus and
prospectus supplement contained in such registration statements at the time such part of the
registration statements became effective, each as amended at the time such part of the registration
statements became effective, are collectively referred to herein as the “Registration Statement”;
the basic prospectus relating to the Debt Securities contained in the registration statement File
No. 333-132126, in the form in which it was filed with the Commission on April 10, 2006, is
referred to herein as the “Basic Prospectus”; the prospectus supplement relating to UMS’s Global
Medium Term Notes, Series A, contained in the registration statement File No. 333-132126, in the
form in which it was filed with the Commission on April 10, 2006, is referred to herein as the
“Prospectus Supplement”; the Basic Prospectus, as supplemented by the Prospectus Supplement and the
Invitation Supplement is herein called the “Prospectus”; any reference to the Invitation
Supplement, the Prospectus Supplement or the Prospectus shall be deemed to refer to and include any
documents incorporated by reference therein as of the respective dates of such Invitation
Supplement, Prospectus Supplement and Prospectus; any reference to any amendment or supplement to
the Invitation Supplement, the Prospectus Supplement or the Prospectus shall be deemed to refer to
and include any annual reports on Form 18-K and any amendments to such Form 18-K on Form 18-K/A
(including all exhibits thereto) (collectively, a “Form 18-K”) filed after the date of such
Invitation Supplement, Prospectus Supplement or Prospectus, as the case may be, under the United
States Securities Exchange Act of 1934, as amended (the “Exchange Act”), and incorporated by
reference in such Invitation Supplement, Prospectus Supplement or Prospectus; and any reference
herein to any amendment to the Registration Statement shall be deemed to refer to and include any
Form 18-K filed after the effective date of the Registration Statement that is incorporated by
reference in the Registration Statement.
(b) The Registration Statement, the Invitation Supplement, the Prospectus Supplement and the
Basic Prospectus, and any further amendments or supplements to the above conform to the
requirements of the Act and the rules and regulations of the Commission thereunder; the
Registration Statement did not, as of the applicable effective date of the Registration Statement,
and will not, as of the applicable date of any amendment thereto, contain any untrue statement of a
material fact or omit to state any
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material fact required to be stated therein or necessary to make the statements therein not
misleading; and the Invitation Supplement, the Prospectus Supplement and the Basic Prospectus, as
amended or supplemented with respect to the Invitation as of the applicable filing date thereof,
did not and will not contain any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in conformity with information
furnished in writing to UMS by you expressly for use in the Prospectus as amended or supplemented
with respect to the Invitation.
(c) For purposes hereof, the “Time of Sale” is the time at which exchange offers submitted
pursuant to the Invitation become irrevocable on the Expiration Date which, unless extended or
earlier terminated by UMS, shall be 5:00 p.m., New York City time, on January 11, 2007. The
Prospectus, as supplemented by each Issuer Free Writing Prospectus listed on Annex IV hereto and
any additional Issuer Free Writing Prospectuses used prior to the Time of Sale pursuant to Section
9(y) hereof, taken together (collectively, the “Time of Sale Information”), as of the Time of Sale
will not contain any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in conformity with information
furnished in writing to UMS by you expressly for use therein. Each such Issuer Free Writing
Prospectus did not, or will not, conflict with the information contained in the Registration
Statement.
(d) (i) At the earliest time after filing the Registration Statement (or the most recent
post-effective amendment thereto) that UMS or another offering participant made a bona fide offer
(within the meaning of Rule 164(h)(2) under the Act) and (ii) as of the date hereof, UMS was not
and is not an “ineligible issuer” (as defined in Rule 405 under the Act), without taking into
account any determination by the Commission pursuant to Rule 405 that it is not necessary that UMS
be considered an “ineligible issuer”.
(e) The Invitation Material comply and (as amended or supplemented, if amended or
supplemented) will comply in all material respects with all applicable requirements of the United
States federal securities laws and the laws of those jurisdictions in which you are authorized to
solicit Offers pursuant to this Agreement, and the Invitation Material, including the information
incorporated by reference therein, do not contain and (as amended or supplemented, if amended or
supplemented) will not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements made therein, in
the light of the circumstances under which they were made, not misleading; provided that this
representation and warranty shall
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not apply to any statements or omissions made in reliance upon and in conformity with
information furnished in writing to UMS by you expressly for use in the Invitation Material as
amended or supplemented.
(f) Since the respective dates as of which information is given in the Registration Statement
and the Prospectus, there has not been any material adverse change, or any prospective material
adverse change, in or affecting the financial, economic, political, fiscal or other condition, or
foreign exchange controls, of UMS, otherwise than as set forth in or contemplated by the
Prospectus.
(g) The execution and delivery of this Agreement and all other documents to be executed and
delivered by UMS hereunder and the consummation of the Invitation (including any related provisions
for the payment of any cash payable by UMS pursuant to the Invitation) have been duly authorized
and this Agreement has been duly executed and delivered by UMS and constitutes the valid and
binding agreement of UMS enforceable against UMS in accordance with its terms, subject to laws of
general applicability relating to or affecting creditors’ rights and to general equity principles,
and additionally subject, as to Section 11 hereof, to any limitations imposed by the securities
laws of any applicable jurisdiction.
(h) The Reopened Notes have been duly authorized, and, when executed, issued, authenticated
and delivered pursuant to the Invitation and the Fiscal Agency Agreement (as defined below), will
have been duly executed, issued, authenticated and delivered and will constitute valid and legally
binding direct, general and unconditional External Indebtedness (as defined in paragraph (j) of
this Section 9) of UMS, subject to laws of general applicability relating to or affecting
creditors’ rights, entitled to the benefits provided by the Fiscal Agency Agreement, dated as of
September 1, 1992, as amended by Amendment No. 1, dated as of November 28, 1995, and by Amendment
Xx. 0, xxxxx xx xx Xxxxx 0, 0000 (xx amended, the “Fiscal Agency Agreement”), between UMS and
Citibank, N.A., as fiscal agent (the “Fiscal Agent”), substantially in the form filed as an exhibit
to the Registration Statement; the Fiscal Agency Agreement has been duly authorized, executed and
delivered by UMS and constitutes a valid and legally binding instrument, enforceable in accordance
with its terms, subject to laws of general applicability relating to or affecting creditors’
rights; and the Fiscal Agency Agreement (to the extent the provisions thereof are applicable to the
Reopened Notes) conforms, and the Reopened Notes will conform, to the descriptions thereof
contained in the Prospectus as amended or supplemented with respect to the Invitation.
(i) All consents, approvals, authorizations, orders, registrations, filings or qualifications
of or with any court or governmental agency or other regulatory body or instrumentality of UMS
required for the due execution, delivery and performance by UMS
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of this Agreement, the making and consummation of the Invitation (including any related
provisions for the payment of any cash payable by UMS pursuant to the Invitation), the validity or
enforceability of this Agreement against UMS and the issue and sale of the Reopened Notes have been
obtained and are in full force and effect and will comply with UMS’s Federal Budget and Federal
Revenue Law for fiscal year 2007.
(j) The Reopened Notes will rank pari passu, without any preference one over the other among
themselves, with all other unsecured and unsubordinated obligations of UMS, present and future,
relating to External Indebtedness. For purposes of this Agreement, “External Indebtedness” means
any indebtedness for money borrowed which is payable by its terms or at the option of its holder in
any currency other than the currency of the United Mexican States (other than such indebtedness
that is originally issued or incurred within the United Mexican States). Indebtedness is issued or
incurred in the United Mexican States if settlement occurs in the United Mexican States; and
“indebtedness” means all unsecured and unsubordinated obligations of UMS in respect of money
borrowed by UMS and guarantees of UMS in respect of money borrowed by others. The 2034 Notes will
be consolidated and form a single series with, and be fully fungible with, UMS’s outstanding
U.S.$1,500,000,000 6.75% Global Notes due 2034 (CUSIP No. 00000XXX0, ISIN US91086QAS75, Common Code
020218118).
(k) Other than as set forth in the Prospectus, there are no legal or governmental actions,
suits, arbitrations or proceedings pending to which UMS is a party or of which any of its
properties is the subject which, if determined adversely to UMS, would individually or in the
aggregate have a material adverse effect on UMS’s ability to perform its obligations under the
Reopened Notes, this Agreement, the Invitation, or the Fiscal Agency Agreement with respect to the
Reopened Notes; and, to the best of UMS’s knowledge, no such actions, suits, arbitrations or
proceedings have been threatened.
(l) UMS is not in default in the payment of principal, interest or any other amount owing on
any obligation in respect of External Indebtedness for money borrowed, and UMS has not received any
notice of default (other than with respect to any failure to deliver periodically economic or
financial information pursuant to agreements relating to UMS’s External Indebtedness) or
acceleration with respect to any obligation in respect of External Indebtedness for money borrowed,
in each case or in the aggregate, which would have a material adverse effect on the financial,
economic or fiscal condition of UMS or its ability to perform its obligations under this Agreement,
the Invitation, the Fiscal Agency Agreement or the Reopened Notes or which is otherwise material to
the rights of the holders of the Reopened Notes; and the issue and sale of the Reopened Notes and
the consummation of the transactions herein and therein contemplated will not conflict with or
result in a breach of any of the terms or provisions of, or constitute a default under, any treaty,
convention or material agreement or material instrument to which UMS is a party or by which it is
bound and will not result in the creation or imposition of any mortgage, lien,
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charge or encumbrance of any nature whatsoever upon any of the revenues or assets of UMS under
any such agreement or instrument and will not infringe any law or regulation of UMS.
(m) There is no tax, levy, deduction, charge or withholding imposed by UMS or any political
subdivision thereof either (i) on, by virtue of, or in connection with, the execution, delivery or
enforcement of this Agreement, the Fiscal Agency Agreement, the Invitation or the Reopened Notes,
or (ii) on any payment to be made by UMS hereunder or pursuant to the Invitation or under the
Reopened Notes, provided that the Old Bonds being purchased and/or exchanged and such Reopened
Notes are held by a non-Mexican individual or corporation who is not a resident of UMS for tax
purposes directly and not through a permanent establishment thereof in UMS.
(n) No stamp or other issuance or transfer taxes or duties are payable by or on behalf of the
Dealer Managers to UMS or any political subdivision or taxing authority thereof or therein in
connection with (i) the purchase of the Old Bonds; (ii) the issuance, sale and delivery by UMS to
or for the respective accounts of the Dealer Managers of the Reopened Notes issued and sold
pursuant to Offers submitted by the Dealer Managers or (ii) the sale and delivery outside UMS by
the Dealer Managers of the Reopened Notes acquired pursuant to Offers submitted by the Dealer
Managers to the initial purchasers thereof.
(o) UMS will, on the Settlement Date, have sufficient funds available to enable it to purchase
all Old Bonds accepted for purchase pursuant to the Invitation and to make all payments
contemplated by the Invitation Material, Additional Material and this Agreement, subject to the
conditions set forth in the Invitation. UMS agrees to pay promptly, as appropriate and in
accordance with the terms and subject to the conditions of the Invitation Material and Additional
Material, the purchase price for the Old Bonds and payments referred to in the preceding sentence.
(p) UMS has made or will make any arrangements necessary to be made by it to permit settlement
to occur through the clearing systems contemplated by the Invitation.
(q) UMS will file a notice with the Comisión Nacional Bancaria y de Valores (the National
Banking and Securities Commission) as required under the Mexican Securities Market Law.
(r) UMS will make generally available to its security holders in the United States and to you
as soon as practicable, a statement of the revenues and expenditures of UMS covering the first full
fiscal year of UMS commencing after the date hereof which will
- 12 -
satisfy Section 11(a) of the Act and the rules and regulations of the Commission thereunder.
(s) During the period beginning from the date hereof and continuing to and including the
Settlement Date, UMS will not offer, sell, contract to sell or otherwise dispose of any Old Bonds
acquired by it pursuant to the Invitation or any debt securities of UMS that are substantially
similar to the Reopened Notes, are denominated in U.S. dollars, are to be placed outside UMS and
mature more than 10 years after the Settlement Date, without your prior written consent.
(t) So long as any Reopened Notes are outstanding, upon request UMS will furnish or cause to
be furnished to you, as soon as practicable after the availability thereof, copies of (A) UMS’s
annual federal budget and public accounts, to the extent that such information has been made
publicly available by or on behalf of UMS, and (B) all reports filed by UMS with the Commission.
(u) UMS has applied for the listing of the Reopened Notes on the Luxembourg Stock Exchange and
will use its best efforts to cause such listing to be approved.
(v) UMS agrees that it will not announce the acceptance of any Offer on or prior to the
Announcement Date unless each of the conditions set forth in Section 10 hereof to be satisfied on
or prior to such date has been satisfied or waived by the Dealer Managers.
10. Conditions. The Dealer Managers shall be entitled to withdraw as Dealer Managers in
connection with the Invitation, at any time, if the conditions set forth in this Section 10 are not
met, and the obligations of the Dealer Managers hereunder shall at all times be subject, in their
discretion, to the conditions that:
(a) All representations and warranties and other statements of UMS contained herein are now,
and on the Announcement Date, at all times during the Invitation and on the Settlement Date will
be, true and correct.
(b) UMS at all times during the Invitation shall have performed all of its obligations
hereunder theretofore required to have been performed.
(c) The Invitation Supplement and any amendment or supplement thereto with respect to the
Invitation shall have been filed with the Commission by post-effective amendment or pursuant to
Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules
and regulations under the Act and in accordance with Section 4(d) hereof; no stop order suspending
the effectiveness of the Registration Statement or any part thereof and no order preventing or
suspending use of any Issuer Free
- 13 -
Writing Prospectus, the Prospectus or any amendment or supplement thereto shall have been
issued and no proceeding for that purpose shall have been initiated or threatened by the
Commission; and all requests for additional information on the part of the Commission shall have
been complied with to your reasonable satisfaction; and any Issuer Free Writing Prospectus and any
other material required to be filed by UMS pursuant to Rule 433(d) under the Act shall have been
filed with the Commission within the applicable time periods prescribed for such filings by Rule
433.
(d) On the date hereof (the “Commencement Date”) and the Announcement Date, Xxxxxxxx &
Xxxxxxxx LLP, your United States counsel, shall have furnished to you such written opinion or
opinions, dated the respective date of delivery thereof, with respect to the validity of the Fiscal
Agency Agreement and the Reopened Notes, the Registration Statement, the Prospectus and such other
related matters as you may have reasonably requested sufficiently in advance of each such date, and
such counsel shall have received such papers and information as they may reasonably request to
enable them to pass upon such matters. In rendering their opinions, Xxxxxxxx & Xxxxxxxx LLP may
assume all matters of Mexican law covered by the opinions referred to in paragraphs (e) and (f) of
this Section 10.
(e) On the Commencement Date and the Announcement Date, Xxxxx Xxxxxxx, S.C., your Mexican
counsel, shall have furnished to you such written opinion or opinions, dated the respective date of
delivery thereof, with respect to the validity of this Agreement, the Fiscal Agency Agreement and
the Reopened Notes, the Registration Statement, the Prospectus and such other related matters as
you may have reasonably requested sufficiently in advance of each such date, and such counsel shall
have received such papers and information as they may reasonably request to enable them to pass
upon such matters. In rendering such opinion, such counsel may assume all matters of United States
Federal and New York law covered by the opinions referred to in paragraph (d) of this Section 10.
(f) On the Commencement Date and the Announcement Date, the Deputy Director General of Legal
Procedures of Credit of the Ministry of Finance and Public Credit, or the Fiscal Attorney of the
Federation or the Deputy Fiscal Attorney of the Federation, shall have furnished to you his or her
written opinion, dated the respective date of delivery thereof, in form and substance satisfactory
to you, addressing the matters set forth in Annex I hereto. In rendering such opinion, such
counsel may state that his or her opinion is limited to matters of Mexican law and, as to all
matters of United States Federal and New York law, may rely upon the opinion referred to in
paragraph (g) of this Section 10.
(g) On the Commencement Date and the Announcement Date, Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP,
United States counsel for UMS, shall have furnished to you their
- 14 -
written opinion, dated the respective date of delivery thereof, in form and substance
satisfactory to you, addressing the matters set forth in Annex II hereto. In rendering such
opinion, such counsel may state that their opinion is limited to the Federal laws of the United
States and the laws of the State of New York.
(h) UMS shall have furnished to you, on the Commencement Date and the Announcement Date, a
certificate in English, dated the respective date of delivery thereof, of the Deputy Undersecretary
for Public Credit of the Ministry of Finance and Public Credit of the United Mexican States, in
which such official shall state that, to the best of his or her knowledge after reasonable
investigation: (i) the representations and warranties of UMS in this Agreement are true and
correct in all material respects with the same effect as though such representations and warranties
had been made at and as of the respective date of such certificate (other than such representations
and warranties which are made as of a specified date), (ii) UMS has complied with all agreements
and satisfied all conditions on its part to be performed or satisfied at or prior to the respective
date of such certificate, (iii) no proceeding has been initiated, or to the best of his or her
knowledge, threatened to restrain or enjoin the making of the Invitation or the issuance or
delivery of the Reopened Notes or the purchase of Old Bonds by UMS pursuant to the Invitation
Material or in any manner to question the laws, proceedings, directives, resolutions, approvals,
consents or orders under which the Invitation will be effected, the Reopened Notes will be issued
and/or the Old Bonds will be purchased pursuant thereto or to question the validity of the
Invitation or the Reopened Notes, and none of said laws, proceedings, directives, resolutions,
approvals, consents or orders has been repealed, revoked or rescinded in whole or in relevant part,
and (iv) since the respective dates as of which information is given in the Prospectus as amended
or supplemented and on or before the Announcement Date, there has not been any material adverse
change, or any prospective material adverse change, in or affecting the financial, economic,
fiscal, political or other condition, or foreign exchange controls, of UMS, except as set forth in
or contemplated by the Prospectus as amended or supplemented.
(i) Since the respective dates as of which information is given in the Prospectus as amended
or supplemented on or before the Announcement Date, there shall not have been any material adverse
change, or any prospective material adverse change, in or affecting the financial, economic,
fiscal, political or other condition, or foreign exchange controls, of UMS, otherwise than as set
forth in or contemplated by the Prospectus as amended or supplemented on or prior to the
Announcement Date, the effect of which, in any such case, is in your reasonable judgment, after
consultation with UMS, so material and adverse such as to make it impracticable or inadvisable to
proceed with the Invitation or the delivery of the Reopened Notes or purchase of the Old Bonds on
the terms and in the manner contemplated by the Prospectus as amended or supplemented.
- 15 -
(j) Subsequent to the execution and delivery of this Agreement and on or before the Settlement
Date there shall not have occurred any of the following: (A) a suspension or material limitation in
trading in securities generally on the New York Stock Exchange; (B) trading of any securities of
UMS shall have been formally suspended or limited on any international exchange; (C) a general
moratorium on commercial banking activities in New York or the United Mexican States declared by
either United States or New York State authorities or authorities of UMS, respectively; (D) a
material failure in the computerized systems used to operate and maintain The Depository Trust
Company’s Automated Tender Offer Program; or (E) the outbreak or escalation of hostilities
involving the United States or the United Mexican States or the declaration by the United States or
the United Mexican States of a national emergency or war, if the effect of any such event specified
in clause (E) is in your reasonable judgment, after consultation with UMS, so material and adverse
as to make it impracticable or inadvisable to proceed with the Invitation or the delivery of the
Reopened Notes on the terms and in the manner contemplated by the Prospectus as amended or
supplemented.
(k) The Deputy Undersecretary for Public Credit or the Deputy Director General of Legal
Procedures of Credit of the Ministry of Finance and Public Credit of the United Mexican States
shall have furnished to you on the Commencement Date and the Announcement Date a certificate in
English, dated the date of delivery, to the effect that as of its effective date, the Registration
Statement and any further amendment thereto made by UMS did not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein or necessary to make
the statements therein not misleading; that, as of the date of the Invitation Supplement, the
Prospectus, and any further amendment or supplement thereto made by UMS, the Prospectus as so
amended or supplemented, did not contain any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; that, as of the Time of Sale, the Time of
Sale Information and any further amendment or supplement thereto made by UMS did not contain any
untrue statement of a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were made, not misleading;
and that, as of the respective date of such certificate, neither the Registration Statement nor the
Prospectus nor the Time of Sale Information or any amendment or supplement thereto made by UMS
contains any untrue statement of a material fact or omits to state any material fact required to be
stated therein or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that the foregoing certification
shall not apply to the statements in or omissions from the Registration Statement or the Prospectus
or the Time of Sale Information or any amendment or supplement thereto made in reliance upon and in
conformity with information furnished to UMS in writing by you expressly for use in the
Registration Statement or the Prospectus or the Time of Sale Information or such amendment or
supplement thereto.
- 16 -
(l) UMS shall have furnished to you on each of the Commencement Date and the Announcement Date
such further information, certificates and documents as you may reasonably request.
11. Indemnification and Contribution.
(a) UMS agrees (i) to indemnify and hold each Dealer Manager harmless against any loss,
damage, reasonable and documented expense, liability or claim (or action in respect thereof) (A)
which arises out of or is based upon any untrue statement of a material fact or alleged untrue
statement of material fact contained in the Registration Statement, any Issuer Free Writing
Prospectus, the Prospectus as amended or supplemented, or any amendment or supplement thereto, the
Invitation Material or the Additional Material or any of the documents referred to therein or in
any amendment or supplement to any of the foregoing, or which arises out of or is based on 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; provided that UMS shall not be liable in
any such case to the extent that any such loss, claim, damage, reasonable and documented expense,
or liability arises out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in the Registration Statement, any Issuer Free Writing
Prospectus, the Prospectus, the Invitation Material or the Additional Material or any such
amendment or supplement in reliance upon and in conformity with written information furnished to
UMS by such Dealer Manager expressly for use therein; or (B) which arises out of or is based upon
any breach by UMS of any representation or warranty or failure by UMS to comply with any obligation
set forth herein; or (C) which arises out of or is based upon a withdrawal, rescission, termination
or modification of or a failure by UMS to make or consummate the Invitation; and (ii) to indemnify
and hold each Dealer Manager harmless against any and all other loss, damage, reasonable and
documented expense, liability or claim (or action in respect thereof) which otherwise arises out of
or is based upon or asserted against such Dealer Manager in connection with its acting as a Dealer
Manager in connection with the Invitation, or rendering any financial advisory services to UMS in
connection with the Invitation or that arise in connection with any other matter referred to in
this Agreement, except to the extent that any such loss, damage, expense, liability or claim
referred to in clause (ii) of this subsection (a) results from such Dealer Manager’s gross
negligence, bad faith or willful misconduct in performing the services that are the subject of this
Agreement. UMS also agrees to indemnify and hold you harmless against and to promptly reimburse
you for any and all reasonable and documented expenses whatsoever (including legal and other fees
and reasonable and documented expenses) reasonably incurred by you in connection with
investigating, preparing for or defending against any such losses, damages, reasonable and
documented expenses, liabilities or claims (or actions in respect thereof) after an itemized
statement thereof, in reasonable detail, has been submitted to UMS whether or not resulting in any
liability, and any amount paid in settlement of any litigation, commenced or threatened, or of any
claim
- 17 -
whatsoever as set forth herein if such settlement is effected with the written consent of UMS.
UMS also agrees that, except as provided in subsection (b) below, no Dealer Manager nor any of its
affiliates, nor any partners, directors, officers, agents, employees or controlling persons (if
any) of it or any of its affiliates, shall have any liability, in tort or contract or otherwise, to
UMS or any person asserting a claim on behalf of or in the right of UMS, in each case for or in
connection with any matter referred to in this Agreement, except to the extent that any loss,
damage, expense, liability or claim incurred by UMS results from such Dealer Manager’s gross
negligence, bad faith or willful misconduct in performing the services that are the subject of this
Agreement.
(b) Each Dealer Manager, severally but not jointly, (i) will indemnify and hold harmless UMS
and each of its officials, including its authorized representative in the United States, who signed
the Registration Statement, against any losses, claims, damages, reasonable and documented expense,
liability or claim (or action in respect thereof) to which UMS may become subject, under the Act or
otherwise, insofar as such losses, claims, damages, reasonable and documented expenses 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, any Issuer
Free Writing Prospectus, the Prospectus as amended or supplemented, or any amendment or supplement
thereto, the Invitation Material or the Additional Material or any of the documents referred to
therein or in any amendment or supplement to any of the foregoing, or which arises out of or is
based on 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; provided that such untrue
statement or alleged untrue statement or omission or alleged omission was made in the Registration
Statement, such Issuer Free Writing Prospectus, the Prospectus as amended or supplemented, the
Invitation Material or the Additional Material or such amendment or supplement in reliance upon and
in conformity with written information furnished to UMS by such Dealer Manager expressly for use
therein, and (ii) will promptly reimburse UMS for any legal or other reasonable and documented
expenses reasonably incurred by UMS in connection with investigating or defending any such action
after an itemized statement thereof, in reasonable detail, has been submitted to such Dealer
Manager.
(c) Promptly after receipt by an indemnified party of notice of the commencement of any action
under subsection (a) or (b) above for which indemnity may be sought, such indemnified party shall,
if a claim in respect thereof is to be made against the indemnifying party under such subsection,
notify the indemnifying party in writing of the commencement thereof; but the omission so to notify
the indemnifying party shall not relieve it from any liability which it may have to any indemnified
party otherwise than under such subsection. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and, to the extent that it shall
- 18 -
wish, jointly with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party and, after notice from the
indemnifying party to such indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such subsection for any
legal expenses of other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable costs of
investigation; provided that an indemnifying party shall not, in connection with any one such
action or separate but substantially similar actions arising out of the same general allegations,
be liable for the fees and expenses of more than one separate firm of attorneys at any time for all
indemnified parties, except to the extent that local counsel, in addition to its regular counsel,
is required in order to defend effectively against such action. No indemnifying party shall,
without the written consent of the indemnified party, effect the settlement or compromise of, or
consent to the entry of any judgment with respect to, any pending or threatened action or claim in
respect of which indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act, by or on behalf of any indemnified party. No
indemnified party shall, without the written consent of the indemnifying party (such consent not to
be unseasonably withheld), effect the settlement or compromise of, or consent to the entry of any
judgment with respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder.
(d) If the indemnification provided for in this Section 11 is unavailable to or insufficient
to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative economic benefits received by the indemnifying
party on the one hand and the indemnified party on the other from the Invitation. If, however, the
allocation provided by the immediately preceding sentence is not permitted by applicable law, 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 UMS on the one hand and you on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative economic benefits
of UMS on the one hand and you on the other shall be deemed to be in the same proportion as the
maximum aggregate value of the Reopened Notes proposed to be issued by UMS (assumed for this
purpose only to be $4.8 billion) and/or the maximum aggregate consideration
- 19 -
proposed to be paid by UMS to acquire Old Bonds pursuant to the Invitation bears to the
maximum aggregate fee proposed to be paid pursuant to Section 6 hereof as a result of the
Invitation. 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 UMS on the one hand or you on the other
and UMS’s or your relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. UMS and you agree that it would not be just and equitable if
contribution pursuant to this subsection (d) were determined by pro rata allocation (even if you
were treated as one entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities
(or actions in respect thereof) referred to above in this subsection (d) shall be deemed to include
any legal or other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. 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.
(e) The reimbursement, indemnity and contribution obligations under this Section 11 shall be
in addition to any liability that any indemnifying party may otherwise have, shall extend upon the
same terms and conditions to the affiliates, partners, directors, agents, employees and controlling
persons (if any) of each indemnifying party, and shall be binding upon and inure to the benefit of
any successors, assigns, heirs and personal representatives of such party, any such affiliate and
any such person.
12. Termination and Survival of Certain Provisions.
(a) This Agreement may be terminated (a) by you (i) upon a withdrawal by you as Dealer
Managers under the terms hereof or (ii) if UMS determines or acts to terminate, withdraw or suspend
the Invitation prior to consummation thereof or (b) by UMS if it determines or acts to terminate or
withdraw the Invitation prior to consummation thereof.
(b) The agreements contained in Sections 7, 11 and 13 hereof, the agreements contained in
Section 6 hereof (to the extent the transactions contemplated hereby have been consummated) and the
representations and warranties of UMS set forth in this Agreement shall remain operative and in
full force and effect regardless of (a) any failure to commence, or the withdrawal, rescission,
termination or consummation of, the Invitation or the termination or assignment of this Agreement,
(b) any investigation made by or on behalf of any indemnified party, and (c) the completion of your
services hereunder.
- 20 -
13. Jurisdiction and Immunity. UMS hereby appoints its Consul General in The City of New York
(currently Xx. Xxxx Xxxxxxxx Xxxxx Xxxxxx Xxxxxxx) and his successors as its authorized agent (the
“Authorized Agent”) upon which process may be served in any action or proceeding arising out of or
relating to this Agreement which may be instituted in any state or federal court in the Borough of
Manhattan, The City of New York, and each party hereto irrevocably submits to the jurisdiction of
any such court in respect of any such action and irrevocably waives any objection which it may now
or hereafter have to the laying of venue of any such action in any such court. UMS waives any
right to which it may be entitled on account of residence or domicile. UMS will maintain at all
times in the Borough of Manhattan, The City of New York, a person acting as or discharging the
function of Consul General as long as any of the Reopened Notes remain outstanding and until the
Invitation is consummated and all amounts payable hereunder and thereunder have been paid, unless
and until a successor agent shall have been appointed and such successor agent shall have accepted
such appointment. UMS will 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 00 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and written notice of such service mailed or delivered to UMS at
its address set forth in Section 19 hereof shall be deemed, in every respect, effective service of
process upon UMS. Notwithstanding the foregoing, any such action may be instituted in any
competent court in the United Mexican States. UMS hereby waives irrevocably any immunity from
jurisdiction to which it might otherwise be entitled (including sovereign immunity and immunity
from pre-judgment attachment, post-judgment attachment and execution) in any such action in any
state or federal court in the Borough of Manhattan, The City of New York, or in any competent court
in the United Mexican States, except that under Article 4 of the Federal Code of Civil Procedures
of the United Mexican States attachment prior to judgment or attachment in aid of execution will
not be enforced by Mexican courts against property of UMS. The submission to jurisdiction and
waiver of immunity by UMS contained herein is for the exclusive benefit of you (and your
affiliates, partners, directors, agents, employees and controlling persons, if any, referred to in
Section 11 hereof) and shall not extend to any other person.
14. Severability. If any provision hereof shall be determined to be invalid, illegal or
unenforceable in any respect, such determination shall not affect any other provision hereof, which
shall remain in full force and effect.
15. Counterparts. This Agreement may be executed in one or more separate counterparts, each
of which shall be deemed an original, but all of which together shall constitute one and the same
instrument.
16. Binding Effect. This Agreement, including any right to indemnity or contribution
hereunder, shall inure to the benefit of and be binding upon UMS, you and the
- 21 -
other indemnified parties, and each of your and their respective successors and assigns.
Nothing in this Agreement is intended, or shall be construed, to give to any other person or entity
any right hereunder or by virtue hereof.
17. Governing Law. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York, without regard to principles of conflicts of law, except that all
matters governing authorization and execution of this Agreement by UMS shall be governed by the
laws of the United Mexican States.
18. Entire Agreement. This Agreement constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof and thereof and may not be modified or amended
except in writing executed by the parties hereto.
19. Notices. All notices and other communications required or permitted to be given under
this Agreement shall be in writing and shall be deemed to have been duly given if delivered
personally or sent by mail or facsimile transmission, to the parties hereto as follows:
(a) If to you:
Barclays Capital Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Latin America Debt Capital Markets
Facsimile: (000) 000-0000
and
Attn: Liability Management
Facsimile: (000) 000-0000
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Latin America Debt Capital Markets
Facsimile: (000) 000-0000
and
Attn: Liability Management
Facsimile: (000) 000-0000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Legal and Compliance – Transaction Advisory Group
Facsimile: (000) 000-0000
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Legal and Compliance – Transaction Advisory Group
Facsimile: (000) 000-0000
(b) If to UMS:
Xxxxxxxxxx xx Xxxxxxxx x Xxxxxxx Xxxxxxx
Xxxxxxx Nacional, Patio Central, 3er Piso, Oficina 3010
Xxxxxxx Xxxxxx
00000, Xxxxxx D.F., Mexico
Xxxxxxx Nacional, Patio Central, 3er Piso, Oficina 3010
Xxxxxxx Xxxxxx
00000, Xxxxxx D.F., Mexico
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Attn: Deputy Undersecretary for Public Credit
Facsimile: (000) 00-000000-0000
Facsimile: (000) 00-000000-0000
20. Arm’s Length Contract. UMS hereby acknowledges and agrees that the Dealer Managers are
acting solely in the capacity of an arm’s length contractual counterparty to UMS with respect to
the transaction contemplated hereby (including in connection with determining the terms of the
offering to purchase Old Bonds and to issue the Reopened Notes). Additionally, neither Dealer
Manager is advising UMS or any other person as to any legal, tax, investment, accounting or
regulatory matters in any jurisdiction. UMS shall consult with its own advisors concerning such
matters and shall be responsible for making its own independent investigation and appraisal of the
transactions contemplated hereby, and the Dealer Managers shall have no responsibility or liability
to UMS with respect thereto, except as otherwise set forth herein. Any review by the Dealer
Managers of UMS, the transactions contemplated hereby or other matters relating to such
transactions will be performed solely for the benefit of the Dealer Managers and shall not be on
behalf of UMS or any other person.
[Signature page follows]
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Please indicate your willingness to act as Dealer Managers on the terms set forth herein and
your acceptance of the foregoing provisions by signing in the space provided below for that purpose
and returning to us a copy of this Agreement, whereupon this Agreement and your acceptance shall
constitute a binding agreement between us.
| Very truly yours, UNITED MEXICAN STATES |
||||
| By: | ||||
| Name: | Xxxxxxx Xxxxxxxxx Regordosa | |||
| Title: | Deputy Undersecretary for Public Credit of the Ministry of Finance and Public Credit of the United Mexican States |
|||
Accepted as of the date
first set forth above:
first set forth above:
BARCLAYS CAPITAL INC.
By: |
||||
| Name: | ||||
| Title: | ||||
| XXXXXX XXXXXXX & CO. INCORPORATED | ||||
By: |
||||
| Name: | ||||
| Title: | ||||
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Schedule I
List of Old Bonds
| Maturity | ||||||||||||
| Outstanding Principal | Date | |||||||||||
| Series of Bonds | Amount | ISIN | (mm/dd/yyyy) | |||||||||
8.125% Global Bonds due
2019 |
U.S.$2,025,434,000 | US593048BN00 | 12/30/2019 | |||||||||
8.00% Global Notes due 2022 |
U.S.$1,049,193,000 | US91086QAJ76 | 09/24/2022 | |||||||||
11.50% Global Bonds due
2026 |
U.S.$533,664,000 | US593048AX90 | 05/15/2026 | |||||||||
8.30% Global Notes due 2031 |
U.S.$2,691,426,000 | US91086QAG38 | 08/15/2031 | |||||||||
7.500% Global Notes due
2033 |
U.S.$2,485,878,000 | US91086QAN88 | 04/08/2033 | |||||||||
Schedule II
Expense Allocation for the Invitation
(Pursuant to Section 7 of the Dealer Managers Agreement)
(Pursuant to Section 7 of the Dealer Managers Agreement)
| Dealer Managers’ | UMS’s | |||||||
| Category of Expense | Share | Share | ||||||
Fees and Disbursements of Dealer
Managers’ Counsel (a) |
100 | % | 0 | % | ||||
Fees and Disbursements of UMS’s Counsel (b) |
0 | % | 100 | % | ||||
Bloomberg Roadshow Expenses |
100 | % | 0 | % | ||||
Luxembourg Listing Fees |
100 | % | 0 | % | ||||
Fiscal and Paying Agents |
100 | % | 0 | % | ||||
Settlement Agent |
100 | % | 0 | % | ||||
Exchange Agent |
100 | % | 0 | % | ||||
Information Agent |
100 | % | 0 | % | ||||
Listing Agent |
100 | % | 0 | % | ||||
Announcement Tombstones and Advertisements
(Placed at Launch) |
100 | % | 0 | % | ||||
Reproduction/Mailing of Invitation Material,
including the filing under the Electronic Data
Gathering, Analysis and Retrieval (XXXXX)
system of the Commission of the Prospectus and
the Form 18K/A of UMS filed in connection with
the Invitation |
100 | % | 0 | % | ||||
Jurisdictional Analysis (Limited to work
completed in this regard by UMS’s counsel) |
0 | % | 100 | % | ||||
Blue Sky Fees (Not including legal fees and
disbursements of Dealer Managers’ counsel) |
0 | % | 100 | % | ||||
SEC Filing and Listing Fees |
0 | % | 100 | % | ||||
Other additional expenses related to the
Invitation, including, but not limited to,
out-of-pocket expenses, translations,
documentation and travel expenses of UMS, if
any. |
100 | % | 0 | % | ||||
(a) Includes fees and disbursements of Xxxxxxxx & Xxxxxxxx LLP, as the Dealer Managers’ United
States counsel, and any other United States or foreign counsel retained by the Dealer Managers in
connection with the Invitation. The allocation of expenses related to the Dealer Managers’ counsel
is based on the assumption that UMS will bear complete responsibility for the investigation of all
jurisdictional issues relating to the offering.
(b) Includes Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, as UMS’s United States counsel, and any
other United States or foreign counsel retained by UMS in connection with the Invitation.
Annex I
Capitalized terms used in this Annex I and not defined herein shall have the meanings ascribed
thereto in the Dealer Managers Agreement to which this Annex I is appended.
OPINION
THE DEPUTY DIRECTOR GENERAL OF LEGAL PROCEDURES OF CREDIT OF THE
MINISTRY OF FINANCE AND PUBLIC CREDIT OR THE FISCAL ATTORNEY OF THE FEDERATION OR
THE DEPUTY FISCAL ATTORNEY OF THE FEDERATION
MINISTRY OF FINANCE AND PUBLIC CREDIT OR THE FISCAL ATTORNEY OF THE FEDERATION OR
THE DEPUTY FISCAL ATTORNEY OF THE FEDERATION
Annex II
Capitalized terms used in this Annex II and not defined herein shall have the meanings
ascribed thereto in the Dealer Managers Agreement to which this Annex II is appended.
OPINION OF XXXXXX XXXXXXXX XXXXX & XXXXXXXX LLP
Annex III
List of Jurisdictions
(Pursuant to Section 4(d) of the Dealer Managers Agreement)
(Pursuant to Section 4(d) of the Dealer Managers Agreement)
Belgium
Bermuda
Cayman Islands
France
Germany
Hong Kong
Ireland
Luxembourg
Mexico
The Netherlands
Singapore
Spain
Switzerland
United Kingdom
Bermuda
Cayman Islands
France
Germany
Hong Kong
Ireland
Luxembourg
Mexico
The Netherlands
Singapore
Spain
Switzerland
United Kingdom
Annex IV
List of any Issuer Free Writing Prospectuses for which UMS has received the Dealer Managers’
consent on or prior to the Commencement of the Invitation
consent on or prior to the Commencement of the Invitation
- Press release dated January 8, 2007, announcing the commencement of the Invitation.
