EXHIBIT 99.6
January , 2003
EXCHANGE AGENT AGREEMENT
The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 0 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
Ladies and Gentlemen:
Alestra, S. de X.X. de C.V. a Mexican Limited Liability Company of
Variable Capital (the "Company") proposes to make offers (the "Offers") to
exchange (the "Exchange Offer") all of its outstanding 12 1/8% Senior Notes due
2006 and 12 5/8% Notes due 2009 (the "Existing Notes") for its Senior Step-Up
Notes due 2008 and Senior Step-Up Notes due 2011, respectively (the "New Notes")
or a cash payment (the "Cash Tender Offer"). In addition, the Company is
offering a payment in cash or in kind for tenders and exchanges received prior
to the early consent payment deadline (the "Early Consent Payment"). The terms
and conditions of the Offers as currently contemplated are set forth in a
prospectus, dated January , 2003 (the "Prospectus"), proposed to be
distributed to all record holders of the Existing Notes. The Existing Notes and
the New Notes are collectively referred to herein as the "Notes".
The Company hereby appoints The Bank of New York to act as exchange
agent (the "Exchange Agent") in connection with the Offers and The Bank of New
York hereby accepts such appointment. Any and all fees payable to The Bank of
New York under this Agreement are listed on Schedule A hereto. References
hereinafter to "you" shall refer to The Bank of New York.
The Offers are expected to be commenced by the Company on or about
January , 2003. The Letters of Transmittal accompanying the Prospectus (and
in the case of book-entry securities, the Automated Tender Offer Program
("ATOP") of the Book-Entry Transfer Facility (as defined below)) is to be used
by the holders of the Existing Notes to accept the Offers and contains
instructions with respect to the delivery of certificates for Existing Notes
tendered in connection therewith.
The Offers shall expire at 11:59 p.m., New York City time, on
_________, 2003 or on such subsequent date or time to which the Company may
extend the Offers (the "Expiration Date"). Subject to the terms and conditions
set forth in the Prospectus,
the Company expressly reserves the right to extend, amend or terminate the
Offers from time to time and may extend, amend or terminate the Offers by giving
oral (promptly confirmed in writing) or written notice to you before 9:00 a.m.,
New York City time, on the business day following the previously scheduled
Expiration Date.
The Company expressly reserves the right to amend or terminate the
Offers, and not to accept for exchange any Existing Notes not theretofore
accepted for exchange, upon the occurrence of any of the conditions of the
Offers specified in the Prospectus under the caption "The Offers and the Consent
Solicitations -- Conditions to the Offers." The Company will give oral (promptly
confirmed in writing) or written notice of any amendment, termination or
nonacceptance to you as promptly as practicable.
In carrying out your duties as Exchange Agent, you are to act in
accordance with the following instructions:
1. You will perform such duties and only such duties as are
specifically set forth in the section of the Prospectus captioned "The Offers
and the Consent Solicitations" or as specifically set forth herein; provided,
however, that in no way will your general duty to act in good faith be
discharged by the foregoing.
2. You will establish a book-entry account with respect to the Existing
Notes at The Depository Trust Company (the "Book-Entry Transfer Facility") for
purposes of the Offers on the date of the Prospectus, and any financial
institution that is a participant in the Book-Entry Transfer Facility's systems
may make book-entry delivery of the Existing Notes by causing the Book-Entry
Transfer Facility to transfer such Existing Notes into your account in
accordance with the Book-Entry Transfer Facility's procedure for such transfer.
3. You are to examine each of the Letters of Transmittal and
certificates for Existing Notes (or confirmation of book-entry transfer into
your account at the Book-Entry Transfer Facility) and any other documents
delivered or mailed to you by or for holders of the Existing Notes to ascertain
whether: (i) the Letters of Transmittal and any such other documents are duly
executed and properly completed in accordance with instructions set forth
therein; and (ii) the Existing Notes have otherwise been properly tendered. In
each case where the Letter of Transmittal or any other document has been
improperly completed or executed or any of the certificates for Existing Notes
are not in proper form for transfer or some other irregularity in connection
with the acceptance of the Offers exists, you will endeavor to inform the
presenters of the need for fulfillment of all requirements and to take any other
action as may be reasonably necessary or advisable to cause such irregularity to
be corrected.
4. With the approval of the President, Chief Financial Officer or
Treasurer of the Company (such approval, if given orally, to be promptly
confirmed in writing) or any other party designated in writing, by such officer
of the Company, you are
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authorized to waive any irregularities in connection with any tender of Existing
Notes pursuant to the Offers.
5. Tenders of Existing Notes may be made only as set forth in the
Letters of Transmittal and in the section of the Prospectus captioned "The
Offers and the Consent Solicitations - How to Tender", and Existing Notes shall
be considered properly tendered to you only when tendered in accordance with the
procedures set forth therein.
Notwithstanding the provisions of this Section 5, Existing Notes which
the President, Chief Financial Officer or Treasurer of the Company shall approve
as having been properly tendered shall be considered to be properly tendered
(such approval, if given orally, shall be promptly confirmed in writing).
6. You shall advise the Company with respect to any Existing Notes
received subsequent to the Expiration Date and accept its instructions with
respect to disposition of such Existing Notes.
7. You shall accept tenders:
(a) in cases where the Existing Notes are registered in two or more
names only if signed by all named holders;
(b) in cases where the signing person (as indicated on the Letters
of Transmittal) is acting in a fiduciary or a representative capacity only when
proper evidence of his or her authority so to act is submitted; and
(c) from persons other than the registered holder of Existing Notes,
provided that customary transfer requirements, including payment of any
applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Existing Notes where so indicated
and as permitted in the Letters of Transmittal and deliver certificates for
Existing Notes to the registrar for split-up and return any untendered Existing
Notes to the holder (or such other person as may be designated in the Letters of
Transmittal) as promptly as practicable after expiration or termination of the
Offers.
8. Upon satisfaction or waiver of all of the conditions to the Offers,
the Company will notify you (such notice, if given orally, to be promptly
confirmed in writing) of its acceptance, promptly after the Expiration Date, of
all Existing Notes properly tendered and you, on behalf of the Company, will
exchange such Existing Notes for New Notes or cash payments, including in some
cases, the Early Consent Payment and cause such Existing Notes to be cancelled.
Delivery will be made on behalf of the Company by you at the rate of $970
principal amount of New Notes pursuant to the Exchange Offer or $400 cash
payment pursuant to the Cash Tender Offer for each $1,000 principal amount of
the corresponding series of Existing Notes tendered promptly after
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notice (such notice if given orally, to be promptly confirmed in writing) of
acceptance of said Existing Notes by the Company; provided, however, that in all
cases, Existing Notes tendered pursuant to the Offers will be exchanged only
after timely receipt by you of certificates for such Existing Notes (or
confirmation of book-entry transfer into your account at the Book-Entry Transfer
Facility), a properly completed and duly executed Letters of Transmittal (or
manually signed facsimile thereof) with any required signature guarantees and
any other required documents. You shall issue New Notes only in denominations of
$1,000 or any integral multiple thereof.
9. Tenders pursuant to the Offers are irrevocable, except that,
subject to the terms and upon the conditions set forth in the Prospectus and the
Letters of Transmittal, Existing Notes tendered pursuant to the Offers may be
withdrawn at any time prior to the Expiration Date as described in the Letters
of Transmittal and the Prospectus.
10. The Company shall not be required to exchange any Existing Notes
tendered if any of the conditions set forth in the Offers are not met. Notice of
any decision by the Company not to exchange any Existing Notes tendered shall be
given (if given orally, to be promptly confirmed in writing) by the Company to
you.
11. If, pursuant to the Offers, the Company does not accept for
exchange all or part of the Existing Notes tendered because of an invalid
tender, the occurrence of certain other events set forth in the Prospectus under
the caption "The Offers and the Consent Solicitations -- Conditions to the
Offers" or otherwise, you shall as soon as practicable after the expiration or
termination of the Offers return those certificates for unaccepted Existing
Notes (or effect appropriate book-entry transfer), together with any related
required documents and the Letters of Transmittal relating thereto that are in
your possession, to the persons who deposited them.
12. All certificates for reissued Existing Notes, unaccepted Existing
Notes or for New Notes shall be forwarded by first-class mail.
13. You are not authorized to pay or offer to pay any concessions,
commissions or solicitation fees to any broker, dealer, bank or other persons or
to engage or utilize any person to solicit tenders.
14. As Exchange Agent hereunder you:
(a) shall not be liable for any action or omission to act unless
the same constitutes your own gross negligence, willful misconduct or bad faith,
and in no event shall you be liable to a securityholder, the Company or any
third party for special, indirect or consequential damages, or lost profits,
arising in connection with this Agreement.
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(b) shall have no duties or obligations other than those
specifically set forth herein or as may be subsequently agreed to in writing
between you and the Company;
(c) will be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value or genuineness of any of
the certificates or the Existing Notes represented thereby deposited with you
pursuant to the Offers, and will not be required to and will make no
representation as to the validity, value or genuineness of the Offers;
(d) shall not be obligated to take any legal action hereunder which
might in your judgment involve any expense or liability, unless you shall have
been furnished with indemnity satisfactory to you;
(e) may conclusively rely on and shall be protected in acting in
reliance upon any certificate, instrument, opinion, notice, letter, telegram or
other document or security delivered to you and believed by you to be genuine
and to have been signed or presented by the proper person or persons;
(f) may act upon any tender, statement, request, document,
agreement, certificate or other instrument whatsoever not only as to its due
execution and validity and effectiveness of its provisions, but also as to the
truth and accuracy of any information contained therein, which you shall in good
faith believe to be genuine or to have been signed or presented by the proper
person or persons;
(g) may conclusively rely on and shall be protected in acting upon
written or oral instructions from any authorized officer of the Company;
(h) may consult with counsel of your selection with respect to any
questions relating to your duties and responsibilities and the advice or opinion
of such counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted to be taken by you hereunder in
good faith and in accordance with the advice or opinion of such counsel; and
(i) shall not advise any person tendering Existing Notes pursuant
to the Offers as to the wisdom of making such tender or as to the market value
or decline or appreciation in market value of any Existing Notes or New Notes.
15. You shall take such action as may from time to time be requested by
the Company (and such other action as you may deem appropriate) to furnish
copies of the Prospectus, Letter of Transmittal and the Notice of Guaranteed
Delivery (as defined in the Prospectus) or such other forms as may be approved
from time to time by the Company, to all persons requesting such documents and
to accept and comply with telephone requests for information relating to the
Offers, provided that such information shall relate only to the procedures for
accepting (or withdrawing from) the Offers. The
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Company will furnish you with copies of such documents on your request. All
other requests for information relating to the Offers shall be directed to the
Company, Attention: Treasurer.
16. You shall advise by facsimile transmission Xxxxxx Xxxxx, the
Treasurer of the Company (at the facsimile number 011-5281-8625-2123), and such
other person or persons as the Company may request, daily (and more frequently
during the week immediately preceding the Expiration Date if requested) up to
and including the Expiration Date, as to the number of Existing Notes which have
been tendered pursuant to the Offers and the items received by you pursuant to
this Agreement, separately reporting and giving cumulative totals as to items
properly received and items improperly received. In addition, you will also
inform and cooperate in making available to the Company and such other person or
persons as the Company may request upon oral request made from time to time
prior to the Expiration Date, such other information as they may reasonably
request. Such cooperation shall include, without limitation, the granting by you
to the Company and such person as the Company may request of access to those
persons on your staff who are responsible for receiving tenders, in order to
ensure that immediately prior to the Expiration Date the Company shall have
received information in sufficient detail to enable it to decide whether to
extend the Exchange Offer. You shall prepare a final list of all persons whose
tenders were accepted, the aggregate principal amount of Existing Notes
tendered, the aggregate principal amount of Existing Notes accepted and deliver
said list to the Company.
17. Letters of Transmittal and Notices of Guaranteed Delivery shall be
stamped by you as to the date and, after the expiration of the Offers, the time,
of receipt thereof and shall be preserved by you for a period of time at least
equal to the period of time you preserve other records pertaining to the
transfer of securities. You shall dispose of unused Letters of Transmittal and
other surplus materials by returning them to the Company.
18. For services rendered as Exchange Agent hereunder, you shall be
entitled to such compensation as shall be agreed in writing between the Company
and you. The provisions of this section shall survive the termination of this
Agreement.
19. You hereby acknowledge receipt of the Prospectus and the Letters of
Transmittal. Any inconsistency between this Agreement, on the one hand, and the
Prospectus and the Letter of Transmittal (as they may be amended from time to
time), on the other hand, shall be resolved in favor of the latter two
documents, except with respect to your duties, liabilities and indemnification
as Exchange Agent.
20. The Company covenants and agrees to fully indemnify and hold you
harmless against any and all loss, liability, reasonable cost or expense,
including attorneys' fees and expenses, incurred without gross negligence, bad
faith or willful misconduct on your part, arising out of or in connection with
any act, omission, delay or refusal made by you in reliance upon any signature,
endorsement, assignment, certificate,
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order, request, notice, instruction or other instrument or document believed by
you to be valid, genuine and sufficient and in accepting any tender or effecting
any transfer of Existing Notes believed by you in good faith to be authorized,
and in delaying or refusing in good faith to accept any tenders or effect any
transfer of Existing Notes. In each case, the Company shall be notified by you,
by letter or facsimile transmission, of the written assertion of a claim against
you or of any other action commenced against you, promptly after you shall have
received any such written assertion or shall have been served with a summons in
connection therewith. The Company shall be entitled to participate at its own
expense in the defense of any such claim or other action and, if the Company so
elects, the Company shall assume the defense of any suit brought to enforce any
such claim. In the event that the Company shall assume the defense of any such
suit, the Company shall not be liable for the fees and expenses of any
additional counsel thereafter retained by you, so long as the Company shall
retain counsel satisfactory to you to defend such suit, and so long as you have
not determined, in your reasonable judgment, that a conflict of interest exists
between you and the Company. The provisions of this section shall survive the
termination of this Agreement.
21. You shall arrange to comply with all requirements under the tax
laws of the United States, including those relating to missing Tax
Identification Numbers, and shall file any appropriate reports with the Internal
Revenue Service.
22. You shall deliver or cause to be delivered, in a timely manner to
each governmental authority to which any transfer taxes are payable in respect
of the exchange of Existing Notes, the Company's check in the amount of all
transfer taxes so payable; provided, however, that you shall reimburse the
Company for amounts refunded to you in respect of your payment of any such
transfer taxes, at such time as such refund is received by you.
23. This Agreement and your appointment as Exchange Agent hereunder
shall be construed and enforced in accordance with the laws of the State of New
York applicable to agreements made and to be performed entirely within such
state, and without regard to conflicts of law principles, and shall inure to the
benefit of, and the obligations created hereby shall be binding upon, the
successors and assigns of each of the parties hereto.
24. This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original and all of which together shall
constitute one and the same agreement.
25. In case any provision of this Agreement shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
26. This Agreement shall not be deemed or construed to be modified,
amended, rescinded, cancelled or waived, in whole or in part, except by a
written
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instrument signed by a duly authorized representative of the party to be
charged. This Agreement may not be modified orally.
27. Unless otherwise provided herein, all notices, requests and other
communications to any party hereunder shall be in writing (including facsimile
or similar writing) and shall be given to such party, addressed to it, at its
address or telecopy number set forth below:
If to the Company:
Alestra, S. de X.X. de C.V.
Xxxxxxx Xxxxxx Xxxxxxxx Xx. 0000, Xxxx 0
Col. Residencial San Xxxxxxx
San Xxxxx Xxxxx Xxxxxx, X.X. 00000, Xxxxxx
Facsimile: 011-5281-8625-2123
Attention: Treasurer
With a copy to: The Legal Department
If to the Exchange Agent:
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxxxx 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Corporate Trust
Administration
28. Unless terminated earlier by the Company, this Agreement shall
terminate 90 days following the Expiration Date. Notwithstanding the foregoing,
Sections 18 and 20 shall survive the termination of this Agreement. Upon any
termination of this Agreement, you shall promptly deliver to the Company any
certificates for Securities, funds or property or any other documents then held
by you as Exchange Agent under this Agreement.
29. This Agreement shall be binding and effective as of the date
hereof.
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Please acknowledge receipt of this Agreement and confirm the
arrangements herein provided by signing and returning the enclosed copy.
Alestra, S. de X.X. de C.V.
By: ___________________________________
Name:
Title:
Accepted as of the date
first above written:
THE BANK OF NEW YORK, as Exchange Agent
By: ________________________________
Name:
Title:
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Schedule A
Fees:
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