Exhibit 99.7
X.X. Xxxx & Co., Inc.
00 XXXXX XXXXXX, XXX XXXX, X.X. 00000
(000) 000-0000
January , 2003
Xx. Xxxxxx Xxxxx
Treasurer
Alestra S. de X.X. de C.V.
Xxxxxxx Xxxxxx Xxxxxxxx Xx. 0000, Xxxx 0
Residencial San Xxxxxxx
San Xxxxx Xxxxx Xxxxxx 00000
Xxxxxx
Dear Xx. Xxxxx:
This Letter Agreement sets forth the terms and conditions pursuant to
which Alestra S. de X.X. de C.V. (the "Company") has retained X. X. Xxxx & Co.,
Inc. ("King") in connection with the proposed exchange offers and tender offers.
The Company proposes to offer to exchange all of its outstanding 12
1/8% Notes due 2006 and 12 5/8% Notes due 2009 (the "Existing Notes") for (i)
its Senior Step-Up Notes due 2008 and Senior Step-Up Notes due 2011,
respectively (the "New Notes") or (ii) a cash payment and (iii) a payment in
cash or in kind for tenders and exchanges received prior to the early consent
payment deadline in accordance with, and subject to, the terms and conditions
set forth in the Prospectus dated , 2003 (the "Prospectus"). Such
offers are herein referred to as the "Offers".
1. The Company hereby retains King as Information Agent for advisory and
consulting services in connection with the Offers and requests and
authorizes King to contact, and to provide information with respect to
the Offers to, holders of the Existing Notes. For this purpose, King is
authorized to use, and will be supplied by the Company with as many
copies as King may reasonably request of, the following materials filed
with the Securities and Exchange Commission (the "Commission") or
publicly released (or to be filed or publicly released) by the Company
in connection with the Offers (collectively, the "Offer Materials"):
(i) a Prospectus; (ii) the Letters of Transmittal; (iii) press releases
and newspaper advertisements; and (iv) any and all amendments or
supplements to any of the foregoing, In no event xxxx Xxxx make any
recommendation to anyone regarding
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whether to tender or refrain from tendering their Existing Notes. If
such advice is requested, King will respond that it is not authorized
to give such advice and shall recommend to the person requesting such
advice that such person consult with his or her financial advisor or
broker.
2. The Company agrees to pay King as compensation for its services a fee
of US$ , which is due upon the completion, expiration or
termination, as the case may be, of the Offers. In the event the
Company requests King to provide additional services, the Company
agrees to pay King reasonable and customary compensation, in an amount,
if any, to be mutually agreed upon in writing. The Company further
agrees to reimburse King in U.S. dollars for all reasonable
out-of-pocket expenses (including reasonable counsel's fees and
disbursements) incurred by King in retention hereunder. The Company
agrees and acknowledges that its obligation under this paragraph 2 is
not in any way conditional upon the successful consummation of the
Exchange Offer or dependent upon the amount of Existing Notes acquired
by the Company pursuant to the Exchange Offer.
3. The Company agrees that King shall have the right to pass upon and
approve any and all references to King in the Offer Materials. Other
than the Registration Statement and the Letters of Transmittal, and any
amendment thereto, the Company shall not file with the Commission, any
other governmental or regulatory authority or body or any court, or
otherwise make public, any document containing any reference to King
unless and until King shall have approved such reference.
4. The Company represents and warrants to King that:
(i) this letter agreement is a valid and binding agreement on the
Company's part;
(ii) all necessary corporate action will be duly taken by the
Company prior to the commencement of the Offers to authorize
the Offers, and the exchange of Existing Notes for New Notes
or a cash payment in connection with the Offers;
(iii) all Offer Materials will comply, in all material respects,
with the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission thereunder, and none
of the Offer Materials and no other report, filing, document,
release or communication published or filed in connection with
the Offers, will contain any untrue or misleading statement of
a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements made
therein not misleading.
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Page 3
(iv) the Offers, and the exchange of Existing Notes for New Notes
or a cash payment in connection with the Offers, will comply,
in all material respects, with all applicable requirements of
law including the applicable rules or regulations of any
governmental or regulatory authority or body, (other than
required filings under the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission
promulgated thereunder) is required in connection with the
making or consummation of the Offers (or, if any such material
consent, approval or filing is required it will be duly
obtained or made prior to the commencement of the Offers); and
(v) the Offers, and the exchange of Existing Notes for New Notes
or a cash payment in connection with the Offers, and the
execution, delivery and performance of this letter agreement,
will not conflict with or result in a breach of or constitute
a default under the Company's certificate of incorporation or
by-laws, or any material agreement, indenture, mortgage, note
or other instrument by which the Company is bound.
5. The Company will advise King promptly of the occurrence of any event
which will cause it not to proceed with, or to withdraw or abandon, the
Offers. The Company will also advise King promptly of any proposal or
requirement to amend or supplement any of the Offer Materials.
6. The Company hereby agrees to indemnify and hold harmless King, King's
controlling person, officers, directors, employees, agents and
representatives (collectively, the "Indemnified Persons") from and
against any and all losses, claims, damages, liabilities and expenses
whatsoever (including but no limited to, all reasonable counsel fee,
disbursements and other out-of-pocket expenses) incurred by such
Indemnified Persons in investigating, preparing to defend or defending
(or appearing or preparing for appearance as a witness in connection
with) any claim, litigation, proceeding, investigation, or governmental
or stock exchange inquiry, commenced or threatened or any claim
whatsoever: (i) arising out of or based upon any facts or circumstances
constituting a violation of, or in conflict with, any of the
representations and warranties set forth in paragraph 4 above; or (ii)
arising out of, relating to, or in connection with the Offers, except
for the Indemnified Person's willful misconduct, bad faith or gross
negligence. The Company shall reimburse such Indemnified Persons for
such counsel fees and disbursements and other out-of-pocket expenses at
such time as they are paid or incurred by such Indemnified Persons. The
foregoing indemnity shall be in addition to any liability which the
Company might otherwise have to the Indemnified Persons.
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7. King agrees to notify the Company promptly of the assertion of any
claim against any of the Indemnified Persons in connection with the
Offers and the Company agrees to notify King promptly of the assertion
of any claim against the Company or any of its officers, directors,
employees or agents in connection with the Offers. At the Company's
election, unless there is a conflict of interest, the defense of the
Indemnified Person shall be conducted by the Company's counsel who
shall be reasonably satisfactory to King and the Indemnified Persons
who are defendants in the action or proceeding. Notwithstanding the
Company election to assume the defense of such action or proceeding, an
Indemnified Person may employ separate counsel to represent it or
defend it in such action or proceeding and the Company will pay the
reasonable fees and expenses of such counsel as set forth above if such
Indemnified Person reasonably determines that a conflict of interest
exists which makes representation by counsel chosen by the Company not
advisable; provided however, unless there are actual or potential
conflicts of interest among the Indemnified Persons, the Company will
not be required to pay the fees and expenses of more than one separate
counsel for all Indemnified Persons in any jurisdiction in any single
action or proceeding. In any action or proceeding the defense of which
the Company assumes, the Indemnified Persons shall nevertheless be
entitled to participate in such action or proceeding and retain its own
counsel at such Indemnified Person's own expense. Neither party
(including any Indemnified Person) shall settle or compromise any such
action or proceeding without the other party's prior written consent,
unless the terms of the settlement or compromise include an
unconditional release of any such party from all liability or loss
arising out of such action or proceeding.
8. The representations and warranties contained in paragraphs 4 and 5
above and the indemnity agreement contained in paragraphs 6 and 7 above
shall remain operative and in full force and effect regardless of: (i)
the termination or consummation of the Offers; and (ii) any
investigation made by or on behalf of any party.
9. This agreement shall be construed and enforced in accordance with the
laws of the State of New York. It is agreed that any action, suit or
proceeding arising out of or based upon this agreement shall be brought
in the United States District Court for the Southern District of New
York or any court of the State of New York of competent jurisdiction
located in such District, and the parties hereto hereby consent to the
in personam jurisdiction and venue of any such court and to service of
process by certified mail, return receipt requested.
If any provision of this agreement shall be held illegal or invalid by
any court, this agreement shall be construed and enforced as if such provision
had not been contained
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herein and shall be deemed an agreement between the parties hereto to the
fullest extent permitted by law.
If the foregoing correctly sets forth the understanding between the
Company and King, please indicate acceptance thereof in the space provided below
for the purpose, whereupon this letter and the Company's acceptance shall
constitute a binding agreement between the parties hereto.
X. X. XXXX & CO., INC.
BY:
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Xxxxxx X. Xxxx
Executive Vice President
Accepted as of the January , 2003 first above written
Alestra S. de X.X. de C.V.
BY:
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