Exhibit 99.3
EXCHANGE AGENT AGREEMENT
June __, 1997
Bankers Trust Company
Attention: Corporate Trust and Agency Group
Manager Public Utilities Group
Four Xxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Southern Investments UK plc, a public limited company incorporated
under the laws of England and Wales, as Sponsor (the "Company"), and Southern
Investments UK Capital Trust I, a Delaware statutory business trust (the
"Trust"), hereby appoint Bankers Trust Company ("Bankers Trust") to act as
exchange agent (the "Exchange Agent") in connection with an exchange offer by
the Company and the Trust to exchange up to $82,000,000 aggregate liquidation
amount of the Trust's 8.23% Exchange Subordinated Capital Income Securities (the
"Exchange Capital Securities"), which have been registered under the Securities
Act of 1933, as amended (the "Securities Act"), for a like aggregate liquidation
amount of the Trust's outstanding 8.23% Subordinated Capital Income Securities
(the "Original Capital Securities" and, together with the Exchange Capital
Securities, the "Capital Securities"). The terms and conditions of the exchange
offer are set forth in a Prospectus dated June 25, 1997 (as the same may be
amended or supplemented from time to time, the "Prospectus") and in the related
Letter of Transmittal, which together constitute the "Exchange Offer." The
registered holders of the Capital Securities are hereinafter referred to as the
"Holders." Capitalized terms used herein and not defined shall have the
respective meanings ascribed thereto in the Prospectus.
On the basis of the representations, warranties and agreements of the
Company, the Trust and Bankers Trust contained herein and subject to the terms
and conditions hereof, the following sets forth the agreement among the Company,
the Trust and Bankers Trust, as Exchange Agent for the Exchange Offer:
1. APPOINTMENT AND DUTIES AS EXCHANGE AGENT.
a. The Company and the Trust hereby authorize Bankers Trust to act as
Exchange Agent in connection with the Exchange Offer and Bankers Trust agrees to
act as Exchange Agent in connection with the Exchange Offer. As Exchange Agent,
Bankers Trust will perform those services as are outlined herein, including
accepting tenders of Original Capital Securities, and communicating generally
regarding the Exchange Offer with brokers, dealers, commercial banks, trust
companies and other persons, including Holders of the Original Capital
Securities.
b. The Company and the Trust acknowledge and agree that Bankers Trust
has been retained pursuant to this Agreement to act solely as Exchange Agent in
connection with the Exchange Offer and, in such capacity, Bankers Trust shall
perform such duties in good faith as are outlined herein.
c. Bankers Trust will examine each of the Letters of Transmittal and
certificates for Original Capital Securities and any other documents delivered
or mailed to Bankers Trust by or for Holders of the Original Capital Securities,
and any book-entry confirmations received by Bankers Trust with respect to the
Original Capital Securities, to ascertain whether:
(i) the Letters of Transmittal and any such other documents are
duly executed and properly completed in accordance with the
instructions set forth therein and that such book-entry confirmations
are in due and proper form and contain the information required to be
set forth therein,
(ii) the Original Capital Securities have otherwise been properly
tendered, and
(iii) Holders have provided their correct Tax Identification
Number or required certification.
Determination of all questions as to validity, form, eligibility and acceptance
for exchange of any Original Capital Securities shall be made by the Company or
the Trust, whose determination shall be final and binding. In each case where
the Letters of Transmittal or any other documents have been improperly completed
or executed or where book-entry confirmations are not in due and proper form or
omit certain information, or any of the certificates for Original Capital
Securities are not in proper form for transfer or some other irregularity in
connection with the tender or acceptance of the Original Capital Securities
exists, Bankers Trust will endeavor upon request of the Company or the Trust to
advise the tendering Holders of the irregularity and to take any other action as
the Company or the Trust may request to cause such irregularity to be corrected.
Notwithstanding the above, Bankers Trust shall not be under any duty to give any
notification of any irregularities in tenders or incur any liability for failure
to give any such notification.
d. With the approval of the Chairman, the Chief Accounting Officer or
the Corporate Secretary or any other party designated by any such officer of the
Company (such approval, if given orally, to be confirmed in writing), Bankers
Trust is authorized to waive any irregularities in connection with any tender of
Original Capital Securities pursuant to the Exchange Offer.
e. Tenders of Original Capital Securities may be made only as set forth
in the Letter of Transmittal and in the section of the Prospectus captioned "The
Exchange Offer" and Original Capital Securities shall be considered properly
tendered only when tendered in accordance with such procedures set forth
therein. Notwithstanding the provisions of this paragraph, Original Capital
Securities which the Chairman, the Chief Accounting Officer or the Corporate
Secretary or any other party designated by any such officer of the Company shall
approve (such approval, if given orally, to be confirmed in writing) as having
been properly tendered shall be considered to be properly tendered.
f. Bankers Trust shall advise the Company and the Trust with respect to
any Original Capital Securities received as soon as possible after 5:00 p.m.,
New York City Time, on the Expiration Date and accept its instructions with
respect to disposition of such Original Capital Securities.
g. Bankers Trust shall deliver certificates for Original Capital
Securities tendered in part to the transfer agent for split-up and shall return
any untendered Original Capital Securities or Original Capital Securities which
have not been accepted by the Company and the Trust to the Holders promptly
after the expiration or termination of the Exchange Offer.
h. Upon acceptance by the Company and the Trust of any Original Capital
Securities duly tendered pursuant to the Exchange Offer (such acceptance, if
given orally, to be confirmed in writing), the Company and the Trust will cause
Exchange Capital Securities in exchange therefor to be issued as promptly as
possible and Bankers Trust will deliver such Exchange Capital Securities on
behalf of the Company and the Trust at the rate of $100,000 (100 Capital
Securities) liquidation amount of Exchange Capital Securities for each $100,000
liquidation amount of Original Capital Securities tendered as promptly as
possible after acceptance by the Company and the Trust of the Original Capital
Securities for exchange and notice (such notice, if given orally, to be
confirmed in writing) of such acceptance by the Company and the Trust. Unless
otherwise instructed by the Company or the Trust, Bankers Trust shall issue
Exchange Capital Securities only in denominations of $100,000 (100 Capital
Securities) or any integral multiple of $1,000 in excess thereof.
i. Tenders pursuant to the Exchange Offer are irrevocable, except that,
subject to the terms and the conditions set forth in the Prospectus and the
Letter of Transmittal, Original Capital Securities tendered pursuant to the
Exchange Offer may be withdrawn at any time on or prior to the Expiration Date
in accordance with the terms of the Exchange Offer.
j. The Company shall not be required to exchange any Original Capital
Securities tendered if any of the conditions set forth in the Exchange Offer are
not met. Notice of any decision by the Company and the Trust not to exchange any
Original Capital Securities tendered shall be given by the Company or the Trust
either orally (if given orally, to be confirmed in writing) or in a written
notice to Bankers Trust.
k. If, pursuant to the Exchange Offer, the Company and the Trust do not
accept for exchange all or part of the Original Capital Securities tendered
because of an invalid tender, the occurrence of certain other events set forth
in the Prospectus under the caption "The Exchange Offer -- Conditions to the
Exchange Offer" or otherwise, Bankers Trust shall, upon notice from the Company
or the Trust (such notice, if given orally, to be confirmed in writing),
promptly after the expiration or termination of the Exchange Offer return such
certificates for unaccepted Original Capital Securities (or effect appropriate
book-entry transfer), together with any related required documents and the
Letters of Transmittal relating thereto that are in Bankers Trust's possession,
to the persons who deposited such certificates.
l. Certificates for reissued Original Capital Securities, unaccepted
Original Capital Securities or Exchange Capital Securities shall be forwarded by
(a) first-class certified mail, return receipt requested under a blanket surety
bond obtained by Bankers Trust protecting Bankers Trust, the Company and the
Trust from loss or liability arising out of the non-receipt or non-delivery of
such certificates or (b) by registered mail insured by Bankers Trust separately
for the replacement value of each such certificate.
m. Bankers Trust is not authorized to pay or offer to pay any
concessions, commissions or solicitation fees to any broker, dealer, commercial
bank, trust company or other nominee or to engage or use any person to solicit
tenders.
n. As Exchange Agent, Bankers Trust:
(i) shall have no duties or obligations other than those
specifically set forth herein or as may be subsequently agreed to in
writing;
(ii) will make no representations and will have no
responsibilities as to the validity, value or genuineness of any of
the certificates for the Original Capital Securities deposited
pursuant to the Exchange Offer, and will not be required to and will
make no representation as to the validity, value or genuineness of the
Exchange Offer;
(iii) shall not be obligated to take any legal action hereunder
which might in Bankers Trust's reasonable judgment involve any expense
or liability, unless Bankers Trust shall have been furnished with
indemnity reasonably satisfactory to it and additional fees for the
taking of such action;
(iv) may reasonably 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 Bankers Trust and
reasonably believed by Bankers Trust to be genuine and to have been
signed by the proper party or parties;
(v) may reasonably act upon any tender, statement, request,
comment, agreement 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 Bankers Trust believes in good faith to be genuine and
to have been signed or represented by a proper person or persons
acting in a fiduciary or representative capacity;
(vi) may rely on and shall be protected in acting upon written or
oral instructions from the Chairman, the Chief Accounting Officer or
the Corporate Secretary or any other designated officer of the
Company;
(vii) may consult with its own counsel with respect to any
questions relating to Bankers Trust's duties and responsibilities and
the advice of such counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted to
be taken by Bankers Trust hereunder in good faith and in accordance
with the advice of such counsel; and
(viii) shall not advise any person tendering Original Capital
Securities pursuant to the Exchange Offer as to whether to tender or
refrain from tendering all or any portion of its Original Capital
Securities or as to the market value, decline or appreciation in
market value of any Original Capital Securities that may or may not
occur as a result of the Exchange Offer or as to the market value of
the Exchange Capital Securities.
p. Bankers Trust shall take such action as may from time to time be
requested by the Company or the Trust to furnish copies of the Prospectus,
Letter of Transmittal and the Notice of Guaranteed Delivery or such other forms
as may be approved from time to time by the Company and the Trust, to all
persons requesting such documents and to accept and comply with telephone
requests for information relating to the Exchange Offer. The Company and the
Trust will furnish Bankers Trust with copies of such documents at its request.
q. Bankers Trust shall advise orally and promptly thereafter confirm in
writing to the Company and the Trust and such other person or persons as the
Company and the Trust may request, daily (and more frequently during the week
immediately preceding the Expiration Date and if otherwise reasonably requested)
up to and including the Expiration Date, the aggregate liquidation amount of
Original Capital Securities which have been tendered pursuant to the terms of
the Exchange Offer and the items received by Bankers Trust pursuant to the
Exchange Offer and this Agreement. In addition, Bankers Trust will also provide,
and cooperate in making available to the Company and the Trust, or any such
other person or persons upon request made from time to time, such other
information in its possession as the Company and the Trust may reasonably
request. Such cooperation shall include, without limitation, the granting by
Bankers Trust to the Company and the Trust, and such person or persons as the
Company and the Trust may request, access to those persons on Bankers Trust's
staff who are responsible for receiving tenders, in order to ensure that
immediately prior to the Expiration Date the Company and the Trust shall have
received adequate information in sufficient detail to enable the Company and the
Trust to decide whether to extend the Exchange Offer. Bankers Trust shall
prepare a final list of all persons whose tenders were accepted, the aggregate
liquidation amount of Original Capital Securities tendered, the aggregate
liquidation amount of Original Capital Securities accepted and deliver said list
to the Company and the Trust.
r. Letters of Transmittal, book-entry confirmations and Notices of
Guaranteed Delivery shall be stamped by Bankers Trust as to the date and the
time of receipt thereof and shall be preserved by Bankers Trust for a period of
time at least equal to the period of time Bankers Trust preserves other records
pertaining to the transfer of securities, or one year, whichever is longer, and
thereafter shall be delivered by Bankers Trust to the Company and the Trust.
Bankers Trust shall dispose of unused Letters of Transmittal and other surplus
materials by returning them to the Company or the Trust.
s. Bankers Trust hereby expressly waives any lien, encumbrance or right
of set-off whatsoever that Bankers Trust may have with respect to any funds
deposited with it for the payment of transfer taxes by reason of amounts, if
any, borrowed by the Company or the Trust, or any of its or their subsidiaries
or affiliates pursuant to any loan or credit agreement with Bankers Trust or for
compensation owed to Bankers Trust hereunder or for any other matter.
2. COMPENSATION.
For services rendered as Exchange Agent hereunder, Bankers Trust shall
be entitled to such reasonable compensation as shall be agreed to by the
Company.
3. INDEMNIFICATION.
The Company and the Trust hereby agree to indemnify the Exchange Agent
for, and to hold it harmless against, any loss, liability or expense incurred
without negligence, bad faith or willful misconduct on its part arising out of
or in connection with the acceptance or administration of this Agreement and the
performance of its duties hereunder, including the costs and expenses of
defending itself against any claim of liability in connection with the exercise
or performance of any of its powers or duties hereunder. This indemnification
shall survive the termination of this Agreement pursuant to Section 10 hereof.
4. GOVERNING LAW.
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York applicable to contracts executed in and to be
performed in that state.
5. NOTICES.
Any communication or notice provided for hereunder shall be in writing
and shall be given (and shall be deemed to have been given upon receipt) by
delivery in person, telecopy, or overnight delivery or by registered or
certified mail (postage prepaid, return receipt requested) to the applicable
party at the addresses indicated below:
If to the Company: Southern Investments UK plc
c/o Southern Energy, Inc.
000 Xxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Chief Financial Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Bankers Trust: Bankers Trust Company
Four Xxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Trust: Southern Investments UK Capital Trust I
c/o Southern Energy, Inc.
000 Xxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Chief Financial Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or, as to each party, at such other address as shall be designated by such party
in a written notice complying as to delivery with the terms of this Section.
6. PARTIES IN INTEREST.
This Agreement shall be binding upon and inure solely to the benefit of
each party hereto and nothing in this Agreement, express or implied, is intended
to or shall confer upon any other person any right, benefit or remedy of any
nature whatsoever under or by reason of this Agreement. Without limitation to
the foregoing, the parties hereto expressly agree that no holder of Original
Capital Securities or Exchange Capital Securities shall have any right, benefit
or remedy of any nature whatsoever under or by reason of this Agreement.
7. COUNTERPARTS; SEVERABILITY.
This Agreement may be executed in one or more counterparts, and by
different parties hereto on separate counterparts, each of which when so
executed shall be deemed an original, and all of such counterparts shall
together constitute one and the same agreement. If any term or other provision
of this Agreement or the application thereof is invalid, illegal or incapable of
being enforced by any rule of law, or public policy, all other provisions of
this Agreement shall nevertheless remain in full force and effect so long as the
economic or legal substance of the agreements contained herein is not affected
in any manner adverse to any party. Upon such determination that any term or
provision or the application thereof is invalid, illegal or unenforceable, the
parties hereto shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible in a mutually
acceptable manner in order that the agreements contained herein may be performed
as originally contemplated to the fullest extent possible.
8. CAPTIONS.
The descriptive headings contained in this Agreement are included for
convenience of reference only and shall not affect in any way the meaning or
interpretation of this Agreement.
9. ENTIRE AGREEMENT; AMENDMENT.
This Agreement constitutes the entire understanding of the parties
hereto with respect to the subject matter hereof. This Agreement may not be
amended or modified nor may any provision hereof be waived except in writing
signed by each party to be bound thereby.
10. TERMINATION.
This Agreement shall terminate upon the earliest of (a) the 90th day
following the expiration, withdrawal, or termination of the Exchange Offer, (b)
the close of business on the date of actual receipt of written notice by Bankers
Trust from the Company and the Trust stating that this Agreement is terminated,
(c) one year following the date of this Agreement, or (d) the time and date on
which this Agreement shall be terminated by mutual consent of the parties
hereto.
11. MISCELLANEOUS.
Bankers Trust hereby acknowledges receipt of the Prospectus and the
Letter of Transmittal and the Notice of Guaranteed Delivery and further
acknowledges that it has examined each of them. Any inconsistency between this
Agreement, on the one hand, and the Prospectus and the Letter of Transmittal and
the Notice of Guaranteed Delivery (as they may be amended or supplemented from
time to time), on the other hand, shall be resolved in favor of the latter three
documents, except with respect to the duties, liabilities and indemnification of
Bankers Trust as Exchange Agent which shall be controlled by this Agreement.
Kindly indicate your willingness to act as Exchange Agent and Bankers Trust's
acceptance of the foregoing provisions by signing in the space provided below
for that purpose and returning to the Company a copy of this Agreement so
signed, whereupon this Agreement and Bankers Trust's acceptance shall constitute
a binding agreement among Bankers Trust, the Company and the Trust.
Very truly yours,
SOUTHERN INVESTMENTS UK plc
By:___________________________
Name:
Title:
SOUTHERN INVESTMENTS UK CAPITAL TRUST I
By:___________________________
Name:
Title:
Accepted as of the date first above written:
BANKERS TRUST COMPANY,
as Exchange Agent
By:___________________________
Name:
Title:
