Exhibit 99.3
EXCHANGE AGENT AGREEMENT
August __, 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:
The Southern Company, a Delaware corporation ("Southern"), Southern
Company Capital Funding, Inc., a Delaware corporation, as Sponsor ("Capital"),
and Southern Company Capital Trust II, 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
Southern, Capital and the Trust to exchange up to $75,000,000 aggregate
liquidation amount of the Trust's 8.14% Exchange Capital 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 8.19% Capital 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 August 4, 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
Southern, Capital, the Trust and Bankers Trust contained herein and subject to
the terms and conditions hereof, the following sets forth the agreement among
Southern, Capital, the Trust and Bankers Trust, as Exchange Agent for the
Exchange Offer:
1. APPOINTMENT AND DUTIES AS EXCHANGE AGENT.
a. Southern, Capital 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. Southern, Capital 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 Southern,
Capital 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 Southern, Capital
or the Trust to advise the tendering Holders of the irregularity and to take any
other action as Southern, Capital 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 any officer of Capital or any other party
designated by any such officer of Capital (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 any officer of Capital or any other party designated by any
such officer of Capital 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 Southern, Capital 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 Southern, Capital and the Trust to the Holders
promptly after the expiration or termination of the Exchange Offer.
h. Upon acceptance by Southern, Capital 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), Southern, Capital 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 Southern, Capital 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 Southern, Capital 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 Southern,
Capital and the Trust. Unless otherwise instructed by Southern, Capital 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 Trust 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 Southern, Capital and the Trust not to
exchange any Original Capital Securities tendered shall be given by Southern,
Capital 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, Southern, Capital 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
Southern, Capital 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, Southern, Capital 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 any officer of Capital or any other party
designated by any such officer of Capital;
(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 Southern, Capital 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 Southern, Capital and the Trust, to all
persons requesting such documents and to accept and comply with telephone
requests for information relating to the Exchange Offer. Southern, Capital 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 Southern, Capital and the Trust and such other person or persons as
Southern, Capital 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 Southern, Capital and the Trust,
or any such other person or persons upon request made from time to time, such
other information in its possession as Southern, Capital and the Trust may
reasonably request. Such cooperation shall include, without limitation, the
granting by Bankers Trust to Southern, Capital and the Trust, and such person or
persons as Southern, Capital 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 Southern, Capital and the
Trust shall have received adequate information in sufficient detail to enable
Southern, Capital 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 Southern, Capital 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 Southern, Capital and the
Trust. Bankers Trust shall dispose of unused Letters of Transmittal and other
surplus materials by returning them to Southern, Capital 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 Southern, Capital 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 Southern.
3. INDEMNIFICATION.
Southern, Capital 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 Southern: The Southern Company
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxxxxxx, Secretary
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Capital: Southern Company Capital Funding, Inc.
00 Xxxxxxxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx Xxxxxx, Assistant Secretary
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 Company Capital Trust II
00 Xxxxxxxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx Xxxxxx, Administrative Trustee
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 Southern, Capital 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 Southern a copy of this Agreement so signed,
whereupon this Agreement and Bankers Trust's acceptance shall constitute a
binding agreement among Bankers Trust, Southern, Capital and the Trust.
Very truly yours,
THE SOUTHERN COMPANY
By:___________________________
Name:
Title:
SOUTHERN COMPANY CAPITAL FUNDING, INC.
By:___________________________
Name:
Title:
SOUTHERN COMPANY CAPITAL TRUST II
By:___________________________
Name:
Title:
Accepted as of the date first above written:
BANKERS TRUST COMPANY,
as Exchange Agent
By:___________________________
Name:
Title:
