Exhibit 99.3
Exchange Agency Agreement
May , 1998
State Street Bank and Trust Company
Corporate Trust Department
Two International Place - 4th Floor
Boston, Massachusetts 02110
Attention:
Ladies and Gentlemen:
ESI Tractebel Acquisition Corp., a Delaware corporation (the "Company")
is offering to exchange (the "Exchange Offer"), upon the terms and subject to
the conditions set forth in the Prospectus dated _____________1998 (the
"Prospectus"), and the accompanying Letter of Transmittal and instructions
thereto (the "Letter of Transmittal"), its 7.99% Series B Secured Bonds Due 2011
(the "New Notes") for all of its outstanding 7.99% Series A Secured Bonds Due
2011 (the "Old Notes") of the Company of which $220,000,000 principal amount is
outstanding. The New Notes and the Old Notes are together referred to herein as
the "Notes". Capitalized terms used herein but not otherwise defined herein
shall have the meanings ascribed to them in the Prospectus or Letter of
Transmittal.
You are hereby appointed and authorized to act as agent (the "Exchange
Agent") to effectuate the exchange of Old Notes for New Notes, on the terms and
subject to the conditions of this agreement (the "Agreement"). In that
connection, the following documents have been delivered to you:
(i) Prospectus;
(ii) the Letter of Transmittal accompanying the Prospectus, to be used
by the holders of Old Notes ("Old Noteholders") in tendering their Old Notes";
and
(iii) the Notice of Guaranteed Delivery to be used by Old Noteholders
whose Old Notes are not immediately available or who cannot deliver their Old
Notes, the Letter of Transmittal or any other required documents to you prior to
the expiration of the Exchange Offer.
____________________ Exchange Agency Agreement
May , 1998
Page 2
The Exchange Offer will expire at the time and on the date specified in
the Prospectus (the "Expiration Date") unless the Exchange Offer is extended by
the Company, in which case the term "Expiration Date" shall mean the latest date
to which the Exchange Offer is extended.
You are hereby requested, and you hereby agree, to act as follows:
1. You are to accept Old Notes which are accompanied by the appropriate
Letter of Transmittal or facsimile thereof, properly completed and duly executed
in accordance with the instructions thereon and any requisite collateral
documents or, in the case of Old Notes tendered by book-entry transfer, all
other instruments and communications submitted to you in connection with the
Exchange Offer and to hold the same upon the terms and conditions set forth in
this Agreement.
2. You are to examine the Letters of Transmittal, the Old Notes and
other documents delivered or mailed to you by or for Old Noteholders to
ascertain whether (i) the Letters of Transmittal are properly completed and duly
executed in accordance with the instructions set forth therein, (ii) the other
documents are properly completed and duly executed, and (iii) the Old Notes have
otherwise been properly tendered. You need not pass on the legal sufficiency of
any signature or verify any signature guarantee.
3. In the event any Letter of Transmittal or other document has been
improperly executed or completed or any of the certificates are not in proper
form or have been improperly tendered or any book-entry delivery of Old Notes
has been improperly made, or if some other irregularity in connection with the
delivery of Old Notes by a holder thereof exists, you are authorized, upon
consultation with the Company or its counsel, to endeavor to take such action as
may be necessary to cause such irregularity to be corrected. You are authorized,
upon consultation with the Company or its counsel, to request from any person
tendering Old Notes such additional documents or undertakings as you or they
deem appropriate. All questions as to the form of all documents and the
validity, eligibility (including time of receipt) and acceptance of tendered Old
Notes will be determined by the Company, in its sole discretion, whose
determination will be final and binding. The Company reserves the absolute right
to reject any or all tenders of any particular Old Notes, which would, in the
opinion of the Company's counsel, be unlawful. The Company also reserves the
absolute right to waive any of the conditions of the Exchange Offer or any
defect or irregularity in the tender of any Old Notes, and the Company's
interpretation of the terms and conditions of the Exchange Offer (including the
Letter of Transmittal and the instructions set forth therein) will be final. No
tender of Old Notes will be deemed to have been properly made until all defects
and irregularities have been cured or waived.
____________________ Exchange Agency Agreement
May , 1998
Page 3
4. Tenders of Old Notes may be made only as set forth in the Prospectus
and Letter of Transmittal, and Old Notes shall be considered properly tendered
to you only when:
a. a properly completed and duly executed Letter of Transmittal, with
any required signature guarantees and any other required documents as
set forth in the Letter of Transmittal, is received by you at your
address set forth in the Prospectus and Letter of Transmittal, and Old
Notes are received by you at such addresses or a timely confirmation of
a book-entry transfer of such Old Notes is received by you at or prior
to the Expiration Date at your address set forth in the Prospectus and
Letter of Transmittal; or a properly completed and duly executed Notice
of Guaranteed Delivery substantially in the form provided by the
Company, with an appropriate guarantee of signature and delivery from an
Eligible Institution, is received by you at or prior to the Expiration
Date and Old Notes (in respect of which there have been delivered to you
prior to the Expiration Date a properly completed and duly executed
Notice of Guaranteed Delivery) in proper form for transfer together with
a properly completed and duly executed Letter of Transmittal (or
facsimile thereof) and any other required documents as set forth in the
Letter of Transmittal, are received by you within five New York Stock
Exchange trading days; and
b. the adequacy of the items relating to Old Notes, the Letter of
Transmittal therefor and any Notice of Guaranteed Delivery has been
favorably passed upon as above provided.
Notwithstanding the provisions of the preceding paragraph, Old Notes
which the Company shall approve as having been properly tendered shall be
considered to be properly tendered.
5. Holders of Old Notes may make book-entry delivery of their
securities. You will establish in your name or the name of your nominee an
account with respect to the Old Notes at Depository Trust Company ("DTC") for
purpose of the Exchange Offer to permit book-entry transfers of Old Notes.
Except as otherwise provided below, Old Notes, or any book-entry transfer into
your account at DTC of Old Notes tendered electronically, as well as a properly
completed and duly executed copy of the Letter of Transmittal, and any other
documents required by the Letter of Transmittal, must be received by you or, in
the case of tenders of book-entry transfer, confirmed to you by transfer to your
account on or prior to the Expiration Date.
6. a. A tendering Old Noteholder may withdraw tendered Old Notes in
accordance with the procedures set forth in the Prospectus and Letter of
Transmittal, in which event, except as may be otherwise specified in the
Old Noteholder's notice of withdrawal, all items in your possession
which shall have been received from the Old Noteholder with respect to
those Old Notes shall be promptly returned to or upon the order of the
Old Noteholder and the Old Notes covered by those items shall no longer
be considered to be properly tendered.
____________________ Exchange Agency Agreement
May , 1998
Page 4
b. A withdrawal may not be rescinded. Withdrawn Old Notes may,
however, be tendered at anytime on or prior to the Expiration Date.
7. You are to record and to hold all tenders received by you and to
promptly notify by telephone after the close of business on each business day,
the following person as to the total number of Old Notes tendered on such day
and the cumulative numbers with respect to the Old Notes received through the
time of such call:
___________________________, Treasurer and Chief Financial Officer of
the Company.
Each daily report should identify: the number and principal amount of Old Notes
represented by (i) certificates, and (ii) Notices of Guaranteed Delivery
actually received by you through the time of the report. The foregoing
information should also be sent to Mr. _______ in a daily letter. In addition,
you will also provide, and cooperate in making available to Mr. _______, such
other information as he or the Company's counsel may reasonably request upon
oral request made from time to time. Your cooperation shall include, without
limitation, the granting by you to the Company, and such other persons as it may
reasonably request, of access to those persons on your staff who are responsible
for receiving tenders of Old Notes in order to insure 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.
8. Letters of Transmittal, Notices of Guaranteed Delivery and telegrams,
facsimile transmissions and letters submitted in lieu thereof pursuant to the
Exchange Offer shall be stamped by you as to the date and time of receipt and
shall be retained in your possession until the Expiration Date. As promptly as
practicable after the Expiration Date, you will deliver those items, together
with all properly tendered Old Notes to the Company.
9. You are to follow up and to act upon any amendments, modifications or
supplements to these instructions mutually satisfactory to you and the Company,
and upon any further information in connection with the terms of the Exchange
Offer, any of which may be given to you by the Company, including instructions
with respect to (i) any extension or other modification of the Exchange Offer,
(ii) the amount or manner of payment for any Old Notes exchanged, and (iii) the
cancellation of the Exchange Offer.
10. If under the conditions set forth in the Prospectus and Letter of
Transmittal, the Company becomes obligated to accept Old Notes tendered, it
will, as promptly as practicable thereafter, deposit with you certificates
representing New Notes in the amount determined according to the ratio
prescribed in the Prospectus and Letter of Transmittal. Unless otherwise
indicated under any Special Issuance Instructions or any Special Delivery
Instructions set forth in any Letter of Transmittal, you shall mail the
certificates representing the New Notes and the certificates for any Old Notes
submitted but not tendered for exchange to the registered owner of the
securities at the address shown in the Letter of Transmittal. In the event that
either or both the Special Issuance Instructions and the Special Delivery
Instructions are completed, you shall mail all certificates representing New
Notes (or Old Notes to be returned, if any) to the person or persons so
indicated in the Letter of Transmittal. Certificates shall be post-marked by you
within a reasonable period of time after certificates have been provided to you.
____________________ Exchange Agency Agreement
May , 1998
Page 5
11. No exchange shall be made as to any Old Notes unless and until such
Old Notes have been properly tendered as provided in Section 4 of this
Agreement.
12. For performing your services hereunder, you shall be entitled to
receive from the Company a fee of $_______. You shall also be reimbursed by the
Company for all reasonable expenses, including counsel fees, if any, and mailing
costs you may incur in connection with the performance of your duties or the
preparation of this Agreement.
13. As Exchange Agent hereunder you:
(a) shall not have duties or obligations other than those
specifically set forth or as may subsequently be agreed to by you and
the Company;
(b) shall not be obligated to take any legal or other action
hereunder which might in your judgment involve any expense or liability
unless you have been furnished with reasonable indemnification;
(c) may rely on and shall be protected in acting 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 by the proper party or parties;
(d) may rely on and shall be protected in acting or refraining from
acting upon the written instructions of the Company; and
(e) may consult counsel satisfactory to you (including counsel to
the Company), and the opinion of such counsel shall be full and complete
authorization and protection with respect to any action taken, suffered,
or omitted by you hereunder in good faith and in accordance with the
opinion of such counsel.
(f) you shall not be deemed to have notice of any fact, claim or
demand with respect hereto unless actually known by an officer charged
with responsibility for administering this Agreement or unless in
writing received by you and making specific reference to this Agreement.
14. You undertake the duties and obligations imposed herein upon the
following additional terms and conditions:
(a) you shall perform your duties and obligations hereunder with due
care;
____________________ Exchange Agency Agreement
May , 1998
Page 6
(b) you shall not be under any responsibility in respect of the
validity or sufficiency (not only as to genuineness, but also as to its
due execution, the genuineness of signatures appearing thereon and as to
the truth and accuracy of any information therein contained) of any
Letter of Transmittal, certificate representing Old Notes, book-entry
transfer of Old Notes or Notice of Guaranteed Delivery; and
(c) neither you nor any of your directors, officers or employees
shall be liable to anyone for any error of judgment, or for any act done
or step taken or omitted to be taken by you or any of your directors,
officers or employees, or for any mistake of fact or law, or for
anything which you or any of your directors, officers or employees, may
do or refrain from doing in connection with or in the administration of
this Agreement, unless and except to the extent the same constitutes
gross negligence or willful misconduct on your part.
15. You are not authorized to make any recommendation on behalf of the
Company as to whether a holder of Old Notes should or should not tender his, her
or its Old Notes.
16. All certificates representing New Notes shall be forwarded by (i)
first-class mail under a blanket surety bond protecting you and the Company from
loss or liability arising out of the non-receipt or non-deliver of such
certificates or (ii) registered mail, insured separately for the replacement
value of such certificates.
17. You are authorized to cooperate with and furnish information to any
organization (and its representatives) designated from time to time by the
Company, in any manner reasonably requested by any of them and acceptable to you
in connection with the Exchange Offer.
18. The Company covenants and agrees to reimburse, indemnify and hold
you harmless against any costs, expenses (including reasonable expenses of your
legal counsel), losses or damages which, without negligence, misconduct or bad
faith on your part may be paid, incurred or suffered by you or to which you may
become subject by reason of or as a result of the administration of your duties
hereunder or by reason of or as a result of your compliance with the
instructions set forth herein or with any written or oral instructions delivered
to you pursuant hereto, or liability resulting from your actions as Exchange
Agent pursuant hereto, including any claims against you by any Old Noteholder.
The Company shall be entitled to participate at its own expense in the defense,
and if the Company so elects at any time after receipt of such notice, the
Company shall assume the defense of any suit brought to enforce any such claim.
In the event that the Company assumes 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, unless in your judgment, which must be reasonable,
it is advisable for you to be represented by separate counsel. In no case shall
the Company be liable under this indemnity with respect to any claim or action
against you, unless the Company shall be notified by you, by letter or by cable
or by telecopy confirmed by letter, of the written assertion of a claim against
you or of any action
____________________ Exchange Agency Agreement
May , 1998
Page 7
commenced against you, promptly after you shall have received any such written
assertion of a claim or shall have been served with a summons or other first
legal process giving information as to the nature and basis of an action, but
failure so to notify the Company shall not relieve the Company from any
liability which it may have otherwise than on account of this indemnity.
19. You hereby acknowledge receipt of each of the documents listed in
items (i) through (iii) of the introduction to this Agreement and further
acknowledge that you have examined the same. Any inconsistency between this
Agreement on the one hand and the documents listed in items (i) through (iii) of
the introduction of this Agreement, as they may from time to time be amended, on
the other, shall be resolved in favor of the latter, except with respect to the
duties, liabilities and indemnification of you as Exchange Agent.
20. All notices, statements and other communications hereunder shall be
in writing, signed by a duly authorized officer of the party sending such
notices, and shall be deemed given when delivered by hand or by certified mail,
postage prepaid, addressed as follows: To the Company:
c/o FPL Energy, Inc.
11760 US Highway One
Suite 600
North Palm Beach, FL 33408
Attention: Glenn E. Smith
Facsimile: (561) 691-3618
Telephone: (561) 691-3500
to you:
State Street Bank and Trust Company
Corporate Trust Division
Two International Place
Boston, MA 02110-0778
Attention: Traci Hopkins
Facsimile: (617) 664-5371
Telephone: (617) 664-5553
or to such other address as either party may furnish hereunder by notice;
provided that notice of change of address shall be deemed given only when
received.
21. This agreement shall be construed and enforced in accordance with
the law of the State of New York applicable to agreements made and to be
performed in the State of New York
____________________ Exchange Agency Agreement
May , 1998
Page 8
and shall inure to the benefit of, and the obligations created hereby shall be
binding upon, the successors and assigns of the parties hereto.
22. These instructions may be reasonably modified or supplemented by the
Company or by any officer thereof authorized to give notice, approval or waiver
on its behalf.
23. As used herein, "business day" shall mean any day other than a
Saturday or Sunday, or any other day on which you are authorized or required to
be closed for business.
Please acknowledge receipt of this letter and confirm the arrangements
herein provided by signing and returning the enclosed copy.
Very truly yours,
ESI TRACTEBEL ACQUISITION CORP.
By: _________________________________
Name:
Title: Treasurer and Chief Financial
Officer
ACCEPTED AS OF ________ , 1998
STATE STREET BANK AND TRUST COMPANY
As Exchange Agent
By: _________________________________________
Name:
Title: