Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
_________________________________
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
_________________________________
CONSTELLATION ENERGY GROUP, INC.
(Formerly Constellation Energy Corporation)
(Exact Name of Registrant as Specified in its Charter)
Maryland
(State of Incorporation)
52-1964611
(I.R.S. Employer Identification No.)
David A. Brune, Vice President
39 W. Lexington Street, Baltimore, Maryland 21201
(410) 234-5511
(Address, including Zip Code, and Telephone Number, including Area Code
of Registrant's Principal Executive Offices and Agent for Service)
Approximate date of commencement of proposed sale to the public: After the
effective date of this Registration Statement as determined by market
conditions.
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. [ ]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [ X ]
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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Proposed
Title of each Proposed Maximum
class of Maximum aggregate
securities to Amount to offering offering Amount of
be registered be registered price per unit price registration fee**
- --------------------------------------------------------------------------------
Medium-Term Notes, $200,000,000 100%* $200,000,000 $55,600
Series A
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* Inserted solely for the purpose of calculating the registration fee.
** $300,000,000 principal amount Medium-Term Notes, Series F are being
carried forward from Registration No. 333-24855 for which a registration fee of
$90,910 was previously paid.
Pursuant to Rule 429 under the Securities Act of 1933, this Registration
Statement also serves as a post-effective amendment of the Registrant's
Registration Statement on Form S-3 (Registration No. 333-24855).
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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[GRAPHIC OMITTED]
$500,000,000
Medium Term Notes
Series A Constellation Energy Group, Inc.
39 W. Lexington Street
Baltimore, Maryland 21201
(410) 234-5000
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P R O S P E C T U S
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TERMS OF SALE
The following terms may apply to the notes which we may sell at one or more
times. The final terms for each note will be included in a pricing supplement.
We will receive between $496,250,000 and $499,375,000 of the proceeds from the
sale of the notes, after paying the agents commissions of between $625,000 and
$3,750,000.
- - Mature 9 months to 30 years
- - Fixed or floating interest rate.
The floating interest rate formula would be based on:
- Commercial paper rate
- Prime rate
- CD rate
- Federal Funds effective rate
- LIBOR
- Treasury rate
- CMT rate
- - Remarketing features
- - Certificate or book-entry form
- - Subject to redemption and repurchase at option of Constellation Energy
or holder
- - Not convertible, amortized or subject to a sinking fund
- - Interest paid on fixed rate notes on May 1 and November 1
- - Interest paid on floating rate notes monthly, quarterly, semi-annually, or
annually
- - Minimum denominations of $1,000, increased in multiples of $1,000
________________________________________________________________________________
We urge you to carefully read this prospectus and the pricing supplement which
will describe the specific terms of the offering before you make your investment
decision.
_______________________________________________________________________________
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is a
criminal offense.
LEHMAN BROTHERS GOLDMAN, SACHS & CO
AGENTS
(Once the registration statement is effective, the date of the prospectus will
be inserted here.)
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Table of Contents
Page
CONSTELLATION ENERGY............................................. 3
PRICING SUPPLEMENT............................................... 3
USE OF PROCEEDS.................................................. 3
RATIO OF EARNINGS TO FIXED CHARGES............................... 4
DESCRIPTION OF THE NOTES......................................... 5
PLAN OF DISTRIBUTION............................................. 16
LEGAL OPINIONS................................................... 17
EXPERTS.......................................................... 17
WHERE YOU CAN FIND MORE INFORMATION.............................. 17
GLOSSARY......................................................... 19
Forward-Looking Statements
We make statements in this prospectus and the documents we incorporate by
reference that are considered forward-looking statements within the meaning of
the Securities Act of 1933 and the Securities Exchange Act of 1934. Sometimes
these statements will contain words such as "believes," "expects," "intends,"
"plans" and other similar words. These statements are not guarantees of our
future performance and are subject to risks, uncertainties and other important
factors that could cause our actual performance or achievements to be materially
different from those we project.
These risks, uncertainties and factors include:
- - general economic, business and regulatory conditions;
- - energy supply and demand;
- - competition;
- - federal and state regulations;
- - availability, terms and use of capital;
- - nuclear and environmental issues;
- - weather;
- - industry restructuring and cost recovery (including the potential
effect of stranded investments);
- - commodity price risk; and
- - year 2000 readiness
Given these uncertainties, you should not place undue reliance on these
forward-looking statements. Please see the documents we incorporate by reference
for more information on these factors. These forward-looking statements
represent our estimates and assumptions only as of the date of this prospectus.
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CONSTELLATION ENERGY
Constellation Energy became the holding company for Baltimore Gas and Electric
Company ("BGE") on ____________, 1999. Constellation Energy owns all the
outstanding shares of common stock of BGE and the subsidiaries formerly owned by
BGE.
BGE is a public utility that has served Central Maryland for over 180 years. BGE
produces, purchases and sells electricity and purchases, transports and sells
natural gas. BGE also jointly owns and operates two electric generating plants
and one hydroelectric plant in Pennsylvania.
Constellation Energy owns the stock of several other companies primarily engaged
in diversified energy-services businesses. They are:
- - Constellation Power Source, Inc. - our wholesale power marketing and
trading business;
- - Constellation Power, Inc. and Subsidiaries - our power projects business;
- - Constellation Energy Source, Inc.-our energy products and
services business; and
- - BGE Home Products & Services, Inc. and Subsidiaries - our home products,
commercial building systems, and residential and small commercial gas
retail marketing business.
Constellation Energy also has two other subsidiaries:
- - Constellation Investments, Inc. - our financial investments business; and
- - Constellation Real Estate Group, Inc. - our real estate and senior living
facilities business.
PRICING SUPPLEMENT
The pricing supplement for each offering of notes will contain the specific
information and terms for that offering. The pricing supplement may also add,
update or change information contained in this prospectus. It is important for
you to consider the information contained in this prospectus and the pricing
supplement in making your investment decision.
USE OF PROCEEDS
Based on our current plans and estimates the net proceeds from the sale of the
notes will be used for general corporate purposes principally relating to our
diversified energy-services businesses, including repayment of commercial paper
borrowings used to finance capital expenditures and operations. We may, however,
use the net proceeds for other purposes if we find it necessary. If we do not
use the net proceeds immediately, we temporarily invest them in short-term,
interest-bearing obligations.
For current information on our commercial paper balances and average interest
rate, see our most recent Form 10-K and 10-Q. See Where You Can Find More
Information.
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RATIO OF EARNINGS TO FIXED CHARGES
The Ratio of Earnings to Fixed Charges for each of the periods indicated is as
follows:
Twelve Months Ended December 31, 1998
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1998 1997 1996 1995 1994
----- ---- ---- ----- ----
2.94 2.78 3.10 3.21 3.14
For current information on the Ratio of Earnings to Fixed Charges, please see
our most recent Form 10-K and 10-Q. See Where You Can Find More Information.
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DESCRIPTION OF THE NOTES
General
We will issue the notes under an indenture between us and the Trustee, The Bank
of New York, dated as of March 24, 1999. This prospectus briefly outlines some
of the indenture provisions. If you would like more information on these
provisions, review the indenture and its supplements that we filed with the SEC.
See Where You Can Find More Information on how to locate the indenture and the
supplements. You may also review the indenture at the Trustee's offices at 101
Barclay Street, New York, New York.
The indenture does not limit the amount of notes that may be issued. Each series
of notes may differ as to their terms. For current information on our debt
outstanding see our most recent Form 10-K and 10-Q. See Where You Can Find More
Information.
The notes are unsecured and will rank equally with all our unsecured
indebtedness. The notes will be denominated in U.S. dollars and we will pay
principal and interest in U.S. dollars. The notes will not be subject to any
conversion, amortization, or sinking fund. It is anticipated that the notes will
be "book-entry," represented by a permanent global note registered in the name
of The Depository Trust Company, or its nominee. However, we reserve the right
to issue notes in certificate form registered in the name of the noteholders.
In the discussion that follows, whenever we talk about paying principal on the
notes, we mean at maturity, redemption or repurchase. Also, in discussing the
time for notices and how the different interest rates are calculated, all times
is New York City time, unless otherwise noted.
The following terms may apply to each note as specified in the applicable
pricing supplement and the note. The applicable pricing supplement will describe
the terms for the notes including: interest rate, remarketing provisions, our
right to redeem notes, the holders' right to tender notes, and any other
provisions.
Redemptions
We may redeem notes at our option. Notes may be redeemable in whole or in part
in increments of $1,000 upon no more than 60, and not less than 30 days prior
notice. If we do not redeem all the notes of a series at one time, the Trustee
selects the notes to be redeemed in a manner it determines to be fair.
Repurchases
The noteholder may have the right to cause us to repurchase the notes. We will
repurchase the notes in whole or in part in increments of $1,000. The method for
repurchases differs for book-entry and certificate notes, and is discussed later
in this section, Description of the Notes.
Remarketed Notes
We may issue notes with remarketing features that allow holders the option to
sell their notes back to us. In turn, we have the option to retire these notes
or remarket and sell them to new holders.
Book-Entry Notes - Registration, Transfer, and Payment of Interest and Principal
Book-entry notes of a series will be issued in the form of a global note that
will be deposited with The Depository Trust Company, New York, New York ("DTC").
This means that we will not issue certificates to each holder. One global note
will be issued to DTC who will keep a computerized record of its participants
(for example, your broker) whose clients have purchased the notes. The
participant will then keep a record of its clients who purchased the notes.
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Unless it is exchanged in whole or in part for a certificate note, a global note
may not be transferred; except that DTC, its nominees, and their successors may
transfer a global note as a whole to one another.
Beneficial interests in global notes will be shown on, and transfers of global
notes will be made only through, records maintained by DTC and its participants.
DTC has provided us the following information: DTC is a limited-purpose trust
company organized under the New York Banking Law, a "banking organization"
within the meaning of the New York Banking Law, a member of the United States
Federal Reserve System, a "clearing corporation" within the meaning of the New
York Uniform Commercial Code and a "clearing agency" registered under the
provisions of Section 17A of the Securities Exchange Act of 1934. DTC holds
securities that its participants ("Direct Participants") deposit with DTC. DTC
also records the settlement among Direct Participants of securities
transactions, such as transfers and pledges, in deposited securities through
computerized records for Direct Participant's accounts. This eliminates the need
to exchange certificates. Direct Participants include securities brokers and
dealers, banks, trust companies, clearing corporations and certain other
organizations.
DTC's book-entry system is also used by other organizations such as securities
brokers and dealers, banks and trust companies that work through a Direct
Participant. The rules that apply to DTC and its participants are on file with
the SEC.
DTC is owned by a number of its Direct Participants and by the New York Stock
Exchange, Inc., The American Stock Exchange, Inc. and the National Association
of Securities Dealers, Inc.
We will wire principal and interest payments to DTC's nominee. We and the
Trustee will treat DTC's nominee as the owner of the global notes for all
purposes. Accordingly, we, the Trustee and any paying agent will have no direct
responsibility or liability to pay amounts due on the global notes to owners of
beneficial interests in the global notes.
It is DTC's current practice, upon receipt of any payment of principal or
interest, to credit Direct Participants' accounts on the payment date according
to their respective holdings of beneficial interests in the global notes as
shown on DTC's records. In addition, it is DTC's current practice to assign any
consenting or voting rights to Direct Participants whose accounts are credited
with notes on a record date, by using an omnibus proxy. Payments by participants
to owners of beneficial interests in the global notes, and voting by
participants, will be governed by the customary practices between the
participants and owners of beneficial interests, as is the case with notes held
for the account of customers registered in "street name." However, payments will
be the responsibility of the participants and not of DTC, the Trustee or us.
Notes represented by a global note will be exchangeable for certificate notes
with the same terms in authorized denominations only if:
- - DTC notifies us that it is unwilling or unable to continue as depositary or
if DTC ceases to be a clearing agency registered under applicable law and a
successor depositary is not appointed by us within 90 days; or
- - We determine not to require all of the notes of a series to be represented
by a global note and notify the Trustee of our decision.
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Book-Entry Notes - Method of Repurchase
Participants, on behalf of the owners of beneficial interests in the global
notes, may exercise the repurchase option by delivering written notice to our
paying agent at least 30, but no more than 60, days prior to the date of
repurchase. The paying agent, The Bank of New York, must receive notice by 5:00
p.m. on the last day for giving notice. Procedures for the owners of beneficial
interests in global notes to notify their participants of their desire to have
their note repurchased will be governed by the customary practices of the
participant. The written notice to the paying agent must state the principal
amount to be repurchased. It is irrevocable and a duly authorized officer of the
participant (with signatures guaranteed) must sign it.
Certificate Notes - Registration, Transfer, and Payment of Interest and
Principal
If we issue certificate notes, they will be registered in the name of the
noteholder. The notes may be transferred or exchanged, pursuant to
administrative procedures in the indenture, without the payment of any service
charge (other than any tax or other governmental charge) by contacting the
paying agent.
Holders of over $5 million in principal amount of notes can request that payment
of principal and interest be wired to them by contacting the paying agent at the
address set forth above at least one business day prior to the payment date.
Otherwise, payments will be made by check.
Certificate Notes - Method of Repurchase
Noteholders desiring to exercise their repurchase option must notify the paying
agent at least 30 but not more than 45 days prior to the repayment date by
providing the bank:
- the note, with the section entitled "Option to Elect Repayment" on the
reverse of the note completed; or
- - a fax or letter (first class, postage prepaid) from a member of a national
securities exchange, the National Association of Securities Dealers, or a
bank or trust company in the United States which states the following:
- the name of the holder;
- the principal amount of the note and the amount to be repurchased;
- the certificate number or the maturity and a description of the terms
of the note;
- a statement that you wish to sell all or a portion of your note; and
- - A guaranty that the note with the section entitled "Option to Elect
Repayment" on the reverse of the note completed, will be received by the
paying agent within 5 business days.
The note and form must be received by the paying agent by such 5th business day.
Your notice of repurchase is irrevocable.
If you sell a portion of a note, the old note will be canceled and a new note
for the remaining principal amount will be issued to you.
Interest Rate
General
We have provided a Glossary at the end of this prospectus to define the
capitalized words used in discussing the interest rates payable on the notes.
The interest rate on the notes will either be fixed or floating. The interest
paid will include interest accrued to, but excluding, the date of maturity,
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redemption or repurchase. Interest is generally payable to the person in whose
name the note is registered at the close of business on the record date before
each interest payment date. Interest payable at maturity, redemption, or
repurchase, however, will be payable to the person to whom principal is payable.
The first interest payment on any note originally issued between a record date
and interest payment date or on an interest payment date will be made on the
interest payment date after the next record date. Interest payments, other than
those payable at maturity, redemption or repurchase will be paid, at our option,
by check or wire transfer.
Fixed Rate Notes
Each pricing supplement will designate the fixed rate of interest payable on a
note. Interest will be paid May 1 and November 1, and upon maturity, redemption
or repurchase. If any payment date falls on a day that is not a Business Day,
payment will be made on the next Business Day and no additional interest will be
paid. The record dates for such notes will be April 15 (for interest to be paid
on May 1) and October 15 (for interest to be paid on November 1). Interest
payments will be the amount of interest accrued to, but excluding, each May 1
and November 1. Interest will be computed using a 360-day year of twelve 30-day
months.
Floating Rate Notes
General
Each floating rate note will have an interest rate formula. The formula may be
based on:
- the commercial paper rate;
- the prime rate;
- the CD rate;
- the federal funds effective rate;
- the LIBOR;
- the Treasury rate;
- the CMT rate; or
- another interest rate index.
The applicable pricing supplement will also indicate the Spread and/or Spread
Multiplier, if any. In addition, any floating rate note may have a maximum or
minimum interest rate limitation.
Upon request, the Calculation Agent will provide the current interest rate and,
if different, the interest rate which will become effective on the next Interest
Reset Date.
Date of Interest Rate Change
The interest rate on each floating rate note may be reset daily, weekly,
monthly, quarterly, semi-annually, or annually. The Interest Reset Date will be:
- - for notes which reset daily, each Business Day;
- - for notes (other than Treasury rate notes) which reset weekly, the Wednesday
of each week;
- - for Treasury rate notes which reset weekly, the Tuesday of each week
- - for notes which reset monthly, the third Wednesday of each month;
- - for notes which reset quarterly, the third Wednesday of March, June,
September and December;
- - for notes which reset semi-annually, the third Wednesday of the two
months of each year indicated in the applicable pricing supplement; and
- - for notes which reset annually, the third Wednesday of the month of each
year indicated in the applicable pricing supplement.
The initial interest rate or interest rate formula on each note effective until
the first Interest Reset Date will be indicated in the applicable pricing
supplement. Thereafter, the interest rate will be the rate determined on the
next Interest Determination Date, as explained below. Each time a new interest
rate is determined, it will become effective on the subsequent Interest Reset
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Date. If any Interest Reset Date is not a Business Day, then the Interest Reset
Date will be postponed to the next Business Day. However, in the case of a LIBOR
note, if the next Business Day is in the next calendar month, the Interest Reset
Date will be the immediately preceding Business Day.
When Interest Rate Is Determined
The Interest Determination Date for all notes (except Treasury rate notes) is
the second Business Day before the Interest Reset Date.
The Interest Determination Date for Treasury rate notes will be the day of the
week in which the Interest Reset Date falls on which Treasury bills would
normally be auctioned. Treasury bills are usually sold at auction on Monday of
each week, unless that day is a legal holiday, in which case the auction is
usually held on Tuesday. However, the auction may be held on the preceding
Friday. If an auction is held on the preceding Friday, that day will be the
Interest Determination Date pertaining to the Interest Reset Date occurring in
the next week. If an auction date falls on any Interest Reset Date then the
Interest Reset Date will instead be the first Business Day immediately following
the auction date.
When Interest Is Paid
Interest is paid as follows:
- - for notes which reset daily or weekly, on the third Wednesday of March, June,
September and December;
- - for notes which reset monthly, on the third Wednesday of each month or on the
third Wednesday of March, June, September and December (as indicated in the
applicable pricing supplement);
- - for notes which reset quarterly, on the third Wednesday of March, June,
September, and December; o for notes which reset semi-annually, on the third
Wednesday of the two months specified in the applicable pricing supplement;
- - for notes which reset annually, on the third Wednesday of the month specified
in the applicable pricing supplement; and o at maturity, redemption or
repurchase.
If interest is payable on a day which is not a Business Day, payment will be
postponed to the next Business Day. However, for LIBOR notes, if the next
Business Day is in the next calendar month, interest will be paid on the
preceding Business Day.
The record date will be 15 calendar days prior to each day interest is paid,
whether or not such day is a Business Day.
The interest payable will be the amount of interest accrued to, but excluding,
the interest payment date. However, for notes on which the interest resets daily
or weekly, the interest payable will include interest accrued to and including
the record date prior to the interest payment date. If the interest payment date
is also a day that principal is due, the interest payable will include interest
accrued to, but exclude, the date of maturity, redemption or repurchase.
The accrued interest for any period is calculated by multiplying the principal
amount of a note by an accrued interest factor. The accrued interest factor is
computed by adding the interest factor calculated for each day in the period to
the date for which accrued interest is being calculated. The interest factor
(expressed as a decimal rounded upwards if necessary, as described below) is
computed by dividing the interest rate (expressed as a decimal rounded upwards
if necessary) applicable to such date by 360, unless the notes are Treasury rate
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notes or CMT rate notes in which case it will be divided by the actual number of
days in the year.
All percentages resulting from any calculation of floating rate notes will be
rounded, if necessary, to the nearest one-hundred thousandth of a percentage
point, with five one-millionths of a percentage point rounded upwards (e.g.,
9.876545% (or .09876545) being rounded to 9.87655% (or .0987655) and 9.876544%
(or .09876544) being rounded to 9.87654% (or .0987654)), and all dollar amounts
used in or resulting from such calculation will be rounded to the nearest cent
(with one-half cent being rounded upwards).
Commercial Paper Rate Notes
Each commercial paper rate note will bear interest at the rate (calculated with
reference to the Commercial Paper Rate and the Spread and/or Spread Multiplier,
if any) specified on the commercial paper rate note and in the applicable
pricing supplement.
"Commercial Paper Rate" means, with respect to any Commercial Paper Interest
Determination Date, the Money Market Yield (calculated as described below) of
the rate on such date for commercial paper having the Index Maturity specified
in the applicable pricing supplement as published in H.15(519) under the heading
"Commercial Paper."
The following procedures will occur if the rate cannot be set as described
above:
(a) If that rate is not published in H.15(519) prior to 9:00 A.M. on the
Calculation Date, then the Commercial Paper Rate will be the Money Market Yield
of the rate on the Commercial Paper Interest Determination Date for commercial
paper having the Index Maturity specified in the applicable pricing supplement
as published in Composite Quotations under the heading "Commercial Paper."
(b) If the rate is not published or in Composite Quotations by 3:00 P.M. on the
Calculation Date, the Commercial Paper Rate for that Commercial Paper Interest
Determination Date will then be calculated by the Calculation Agent in the
following manner.
The Commercial Paper Rate will be calculated as the Money Market Yield of the
average for the offered rates, as of 11:00 A.M., on that date, of three leading
dealers of commercial paper in New York selected for commercial paper having the
applicable Index Maturity placed for an industrial issuer whose bond rating is
"AA," or the equivalent, from a nationally recognized rating agency.
(c) Finally, if fewer than three dealers are quoting as mentioned, the rate of
interest in effect for the applicable period will be the same as the rate of
interest in effect for the prior interest reset period.
Prime Rate Notes
Each prime rate note will bear interest at the rate (calculated with reference
to the Prime Rate and the Spread and/or Spread Multiplier, if any) specified on
the prime rate note and in the applicable pricing supplement.
"Prime Rate" means, with respect to any Prime Rate Interest Determination Date,
the rate set forth on such date in H.15(519) under the heading "Bank Prime
Loan."
The following procedures will occur if the rate cannot be set as described
above:
(a) If that rate is not published in H.15(519) prior to 9:00 A.M. on the
Calculation Date, then the Prime Rate will be the average (rounded upwards, if
necessary, to the next higher one-hundred thousandth of a percentage point) of
the rates of interest publicly announced by each bank that appear on the Reuters
Screen USPRIMEONE Page as its prime rate or base lending rate as in effect for
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that Prime Rate Interest Determination Date.
(b) If fewer than four, but more than one, rates appear on the Reuters Screen
USPRIMEONE Page, the Prime Rate will be the average of the prime rates (quoted
on the basis of the actual number of days in the year divided by a 360-day year)
as of the close of business on the Prime Rate Interest Determination Date by
four major money center banks in New York selected by the Calculation Agent.
(c) If fewer than two rates appear, the Prime Rate shall be determined on the
basis of the rates furnished in New York by the appropriate number of substitute
banks or trust companies organized and doing business under the laws of the
United States, or any State thereof, having total equity capital of at least
$500 million and being subject to supervision or examination by a Federal or
State authority, as selected by the Calculation Agent.
(d) Finally, if the banks are not quoting as mentioned above, the rate of
interest in effect for the applicable period will be the same as the rate of
interest in effect for the prior interest reset period.
CD Rate Notes
Each CD rate note will bear interest at the rate (calculated with reference to
the CD Rate and the Spread and/or Spread Multiplier, if any) specified on the CD
rate note and in the applicable pricing supplement.
"CD Rate" means, with respect to any CD Rate Interest Determination Date, the
rate on that date for negotiable certificates of deposit having the Index
Maturity specified in the applicable pricing supplement as published in
H.15(519) under the heading "CDs (Secondary Market)."
The following procedures will occur if the rate cannot be set as described
above:
(a) If that rate is not published in H.15(519) prior to 9:00 A.M. on the
Calculation Date, then the CD Rate will be the rate on that CD Rate Interest
Determination Date for negotiable certificates of deposit having the applicable
Index Maturity as published in Composite Quotations under the heading
"Certificates of Deposit."
(b) If that rate is not published in Composite Quotations by 3:00 P.M. on that
Calculation Date, the CD Rate for that CD Interest Determination Date shall be
calculated by the Calculation Agent as follows:
The CD Rate will be calculated as the average of the secondary market offered
rates, as of 10:00 A.M., of three leading nonbank dealers of negotiable U.S.
dollar certificates of deposit in New York selected by the Calculation Agent for
negotiable certificates of deposit of major United States money market banks
with a remaining maturity closest to the Index Maturity specified in the
applicable pricing supplement in a denomination of $5,000,000.
(c) Finally, if fewer than three dealers are quoting as mentioned, the rate of
interest in effect for the applicable period will be the same as the rate of
interest in effect for the prior interest reset period.
Federal Funds Effective Rate Notes
Each federal funds effective rate note will bear interest at the rate
(calculated with reference to the Federal Funds Effective Rate and the Spread
and/or Spread Multiplier, if any) specified on the federal funds effective rate
note and in the applicable pricing supplement.
"Federal Funds Effective Rate" means, with respect to any Federal Funds
Effective Interest Determination Date, the rate on such date for Federal Funds
as published in H.15(519) prior to 11:00 A.M. under the heading "Federal Funds
(Effective)."
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The following procedures will occur if the rate cannot be set as described
above:
(a) If that rate is not published in H.15(519) prior to 11:00 A.M. on the
Calculation Date, then the Federal Funds Effective Rate will be the rate on that
Federal Funds Effective Interest Determination Date as published in Composite
Quotations under the heading "Federal Funds/Effective Rate."
(b) If that rate is not published in Composite Quotations by 3:00 P.M. on the
Calculation Date, the Federal Funds Effective Rate for that Federal Funds
Effective Interest Determination Date will be calculated by the Calculation
Agent as follows:
The Federal Funds Effective Rate will be the average of the rates, as of 11:00
A.M. on that date, for the last transaction in overnight Federal Funds arranged
by three leading brokers of federal funds transaction in New York selected by
the Calculation Agent.
(c) Finally, if fewer than three brokers are quoting as mentioned above, the
rate of interest in effect for the applicable period will be the same as the
rate of interest in effect for the prior interest reset period.
LIBOR Notes
Each LIBOR note will bear interest at the rate (calculated with reference to
LIBOR and the Spread and/or Spread Multiplier, if any) specified on the LIBOR
note and in the applicable pricing supplement.
LIBOR will be determined by the Calculation Agent as follows:
(a) With respect to any LIBOR Interest Determination Date, LIBOR will be
determined by either:
(1) the average of the offered rates for deposits of not less than
$1,000,000 in U.S. dollars having the Index Maturity specified in the applicable
pricing supplement, beginning on the second Business Day immediately after that
date, that appear on the Reuters Screen LIBO Page as of 11:00 A.M., London time,
on that date, if at least two offered rates appear on the Reuters Screen LIBO
Page; or
(2) the rate for deposits in U.S. dollars having the Index Maturity
designated in the applicable pricing supplement, beginning on the second London
Business Day immediately after such date, that appears on the Telerate Page 3750
as of 11:00 A.M., London time, on that date.
If neither Reuters Screen LIBO Page nor Telerate Page 3750 is specified in the
applicable pricing supplement, LIBOR will be determined as if Telerate Page 3750
had been specified.
In the case where (1) above applies, if fewer than two offered rates appear on
the Reuters Screen LIBO Page, or, in the case where (2) above applies, if no
rate appears on the Telerate Page 3750, LIBOR for that date will be determined
as follows:
(b) LIBOR will be determined based on the rates at approximately 11:00
A.M., London time, on that LIBOR Interest Determination Date at which deposits
of not less than $1,000,000 in U.S. dollars having the applicable Index Maturity
are offered to prime banks in the London interbank market by four major banks in
the London interbank market selected by the Calculation Agent that in the
Calculation Agent's judgment is representative for a single transaction in such
market at such time (a "Representative Amount"). The offered rates must begin on
the second Business Day immediately after that LIBOR Interest Determination
Date.
The Calculation Agent will request the principal London office of each such bank
to provide a quotation of its rate. If at least two such quotations are
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provided, LIBOR for such date will be the average of such quotations.
(c) If fewer than two quotations are provided, LIBOR for that date will be the
average of the rates quoted at approximately 11:00 A.M., New York City time, on
such date by three major banks in New York, selected by the Calculation Agent.
The rates will be for loans in U.S. dollars to leading European banks having the
specified Index Maturity beginning on the second Business Day after that date
and in a Representative Amount.
(d) Finally, if fewer than three banks are quoting as mentioned, the rate of
interest in effect for the applicable period will be the same as the rate of
interest in effect for the prior interest reset period.
Treasury Rate Notes
Each Treasury rate note will bear interest at the rate (calculated with
reference to the Treasury Rate and the Spread and/or Spread Multiplier, if any)
specified on the Treasury rate note and in the applicable pricing supplement.
"Treasury Rate" means, with respect to any Treasury Interest Determination Date,
the rate for the most recent auction of direct obligations of the United States
("Treasury bills") having the Index Maturity specified in the applicable pricing
supplement as published in H.15(519) under the heading "U.S. Government
Securities/Treasury Bills/Auction Average (Investment)."
The following procedures will occur if the rate cannot be set as described
above:
(a) If that rate is not published in H.15(519) by 9:00 A.M. on the applicable
Calculation Date, the rate will be the auction average rate (expressed as a bond
equivalent, on the basis of a year of 365 or 366 days, as applicable, and
applied on a daily basis) for such auction as otherwise announced by the United
States Department of the Treasury.
(b) If the results of the auction of Treasury bills having the applicable Index
Maturity are not published in H.15(519) by 9:00 A.M., or otherwise published or
reported as provided above by 3:00 P.M., on the Calculation Date, or if no
auction is held in a particular week, then the Treasury Rate shall be calculated
by the Calculation Agent as follows:
The rate will be calculated as a yield to maturity (expressed as a bond
equivalent, on the basis of a year of 365 or 366 days, as applicable, and
applied on a daily basis) of the average of the secondary market bid rates as of
approximately 3:30 P.M. on the Treasury Interest Determination Date, of three
leading primary United States government securities dealers in New York selected
by the Calculation Agent for the issue of Treasury bills with a remaining
maturity closest to the specified Index Maturity.
(c) Finally, if fewer than three dealers are quoting as mentioned, the rate of
interest in effect for the period will be the same as the rate of interest in
effect for the prior interest reset period.
CMT Rate Notes
Each CMT rate note will bear interest at the rate (calculated with reference to
the CMT Rate and the Spread or Spread Multiplier, if any) specified on such CMT
rate note and in the applicable pricing supplement.
"CMT Rate" means, with respect to any CMT Interest Determination Date, the rate
displayed on the Designated CMT Telerate Page under the caption "... Treasury
Constant Maturities. Federal Reserve Board Release H.15... Mondays Approximately
3:45 P.M.," under the column for the applicable Index Maturity designated in the
applicable pricing supplement for:
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<PAGE>
(1) if the Designated CMT Telerate Page is 7055, the rate for the
applicable CMT Interest Determination Date; or
(2) if the Designated CMT Telerate Page is 7052, the week, or the month,
as applicable, ended immediately preceding the week in which the CMT Interest
Determination Date occurs.
The following procedures will occur if the rate cannot be set as described
above:
(a) If no page is specified in the applicable pricing supplement and on the face
of such CMT Rate Note, the Designated CMT Telerate Page shall be 7052, for the
most recent week. If such rate is no longer displayed on the relevant page, or
if it is not displayed by 3:00 P.M. on the related Calculation Date, then the
CMT Rate will be the Treasury constant maturity rate for the applicable Index
Maturity as published in the relevant H.15 (519).
(b) If that rate is no longer published in H.15(519), or is not published by
3:00 P.M. on the related Calculation Date, then the CMT Rate for such CMT
Interest Determination Date will be the Treasury constant maturity rate for the
applicable Index Maturity (or other United States Treasury rate for such Index
Maturity for that CMT Interest Determination Date with respect to such Interest
Reset Date) as may then be published by either the Federal Reserve Board or the
United States Department of the Treasury that the Calculation Agent determines
to be comparable to the rate formerly displayed on the Designated CMT Telerate
Page and published in the relevant H.15(519).
(c) If that information is not provided by 3:00 P.M. on the related Calculation
Date, then the CMT Rate for that CMT Interest Determination Date will be
calculated by the Calculation Agent as follows:
The rate will be calculated as a yield to maturity, based on the average of the
secondary market closing offer side prices as of approximately 3:30 P.M. on that
CMT Interest Determination Date reported, according to their written records, by
three leading primary United States government securities dealers (each, a
"Reference Dealer") in New York selected by the Calculation Agent. These dealers
will be selected from five such Reference Dealers.
The Calculation Agent will eliminate the highest quotation (or, in the event of
equality, one of the highest) and the lowest quotation (or, in the event of
equality, one of the lowest), for the most recently issued direct noncallable
fixed rate obligations of the United States ("Treasury Note") with an original
maturity of approximately the applicable Index Maturity and a remaining term to
maturity of not less than such Index Maturity minus one year.
If two Treasury Notes with an original maturity as described in the preceding
sentence have remaining terms to maturity equally close to the applicable Index
Maturity, the quotes for the Treasury Note with the shorter remaining term to
maturity will be used.
(d) If the Calculation Agent cannot obtain three such Treasury Note quotations,
the CMT Rate for that CMT Interest Determination Date will be calculated by the
Calculation Agent as follows:
The rate will be calculated as a yield to maturity based on the average of the
secondary market offer side prices as of approximately 3:30 P.M. on that CMT
Interest Determination Date of three Reference Dealers in New York selected by
the Calculation Agent using the same method described above, for Treasury Notes
with an original maturity of the number of years that is the next highest to the
applicable Index Maturity with a remaining term to maturity closest to such
14
<PAGE>
Index Maturity and in an amount of at least $100 million.
If three or four (and not five) of the Reference Dealers are quoting as
described above, then the CMT Rate will be based on the average of the offer
prices obtained and neither the highest nor the lowest of such quotes will be
eliminated.
(e) Finally, if fewer than three Reference Dealers are quoting as mentioned, the
rate of interest in effect for the applicable period will be the same as the
rate of interest in effect for the prior interest reset period.
Event of Default
"Event of Default" means any of the following:
- - failure to pay the principal of (or premium, if any, on) any note of a series
when due and payable;
- - failure to pay for 30 days any interest on any note of any series;
- - failure to perform any other requirements in the notes, or in the indenture
in regard to such notes, for 60 days after notice; or
- - certain events of insolvency.
An Event of Default for a particular series of notes does not necessarily mean
that an Event of Default has occurred for any other series of notes issued under
the indenture. If an Event of Default shall have occurred and be continuing the
Trustee or the holders of at least 33% of the principal amount of the notes of
the series affected by an Event of Default may require us to repay the entire
principal of the notes of such series immediately. Subject to certain
conditions, this requirement may be rescinded by the holders of at least a
majority in aggregate principal amount of the notes of the series.
The Trustee must within 90 days after a default occurs, notify the holders of
the notes of the series of the default if we have not remedied it (default is
defined to include the events specified above without the grace periods or
notice). The Trustee may withhold notice to the holders of such notes of any
default (except in the payment of principal or interest) if it in good faith
considers such withholding in the interest of the holders. We are required to
file an annual certificate with the Trustee, signed by an officer, about any
default by us under any provisions of the indenture.
Subject to the provisions of the indenture relating to its duties in case of
default, the Trustee shall be under no obligation to exercise any of its rights
or powers under the indenture at the request, order or direction of any holders
unless such holders offer the Trustee reasonable indemnity. Subject to the
provisions for indemnification, the holders of a majority in principal amount of
the notes of any series may direct the time, method and place of conducting any
proceedings for any remedy available to, or exercising any trust or power
conferred on, the Trustee with respect to such notes.
Modification of Indenture
Under the indenture, our rights and obligations and the rights of the holders of
any notes may be changed. Any change requires the consent of the holders of not
less than 66 2/3% in aggregate principal amount of the outstanding notes of all
series to be affected, voting as one class. However, no changes to the terms of
payment of principal or interest, or reducing the percentage required for
changes, is effective against any holder without its consent.
15
<PAGE>
Consolidation, Merger or Sale
We may not merge or consolidate with any corporation or sell substantially all
of our assets as an entirety unless:
- - we are the continuing corporation or the successor corporation expressly
assumes the payment of principal, and premium, if any, and interest on the
notes and the performance and observance of all the covenants and
conditions of the indenture binding on us; and
- - we, or the successor corporation, are not immediately after the merger,
consolidation, or sale in default in the performance of a covenant or
condition in the indenture.
PLAN OF DISTRIBUTION
We may sell the notes (a) through agents; (b) through underwriters or dealers;
or (c) directly to one or more purchasers.
By Agents
Notes may be sold on a continuing basis through agents designated by us. The
agents agree to use their reasonable efforts to solicit purchases for the period
of their appointment under the terms of an agency agreement between the agents
and us.
For each note and in total, we have set out below the offering price, the
compensation we will pay the agents and the proceeds we will receive, before
deducting expenses of approximately $365,000 depends on the maturity of the note
they sell.
Per Note
--------
Public Offering Price 100%
Agents' Commissions 0.125% - 0.75%
Proceeds to BGE --------------
(before expenses) 99.875% - 99.25%
Total
------
Public Offering Price $500,000,000
Agents' Commissions $625,000 - $3,750,000
---------------------
Proceeds to BGE
(before expenses) $499,375,000 - $496,250,000
The agents will not be obligated to make a market in the notes. We cannot
predict the amount of trading or liquidity of the notes.
By Underwriters
If underwriters are used in the sale, the notes will be acquired by the
underwriters for their own account. The underwriters may resell the notes in one
or more transactions, including negotiated transactions, at a fixed public
offering price or at varying prices determined at the time of sale. The
obligations of the underwriters to purchase the notes will be subject to certain
conditions. The underwriters will be obligated to purchase all the notes of the
series offered if any of the notes are purchased. Any initial public offering
price and any discounts or concessions allowed or re-allowed or paid to dealers
may be changed from time to time.
Direct Sales
We may also sell notes directly. In this case, no underwriters or agents would
be involved.
General Information
In connection with sales by an agent or an underwritten offering, the SEC rules
permit the underwriters or agents to engage in transactions that stabilize the
price of the notes. These transactions may include purchases for the purpose of
fixing or maintaining the price of the notes.
The underwriters or agents may create a short position in the notes in
connection with the offering. That means they sell a larger principal amount of
the notes than is shown on the cover page of the prospectus or the applicable
pricing supplement. If they create a short position, the underwriters or agents
may purchase notes in the open market to reduce the short position.
16
<PAGE>
If the underwriters or agents purchase the notes to stabilize the price or to
reduce their short position, the price of the notes could be higher than it
might be if they had not made such purchases. The underwriters or agents make no
representation or prediction about any effect that the purchases may have on the
price of the notes.
Underwriters, dealers, and agents that participate in the distribution of the
notes may be underwriters as defined in the Securities Act of 1933 (the "Act"),
and any discounts or commissions received by them from us and any profit on the
resale of the notes by them may be treated as underwriting discounts and
commissions under the Act.
We may have agreements with the underwriters, dealers and agents to indemnify
them against certain civil liabilities, including liabilities under the Act, or
to contribute with respect to payments which the underwriters, dealers or agents
may be required to make.
Underwriters, dealers and agents may engage in transactions with, or perform
services for, us or our subsidiaries in the ordinary course of their businesses.
LEGAL OPINIONS
One of our lawyers will issue an opinion regarding certain legal matters in
connection with the notes offered pursuant to this prospectus. Cahill Gordon &
Reindel (a partnership including a professional corporation), New York, NY will
issue an opinion for any underwriters, dealers or agents. Cahill Gordon &
Reindel will rely on the opinion of our lawyers as to matters of Maryland law
and the applicability of the Public Utility Holding Company Act of 1935.
EXPERTS
PricewaterhouseCoopers LLP, independent accountants, audited our annual
financial statements and schedule incorporated by reference in this prospectus
and elsewhere in the registration statement. These documents are incorporated by
reference herein in reliance upon the authority of PricewaterhouseCoopers LLP as
experts in accounting and auditing.
WHERE YOU CAN FIND
MORE INFORMATION
Constellation Energy will file annual, quarterly and special reports, proxy
statements and other information with the SEC. Prior to Constellation Energy
becoming BGE's holding company, reports, statements and other information were
filed by BGE under the name "Baltimore Gas and Electric Company." You may read
and copy any document filed by BGE or Constellation Energy at the SEC's public
reference room at 450 Fifth Street, N.W., Washington, D.C., 20549. Please call
the SEC at 1-800-SEC-0330 for further information on the public reference room.
The SEC maintains an internet site at http://www.sec.gov that contains reports,
proxy and information statements, and other information, regarding issuers
(including Constellation Energy and BGE) that file documents with the SEC
electronically. Constellation Energy's SEC filings may also be obtained from our
web site at http://www.constellationenergy.com.
This prospectus is part of a registration statement we filed with the SEC. In
addition, the SEC allows us to "incorporate by reference" the information we
file with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be part of this prospectus, and later information that we file
with the SEC will
17
<PAGE>
automatically update and supersede this information. We incorporate by reference
the documents listed below and any future filings made with the SEC under
Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934 until
we sell all the notes.
- - BGE's Annual Report on Form 10-K for the year ended December 31, 1998.
This prospectus is part of a registration statement we filed with the SEC.
Any person, including any beneficial owner, may request a copy of these filings,
at no cost, by writing or telephoning us at the following address:
Shareholder Services
Constellation Energy Group, Inc.
39 W. Lexington Street
Baltimore, Maryland 21201
410-783-5920
You should rely only on the information incorporated by reference or provided in
this prospectus or any supplement. We have not authorized anyone else to provide
you with different information. We are not making an offer of these notes in any
state where the offer is not permitted. You should not assume that the
information in this prospectus or any supplement is accurate as of any date
other than the date on the front of those documents.
18
<PAGE>
GLOSSARY
Set forth below are definitions of some of the terms used in this
Prospectus.
"Business Day" means any day other than a Saturday or Sunday that (a) is
not a day on which banking institutions in Baltimore, Maryland, or in New York,
New York, are authorized or obligated by law or executive order to be closed,
and (b) with respect to LIBOR Notes only, is a day on which dealings in deposits
in U.S. dollars are transacted in the London interbank market.
"Calculation Agent" means the entity chosen by us to perform the duties
related to interest rate calculation and resets for floating rate notes.
"Calculation Date" means the date on which the Calculation Agent
calculates an interest rate for a floating rate note, which will be one of the
following:
"Prime Rate" - tenth day after the related Prime Rate Interest
Determination Date or, if such day is not a Business Day, the next Business
Day.
"CD Rate" - tenth day after the related CD Rate Interest Determination
Date or, if such day is not a Business Day, the next Business Day.
"CMT Rate" - tenth day after the related CMT Rate Interest
Determination Date or, if such day is not a Business Day, the next Business
Day.
"Commercial Paper Rate" - tenth day after the related Commercial Paper
Rate Interest Determination Date or, if such day is not a Business Day, the
next Business Day.
"LIBOR" - the LIBOR Interest Determination Date.
"Treasury Rate" - tenth day after the related Treasury Rate Interest
Determination Date or, if such day is not a Business Day, the next Business
Day.
"Federal Funds Effective Rate" - tenth day after the related Federal
Funds Effective Rate Interest Determination Date or, if such day is not a
Business Day, the next Business Day.
"Composite Quotations" means the daily statistical release entitled
"Composite 3:30 P.M. Quotations for U.S. Government Securities," or any
successor publication, published by The Federal Reserve Bank of New York.
"Designated CMT Telerate Page" means the display on the Dow Jones
Telerate Service on the page designated in the applicable pricing
supplement and on the face of such CMT Rate Note (or any other page as may
replace such page on that service) for the purpose of displaying Treasury
Constant Maturities as reported in H.15(519).
"H.15(519)" means the weekly statistical release entitled "Statistical
Release H.15(519), Selected Interest Rates," or any successor publication,
published by the Board of Governors of the Federal Reserve System.
"Index Maturity" means, with respect to a floating rate note, the
period to maturity of the note on which the interest rate formula is based,
as indicated in the applicable pricing supplement.
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<PAGE>
"Interest Determination Date" means the date as of which the interest rate
for a floating rate note is to be calculated, to be effective as of the
following Interest Reset Date and calculated on the related Calculation Date
(except in the case of LIBOR which is calculated on the related LIBOR Interest
Determination Date). The Interest Determination Dates will be indicated in the
applicable pricing supplement and in the note.
"Interest Reset Date" means the date on which a floating rate note will
begin to bear interest at the variable interest rate determined on any Interest
Determination Date. The Interest Reset Dates will be indicated in the applicable
pricing supplement and in the note.
"Money Market Yield" is the yield (expressed as a percentage rounded
upwards, if necessary, to the next higher one-hundred thousandth of a percentage
point) calculated in accordance with the following formula:
D X 360
Money Market Yield = ___________________ X 100
360 - (D X M)
where "D" refers to the per annum rate for commercial paper quoted on a bank
discount basis and expressed as a decimal; and "M" refers to the actual number
of days in the period for which interest is being calculated.
"Reuters Screen LIBO Page" means the display designated as page "LIBO" on
the Reuters Monitor Money Rates Service (or such other page as may replace the
LIBO page on that service for the purpose of displaying London interbank offered
rates of major banks).
"Reuters Screen USPRIMEONE Page" means the display designated as page
USPRIMEONE on the Reuters Monitor Money Rates Service (or such other page as may
replace the USPRIMEONE page on that service for the purpose of displaying prime
rates or base lending rates of major United States banks).
"Spread" means the number of basis points specified in the applicable
pricing supplement as being applicable to the interest rate for a floating rate
note.
"Spread Multiplier" means the percentage specified in the applicable
pricing supplement as being applicable to the interest rate for a floating rate
note.
"Telerate Page 3750" means the display designated as page "3750" on the
Telerate Service (or such other page as may replace the 3750 page on that
service or such other service or services as may be nominated by the British
Bankers Association for the purpose of displaying London interbank offered rates
for U.S. dollar deposits).
20
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================================================================================
[GRAPHIC OMITTED]
$500,000,000
Medium-Term Notes
Series A
- --------------------------------------------------------------------------------
PROSPECTUS
(Once the registration statement is effective, the date of the Prospectus will
be inserted here)
- --------------------------------------------------------------------------------
LEHMAN BROTHERS
GOLDMAN, SACHS & CO.
================================================================================
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Securities and Exchange Commission Registration Fee...... $146,510
Services of Independent Accountants...................... 45,000*
Trustee Fees and Expenses................................ 5,000*
Legal Fees and Expenses.................................. 35,000*
Debt Securities Rating Fees.............................. 109,000*
Printing and Delivery Expenses........................... 10,000*
Miscellaneous Expenses................................... 14,490*
--------
Total...................................................... $ 365,000*
==========
--------------
* Estimated
Item 15. Indemnification of Directors and Officers.
The following description of indemnification allowed under Maryland
statutory law is a summary rather than a complete description. Reference is made
to Section 2-418 of the Corporations and Associations Article of the Maryland
Annotated Code, which is incorporated herein by reference, and the following
summary is qualified in its entirety by such reference.
By a Maryland statute, a Maryland corporation may indemnify any director
who was or is a party or is threatened to be made a party to any threatened,
pending, or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative ("Proceeding") by reason of the fact that he is
a present or former director of the corporation and any person who, while a
director of the corporation, is or was serving at the request of the corporation
as a director, officer, partner, trustee, employee, or agent of another
corporation, partnership, joint venture, trust, other enterprise, or employee
benefit plan ("Director"). Such indemnification may be against judgments,
penalties, fines, settlements and reasonable expenses actually incurred by him
in connection with the Proceeding unless it is proven that (a) the act or
omission of the Director was material to the matter giving rise to the
Proceeding and (i) was committed in bad faith, or (ii) was the result of active
and deliberate dishonesty; or (b) the Director actually received an improper
personal benefit in money, property, or services; or (c) in the case of any
criminal action or proceeding, the Director had reasonable cause to believe his
act or omission was unlawful. However, the corporation may not indemnify any
Director in connection with a Proceeding by or in the right of the corporation
if the Director has been adjudged to be liable to the corporation. A Director or
officer who has been successful in the defense of any Proceeding described above
shall be indemnified against reasonable expenses incurred in connection with the
Proceeding. The corporation may not indemnify a Director in respect of any
Proceeding charging improper personal benefits to the Director in which the
Director was adjudged to be liable on the basis that personal benefit was
II-1
<PAGE>
improperly received. Notwithstanding the above provisions, a court of
appropriate jurisdiction, upon application of the Director or officer, may order
indemnification if it determines that in view of all the relevant circumstances,
the Director or officer is fairly and reasonably entitled to indemnification;
however, indemnification with respect to any Proceeding by or in the right of
the corporation or in which liability was adjudged on the basis that personal
benefit was improperly received shall be limited to expenses. A corporation may
advance reasonable expenses to a Director under certain circumstances, including
a written undertaking by or on behalf of such Director to repay the amount if it
shall ultimately be determined that the standard of conduct necessary for
indemnification by the corporation has not been met.
A corporation may indemnify and advance expenses to an officer of the
corporation to the same extent that it may indemnify Directors under the
statute.
The indemnification and advancement of expenses provided or authorized by
this statute may not be deemed exclusive of any other rights, by indemnification
or otherwise, to which a Director or officer may be entitled under the charter,
by-laws, a resolution of shareholders or directors, an agreement or otherwise.
A corporation may purchase and maintain insurance on behalf of any person
who is or was a Director or officer, whether or not the corporation would have
the power to indemnify a Director or officer against liability under the
provision of this section of Maryland law. Further, a corporation may provide
similar protection, including a trust fund, letter of credit or surety bond, not
inconsistent with the statute.
Article Eighth of the Company's Charter reads as follows:
"(a)
(i) The Corporation shall indemnify
(A) Its Directors and Officers, whether serving the Corporation or at
its request any other entity, to the full extent required or permitted by
the general laws of the State of Maryland, now or hereafter in force,
including the advance of expenses, under the procedures and to the full
extent permitted by law, and
(B) other employees and agents, to such extent as shall be authorized
by the Board of Directors or the Corporation's by-laws and be permitted by
law.
(ii) The foregoing rights of indemnification shall not be exclusive of
any other rights to which those seeking indemnification may be entitled.
(iii) The Board of Directors may take such action as is necessary to
carry out these indemnification provisions and is expressly empowered to
adopt, approve and amend from time to time such by-laws, resolutions or
contracts implementing such provisions or such further indemnification
arrangements as may
II-2
<PAGE>
be permitted by law. No amendment of the Charter of the Corporation or repeal of
any of its provisions shall limit or eliminate the right to indemnification
provided hereunder with respect to any act or omission occurring prior to such
amendment or repeal.
(b) To the fullest extent permitted by Maryland statutory or
decisional law, as amended or interpreted, no Director or Officer of this
Corporation shall be personally liable to the Corporation or its
stockholders for money damages. No amendment of the Charter of the
Corporation or repeal of any of its provisions shall limit or eliminate the
limitation on liability provided to Directors and Officers hereunder with
respect to any act or omission occurring prior to such amendment or
repeal."
Article V of the Company's By-Laws reads as follows:
"The Corporation shall indemnify all Directors, Officers and employees to
the fullest extent permitted by the general laws of the State of Maryland
and shall provide indemnification expenses in advance to the extent
permitted thereby. The Corporation will follow the procedures required by
applicable law in determining persons eligible for indemnification and in
making indemnification payments and advances.
The Indemnification and advance of expenses provided by the Charter and
these by-laws shall not be deemed exclusive of any other rights to which a
person seeking indemnification or advance of expenses may be entitled under
any law (common or statutory), or any agreement, vote of stockholders or
disinterested Directors or other provision that is consistent with law,
both as to action in his or her official capacity and as to action in
another capacity while holding office or while employed by or acting as
agent for the Corporation, shall continue in respect of all events
occurring while a person was a Director or Officer after such person has
ceased to be a Director or Officer, and shall inure to the benefit of the
estate, heirs, executors and administrators of such person. All rights to
indemnification and advance of expenses under the Charter of the
Corporation and hereunder shall be deemed to be a contract between the
Corporation and each Director or Officer of the Corporation who serves or
served in such capacity at any time while this by-law is in effect. Nothing
herein shall prevent the amendment of this by-law, provided that no such
amendment shall diminish the rights of any person hereunder with respect to
events occurring or claims made before its adoption or as to claims made
after its adoption in respect of events occurring before its adoption. Any
repeal or modification of this by-law shall not in any way diminish any
rights to indemnification or advance of expenses of such Director or
Officer or the obligations of the Corporation arising hereunder with
respect to events occurring, or claims made, while this by-law or any
provision hereof is in force."
II-3
<PAGE>
The Directors and officers of the Company are covered by insurance
indemnifying them against certain liabilities which might be incurred by them in
their capacities as such, including certain liabilities arising under the
Securities Act of 1933. The premium for this insurance is paid by the Company.
Also, see indemnification provisions in the Form of Agency Agreement and
the Standard Purchase Provisions, both included in Exhibit 1(a) to this
Registration Statement.
Item 16. Exhibits.
Reference is made to the Exhibit Index filed as a part of this
Registration Statement.
Item 17. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a 20%
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
Registration Statement or any material change to such information
in the Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the Registration Statement is on Form S-3, Form S-8, or Form F-3
and the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed with or
furnished to the Securities and Exchange Commission by the Registrant
pursuant to Section 13 or Section 15(d) of
II-4
<PAGE>
the Securities Exchange Act of 1934 that are incorporated by reference
in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new Registration Statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to Directors, officers and controlling persons of the
Registrant pursuant to the provisions described under Item 15 above, or
otherwise, the Registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a Director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such Director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Constellation
Energy Group, Inc., the Registrant, certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form S-3 and has
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Baltimore, State of
Maryland on the 29th day of March, 1999.
CONSTELLATION ENERGY GROUP, INC.
(Registrant)
By: /s/ David. A. Brune
David A. Brune, Vice President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
Signature Title Date
---------------- ------ -----
Principal executive
officer and director:
*Charles W. Shivery Chairman of the March 29, 1999
Board, President
and Director
Principal financial and
accounting officer:
/s/ David A. Brune Vice President, March 29, 1999
- -------------------- Secretary and
David A. Brune Director
/s/ Thomas E. Ruszin, Jr. Treasurer and March 29, 1999
---------------------- Director
Thomas E. Ruszin, Jr.
* By: /s/ David A. Brune
----------------------
David A. Brune, Attorney-in-Fact
<PAGE>
EXHIBIT INDEX
Exhibit
Number
1(a) - Form of Agency Agreement, including Administrative Procedures; and
Form of Purchase Agreement, including Standard Purchase Provisions.
1(b) - Form of Interest Calculation Agency Agreement.
4(a) - Indenture dated as of March 24, 1999 between the Company and The Bank of
New York.
4(b) - Form of Medium-Term Note, Series A (Fixed Rate).
4(c) - Form of Medium-Term Note, Series A (Floating Rate).
5 - Opinion of Company Counsel.
12* - Computation of Ratio of Earnings to Fixed Charges (Designated as Exhibit
12 in BGE's Form 10-K for the year ended December 31, 1998, filed
March 18, 1999, File No. 1-1910).
23(a) - Consent of Company Counsel(included in Exhibit 5).
23(b) - Consent of PricewaterhouseCoopers LLP, Independent Accountants.
24 - Power of Attorney.
25 - Statement of Eligibility under the Trust Indenture Act of 1939
(Form T-1) of The Bank of New York, Trustee.
- ------------------
* Incorporated by reference.
II-7
Exhibit 1(a)
$500,000,000
CONSTELLATION ENERGY GROUP, INC.
MEDIUM-TERM NOTES
SERIES A
FORM OF AGENCY AGREEMENT
______, 1999
Lehman Brothers Inc.
3 World Financial Center
12th Floor
New York, New York 10285-1200
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Dear Sirs:
1. Introduction. Constellation Energy Group, Inc., a Maryland corporation
(the "Company"), confirms its agreement with Lehman Brothers, Lehman Brothers
Inc., and Goldman, Sachs & Co. (individually, an "Agent" and collectively, the
"Agents") with respect to the issue and sale from time to time by the Company of
up to $500,000,000 aggregate principal amount of its Medium-Term Notes, Series A
registered under the registration statement referred to in Section 2(a) (the
"Notes"). The Notes will be issued under an indenture, dated as of March _____,
1999 (the "Indenture"), between the Company and The Bank of New York (the
"Trustee").
The Notes shall have the maturity ranges (which shall be from nine
months to thirty years), annual interest rates, redemption provisions and other
terms set forth in the Prospectus referred to in Section 2(a) as it may be
supplemented from time to time. The Notes will be issued, and the terms thereof
established, from time to time by the Company in accordance with the Indenture,
the Notes and the Procedures (as defined in Section 3(d) hereof).
2. Representations and Warranties of the Company. The Company represents
and warrants to, and agrees with, each Agent as follows:
(a) A registration statement on Form S-3 (No. 333-_____), which
also serves as a post-effective amendment to the registration statement on Form
S-3 (No. 333-24855), covering $500 million principal amount of the Notes,
including a prospectus, has been filed with the Securities and Exchange
Commission ("Commission") and has become effective. Such registration statement
<PAGE>
including (i) the prospectus included therein dated ___________, 1999 (such
prospectus including each document incorporated by reference therein, as may be
amended or supplemented from time to time, is hereinafter called the
"Prospectus") and (ii) all documents filed as part thereof or incorporated by
reference therein, as may be amended or supplemented from time to time, are
hereinafter called the "Registration Statement." Any reference in this Agreement
to amending or supplementing the Prospectus shall be deemed to include the
filing of materials incorporated by reference in the Prospectus after the
Closing Date and any reference in this Agreement to any amendment or supplement
to the Prospectus shall be deemed to include any such materials incorporated by
reference in the Prospectus after the Closing Date.
(b) The Registration Statement conforms in all respects to the
requirements of the Securities Act of 1933, as amended ("Act"), and the
pertinent published rules and regulations of the Commission thereunder ("33 Act
Rules and Regulations") and the Trust Indenture Act of 1939, as amended ("Trust
Indenture Act"), and does not include any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading, and on the Closing Date, and at each
of the times of (i) acceptance referred to in Section 6(a) hereof, (ii) delivery
referred to in Section 6(e) hereof and (iii) amendment or supplement referred to
in Section 6(b) hereof (the Closing Date and each such time being herein
sometimes referred to as "Representation Date"), the Registration Statement and
the Prospectus will conform in all respects to the requirements of the Act, the
Trust Indenture Act and the 33 Act Rules and Regulations and none of such
documents will contain an untrue statement of a material fact or will omit to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading, except that the foregoing does not apply to
statements or omissions in such document based upon written information
furnished to the Company by any Agent specifically for use therein. The
documents incorporated by reference in the Registration Statement or the
Prospectus pursuant to Item 12 of Form S-3 of the Act, at the time they were
filed with the Commission, complied in all material respects with the
requirements of the Securities Exchange Act of 1934, as amended ("Exchange
Act"), and the pertinent published rules and regulations thereunder ("Exchange
Act Rules and Regulations"). Any additional documents deemed to be incorporated
by reference in the Prospectus will, when they are filed with the Commission,
comply in all material respects with the requirements of the Exchange Act and
the Exchange Act Rules and Regulations and will not contain an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
3. Appointment as Agent; Solicitations as Agent.
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<PAGE>
(a) Subject to the terms and conditions stated herein, the Company
hereby appoints each of the Agents as an agent of the Company for the purpose of
soliciting or receiving offers to purchase the Notes from the Company by others.
(b) On the basis of the representations and warranties contained
herein, but subject to the terms and conditions herein set forth, each Agent
agrees, as agent of the Company, to use all reasonable efforts when requested by
the Company to solicit offers to purchase the Notes upon the terms and
conditions set forth in the Prospectus, as from time to time amended or
supplemented.
Upon receipt of notice from the Company as contemplated by Section
4(b) hereof, each Agent shall suspend its solicitation of purchases of Notes
until such time as the Company shall have furnished it with an amendment or
supplement to the Registration Statement or the Prospectus, as the case may be,
contemplated by Section 4(b) and shall have advised each Agent that such
solicitation may be resumed.
The Company reserves the right, in its sole discretion, to suspend
solicitation of offers to purchase the Notes commencing at any time for any
period of time or permanently. Upon receipt of notice from the Company, the
Agents will use their best efforts promptly to suspend solicitation of offers to
purchase Notes from the Company, but in no event later than one business day
after notice, until such time as the Company has advised the Agents that such
solicitation may be resumed. For the purpose of the foregoing sentence,
"business day" shall mean any day which is not a Saturday or a Sunday or a day
on which banking institutions in The City of New York and the City of Baltimore
are authorized or required by law or executive order to be closed.
The Agents are authorized to solicit offers to purchase Notes only
in fully registered form, in minimum denominations of $1,000 and integral
multiples of $1,000 in excess thereof, and at a purchase price which, unless
otherwise specified in a supplement to the Prospectus, shall be equal to 100% of
the principal amount thereof. Each Agent shall communicate to the Company,
orally or in writing, each reasonable offer to purchase Notes received by it as
Agent. The Company shall have the sole right to accept offers to purchase the
Notes and may reject any such offer, in whole or in part. Each Agent shall have
the right, in its discretion reasonably exercised, without notice to the
Company, to reject any offer to purchase Notes received by it, in whole or in
part, and any such rejection shall not be deemed a breach of its agreement
contained herein.
No Note which the Company has agreed to sell pursuant to this
Agreement shall be deemed to have been purchased and paid for, or sold, by the
Company until such Note shall have been delivered to the purchaser thereof
against payment by such purchaser.
- 3 -
<PAGE>
(c) At the time of delivery of, and payment for, any Notes sold by
the Company as a result of a solicitation made by, or offer to purchase received
by, an Agent, the Company agrees to pay such Agent a commission in accordance
with the schedule set forth in Exhibit A hereto.
(d) Administrative procedures respecting the sale of Notes (the
"Procedures") shall be agreed upon from time to time by the Agents and the
Company. The initial Procedures, which are set forth in Exhibit B hereto, shall
remain in effect until changed by agreement among the Company and the Agents.
Each Agent and the Company agree to perform the respective duties and
obligations specifically provided to be performed by each of them herein and in
the Procedures. The Company will furnish a copy of the Procedures as from time
to time in effect to the Trustee which will act as the authenticating agent and
the agent for payment, registration and notice with respect to the Notes
pursuant to the Indenture and the agent for calculating interest rates with
respect to floating rate notes pursuant to the Interest Calculation Agency
Agreement dated as of _________(the "Interest Calculation Agency Agreement").
(e) The documents required to be delivered by Section 5 hereof
shall be delivered at the offices of the Company, 39 W. Lexington Street,
Baltimore, Maryland, 21201, not later than 5:00 P.M., Baltimore time, on the
date of this Agreement or at such later time as may be mutually agreed by the
Company and the Agents, which in no event shall be later than the time at which
the Agents commence solicitation of purchases of Notes hereunder, such time and
date being herein called the "Closing Date."
4. Certain Agreements of the Company. The Company agrees with the Agents
that it will furnish to Cahill Gordon & Reindel, counsel for the Agents, one
signed copy of the Registration Statement, including all exhibits and all
documents incorporated by reference, in the form it became effective and of all
amendments thereto and that, in connection with each offering of Notes, it will
take the following actions:
(a) From the time solicitation regarding sale of the Notes is begun until all of
the Notes have been sold (i) the Company will advise each Agent promptly of any
proposal to amend or supplement the Registration Statement or the Prospectus by
means of a post-effective amendment, sticker, or supplement (except
post-effective amendment, supplements, and stickers relating solely to interest
rates or maturities of Notes) but not by means of incorporation of document(s)
by reference into the Registration Statement or the Prospectus; (ii) the Company
will afford the Agents a reasonable opportunity to comment on any such proposed
post-effective amendment, sticker, or supplement; (iii) the Company will advise
each Agent of the filing of any such post-effective amendment, sticker, or
supplement; and (iv) the Company will (x) advise each Agent of the institution
by the Commission of any stop order proceedings in respect of the Registration
- 4 -
<PAGE>
Statement or of any part thereof, (y) use its best efforts to prevent the
issuance of any such stop order, and (z) if a stop order is issued, to obtain
its lifting as soon as possible.
(b) If from the time solicitation regarding sale of the Notes is
begun until all of the Notes have been sold, the Company shall determine that it
is necessary to suspend solicitation of the Notes because of the occurrence of
an event that results in the Prospectus either (x) including an untrue statement
of a material fact or omitting to state any material fact necessary to make the
statements in such Prospectus, in light of the circumstances under which they
were made when such Prospectus was delivered, not misleading, or (y) failing to
comply with the Act, then the Company will promptly notify each Agent to suspend
solicitation of purchases of the Notes. Notwithstanding Section 4(a) if the
Company shall determine to amend or supplement the Registration Statement or
Prospectus to correct such result, it will advise each Agent promptly and afford
the Agents a reasonable opportunity to discuss and comment upon the nature of
the disclosure in such amendment or supplement. Notwithstanding the foregoing,
if at the time of any notification to suspend solicitations (i) this Agreement
shall be in effect and any Agent shall own any of the Notes with the intention
of reselling them, or (ii) the Company has accepted an offer to purchase Notes
but the related settlement has not occurred, then the Company, subject to the
provisions of Section 4(a) of this Agreement, will promptly prepare and file
with the Commission an amendment or supplement which will correct such statement
or omission or effect such compliance.
(c) The Company, during the period when a prospectus relating to
the Notes is required to be delivered under the Act, will furnish to each Agent
promptly after timely filing with the Commission all documents required to be
filed pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (except
those filings associated with employee benefit plans). The Company will
immediately notify each Agent of any downgrading in the rating of the Notes or
any other debt securities of the Company, or any proposal to downgrade the
rating of the Notes or any other debt securities of the Company, by any
"nationally recognized statistical rating organization" (as defined for purposes
of Rule 436(g) under the Act), as soon as the Company learns of such downgrading
or proposal to downgrade.
(d) The Company will furnish to each Agent copies of the
Registration Statement, including all exhibits except those incorporated by
reference, any related preliminary prospectus, any related preliminary
prospectus supplement, the Prospectus and all amendments and supplements to such
documents, in each case as soon as available and in such quantities as are
reasonably requested.
(e) The Company will use its best efforts to obtain the
qualification of the Notes for sale and the determination of their eligibility
for investment under the laws of such jurisdictions as the Agents designate and
- 5 -
<PAGE>
will continue such qualifications in effect so long as required for the
distribution; provided, however, that the Company shall not be required to
qualify as a foreign corporation or to file any consent to service of process
under the laws of any jurisdiction or to comply with any other requirements
deemed by the Company to be unduly burdensome.
(f) So long as any Notes are outstanding, the Company will furnish
to the Agents: (i) as soon as practicable after the end of each fiscal year, a
copy of its annual report to shareholders for such year, (ii) as soon as
available, a copy of each report or definitive proxy statement of the Company
filed with the Commission under the Exchange Act or mailed to shareholders, and
(iii) from time to time, such other information concerning the Company as you
may reasonably request.
(g) The Company will pay all expenses incident to the performance
of its obligations under this Agreement, and will reimburse each Agent for any
expenses (including Blue Sky fees and disbursements of counsel which will not in
the aggregate exceed $6,000) incurred by it in connection with qualification of
the Notes for sale and determination of their eligibility for investment under
the laws of such jurisdictions as such Agent may designate and the printing of
memoranda relating thereto, for any filing fees charged by investment rating
agencies for the rating of the Notes, for any filing fee of the National
Association of Securities Dealers, Inc. relating to the Notes, and for the
reasonable fees and disbursements of counsel to the Agents.
(h) Not later than 45 days after the end of the 12-month period
beginning at the end of any fiscal quarter of the Company in which the Closing
Date or any other Representation Date occurs, the Company will make generally
available to its security holders an earnings statement (which need not be
audited) covering such 12-month period which will satisfy the provisions of
Section 11(a) of the Act.
5. Conditions of Obligations of Agents. The obligation of each Agent under
this Agreement at any time to solicit offers to purchase the Notes is subject to
the accuracy of the representations and warranties of the Company herein on the
date hereof, on each Representation Date and on the date of each such
solicitation, to the accuracy of the statements of the Company's officers made
pursuant to the provisions hereof on each such date, to the performance by the
Company of its obligations hereunder on or prior to each such date, and to each
of the following additional conditions precedent:
(a) No stop order suspending the effectiveness of the Registration
Statement or of any part thereof shall have been issued and no proceedings for
that purpose shall have been instituted or, to the knowledge of the Company or
any Agent, shall be contemplated by the Commission.
- 6 -
<PAGE>
(b) Neither the Registration Statement nor the Prospectus, as
amended or supplemented as of any Representation Date or date of such
solicitation, as the case may be, shall contain any untrue statement of fact
which, in the opinion of any Agent, is material or omits to state a fact which,
in the opinion of such Agent, is material and is required to be stated therein
or is necessary to make the statements therein not misleading.
(c) There shall not have occurred (i) any suspension or limitation
of trading in securities generally on the New York Stock Exchange other than a
temporary suspension in trading to provide for an orderly market, or any setting
of minimum prices for trading on such exchange, or any suspension of trading of
any securities of the Company on any exchange or in the over-the-counter market;
(ii) any banking moratorium declared by Federal or New York authorities; or
(iii) any outbreak or escalation of major hostilities in which the United States
is involved, any declaration of war by Congress or any other substantial
national or international calamity or emergency if, in the reasonable judgment
of such Agents, the effect of any such outbreak, escalation, declaration,
calamity or emergency makes it impractical or inadvisable to proceed with
solicitations of purchases of, or sales of, Notes.
(d) At the Closing Date, the Agents shall have received an
opinion, dated the Closing Date, of a counsel for the Company, to the effect
that:
(i) The Company, Baltimore Gas and Electric Company (BGE)
and Constellation Enterprises, Inc. (CEI) have been duly
incorporated and are validly existing as corporations in good
standing under the laws of the State of Maryland, with power and
authority (corporate and other) to own their respective properties
and conduct their respective businesses as described in the
Prospectus; the Company owns all of the outstanding shares of
common stock of BGE and CEI; and the Company is duly qualified to
do business as a foreign corporation in good standing in all
jurisdictions in which the conduct of its business or the
ownership of its properties requires such qualification and the
failure to do so would have a material and adverse impact on its
financial condition;
(ii) The Indenture has been duly authorized, executed and
delivered by the Company, and is a valid instrument, legally
binding on the Company, enforceable in accordance with its terms,
except as limited by bankruptcy, insolvency, or other laws
affecting the enforcement of creditors' rights and by general
principles of equity;
(iii) The issuance and sale of Notes have been duly
authorized by all necessary corporate action of the Company. The
Notes (assuming that they have been duly authenticated by the
Trustee or a duly designated Authentication Agent under the
Indenture, which fact counsel need not verify by an inspection of
- 7 -
<PAGE>
the Notes), when issued in accordance with the provisions of this
Agreement and the Indenture, will be duly issued and constitute
legal, valid and binding obligations of the Company enforceable in
accordance with their terms and are entitled to the benefits
provided by the Indenture, except as limited by bankruptcy,
insolvency or other laws affecting the enforcement of creditors'
rights and by general principles of equity;
(iv) The Registration Statement has become effective under
the Act and (a) to the best of such counsel's knowledge, no stop
order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose have been
instituted or are pending or contemplated under the Act; (b) the
Registration Statement (as of its effective date) and the
Prospectus (as of the date of this Agreement) appeared to comply
as to form in all material respects with the requirements of Form
S-3 under the Act and the 33 Act Rules and Regulations and the
Trust Indenture Act; (c) such counsel has no reason to believe
that either the Registration Statement as of its effective date or
the Prospectus as of the date of this Agreement contained any
untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make
the statements therein not misleading; (d) the descriptions in the
Registration Statement and Prospectus of statutes, legal and
governmental proceedings and contracts and other documents are
accurate and fairly present the information required to be shown;
and (e) such counsel does not know of any legal or governmental
proceedings required to be described in the Prospectus which are
not described as required, nor of any contracts or documents of a
character required to be described in the Registration Statement
or Prospectus or to be filed as exhibits to the Registration
Statement which are not described or filed as required; it being
understood that such counsel, in addressing the matters covered in
this paragraph (iv), need express no opinion as to the financial
statements or other financial and statistical information
contained in the Registration Statement or the Prospectus or
incorporated therein or attached as an exhibit thereto or as to
the Statement of Eligibility and Qualification on Form T-1 of the
Trustee under the Indenture;
(v) Counsel knows of no approval of any regulatory
authority which is legally required for the valid offering,
issuance, sale and delivery of the Notes by the Company under this
Agreement (except that such opinion need not pass upon the
requirements of state securities acts);
- 8 -
<PAGE>
(vi) To the best of such counsel's knowledge and belief,
the consummation of the transactions contemplated in this
Agreement and the compliance by the Company with all the terms of
the Indenture did not and will not result in a breach of any of
the terms or provisions of, or constitute a default under, the
Company's Charter or By-Laws or any indenture, mortgage or deed of
trust or other agreement or instrument to which the Company is a
party;
(vii) Each of this Agreement and the Interest Calculation
Agency Agreement has been duly authorized, executed and delivered
by the Company;
(viii) The Indenture is duly qualified under the Trust
Indenture Act;
(ix) The issuance, sale and delivery of the Notes as
contemplated by this Agreement are not subject to the approval of
the Commission under the provisions of the Public Utility Holding
Company Act of 1935, as amended (the "1935 Act"); and
(x) The Notes and Indenture conform as to legal matters
with the statements concerning them in the Registration Statement
and Prospectus under the caption "DESCRIPTION OF NOTES" and on the
cover page of the Prospectus.
(e) At the Closing Date, the Agents shall have received a
certificate, dated the Closing Date, of the Chairman of the Board, Vice
Chairman, President or any Vice President and a principal financial or
accounting officer of the Company in which such officers, to the best of their
knowledge after reasonable investigation and relying upon opinions of counsel to
the extent legal matters are involved, shall state that (i) the representations
and warranties of the Company in this Agreement are true and correct in all
material respects, (ii) the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied hereunder at
or prior to the Closing Date, (iii) no stop order suspending the effectiveness
of the Registration Statement or of any part thereof has been issued and no
proceedings for that purpose have been instituted or are contemplated by the
Commission, and (iv) subsequent to the date of the most recent financial
statements set forth or incorporated by reference in the Prospectus, there has
been no material adverse change in the financial position or in the financial
results of operations of the Company, except as set forth or contemplated in the
Prospectus or as described in such certificate.
(f) At the Closing Date, the Agents shall have received a letter,
dated the Closing Date, of PricewaterhouseCoopers LLP, confirming that they are
independent pubic accountants within the meaning of the Act and the 33 Act Rules
and Regulations, and stating in effect that:
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<PAGE>
(i) In their opinion, the consolidated financial statements
and supporting schedules audited by them which are included in
BGE's Form 10-K ("Form 10-K"), which is incorporated by reference
in the Registration Statement comply in form in all material
respects with the applicable accounting requirements of the Act
and the 33 Act Rules and Regulations and the Exchange Act and the
Exchange Act Rules and Regulations;
(ii) On the basis of procedures specified in such letter
(but not an audit in accordance with generally accepted auditing
standards), including reading the minutes of meetings of the
shareholders, the Board of Directors and the Executive Committee
of the Company since the end of the year covered by the Form 10-K
as set forth in the minute books through a specified date not more
than five days prior to the Closing Date, performing the
procedures specified in Statement on Auditing Standards No. 71,
Interim Financial Information, on the unaudited interim
consolidated financial statements of the Company incorporated by
reference in the Registration Statement, if any, and reading the
latest available unaudited interim consolidated financial
statements of the Company, and making inquiries of certain
officials of the Company who have responsibility for financial and
accounting matters as to whether the latest available financial
statements not incorporated by reference in the Registration
Statement are prepared on a basis substantially consistent with
that of the audited consolidated financial statements incorporated
in the Registration Statement, nothing has come to their attention
that has caused them to believe that (1) any unaudited
consolidated financial statements incorporated by reference in the
Registration Statement do not comply in form in all material
respects with the applicable requirements of the Act and the 33
Act Rules and Regulations and the Exchange Act and the Exchange
Act Rules and Regulations or any material modifications should be
made to those unaudited consolidated financial statements for them
to be in conformity with generally accepted accounting principles;
(2) at the date of the latest available balance sheet not
incorporated by reference in the Registration Statement there was
any change in the capital stock, change in long-term debt or
decrease in consolidated net assets or common shareholders' equity
as compared with the amounts shown in the latest balance sheet
incorporated by reference in the Registration Statement or for the
period from the closing date of the latest income statement
incorporated by reference in the Registration Statement to the
closing date of the latest available income statement read by them
there were any decreases, as compared with the corresponding
period of the previous year, in operating revenues, operating
income, net income, the ratio of earnings to fixed charges
(measured on the most recent twelve month period), or in earnings
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<PAGE>
per share of common stock except in all instances of changes or
decreases that the Registration Statement discloses have occurred
or may occur, or which are described in such letter; or (3) at a
specified date not more than five days prior to the Closing Date,
there was any change in the capital stock or long-term debt of the
Company or, at such date, there was any decrease in net assets of
the Company as compared with amounts shown in the latest balance
sheet incorporated by reference in the Registration Statement, [or
for the period from the closing date of the latest income
statement incorporated by reference in the Registration Statement
to a specified date not more than five days prior to the Closing
Date, there were any decreases as compared with the corresponding
period of the previous year, in operating revenues, operating
income, net income or in earnings applicable to common stock,]
except in all cases for instances of changes or decreases that the
Registration Statement discloses have occurred or may occur, or
which are described in such letter; and
(iii) Certain specified procedures have been applied to
certain financial or other statistical information (to the extent
such information was obtained from the general accounting records
of the Company) set forth or incorporated by reference in the
Registration Statement and that such procedures have not revealed
any disagreement between the financial and statistical information
so set forth or incorporated and the underlying general accounting
records of the Company, except as described in such letter.
(g) The Agents shall have received from Cahill Gordon & Reindel,
counsel for the Agents, an opinion dated the Closing Date, with respect to the
matters referred to in paragraph 5(d) subheadings (ii), (iii), (iv)b, (v),(vii)
(viii), and (x) and such other related matters as you may require and the
Company shall have furnished to such counsel such documents as they request for
the purpose of enabling them to pass on such matters.
In rendering such opinion, Cahill Gordon & Reindel may rely, as to
the incorporation of the Company, and all other matters governed by the laws of
the State of Maryland, and the applicability of the 1935 Act for the issuance,
sale and delivery of the Notes upon the opinion of Counsel for the Company
referred to above.
In addition, such counsel shall state that such counsel has
participated in conferences with officers, counsel and other representatives of
the Company, representatives of the independent certified public accountants for
the Company and representatives of the Agents at which the contents of the
Registration Statement and the Prospectus and related matters were discussed;
and, although such counsel is not passing upon and does not assume
responsibility for the accuracy, completeness or fairness of the statements
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<PAGE>
contained in the Registration Statement and Prospectus (except as to the matters
referred to in their opinion rendered pursuant to subheading (ix) above), on the
basis of the foregoing (relying as to materiality to a large extent upon the
opinions of officers, counsel and other representatives of the Company), no
facts have come to the attention of such counsel which lead such counsel to
believe that either the Registration Statement (as of its effective date) or the
Prospectus (as of the date of this Agreement), contained an untrue statement of
a material fact or omitted to state a material fact required to be stated
therein or necessary to make such statements therein not misleading (it being
understood that such counsel need make no comment with respect to the financial
statements and other financial and statistical information included in the
Registration Statement or Prospectus or incorporated therein or as to the
Statement of Eligibility and Qualification on Form T-l of the Trustee under the
Indenture).
The Company will furnish the Agents with such conformed copies of
such opinions, certificates, letters and documents as the Agents reasonably
request.
6. Additional Covenants of the Company. The Company agrees that:
(a) Each acceptance by the Company of an offer for the purchase of
Notes shall be deemed to be an affirmation that its representations and
warranties contained in this Agreement are true and correct at the time of such
acceptance, it being understood that such representations and warranties shall
relate to the Registration Statement and the Prospectus as amended or
supplemented at each such time. Each such acceptance by the Company of an offer
for the purchase of Notes shall be deemed to constitute an additional
representation, warranty and agreement by the Company that, as of the settlement
date for the sale of such Notes, after giving effect to the issuance of such
Notes and of any other Notes to be issued on or prior to such settlement date,
the aggregate amount of Notes which have been issued and sold by the Company
will not exceed the amount of Notes registered pursuant to the Registration
Statement.
(b) From the time solicitation regarding the sale of the Notes is
begun until all of the Notes have been sold, each time the Company (i) amends or
supplements the Registration Statement or the Prospectus (other than in
reference solely to interest rates or maturities of Notes) by means of a
post-effective amendment, sticker, or supplement but not by means of
incorporation of document(s) by reference into the Registration Statement or the
Prospectus; (ii) files an annual report on Form 10-K under the Exchange Act;
(iii) files its quarterly reports on Form 10-Q under the Exchange Act; and (iv)
files a report on Form 8-K under the Exchange Act (the date of filing each of
the aforementioned documents is referred to as a "Representation Date"); the
Company shall furnish the Agents (but in the case of (iv) above only if
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<PAGE>
requested by the Agents) with a certificate of the Chairman, Vice Chairman,
President or any Vice President and a principal financial or accounting officer
of the Company, in form satisfactory to the Agents, to the effect that on the
Representation Date, to the best of their knowledge after reasonable
investigation and relying upon opinions of counsel to the extent legal matters
are involved, (i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects; (ii) the Company has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder at or prior to the Representation Date; (iii)
no stop order suspending the effectiveness of the Registration Statement or of
any part thereof has been issued and no proceedings for that purpose have been
instituted or are contemplated by the Commission; and (iv) subsequent to the
date of the most recent financial statements set forth or incorporated by
reference in the Prospectus, there has been no material adverse change in the
financial position or in the financial results of operations of the Company,
except as set forth in or contemplated by the Prospectus or as described in such
certificate.
(c) From the time solicitation regarding the sale of the Notes is
begun until all of the Notes have been sold, at each Representation Date
referred to in Section 6(b) (i) or (ii) and, only if requested by the Agents, at
each Representation Date referred to in Section 6(b) (iii) or (iv), the Company
shall concurrently furnish the Agents with a written opinion or opinions of
counsel for the Company, dated the Representation Date or the date of such
filing, in form satisfactory to the Agents, to the effect set forth in Section
5(d) hereof, but modified, as necessary, to relate to the Registration Statement
and the Prospectus as then amended or supplemented; provided, however, that in
lieu of such opinion, counsel may furnish the Agents with a letter to the effect
that the Agents may rely on a prior opinion delivered under Section 5(d) or this
Section 6(c) to the same extent as if it were dated the date of such letter
(except that statements in such prior opinion shall be deemed to relate to the
Registration Statement and the Prospectus as amended or supplemented at such
Representation Date).
(d) From the time solicitation regarding the sale of the Notes is
begun until all of the Notes have been sold, at each Representation Date
referred to in Section 6(b) (i) or (ii) and, only if requested by the Agents, at
each Representation Date referred to in Section 6(b) (iii) or (iv), but in each
case only if such documents referred to in Section 6(b) include additional
financial information, the Company shall cause PricewaterhouseCoopers LLP or
successor thereto concurrently to furnish the Agents with a letter, addressed
jointly to the Company and the Agents and dated the Representation Date or the
date of such filing, in form and substance satisfactory to the Agents, to the
effect set forth in Section 5(f) hereof but modified to relate to the
Registration Statement and the Prospectus as amended or supplemented at such
Representation Date, with such changes as may be necessary to reflect changes in
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<PAGE>
the financial statements and other information derived from the accounting
records of the Company; provided, however, that if the Registration Statement or
the Prospectus is amended or supplemented solely to include financial
information as of and for a fiscal quarter, PricewaterhouseCoopers LLP may limit
the scope of such letter to the unaudited financial statements included in such
amendment or supplement unless there is contained therein any other accounting,
financial or statistical information that, in the reasonable judgment of the
Agents, should be covered by such letter, in which event such letter shall also
cover such other information and procedures as shall be agreed upon by the
Agents.
(e) On each settlement date for the sale of Notes, the Company
shall, if requested by an Agent that solicited or received the offer to purchase
any Notes being delivered on such settlement date, furnish such Agent with a
written opinion of a counsel for the Company, dated the date of delivery
thereof, in form satisfactory to such Agent, to the effect set forth in clauses
(i), (ii), and (iii) of Section 5(d) hereof, but modified, as necessary, to
relate to the Prospectus as amended or supplemented at such settlement date and
except that such opinion shall state that the Notes being sold by the Company on
such settlement date, when delivered against payment therefor as provided in the
Indenture and this Agreement, will have been duly executed, authenticated,
issued and delivered and will constitute valid and legally binding obligations
of the Company enforceable in accordance with their terms, subject only to the
exceptions as to enforcement set forth in clauses (ii) and (iii) of Section 5(d)
hereof, and conform to the description thereof contained in the Prospectus as
amended or supplemented at such settlement date.
(f) The Company agrees that any obligation of a person who has
agreed to purchase Notes to make payment for and take delivery of such Notes
shall be subject to (i) the accuracy, on the related settlement date fixed
pursuant to the Procedures, of the Company's representations and warranties
deemed to be made to the Agents pursuant to Section 2 and the last sentence of
subsection (a) of this Section 6; (ii) the satisfaction, on such settlement
date, of each of the conditions set forth in Sections 5(a), (b), and (c), it
being understood that under no circumstance shall any Agent have any duty or
obligation to exercise the judgment permitted under Section 5(b) or (c) on
behalf of any such person; (iii) the absence of any change or development
involving a prospective change, not contemplated by the Prospectus, in or
affecting particularly the business or properties of the Company which
materially impairs the investment quality of the Notes; and (iv) no downgrading
in the rating of the Company's debt securities by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g) under
the Act).
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<PAGE>
7. Indemnification and Contribution.
(a) The Company will indemnify and hold harmless each Agent and
each person if any, who controls either Agent within the meaning of the Act or
the Exchange Act against any losses, claims, damages or liabilities, joint or
several, to which such Agent or such controlling person may become subject,
under the Act, or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement or the Prospectus, or any related preliminary
prospectus or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading; and will reimburse each Agent and each
such controlling person for any legal or other expenses reasonably incurred by
such Agent or such controlling person in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company will not be liable to such Agent or controlling person in any
such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in any such documents in reliance upon and in
conformity with written information furnished to the Company by such Agent or
such controlling person specifically for use therein unless such loss, claim,
damage or liability arises out of the offer or sale of Notes occurring after
such Agent or controlling person has notified the Company in writing that such
information should no longer be used therein. This indemnity agreement will be
in addition to any liability which the Company may otherwise have.
(b) Each Agent will indemnify and hold harmless the Company, each
of its directors, each of its officers who have signed the Registration
Statement and each person, if any, who controls the Company within the meaning
of the Act or the Exchange Act, against any losses, claims, damages or
liabilities to which the Company or any such director, officer or controlling
person may become subject, under the Act, or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement or the Prospectus, or any related
preliminary prospectus or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such Agent
specifically for use therein; and will reimburse any legal or other expenses
reasonably incurred by the Company or any such director, officer or controlling
person in connection with investigating or defending any such loss, claim,
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<PAGE>
damage, liability or action as such expenses are incurred; provided, however,
that such Agent will not be liable to the Company or any such director, officer
or controlling person in any such case to the extent that any such loss, claim,
damage or liability arises out of the offer or sale of Notes occurring after
such Agent has notified the Company in writing that such information should no
longer be used therein. This indemnity agreement will be in addition to any
liability which such Agent may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under (a) and (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under this Section. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the extent
that it may wish, jointly with any other indemnifying party similarly notified,
to assume the defense thereof, with counsel satisfactory to such indemnified
party (who may, with the consent of the indemnified party, be counsel to the
indemnifying party) and who shall not be counsel to any other indemnified party
who may have interests conflicting with those of such indemnified party, and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation.
(d) If recovery is not available under the foregoing
indemnification provisions of this Section for any reason other than as
specified therein, the parties entitled to indemnification by the terms thereof
shall be entitled to contribution to liabilities and expenses, except to the
extent that contribution is not permitted under Section ll(f) of the Act. In
determining the amount of contribution to which the respective parties are
entitled, there shall be considered the relative benefits received by each party
from the offering of the Notes (taking into account the portion of the proceeds
of the offering realized by each), the parties' relative knowledge and access to
information concerning the matter with respect to which the claim was asserted,
the opportunity to correct and prevent any statement or omission, and any other
equitable considerations appropriate under the circumstances. The Company and
the Agents and such controlling persons agree that it would not be equitable if
the amount of such contribution were determined by pro rata or per capita
allocation (even if the Agents and such controlling persons were treated as one
entity for such purpose). Notwithstanding the provisions of this subsection (d),
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<PAGE>
no Agent or controlling person shall be required to make contribution hereunder
which in the aggregate exceeds the total public offering price of the Notes,
distributed to the public through it pursuant to this Agreement or upon resale
of Notes purchased by it from the Company, less the aggregate amount of any
damages which such Agent or such controlling person has otherwise been required
to pay in respect to the same claim or substantially similar claim. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The obligations of each Agent and each
controlling person in this subsection (d) to contribute are several, in the same
proportion which the amount of the Notes which are the subject of the action and
which were distributed to the public through such Agent or such controlling
person pursuant to this Agreement bears to the total amount of such Notes
distributed to the public through any other Agent or controlling person pursuant
to this Agreement, and not joint.
8. Status of Each Agent. In soliciting offers to purchase the Notes from
the Company pursuant to this Agreement and in assuming its other obligations
hereunder (other than offers to purchase pursuant to Section 11), each Agent is
acting individually and not jointly and is acting solely as agent for the
Company and not as principal. Each Agent will use all reasonable efforts to
assist the Company in obtaining performance by each purchaser whose offer to
purchase Notes from the Company has been solicited by such Agent and accepted by
the Company, but such Agent shall have no liability to the Company in the event
any such purchase is not consummated for any reason. If the Company shall
default on its obligations to deliver Notes to a purchaser whose offer it has
accepted, the Company (i) shall hold the Agents harmless against any loss, claim
or damage arising from or as a result of such default by the Company, and (ii),
in particular, shall pay to the Agents any commission to which they would be
entitled in connection with such sale.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the Agents set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation,
or statement as to the results thereof, made by or on behalf of any Agent, the
Company or any of their respective representatives, officers or directors or any
controlling person and will survive delivery of and payment for the Notes. If
this Agreement is terminated pursuant to Section 10 or for any other reason, the
Company shall remain responsible for the expenses to be paid or reimbursed by it
pursuant to Section 4(g) and the obligations of the Company under Sections 4(f)
and (h) and the respective obligations of the Company and the Agents pursuant to
Section 7 shall remain in effect. In addition, if any such termination shall
occur either (i) at a time when any Agent shall own any of the Notes with the
intention of reselling them or (ii) after the Company has accepted an offer to
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<PAGE>
purchase Notes and prior to the related settlement, the obligations of the
Company under the last sentence of Section 4(b), under Sections 4(a), 4(c),
4(d), 4(e), 6(a), 6(e) and 6(f) and, in the case of a termination occurring as
described in (ii) above, under Section 3(c) and under the last sentence of
Section 8, shall also remain in effect.
10. Termination. This Agreement may be terminated for any reason at any
time by the Company as to any Agent or, in the case of either Agent, by such
Agent insofar as this Agreement relates to such Agent, upon the giving of one
day's written notice of such termination to the other parties hereto. Any
settlement with respect to Notes placed by an Agent occurring after termination
of this Agreement shall be made in accordance with the Procedures and each Agent
agrees, if requested by the Company, to take the steps therein provided to be
taken by such Agent in connection with such settlement.
11. Other Sales and Purchases of Notes. From time to time, any Agent may
agree with the Company to purchase all or a portion of Notes from the Company as
an underwriter (acting either alone or in conjunction with one or more
investment banking firms) for resale to the public. In this event, such purchase
shall be made in accordance with the terms of a separate agreement to be entered
into between such Agent and the Company in substantially the form attached
hereto as Exhibit C.
Without the oral consent (confirmed in writing) of the Company,
neither Agent shall have the right to purchase all or a portion of the Notes for
its own account. In the event the Company consents to such purchase, the
purchase shall be made in accordance with the terms of a separate agreement to
be entered into between such Agent and the Company in substantially the form
attached hereto as Exhibit D.
Nothing in this Agreement shall prohibit the sale of all or a
portion of Notes directly by the Company to any person or entity without the
involvement of either of the Agents or from entering into similar agreements
with other firms as agents.
The Company will not appoint another agent without providing each
Agent with at least one business day's notice.
12. Notices. Except as otherwise provided herein, all notices and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if delivered by overnight mail or transmitted by any standard form of
telecommunication. Notices to Lehman Brothers Inc. shall be delivered or
telecopied to it at 3 World Financial Center, 12th Floor, New York, New York
10285-1200, telecopier, (212) 528-1718, Attention: Medium-Term Note Department;
notices to Goldman, Sachs & Co. shall be delivered or telecopied to it at 85
Broad Street, New York, New York 10004, telecopier, (212) 902-3000, Attention:
Registration Department; and notices to the Company shall be delivered or
telecopied to it at 39 W. Lexington Street, Baltimore, Maryland 21201,
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<PAGE>
telecopier, (410) 234-5367, Attention: Treasurer, 8th Floor, Gas and Electric
Building, or in the case of any party hereto, to such other address or person as
such party shall specify to each other party by a notice given in accordance
with the provisions of this Section 12. Any such notice shall take effect at the
time of receipt.
13. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto, their respective successors, the officers and directors
and controlling persons referred to in Section 7 and, to the extent provided in
Section 6(f), any person who has agreed to purchase Notes from the Company, and
no other person will have any right or obligation hereunder.
14. Governing Law; Counterparts. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York. This Agreement
may be executed in counterparts and the executed counterparts shall together
constitute a single instrument.
If the foregoing correctly sets forth our agreement, please indicate your
acceptance hereof in the space provided for that purpose below.
Very truly yours,
CONSTELLATION ENERGY GROUP, INC.
By: ___________________________
CONFIRMED AND ACCEPTED, as of the
date first above written:
LEHMAN BROTHERS INC.
By:__________________________
GOLDMAN, SACHS & CO.
______________________________
Goldman, Sachs & Co.
<PAGE>
Exhibit A
to Agency Agreement
The Company agrees to pay either Agent a commission equal to the following
percentage of the principal amount of Notes sold to purchasers solicited by such
Agent:
Commission Rate
(as a percentage of
Term principal amount)
----------------
9 months to less than 12 months .125
12 months to less than 18 months .15
18 months to less than 24 months .20
2 years to less than 3 years .25
3 years to less than 4 years .35
4 years to less than 5 years .45
5 years to less than 7 years .50
7 years to less than 10 years .55
10 years to less than 15 years .60
15 years to less than 20 years .65
20 years through 30 years .75
<PAGE>
Exhibit B
to Agency Agreement
ADMINISTRATIVE PROCEDURES
The Medium-Term Notes, Series A due from nine months to thirty years from
their issue dates (the "Notes") are to be offered on a continuing basis by
Constellation Energy Group, Inc. (the "Company"). Lehman Brothers Inc. and
Goldman, Sachs & Co. as agents (individually, an "Agent" and collectively, the
"Agents") have each agreed to use all reasonable efforts to solicit purchases of
the Notes. Neither Agent will be obligated to purchase Notes for its own account
and neither may do so without the written consent of the Company. The Notes are
being sold pursuant to an Agency Agreement, dated as of ____________ (the
"Agency Agreement"), among the Company and the Agents, and will be issued
pursuant to an Indenture, between the Company and The Bank of New York dated as
of __________, 1999 (the "Indenture"). The Notes will rank equally with all
other unsecured and unsubordinated indebtedness of the Company and will have
been registered with the Securities and Exchange Commission (the "Commission").
The Company has designated The Bank of New York (the "Bank") as
the agency for payment, registration and notice concerning the Notes in
accordance with Section 5.02 of the Indenture and as the Authentication Agent
for the Notes in accordance with Section 2.02 of the Indenture. The Company has
also designated the Bank as the Calculation Agent with respect to the issuance
of floating rate notes pursuant to the Interest Calculation Agency Agreement
between the Company and the Bank dated __________.
Administrative procedures and specific terms of the offering are
explained below. Internal administrative and record-keeping responsibilities
will be handled for the Company by its Financial Management Unit of the Finance
Department. The Company will advise the Agents in writing of those persons
handling administrative responsibilities with whom the Agents are to communicate
regarding offers to purchase Notes and the details of their delivery. Unless
otherwise designated, the Notes will be issued as Global Securities registered
in the name of The Depository Trust Company or a nominee thereof (referred to as
"Book Entry Notes"). Procedures pertaining specifically to Book-Entry Notes and,
as the case may be, Notes issued in definitive form ("Certificated Notes") will
be explained separately below.
I. GENERAL PROCEDURES
Aggregate
Principal Amount $500,000,000
Issue Date Note will also bear an original issue date (the
"Issue Date") which, with respect to any Note (or
portion thereof), shall mean the date of its
original issuance and shall be specified therein.
The Issue Date shall remain the same for all Notes
<PAGE>
subsequently issued upon transfer, exchange or
substitution of a Note, regardless of their dates
of authentication.
Maturities: Each Note will mature on a Business Day (as defined
below), selected by the purchaser and agreed to by
the Company, which will range from nine months to
thirty years after the Issue Date. Each Note bearing
interest at a rate determined by reference to an
interest rate formula (a "Floating Rate Note") will
mature on an Interest Payment Date (as defined
below).
"Business Day" means any day other than a Saturday
or Sunday that (a) is not a day on which banking
institutions in Baltimore, Maryland, or in New York,
New York, are authorized or obligated by law or
executive order to be closed, and (b) with respect
to LIBOR Notes only, is a day on which dealings in
deposits in U.S. dollars are transacted in the
London interbank market.
Price to Public: Each Note will be issued at 100% of principal amount
(unless otherwise indicated in a pricing
supplement).
Denominations: The minimum denominations of the Notes will be
$1,000 and integral multiples of $1,000 in excess
thereof (see "Special Procedures for Book-Entry
Notes Denominations" for information relating to
Book-Entry Notes).
Registration: Notes will be issued only in fully registered
form as either a Book-Entry Note or a
Certificated Note. Certificated Notes may be
presented for registration of transfer
or exchange at the Bank's New York office.
Interest Payments: Each Note bearing interest at a fixed rate (a
"Fixed Rate Note") will bear interest
from its Issue Date if interest has not been paid
on the Note or from the most recent Interest Payment
Date to which interest has been paid at the fixed
rate per annum stated on the face thereof, payable
semi-annually on May 1 and November 1 of each
year (each an "Interest Payment Date" with respect
to such Fixed Rate Note), and at Stated Maturity,
and, if applicable, upon redemption or repurchase.
Special provisions are set forth in the Prospectus
relating to Floating Rate Notes. Interest rates are
determined by reference to the interest rate formula
stated therein and payable in arrears on such dates
as specified therein (each an "Interest Payment
Date" with respect to such Floating Rate Note).
Interest on Fixed Rate Notes (including payments for
partial periods) will be computed and paid on the
basis of a 360-day year of twelve 30-day months and
will not accrue on the 31st day of any month.
Interest will be payable to the person in whose name
the Note is registered at the close of business on
April 15 or October 15, (whether or not such date is
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<PAGE>
a Business Day) with respect to Fixed Rate Notes or
the fifteenth day (whether or not a Business Day)
with respect to Floating Rate Notes (the "Record
Dates"), next preceding the respective Interest
Payment Date; provided, however, that interest
payable at Stated Maturity and, if applicable, upon
redemption or repurchase will be payable to the
person to whom principal shall be payable. The first
payment of interest on any Note originally issued
between a Record Date and an Interest Payment Date
will be made on the Interest Payment Date following
the next succeeding Record Date. All interest
payments (excluding interest payments made at Stated
Maturity and, if applicable, upon redemption and
repurchase) will be made by check mailed to the
person entitled thereto as provided above; except
that holders of over $5 million in principal amount
of the Notes may receive interest payments by wire
upon at least three Business Day's written notice to
the Bank.
On the fifth Business Day immediately preceding each
Interest Payment Date, the Bank will furnish the
Company with the total amount of the interest
payments to be made on such Interest Payment Date.
The Bank will provide monthly to the Company's
Financial Services Unit a list of the principal and
interest to be paid on Notes maturing in the next
succeeding month. On the Interest Payment Date
(unless the Interest Payment Date is not a Business
Day, then the immediately succeeding Business Day),
the Company will transfer to the Bank, via the
Federal Reserve wire system, immediately available
funds sufficient to make such interest payments. The
Bank will assume responsibility for withholding
taxes on interest paid as required by law.
Acceptance of Offers: Each Agent will promptly advise the
Company of each reasonable offer to purchase Notes
received by it, other than those rejected by such
Agent. Each Agent may, in its discretion reasonably
exercised, without notice to the Company, reject any
offer received by it, in whole or in part. The
Company will have the sole right to accept offers to
purchase Notes and may reject any such offer, in
whole or in part. If the Company rejects an offer,
the Company will promptly notify the Agent involved.
Settlement: All offers accepted by the Company will be settled
on the third Business Day next succeeding the date
of acceptance unless otherwise agreed by any
purchaser and the Company. The settlement date shall
be specified upon receipt of an offer.
Confirmation: For each accepted offer, the Presenting Agent will
issue a confirmation to the purchaser, with a copy
to the Company's Financial Services Unit and the
Bank, setting forth the Purchase Information and
delivery and payment instructions.
Redemption at
Company's Option: Except as otherwise specified in the applicable
Pricing Supplement and on the Notes, the Notes wil
not be redeemable prior to their Stated Maturity.
If so specified, such Note will be redeemable at
the option of the Company on or after a specified
date at a specified price or prices (which may
- B3 -
<PAGE>
include a premium) together with accrued interest
thereon payable to, but excluding, the date fixed
for redemption. The Notes will be redeemable in
whole or in part (whether or not any other Notes of
the same series are redeemed), in increments of
$1,000 on notice by mail given not more than 60 nor
less than 30 days prior to the date fixed for
redemption. If there is a partial redemption, the
Bank will issue a new Note on the same terms.
Upon presentation of each Note at the date fixed
for redemption, the Bank (or any other duly
appointed paying agent) will pay the principal
amount (at a price, expressed as a percent of the
principal amount, specified on the Note and in the
applicable Pricing Supplement) redeemed thereof,
together with accrued interest due on the amount
redeemed at the date fixed for redemption. Such
payment shall be made in immediately available
funds, provided that the Note is presented to
the Bank (or any such paying agent) in time for
the Bank (or any such paying agent) to make payments
in such funds in accordance with its normal
procedures. On the date fixed for redemption
(unless the date fixed for redemption is not a
Business Day, then the immediately succeeding
Business Day), the Company will provide the Bank
(and any such paying agent), via the Federal
Reserve wire transfer system, with immediately
available funds sufficient for the Bank to make such
payment. Notes presented at the date fixed for
redemption will be canceled by the Bank as provided
in the Indenture.
Repurchase at Except as otherwise specified in the applicable
Holder's Option: Pricing Supplement and on the Notes, the Company
is not required to Holder;s Option: repurchase
the Notes from the holders prior to the Stated
Maturity. If so specified, Notes will be
redeemable at the option of the holder, in whole or
in part, in increments of $1,000, on the dates and
at the prices specified therein, together with
accrued interest to, but excluding, the repurchase
date. For Book-Entry Notes, holders must deliver a
written notice to the Bank at least 30, but no
more than 60 days prior to the date of repurchase,
but no later than 5:00 p.m. New York City time
on the last day for giving notice. The written
notice must specify the principal amount to be
repurchased and must be signed by a duly
authorized signatory of the Depositary (signature
guaranteed). For Certificated Notes, holders must
complete the "Option to Elect Repayment" on the
reverse of the Note and then deliver the Note to
the Bank at least 30, but no more than 45 days
prior to the date of the repurchase, but no later
than 5:00 p.m. New York City time on the last day
for giving notice. All notices are irrevocable.
If there is a partial redemption, the Bank
will issue a new Note on the same terms.
On the repurchase date, the Bank (or any other duly
appointed paying agent) will repurchase the Note
from the holder at the specified price, together
with any accrued interest, payment to be made in
immediately available funds. The Company will
provide the Bank (and any such paying agent), via
the Federal Reserve wire transfer system, with
immediately available funds sufficient for the Bank
to make such repurchases. Repurchased Notes will be
canceled by the Bank as provided in the Indenture.
- B4 -
<PAGE>
Remarketed Notes Procedures related to Remarketed Notes will be added
at the time any notes are issued.
Maturity: Upon presentation of each Note at maturity the
Bank (or any other duly appointed paying agent)
will pay the principal amount thereof, together
with accrued interest due at maturity. Such payment
shall be made in immediately available funds,
provided that the Note is presented to the Bank
(or any such paying agent) in time for the Bank
(or any such paying agent) to make payments in such
funds in accordance with its normal procedures.
On the maturity date, the Company will provide the
Bank (and any such paying agent), via the Federal
Reserve wire transfer system, with immediately
available funds sufficient for the Bank to make
such payment. Notes presented at maturity will be
canceled by the Bank as provided in the Indenture.
Procedure for
Rate or Redemption
Changes: The Company and the Agents will discuss from time
to time the rates to be borne by, and the redemption
and repurchase provisions, if any, of, the Notes
that may be sold as a result of the solicitation of
offers by the Agents. Once any Agent has recorded
any indication of interest in Notes upon certain
terms, and communicated with the Company, if the
Company plans to accept an offer to purchase Notes
upon such terms, it will prepare a sticker
reflecting the terms of such Notes and, after
confirming such terms with such Agent, will arrange
to have the Prospectus, as then amended or
supplemented, and bearing such sticker, filed with
the Commission and will supply at least 10 copies
of the Prospectus, as then amended or supplemented,
and bearing such sticker, to the Presenting Agent.
No settlements with respect to Notes upon such
terms may occur prior to such filing and the Agents
will not, prior to such filing, mail confirmations
to customers who have offered to purchase Notes upon
such terms. After such filing, sales, mailing of
confirmations and settlements may occur with
respect to Notes upon such terms, subject to
the provisions of "Delivery of Prospectus" below.
If the Company decides to post rates (which may
include the presence or absence of redemption and
repurchase provisions) and a decision has been
reached to change interest rates or redemption or
repurchase provisions, if any, the Company will
promptly notify each Agent. Each Agent will
forthwith suspend solicitation of purchases. At that
time, the Agents will recommend and the Company will
establish rates to be so "posted." Following
establishment of posted rates and prior to the
filing described in the following sentence, the
Agents may only record indications of interest in
purchasing Notes at the posted rates. Once any Agent
has recorded any indication of interest in Notes at
the posted rates and communicated with the Company,
if the Company plans to accept an offer at the
posted rate, it will prepare a sticker reflecting
such posted rates and, after confirming such terms
with such Agent, will arrange to have the
Prospectus, and bearing such sticker, filed with the
Commission and will supply at least 10 copies of the
Prospectus, as then amended or supplemented, to the
Presenting Agent. No settlements at the posted rates
may occur prior to such filing and the Agents will
not, prior to such filing, mail confirmations to
- B5 -
<PAGE>
customers who have offered to purchase Notes at the
posted rates. After such filing, sales, mailing of
confirmations and settlements may resume, subject to
the provisions of "Delivery of Prospectus" below.
Outdated stickers, and copies of the Prospectus to
which they are attached (other than those retained
for files), will be destroyed.
Suspension of
Solicitation;
Amendment or
Supplement: As provided in the Agency Agreement, the Company may
suspend solicitation of purchases at any time and,
upon receipt of at least one Business Day's prior
notice from the Company, the Agents will each
forthwith suspend solicitation until such time as
the Company has advised them that solicitation of
purchases may be resumed.
If the Agents receive the notice from the Company
contemplated by Section 4(b) of the Agency
Agreement, they will promptly suspend solicitation
and will only resume solicitation as provided in the
Agency Agreement. If the Company decides to amend or
supplement the Registration Statement or the
Prospectus relating to the Notes, it will promptly
advise each Agent and will furnish each Agent with
the proposed amendment or supplement in accordance
with the terms of the Agency Agreement. The Company
will promptly file such amendment or supplement;
provide the Agents with copies of any such amendment
or supplement; confirm to the Agents that such
amendment or supplement has been filed with the
Commission; and advise the Agents that solicitation
may be resumed.
Any such suspension shall not affect the Company's
obligations under the Agency Agreement; and in the
event that at the time the Company suspends
solicitation of purchases there shall be any offers
already accepted by the Company outstanding for
settlement, the Company will have the sole
responsibility for fulfilling such obligations. The
Company will in addition promptly advise the Agents
and the Bank if such offers are not to be settled
and if copies of the Prospectus as in effect at the
time of the suspension may not be delivered in
connection with the settlement of such offers.
Delivery of
Prospectus: A copy of the Prospectus, as most recently amended
or supplemented on the date of delivery thereof
(except as provided below), must be delivered to
purchaser prior to or together with the earlier of
delivery of (i) the written confirmation provided
for above, and (ii) any Note purchased by such
purchaser. The Company shall ensure that the
Presenting Agent receives copies of the Prospectus
and each amendment or supplemen thereto (including
appropriate pricing stickers) in such quantities
and within such time limits as will enabl the
Presenting Agent to deliver such confirmation or
Note to a purchaser as contemplated by these
procedures and in compliance with the preceding
sentence. If, since the date of acceptance of a
purchaser's offer, the Prospectus shall have been
supplemented solely to reflect any sale of Notes on
- B6 -
<PAGE>
terms different from those agreed to between the
Company and such purchaser or a change in posted
rates not applicable to such purchaser, such
purchaser shall not receive the Prospectus as
supplemented by such new supplement, but shall
receive the Prospectus as supplemented to reflect
the terms of the Notes being purchased by such
purchaser and otherwise as most recently amended
or supplemented on the date of delivery of the
Prospectus.
Authenticity of
Signatures: The Company will cause the Bank to furnish the
Agents from time to time with the specimen
signatures of each of the Bank's officers, employees
or agents who have been authorized by the Bank to
authenticate Notes, but the Agents will have no
obligation or liability to the Company or the Bank
in respect of the authenticity of the signature of
any officer, employee or agent of the Company or the
Bank on any Note.
Advertising Cost: The Company will determine with the Agents the
amount of advertising that may be appropriate in
offering the Notes. Advertising expenses will be
paid by the Company.
II. Special Procedures for Book-Entry Notes
Each Note may be represented by either a Global
Security delivered to the Bank, as agent for the
Depository Trust Company ("DTC"), and recorded in
the book-entry system maintained by DTC or a
certificate delivered to the Holder thereof or a
Person designated by such Holder. An owner of a
Book-Entry Note will not be entitled to receive a
certificate representing such Note. In connection
with the qualification of the Book-Entry Notes for
eligibility in the book-entry system maintained by
DTC, the Bank will perform the custodial, document
control and administrative functions described
below, in accordance with its respective obligations
under a Letter of Representations from the Company
and the Bank to DTC and a Medium-Term Note
Certificate Agreement previously entered into
between the Bank and DTC, and its obligations as a
participant in DTC, including DTC's Same-Day Funds
Settlement System ("SDFS"). Except as otherwise set
forth in this Exhibit B, Book-Entry Notes will be
issued in accordance with the administrative
procedures set forth in this section.
Issuance: On any date of settlement (as defined under
"Settlement" below), for one or more Fixed Rate
Book-Entry Notes, the Company will issue a single
Global Security in fully registered form without
coupons representing up to $200,000,000 principal
amount of all of such Notes that have the same
original issuance date, interest rate and Stated
Maturity. Similarly, on any settlement date for
one or more Floating Rate Book-Entry Notes, the
Company will issue a single Global Security
representing up to $200,000,000 principal amount
of all of such Notes that have the same interest
rate formula, original issuance date, Initial
Interest Rate, Interest Payment Dates, Index
Maturity, Spread or Spread Multiplier, minimum
interest rate (if any), maximum interest rate (if
any) and Stated Maturity. Each Global Security
will be dated and issued as of the date of its
- B7 -
<PAGE>
authentication by the Bank, as authenticating
agent. Each Global Security will have an interest
accrual date (the "Interest Accrual Date"), which
will be (i) with respect to an original Global
Security (or any portion hereof), its original
issuance date and (ii) with respect to any Globa
Security (or portion thereof) issued subsequently
upon exchange of a Global Security or in lieu of
a destroyed, lost or stolen Global Security, the
most recent Interest Payment Date to which interest
has been paid or duly provided for on the
predecessor Global Security or Securities (or if
no such payment or provision has been made, th
original issuance date of the predecessor Global
Security), regardless of the date of
authentication of such subsequently issued Global
Security. No Global Security will represent (i)
both Fixed Rate and Floating Rate Book-Entry
Notes or (ii) any Certificated Note.
Identification Numbers: The Company will arrange, on or prior to
commencement of a program for the offering of
Book-Entry Notes, with the CUSIP Service Bureau
of Standard & Poor's Corporation (the "CUSIP
Service Bureau") for the reservation of a series
of CUSIP numbers (including tranche numbers),
consisting of approximately 900 CUSIP numbers
and relating to Global Securities representing the
Book-Entry Notes. The Company will obtain from the
CUSIP Service Bureau a written list of such series
of reserved CUSIP numbers and will deliver to the
Bank and DTC such written list of 900 CUSIP numbers
of such series. The Company will assign CUSIP
numbers to Global Securities as described below
under Settlement Procedure "B." DTC will notify
the CUSIP Service Bureau periodically of the CUSIP
numbers that the Company has assigned to Global
Securities. At any time when fewer than 100 of the
reserved CUSIP numbers remain unassigned to Global
Securities, and if it deems necessary, the Company
will reserve additional CUSIP numbers for assignment
to Global Securities representing Book-Entry Notes.
Upon obtaining such additional CUSIP numbers the
Company shall deliver such additional CUSIP numbers
to the Bank and DTC.
Registration: Each Global Security will be registered in the name
of Cede & Co., as nominee for DTC, on the Securities
Register maintained under the Indenture governing
such Global Security. The beneficial owner of a
Book-Entry Note (or one or more indirect
participants in DTC designated by such owner) will
designate one or more participants in DTC (with
respect to such Note, the "Participants") to act
as agent or agents for such owner in connection with
the book-entry system maintained by DTC, and DTC
will record in book-entry form, in accordance
with instructions provided by such Participants,
a credit balance with respect to such Note in the
account of such Participants. The ownership
interest of such beneficial owner in such Note
will be recorded through the records of such
Participants or through the separate records of
such Participants and one or more indirect
participants in DTC.
Transfers: Transfers of a Book-Entry Note will be accomplished
by book entries made by DTC and, in turn, by
Participants (and in certain cases, one or more
indirect participants in DTC) acting on behalf of
beneficial transferors and transferees of such Note.
- B8 -
<PAGE>
Consolidation
and Exchange: The Bank may deliver to DTC and the CUSIP Service
Bureau at any time a written notice of consolidation
specifying (i) the CUSIP numbers of two or more
Outstanding Global Securities that represent (A)
Fixed Rate Book-Entry Notes having the same original
issuance date, interest rate and Stated Maturity
and with respect to which interest has been paid to
the same date or (B) Floating Rate Book-Entry Notes
having the same interest rate formula, original
issuance date, Initial Interest Rate, Interest
Payment Dates, Index Maturity, Spread or Spread
Multiplier, minimum interest rate (if any), maximum
interest rate (if any) and Stated Maturity and
with respect to which interest has been paid to the
same date, (ii) a date, occurring at least thirty
days after such written notice is delivered and
at least thirty days before the next Interest
Payment Date for such Book-Entry Notes, on which
such Global Securities shall be exchanged for a
single replacement Global Security and (iii) a
new CUSIP number, obtained from the Company, to
be assigned to such replacement Global
Security. Upon receipt of such a notice,
DTC will send to its participants (including
the Bank) a written reorganization notice to the
effect that such exchange will occur on such date.
Prior to the specified exchange date, the Bank
will deliver to the CUSIP Service Bureau a written
notice setting forth such exchange date and the
new CUSIP number and stating that, as of such
exchange date, the CUSIP numbers of the Global
Securities to be exchanged will no longer be valid.
On the specified exchange date, the Bank will
exchange such Global Securities for a single
Global Security bearing the new CUSIP number and a
new Interest Accrual Date, and the CUSIP numbers
of the exchanged Global Securities will, in
accordance with CUSIP Service Bureau procedures,
be canceled and not immediately reassigned.
Notwithstanding the foregoing, if the Global
Securities to be exchanged exceed $200,000,000 in
aggregate principal amount, one Global Security
will be authenticated and issued to represent
each $200,000,000 of principal amount of the
exchanged Global Securities and an additional
Global Security will be authenticated and issued
to represent any remaining principal amount of such
Global Securities (see "Denominations" below).
Denominations: Book-Entry Notes will be issued in principal amount
of $1,000, or any amount in excess thereof that is
an integral multiple of $1,000. Global Securities
representing one or more Book-Entry Notes will be
denominated in principal amounts not in excess of
$200,000,000.
Interest: General. Interest on each Book-Entry Note will
accrue from the Interest Accrual Date of the Global
Security representing such Note. Each payment
of interest on a Book-Entry Note will include
interest accrued through the date preceding, as
the case may be, the Interest Payment Date, Stated
Maturity or redemption; provided, however, that if
the Interest Reset Dates with respect to any such
Note are daily or weekly, interest payable on any
Interest Payment Date, other than interest
payable on any date on which principal for such Note
is payable, will include interest accrued from
but excluding the second preceding Record Date to
and including the next preceding Record Date.
Interest payable at the Stated Maturity or
upon redemption of a Book-Entry Note will be
payable to the Person to whom the principal of such
- B9 -
<PAGE>
Note is payable. Standard & Poor's Corporation
will use the information received in the
pending deposit message described under Settlement
Procedure "C" below in order to include the amount
of any interest payable and certain other
information regarding the related Global
Security in the appropriate weekly bond report
published by Standard & Poor's Corporation.
On the first Business Day of January, April, July
and October of each year the Bank will deliver to
the Company and DTC a written list of Regular Record
Dates and Interest Payment Dates that will occur
with respect to Floating Rate Book-Entry Notes
during the six-month period beginning on such first
Business Date. Promptly after each Interest
Determination Date (as defined in the Prospectus)
for Floating Rate Notes, the Bank, acting as the
calculation agent for Floating Rate Notes, will
notify Standard & Poor's Corporation of the interest
rates determined on such Interest Determination
Date.
Payments of Principal
and Interest: Payments of Interest Only. Promptly after each
Record Date, the Bank will deliver to the Company
and DTC a written notice specifying by CUSIP
number the amount of interest to be paid on each
Global Security on the following Interest Payment
Date (other than an Interest Payment Date coinciding
with Maturity) and the total of such amounts. DTC
will confirm the amount payable on each Global
Security on such Interest Payment Date by reference
to the daily bond reports published by Standard &
Poor's Corporation. The Company will pay to the
Bank, as paying agent, the total amount of interest
due on such Interest Payment Date (other than at
Maturity), and the Bank will pay such amount to
DTC at the times and in the manner set forth
below under "Manner of Payment."
Payments at Maturity. On or about the first Business
Day of each month, the Bank will deliver to the
Company and DTC a written list of principal and
interest to be paid on each Global Security maturing
in the following month. The Company, the Bank and
DTC will confirm the amounts of such principal and
interest payments with respect to each such Global
Security on or about the fifth Business Day
preceding the Maturity of such Global Security. The
Company will pay to the Bank, as the paying agent,
the principal amount of such Global Security,
together with interest due at such Maturity. The
Bank will pay such amount to DTC at the times and in
the manner set forth below under "Manner of
Payment."
Promptly after payment to DTC of the principal and
interest due at the Maturity of such Global
Security, the Bank will cancel such Global Security
and deliver it to the Company with an appropriate
debit advice. On the first Business Date of each
month, the Bank will prepare a written statement
indicating the total principal amount of Outstanding
Global Securities for which it serves as paying
agent and authenticating agent as of the immediately
preceding Business Day.
Payments Upon Redemption. The Company, the Bank and
DTC will confirm the purchase price and accrued
interest payable for each Global Security to be
- B10-
<PAGE>
redeemed by the Company on or about the fifth
Business Day preceding the redemption of such Global
Security.
Payments Upon Repurchase. The Bank will notify the
Company in a timely manner, but no later that the
fifth Business Day following the end of the
applicable notice period for the holders, of the
receipt of notice for holders requesting repurchase
of Notes. The Company, the Bank and DTC will confirm
the purchase price and accrued interest payable for
each Global Security to be repurchased by the
Company on or about the fifth Business Day preceding
the redemption of such Global Security.
Manner of Payment. The total amount of any principal
and interest due on Global Securities on any
Interest Payment Date or at Maturity, including
Redemption and Repurchase, shall be paid by the
Company to the Bank in funds available for use by
the Bank as of 9:30 A.M. (New York City time) on
such date. The Company will make such payment on
such Global Securities by instructing the Bank to
withdraw funds from an account maintained by the
Company at the Bank. The Company will confirm such
instructions in writing to the Bank. For maturity,
redemption or any other principal payments: prior to
10:00 A.M. (New York City time) on such date or as
soon as possible thereafter, the Bank will make such
payments to DTC in same day funds in accordance with
DTC's Same Day Funds Settlement Paying Agent
Operating Procedures. For interest payments: the
Bank will make such payments to DTC in accordance
with existing arrangements between DTC and the Bank.
DTC will allocate such payments to its participants
in accordance with its existing operating
procedures. Neither the Company (either as issuer or
as Paying Agent) nor the Bank shall have any direct
responsibility or liability for the payment by DTC
to such Participants of the principal of and
interest on the Book-Entry Notes.
The amount of any taxes required under applicable
law to be withheld from any interest payment on a
Book-Entry Note will be determined and withheld by
the Participant, indirect participant in DTC or
other Person responsible for forwarding payments and
materials directly to the beneficial owner of such
Note.
Settlement Procedures: Settlement Procedures with regard to each Book-Entry
Note sold by the Company through an Agent, as agent,
shall be as follows:
A. The Presenting Agent will advise the Company by
telephone, and confirm in writing by facsimile
transmission the following settlement information:
1. Exact name in which Note is to be registered
("Registered Owner").
2. Exact address of the Registered Owner and
address for payments of principal and
interest, if any.
3. Taxpayer identification number of the
Registered Owner.
- B11-
<PAGE>
4. Principal amount of the Note (and, if
multiple Notes are to be issued,
denominations thereof).
5. Settlement date.
6. Stated Maturity.
7. Issue Price.
8. Issue date.
9. Trade date.
10. The DTC Participant account number of such
Agent.
11. Interest rate:
(a) Fixed Rate Notes:
i) interest rate
(b) Floating Rate Notes:
i) interest rate basis
ii) initial interest rate
iii) spread and/or spread
multiplier, if any
iv) interest rate reset periods
and dates
v) interest payment dates
vi) index maturity
vii) maximum and minimum interest
rates, if any
viii) record dates
ix) interest determination dates
12. The dates and related prices on or after which
the Notes are redeemable at the option of the
Company, and additional redemption or repurchase
provisions, if any.
13. Wire transfer information.
14. Presenting Agent's commission (to be paid in the
form of a discount from the proceeds remitted to the
Company upon settlement.)
B. The Company will assign a CUSIP number to the Global
Security representing such Note and then advise the
Bank in writing by facsimile transmission of the
information set forth in Settlement Procedure "A"
above, such CUSIP number and the name of such Agent.
The Original Issuance Instructions will be
accompanied by a letter signed by any Officer of the
Company giving the Bank authority to authenticate
the Notes in the manner set forth in the Original
Issuance Instructions.
-B12-
<PAGE>
C. The Bank will enter a pending deposit message
through DTC's Participant Terminal System, providing
the following settlement information to DTC, the
Presenting Agent, Standard & Poor's Corporation and,
upon request, the Trustee under the Indenture
pursuant to which such Note is to be issued:
1. The information set forth in Settlement
Procedure "A."
2. Identification as a Fixed Rate Book-Entry Note
or a Floating Rate Book-Entry Note.
3. Initial Interest Payment Date for such Note,
number of days by which such date succeeds the
related "DTC Record Date" (which term means the
Regular Record Date except in the case of floating
rate notes which reset daily or weekly in which case
it means the date 5 calendar days immediately
preceding the Interest Payment Date) and amount of
interest payable on such Interest Payment Date.
4. Frequency of interest payments (monthly,
semiannually, quarterly, etc.).
5. CUSIP number of the Global Security representing
such Note.
6. Whether such Global Security will represent any
other Book-Entry Note (to the extent known at such
time).
D. The Bank, as authentication agent, will complete and
authenticate the note certificate evidencing the
Global Security representing such Book-Entry Note.
E. DTC will credit such Note to the Bank's participant
account at DTC.
F. The Bank will enter an SDFS deliver order through
DTC's Participant Terminal System instructing DTC to
(i) debit such Note to the Bank's participant
account and credit such Note to the Presenting
Agent's participant account and (ii) debit the
Presenting Agent's settlement account and credit the
Bank's settlement account for an amount equal to the
price of such Note less the Presenting Agent's
commission.
G. The Presenting Agent will enter an SDFS deliver
order through DTC's Participant Terminal System
instructing DTC (i) to debit such Note to the
Presenting Agent's participant account and credit
such Note to the participant accounts of the
Participants with respect to such Note and (ii)
debit the settlement accounts of such Participants
and credit the settlement account of the Presenting
Agent for an amount equal to the price of such Note.
H. Transfers of funds in accordance with SDFS deliver
orders described in Settlement Procedures "F" and
"G" will be settled in accordance with SDFS
operating procedures in effect on the settlement
date.
- B13 -
<PAGE>
I. The Bank will credit to an account of the
Company maintained at the Bank funds
available for immediate use in the amount
transferred to the Bank in accordance with
Settlement Procedure "F."
J. The Presenting Agent will deliver to the purchaser a
copy of the most recent Prospectus applicable to the
Note with or prior to any written offer of Notes and
the confirmation and payment by the purchaser of the
Note. The Presenting Agent will confirm the purchase
of such Note to the purchaser either by transmitting
to the Participants with respect to such Note a
confirmation order or orders through DTC's
institutional delivery system or by mailing a
written confirmation to such purchaser.
Settlement Procedures
Timetable: For orders of Book-Entry Notes solicited by an
Agent, as agent, and accepted by the Company for
settlement, Settlement Procedures "A" through "J"
set forth above shall be completed as soon as
possible but not later than the respective times
(New York City time) set forth below:
================================================================================
SETTLEMENT
PROCEDURES TIME (New York)
================================================================================
A - B 11:00 A.M. on the Sale Date
================================================================================
C 2:00 P.M. on the Sale Date
================================================================================
D 9:00 A.M. on the Settlement Date
================================================================================
E 10:00 A.M. on the Settlement Date
================================================================================
F - G 2:00 P.M. on the Settlement Date
================================================================================
H 4:45 P.M. on the Settlement Date
================================================================================
I - J 5:00 P.M. on the Settlement Date
================================================================================
If a sale is to be settled more than one
Business Day after the sale date, Settlement
Procedures "A," "B" and "C" shall be completed as
soon as practicable but no later than 11:00 A.M. and
2:00 P.M., as the case may be, on the first Business
Day after the sale date. If the initial interest
rate for a Floating Rate Book-Entry Note has not
been determined at the time that Settlement
Procedure "A" is completed, Settlement Procedures
"B" and "C" shall be completed as soon as such rate
has been determined but no later than 11:00 A.M. and
12:00 Noon, respectively, on the second Business Day
before the settlement date. Settlement Procedure "I"
is subject to extension in accordance with any
extension of Fedwire closing deadlines and in the
other events specified in the SDFS operating
procedures in effect on the settlement date.
If settlement of a Book-Entry Note is
rescheduled or canceled, the Bank will deliver to
DTC, through DTC's Participant Terminal System, a
cancellation message to such effect by no later than
2:00 P.M. on the Business Day immediately preceding
the scheduled settlement date.
- B14-
<PAGE>
Failure to Settle: If the Bank fails to enter an SDFS deliver order
with respect to a Book-Entry Note pursuant to
Settlement Procedure "F," the Bank may deliver
to DTC, through DTC's Participant Terminal System,
as soon as practicable a withdrawal message
instructing DTC to debit such Note to the Bank's
participant account. DTC will process the
withdrawal message, provided that the Bank's
participant account contains a principal amount of
the Global Security representing such Note that is
at least equal to the principal amount to be
debited. If a withdrawal message is processed with
respect to all the Book-Entry Notes represented by
a Global Security, the Bank will mark such Global
Security "canceled," make appropriate entries
in the Bank's records and send such canceled Global
Security to the Company. The CUSIP number assigned
to such Global Security shall, in accordance with
CUSIP Service Bureau procedures, be canceled and
not immediately reassigned. If a withdrawal
message is processed with respect to one or more,
but not all, of the Book-Entry Notes represented
by a Global Security, the Bank will exchange
such Global Security for two Global Securities,
one of which shall represent such Book-Entry Note
or Notes and shall be canceled immediately after
issuance and the other of which shall represent the
other Book-Entry Notes previously represented by
the surrendered Global Security and shall bear
the CUSIP number of the surrendered Global Security.
If the purchase price for any Book-Entry Note is not
timely paid to the Participants with respect to such
Note by the beneficial purchasers thereof (or a
Person, including an indirect participant in DTC,
acting on behalf of such purchaser), such
Participants and, in turn, the Agent for such Note
may enter SDFS deliver orders through DTC's
Participant Terminal System reversing the orders
entered pursuant to Settlement Procedures "F" and
"G," respectively. Thereafter, the Bank will deliver
the withdrawal message and take the related actions
described in the preceding paragraph.
Notwithstanding the foregoing, upon any
failure to settle with respect to a Book-Entry Note,
DTC may take any actions in accordance with its SDFS
operating procedures then in effect. In the event of
a failure to settle with respect to one or more, but
not all, of the Book-Entry Notes to have been
represented by a Global Security, the Bank will
provide, in accordance with Settlement Procedure
"D," for the authentication and issuance of a Global
Security representing the other Book-Entry Notes to
have been represented by such Global Security and
will make appropriate entries in its records.
III. Special Procedures for Certificated Notes
The Notes may be issued in physical form as
Certificated Notes. The following Settlement
Procedures relate specifically to the issuance of
Certificated Notes.
Details for
Settlement: A. For each offer accepted by the Company, the
Agent who presented such offer (the
"Presenting Agent") shall communicate to (i) the
- B15 -
<PAGE>
Company's Financial Managment Unit and (ii) the
Bank by telephone, facsimile transmission or other
acceptable means the following information
(the "Purchase Information"):
1. Exact name in which the Note or Notes are to
be registered ("registered owner").
2. Exact address of registered owner and
address for payment of principal and
interest, if any.
3. Taxpayer identification number of registered
owner.
4. Principal amount of the Note (and if
multiple Notes are to issued, denominations
thereof).
5. Settlement date.
6. Stated Maturity.
7. Issue Price.
8. Issue date.
9. Trade date.
10. Interest rate:
(a) Fixed Rate Notes:
i) interest rate
(b) Floating Rate Notes:
i) interest rate basis
ii) initial interest rate
iii) spread and/or spread
multiplier, if any
iv) interest rate reset periods
and dates
v) interest payment dates
vi) index maturity
vii) maximum and minimum interest
rates, if any
viii) record dates
ix) interest determination dates
11. The dates and related prices on or after
which the Notes are redeemable at the option
of the Company, and additional redemption or
repurchase provisions, if any.
12. Wire transfer information.
- B16 -
<PAGE>
13. Presenting Agent's commission (to be paid in
the form of a discount from the proceeds
remitted to the Company upon settlement).
14. Instructions for delivery of Note(s).
The Issue Date of, and the settlement date for,
Notes will be the same. Before accepting any offer
to purchase Notes to be settled in less than three
days, the Company shall verify that the Bank will
have adequate time to prepare and authenticate the
Notes.
B. After receiving the details for each accepted offer
from the Presenting Agent, the Company will, after
recording the details and any necessary
calculations, confirm the Purchase Information by
telephone, facsimile transmission or other
acceptable means, to the Bank.
C. The Bank will complete the Note assigning to and
entering on, each Note a transaction number and
authenticating the Note.
D. The Bank will deliver the Notes to the Presenting
Agent, pursuant to the delivery instructions from
the Company. The Bank will retain a copy of the
Note. The Presenting Agent will cause to be wire
transferred to a bank account designated by the
Company immediately available funds in the amount of
the principal of the Notes, less the applicable
commission.
E. The Presenting Agent, as the Company's agent, will
deliver the Notes against payment by such purchasers
in immediately available funds in the principal
amount of the Notes. Delivery of any confirmation or
a Note will be made in compliance with "Delivery of
Prospectus."
F. The Bank will automatically forward a copy of the
Notes to the Company unless notified of a fail (See
"Fails").
Settlement Procedures
Timetable: For offers accepted by the Company, Settlement
Procedures "A" through "F" set forth above shall be
completed on or before the respective times set
forth below:
- B17 -
<PAGE>
================================================================================
SETTLEMENT
PROCEDURES TIME (New York)
================================================================================
================================================================================
A - B 11:00 A.M. on the Next Business Day
after the Trade Date
================================================================================
================================================================================
C 3:00 P.M. on the Business Date prior to
Settlement Date
================================================================================
================================================================================
D 2:15 P.M. on the Settlement Date
================================================================================
E 3:00 P.M. on the Settlement Date
================================================================================
F 5:00 P.M. on the Business Day after the
Settlement Date
================================================================================
Fails: In the event that a purchaser shall fail to accept
delivery of and make payment for a Note on the
settlement date, the Presenting Agent will
notify the Bank and the Company, by telephone,
confirmed in writing. If the Note has been delivered
to the Presenting Agent, as the Company's agent, the
Presenting Agent shall return such Note to the Bank.
If funds have been advanced for the purchase of
such Note, the Agent will, immediately upon receipt
of such Note, debit the account of the Company for
the amount so advanced and the Company shall refund
the payment previously made by the Presenting Agent
in immediately available funds. Such payments
will be made on the settlement date, if possible,
and in any event not later than the Business Day
following the settlement date. If such fail shall
have occurred for any reason other than the failure
of the Presenting Agent to provide a confirmation
to the purchaser, the Company will reimburse the
Presenting Agent on an equitable basis for its
loss of the use of funds during the period when
they were credited to the account of the
Company. Immediately upon receipt of the Note in
respect of which the fail occurred, the Bank will
make appropriate entries to reflect the fact
that the Note was never issued and will mark the
Note "Canceled." The Presenting Agent will not
be entitled to any commission with respect to any
Note which the purchaser does not accept or make
payment for.
- B18-
<PAGE>
Exhibit C
to Agency Agreement
CONSTELLATION ENERGY GROUP, INC.
MEDIUM-TERM NOTES, SERIES A
FORM OF PURCHASE AGREEMENT
INCLUDING
STANDARD PURCHASE PROVISIONS
<PAGE>
CONSTELLATION ENERGY GROUP, INC.
MEDIUM-TERM NOTES, SERIES A
PURCHASE AGREEMENT
[Date]
Constellation Energy Group, Inc.
39 W. Lexington Street
Baltimore, Maryland 21201
Dear Sirs:
Referring to the Medium-Term Notes, Series A of Constellation Energy
Group, Inc. (the "Company") covered by the registration statement on Form S-3
(No. 333-________), which also serves as a post-effective amendment to the
registration statement on Form S-3 (No. 333-24855) (such registration statement,
including (i) the prospectus included therein, dated _________________, as
supplemented by a prospectus supplement dated ____________ in the form first
filed under Rule 424(b) (such prospectus as so supplemented, including each
document incorporated by reference therein is hereinafter called the
"Prospectus") and (ii) all documents filed as part thereof or incorporated by
reference therein, is hereinafter called the "Registration Statement") on the
basis of the representations, warranties and agreements contained in this
Agreement, but subject to the terms and conditions herein set forth, the
purchaser or purchasers named in Schedule A hereto (the "Purchasers") agree to
purchase, severally, and the Company agrees to sell to the Purchasers,
severally, the respective principal amounts of the Company's Medium-Term Notes,
Series A having the terms described below (the "Purchased Notes") set forth
opposite the name of each Purchaser on Schedule A hereto.
The price at which the Purchased Notes shall be purchased from the
Company by the Purchasers shall be ______% of the principal amount plus accrued
interest, if any, from _____________. The initial public offering price shall be
_____% of the principal amount plus accrued interest, if any, from
____________________. The Purchased Notes will be offered by the Purchasers as
set forth in the Prospectus Supplement relating to such Purchased Notes.
<PAGE>
The Purchased Notes will have the following terms:
Fixed Interest rate (if applicable):__________ % per annum
(accruing from_________)
Floating Interest Rate (if applicable):
Interest Rate Basis: ___________________
Spread: ___________________
Spread Multiplier: ___________________
Index Maturity: ___________________
Initial Interest Rate: ___________________
Maximum Interest Rate: ___________________
Minimum Interest Rate: ___________________
Interest Reset Dates: ___________________
Interest Determination Dates: ___________________
Calculation Agent: ___________________
Interest Payment Dates: ___________________
Stated Maturity: ___________________
Redeemable by the Redemption Prices
Company on or after: (% of Principal Amount):
_________________ _____________________
_________________ _____________________
_________________ _____________________
<PAGE>
Subject to Repurchase by
the Company at the option of Repurchase Prices
the holder on: (% of Principal Amount):
__________________ _______________________
__________________ _______________________
__________________ _______________________
The "Closing Date" shall be: _______________________
The place to which the
Purchased Notes may be
checked, packaged and
delivered shall be: ________________________
Notices to the Purchasers shall be sent to the following
address(es) or telecopier number(s):
If we are acting as Representative(s) for the several Purchasers named
in Schedule A hereto, we represent that we are authorized to act for such
several Purchasers in connection with the transactions contemplated in this
Agreement, and that, if there are more than one of us, any action under this
Agreement taken by any of us will be binding upon all the Purchasers.
All of the provisions contained in the document entitled "Constellation
Energy Group, Inc. Standard Purchase Provisions", a copy of which has been
previously furnished to us, are hereby incorporated by reference in their
entirety and shall be deemed to be a part of this Agreement to the same extent
as if such provisions had been set forth in full herein.
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed duplicate hereof, whereupon
it will become a binding agreement between the Company and the several
Purchasers in accordance with its terms.
Very truly yours,
[Firm Name]
By
Title: _______________________
Acting on behalf of and as
Representative(s) of the
several Purchasers named in
Schedule A hereto.*
The foregoing Purchase
Agreement is hereby confirmed
as of the date first above
written
CONSTELLATION ENERGY GROUP, INC.
By
Title: _____________________
* To be deleted if the Purchase Agreement is not executed by one or
more Purchasers acting as Representative(s) of the Purchasers for purposes
of this Agreement.
<PAGE>
SCHEDULE A
Name of Purchaser Amount
Total ________________________
$________________________
<PAGE>
CONSTELLATION ENERGY GROUP, INC.
STANDARD PURCHASE PROVISIONS
From time to time, Constellation Energy Group, Inc., a Maryland
corporation ("Company") may enter into purchase agreements that provide for the
sale of designated securities to the purchaser or purchasers named therein. The
standard provisions set forth herein may be incorporated by reference in any
such purchase agreement ("Purchase Agreement"). The Purchase Agreement,
including the provisions incorporated therein by reference, is herein sometimes
referred to as "this Agreement." Unless otherwise defined herein, terms defined
in the Purchase Agreement are used herein as therein defined.
1. Introductory. The Company proposes to issue and sell from time
to time its Medium-Term Notes, Series A ("Notes") registered under the
registration statement referred to in Section 2(a). The Notes will be issued
under an Indenture, dated as of __________, 1999 between the Company and The
Bank of New York , as Trustee (the "Indenture"). The Notes will be sold to the
Purchasers for resale in accordance with the terms of the offering determined at
the time of the sale. The Notes involved in any such offering are hereinafter
referred to as the "Purchased Notes," and the firm or firms, as the case may be,
which agree to purchase the same are hereinafter referred to as the "Purchasers"
of such Purchased Notes. The terms "you" and "your" refer to those Purchasers
who sign the Purchase Agreement either on behalf of themselves only or on behalf
of themselves and as representatives of the several Purchasers named in Schedule
A thereto, as the case may be.
2. Representations and Warranties of the Company. The Company represents
and warrants to and agrees with each Purchaser that:
(a) A registration statement on Form S-3 (No. 333-_____),which also
serves as a Post-effective amendment to the registration statement (No.
333-24855), covering $500 million principal amount of the Notes, including
a prospectus has been filed with the Securities and Exchange Commission
("Commission") and has become effective. The terms Registration Statement
and Prospectus shall have the meanings ascribed to them in the Purchase
Agreement.
(b) The Registration Statement conforms in all respects to the
requirements of the Securities Act of 1933, as amended ("Act"), and the
pertinent published rules and regulations of the Commission thereunder ("33
Act Rules and Regulations") and the Trust Indenture Act of 1939, as amended
("Trust Indenture Act"), and does not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, except
that the foregoing does not apply to statements or omissions in such
document based upon written information furnished to the Company by any
<PAGE>
Purchaser specifically for use therein. The documents incorporated by
reference in the Registration Statement or the Prospectus pursuant to Item
12 of Form S-3 of the Act, at the time they were filed with the Commission,
complied in all material respects with the requirements of the Securities
Exchange Act of 1934, as amended ("Exchange Act"), and the pertinent
published rules and regulations thereunder ("Exchange Act Rules and
Regulations"). Any additional documents deemed to be incorporated by
reference in the Prospectus will, when they are filed with the Commission,
comply in all material respects with the requirements of the Exchange Act
and the Exchange Act Rules and Regulations and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading.
3. Delivery and Payment. The Company will deliver the Purchased
Notes to you for the accounts of the Purchasers, at the offices of the Trustee
(at the place specified in the Purchase Agreement) against payment of the
purchase price by certified or official bank check or checks in same day or New
York or Baltimore Clearing House funds drawn to the order of the Company, at the
office of the Company, 39 W. Lexington Street, Baltimore, Maryland, at the time
set forth in this Agreement or at such other time not later than seven full
business days thereafter as you and the Company determine, such time being
herein referred to as the "Closing Date." The Purchased Notes so to be delivered
will be in definitive fully registered form registered in such denominations, of
$1,000 or multiples thereof, and in such names as you request in writing not
later than 3:00 p.m., New York Time, on the third full business day prior to the
Closing Date, or, if no such request is received, in the names of the respective
Purchasers in the amounts agreed to be purchased by them pursuant to this
Agreement. The Company shall make the Purchased Notes available for checking and
packaging at the offices of the Trustee (at the place specified in the Purchase
Agreement) prior to the Closing Date and, unless prevented from doing so by
circumstances beyond its control, not later than 2:00 p.m., New York Time, on
the business day next preceding the Closing Date. If you request that any
Purchased Notes be issued in a name or names other than that of the Purchaser
agreeing to purchase such Purchased Notes hereunder, the Company shall not be
obligated to pay any transfer taxes resulting therefrom. The Notes may also be
represented by a permanent global Note or Notes, registered in the name of The
Depository Trust Company, as depositary (the "Depositary"), or a nominee of the
Depositary (each such Note represented by a permanent global Note being referred
to herein as a "Book-Entry Note"). Beneficial interests in Book-Entry Notes will
only be evidenced by, and transfers thereof will only be effected through,
records maintained by the Depositary's participants.
- 2 -
<PAGE>
4. Offering by the Purchasers. The several Purchasers propose to
offer the Purchased Notes for sale to the public as set forth in the Prospectus.
5. Covenants of the Company. The Company covenants
and agrees with the several Purchasers that:
(a) It will promptly cause the Prospectus to be filed with the
Commission as required by Rule 424.
(b) For as long as a prospectus relating to the Purchased Notes
is required to be delivered under the Act, if any event relating to or
affecting the Company or of which the Company shall be advised in
writing by the Purchasers shall occur which, in the Company's opinion,
should be set forth in a supplement or amendment to the Prospectus in
order either to make the Prospectus comply with the requirements of the
Act or which would require the making of any change in the Prospectus so
that as thereafter delivered to purchasers such Prospectus will not
contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading,
the Company will promptly amend or supplement the Prospectus by either
(i) preparing and filing with the Commission supplement(s) or
amendment(s) to the Prospectus, or (ii) making an appropriate filing
pursuant to the Exchange Act, which will supplement or amend the
Prospectus so that, as supplemented or amended, the Prospectus when the
Prospectus is delivered to a purchaser will comply with the Act and will
not contain any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading.
Prior to any such filing, the Company shall give oral notice to the
Purchasers.
(c) Not later than 45 days after the end of the 12-month period
beginning at the end of the fiscal quarter of the Company in which the
Closing Date occurs, the Company will make generally available to its
security holders an earnings statement (which need not be audited)
covering such 12-month period which will satisfy the provisions of
Section 11(a) of the Act.
(d) The Company will furnish to you copies of the following
documents, in each case as soon as available after filing and in such
quantities as you reasonably request (i) the Registration Statement
relating to the Notes as originally filed and all pre-effective
amendments thereto (at least one of which will be signed and will
include all exhibits except those incorporated by reference to previous
filings with the Commission); (ii) each prospectus relating to the
Purchased Notes; and (iii) during the time when a prospectus relating to
the Purchased Notes is required to be delivered under the Act, all
- 3 -
<PAGE>
post-effective amendments and supplements to the Registration Statement
or Prospectus, respectively (except supplements relating to securities
that are not Purchased Notes).
(e) The Company will use its best efforts to obtain the
qualification of the Purchased Notes for sale and the determination of
their eligibility for investment under the laws of such jurisdictions as
you designate and will continue such qualifications in effect so long as
required for the distribution, provided, however, that the Company shall
not be required to qualify as a foreign corporation or to file any
consent to service of process under the laws of any jurisdiction or to
comply with any other requirements deemed by the Company to be unduly
burdensome.
(f) During the period of five years after the Closing Date, the
Company will furnish to you, and upon request, to each of the other
Purchasers: (i) as soon as practicable after the end of each fiscal
year, a copy of its annual report to shareholders for such year, (ii) as
soon as available, a copy of each report or definitive proxy statement
of the Company filed with the Commission under the Exchange Act or
mailed to shareholders, and (iii) from time to time, such other
information concerning the Company as you may reasonably request.
(g) The Company will pay all expenses incident to the performance
of its obligations under this Agreement, and will reimburse the
Purchasers for any expenses (including Blue Sky fees not exceeding
$6,000 and disbursements of counsel) incurred by them in connection with
qualification of the Purchased Notes for sale and determination of their
eligibility for investment under the laws of such jurisdictions as you
designate and the printing of memoranda relating thereto, for any filing
fees charged by investment rating agencies for the rating of the
Purchased Notes, for any expenses incurred in connection with listing
the Purchased Notes on a national securities exchange and for expenses
incurred in distributing prospectuses to the Purchasers, except that if
this Agreement is terminated by the Purchasers under Section 6(c)
hereof, the Company shall not be obligated to reimburse the Purchasers
for any of the foregoing expenses.
(h) The Company will not offer or sell any of its other debt
securities which are substantially similar to the Purchased Notes prior
to ten business days after the Closing Date without the consent of the
Purchasers.
6. Conditions of the Obligations of the Purchasers. The
obligations of the several Purchasers to purchase and pay for the Purchased
Notes will be subject to the accuracy of the representations and warranties on
the part of the Company herein, to the accuracy of the statements of Company
- 4 -
<PAGE>
officers made pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions
precedent:
(a) Subsequent to the signing of this Agreement, you shall have
received a letter of PricewaterhouseCoopers LLP, dated the Closing Date,
confirming that they are independent public accountants within the
meaning of the Act and the 33 Act Rules and Regulations, and stating in
effect that:
(i) In their opinion, the consolidated financial
statements and supporting schedule audited by them which are
included in Baltimore Gas and Electric Company's (BGE) Form 10-K
("Form 10-K"), which is incorporated by reference in the
Registration Statement comply in form in all material respects
with the applicable accounting requirements of the Act and the 33
Act Rules and Regulations and the Exchange Act and the Exchange
Act Rules and Regulations;
(ii) On the basis of procedures specified in such letter
(but not an audit in accordance with generally accepted auditing
standards), including reading the minutes of meetings of the
shareholders, the Board of Directors and the Executive Committee
of the Company since the end of the year covered by the Form 10-K
as set forth in the minute books through a specified date not
more than five days prior to the Closing Date, performing
procedures specified in Statement on Auditing Standards No. 71,
Interim Financial Information, on the unaudited interim
consolidated financial statements of the Company incorporated by
reference in the Registration Statement, if any, and reading the
latest available unaudited interim consolidated financial
statements of the Company, and making inquiries of certain
officials of the Company who have responsibility for financial
and accounting matters as to whether the latest available
financial statements not incorporated by reference in the
Registration Statement are prepared on a basis substantially
consistent with that of the audited consolidated financial
statements incorporated in the Registration Statement, nothing
has come to their attention that has caused them to believe that
(1) any unaudited consolidated financial statements incorporated
by reference in the Registration Statement do not comply in form
in all material respects with the applicable requirements of the
Act and the 33 Act Rules and Regulations and the Exchange Act and
the Exchange Act Rules and Regulations or any material
modifications should be made to those unaudited consolidated
financial statements for them to be in conformity with generally
accepted accounting principles; (2) at the date of the latest
available balance sheet not incorporated by reference in the
- 5 -
<PAGE>
Registration Statement there was any change in the capital stock,
change in long-term debt or decrease in consolidated net assets
or common shareholders' equity as compared with the amounts shown
in the latest balance sheet incorporated by reference in the
Registration Statement or for the period from the closing date of
the latest income statement incorporated by reference in the
Registration Statement to the closing date of the latest
available income statement read by them there were any decreases,
as compared with the corresponding period of the previous year,
in operating revenues, operating income, net income, the ratio of
earnings to fixed charges (measured on the most recent twelve
month period), or in earnings per share of common stock except in
all instances of changes or decreases that the Registration
Statement discloses have occurred or may occur, or which are
described in such letter; or (3) at a specified date not more
than five days prior to the Closing Date, there was any change in
the capital stock or long-term debt of the Company or, at such
date, there was any decrease in net assets of the Company as
compared with amounts shown in the latest balance sheet
incorporated by reference in the Registration Statement, [or for
the period from the closing date of the latest income statement
incorporated by reference in the Registration Statement to a
specified date not more than five days prior to the Closing Date,
there were any decreases as compared with the corresponding
period of the previous year, in operating revenues, operating
income, net income or in earnings applicable to common stock,]
except in all cases for changes or decreases which the
Registration Statement discloses have occurred or may occur, or
which are described in such letter; and
(iii) Certain specified procedures have been applied to
certain financial or other statistical information (to the extent
such information was obtained from the general accounting records
of the Company) set forth or incorporated by reference in the
Registration Statement and that such procedures have not revealed
any disagreement between the financial and statistical
information so set forth or incorporated and the underlying
general accounting records of the Company, except as described in
such letter.
(b) Prior to the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and
no proceedings for that purpose shall have been instituted, or to the
knowledge of the Company or you, shall be contemplated by the
Commission.
(c) Subsequent to the date of this Agreement, (i) there shall not
have occurred any change or any development involving a prospective
change not contemplated by the Prospectus in or affecting particularly
- 6 -
<PAGE>
the business or properties of the Company which, in the judgment of a
majority in interest of the Purchasers including you, materially impairs
the investment quality of the Purchased Notes, (ii) no rating of any of
the Company's debt securities shall have been lowered by any recognized
rating agency and (iii) trading in securities generally on the New York
Stock Exchange shall not have been suspended nor limited, other than a
temporary suspension in trading to provide for an orderly market, nor
shall minimum prices have been established on such Exchange, a banking
moratorium shall not have been declared either by New York State or
Federal authorities and there shall not have occurred an outbreak or
escalation of major hostilities in which the United States is involved
or other substantial national or international calamity or crisis, the
effect of which on the financial markets of the United States is such as
to make it, in your judgment, impracticable to market the Purchased
Notes.
(d) You shall have received an opinion, dated the Closing Date,
of a counsel for the Company to the effect that:
(i) The Company, BGE and Constellation Enterprises, Inc.
(CEI) have been duly incorporated and are validly existing as
corporations in good standing under the laws of the State of
Maryland, with power and authority (corporate and other) to own
their respective properties and conduct their respective
businesses as described in the Prospectus; the Company owns all
of the outstanding shares of common stock of BGE and CEI; and the
Company is duly qualified to do business as a foreign corporation
in good standing in all other jurisdictions in which the conduct
of its business or the ownership of its properties requires such
qualification and the failure to do so would have a material and
adverse impact on its financial condition;
(ii) The Indenture has been duly authorized, executed and
delivered by the Company and is a valid instrument, legally
binding on the Company and enforceable in accordance with its
terms, except as limited by bankruptcy, insolvency, or other laws
affecting the enforcement of creditors' rights and by general
principles of equity;
(iii) The issuance and sale of the Purchased Notes have
been duly authorized by all necessary corporate action of the
Company. The Purchased Notes being delivered to the Purchasers at
the Closing (assuming that they have been duly authenticated by
the Trustee or a duly designated Authentication Agent under the
- 7 -
<PAGE>
Indenture, which fact counsel need not verify by an inspection of
the Purchased Notes), have been duly issued and constitute legal,
valid, and binding obligations of the Company enforceable in
accordance with their terms, and are entitled to the benefits
provided by the Indenture except as such enforceability or
entitlement may be limited by bankruptcy, insolvency, or other
laws affecting the enforcement of creditors' rights and by
general principles of equity;
(iv) The Registration Statement has become effective under
the Act and, (a) to the best of such counsel's knowledge, no stop
order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose have been
instituted or are pending or contemplated under the Act; (b) the
Registration Statement (as of its effective date) and the
Prospectus (as of the date of this Agreement) and any amendments
or supplements thereto, as of their respective dates, appeared to
comply as to form in all material respects with the requirements
of Form S-3 under the Act and the 33 Act Rules and Regulations
and the Trust Indenture Act; (c) such counsel has no reason to
believe that either the Registration Statement or the Prospectus,
or any such amendment or supplement, as of such respective dates,
contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or
necessary to make the statement therein not misleading; (d) the
descriptions in the Registration Statement and Prospectus of
statutes, legal and governmental proceedings and contracts and
other documents are accurate and fairly present the information
required to be shown; (e) and such counsel does not know of any
legal or governmental proceedings required to be described in the
Prospectus which are not described as required, or of any
contracts or documents of a character required to be described in
the Registration Statement or Prospectus or to be filed as
exhibits to the Registration Statement which are not described or
filed as required; it being understood that such counsel, in
addressing the matters covered in this paragraph (iv) need
express no opinion as to the financial statements or other
financial and statistical information contained in the
Registration Statement or the Prospectus or incorporated therein
or attached as an exhibit thereto or as to the Statement of
Eligibility and Qualification on Form T-l of the Trustee under
the Indenture.
(v) Counsel knows of no approval of any regulatory
authority which is legally required for the valid offering,
issuance, sale and delivery of the Purchased Notes by the Company
under this Agreement (except that such opinion need not pass upon
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<PAGE>
the requirements of state securities acts);
(vi) To the best of such counsel's knowledge and belief,
the consummation of the transactions contemplated in this
Agreement and the compliance by the Company with all the terms of
the Indenture did not and will not result in a breach of any of
the terms and provisions of, or constitute a default under, the
Company's Charter or By-Laws or any indenture, mortgage or deed
of trust or other agreement or instrument to which the Company is
a party;
(vii) Each of this Agreement, the Interest Calculation
Agency Agreement and the Letter of Representations has been duly
authorized, executed and delivered by the Company;
(viii) The Indenture is duly qualified under the Trust
Indenture Act;
(ix) The issuance, sale and delivery of the Purchased
Notes as contemplated by this Agreement are not subject to the
approval of the Securities and Exchange Commission under the
provisions of the Public Utility Holding Company Act of 1935 (the
"1935 Act"); and
(x) The Notes and Indenture conform as to legal matters
with the statements concerning them in the Registration Statement
and Prospectus under the caption "DESCRIPTION OF NOTES" and on
the cover page of the Prospectus.
(e) The Agents shall have received from Cahill Gordon & Reindel,
counsel for the Agents, an opinion dated the Closing Date, with respect to the
matters referred to in paragraph 6(d) subheadings (ii), (iii), (iv)b, (v),
(vii),(viii), and (x) and such other matters as the Agents shall reasonably
request and the Company shall have furnished to such counsel such documents as
they request for the purpose of enabling them to pass on such matters.
In rendering such opinion, Cahill Gordon & Reindel may rely, as to the
incorporation of the Company, all other matters governed by the laws of the
State of Maryland and the applicability of the 1935 Act , upon the opinion of
Counsel for the Company referred to above.
In addition, such counsel shall state that such counsel has participated in
conferences with officers, counsel and other representatives of the Company,
representatives of the independent public accountants for the Company and
representatives of the Purchasers at which the contents of the Registration
Statement and the Prospectus and related matters were discussed; and, although
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<PAGE>
such counsel is not passing upon and does not assume responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement and Prospectus (except as to the matters referred to in
their opinion rendered pursuant to subheading (ix) above), on the basis of the
foregoing (relying as to materiality to a large extent upon the opinions of
officers, counsel and other representatives of the Company), no facts have come
to the attention of such counsel which lead such counsel to believe that either
the Registration Statement (as of its effective date) or the Prospectus (as of
the date of this Agreement), and any subsequent amendments or supplements
thereto, as of their respective dates, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make such statements therein not misleading (it being understood
that such counsel need make no comment with respect to the financial statements
and other financial and statistical data included in the Registration Statement
or Prospectus or incorporated therein or as to the Statement of Eligibility and
Qualification on Form T-l of the Trustee under the Indenture).
(f) You shall have received a certificate of the Chairman of the
Board,Vice Chairman, President or any Vice President and a principal
financial or accounting officer of the Company, dated the Closing Date,
in which such officers shall state, to the best of their knowledge after
reasonable investigation, and relying on opinions of counsel to the
extent that legal matters are involved, that the representations and
warranties of the Company in this Agreement are true and correct in all
material respects, that the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or
prior to the Closing Date, that no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are contemplated by
the Commission, and that, subsequent to the date of the most recent
financial statements set forth or incorporated by reference in the
Prospectus, there has been no material adverse change in the financial
position or in the financial results of operation of the Company except
as set forth or contemplated in the Prospectus or as described in such
certificate.
(g) The Company will furnish you with such conformed copies of
such opinions, certificates, letters and documents as you reasonably
request.
In case any such condition shall not have been satisfied, this
Agreement may be terminated by you upon notice in writing or by telecopy to the
Company without liability or obligation on the part of the Company or any
Purchaser, except as set forth in Section 10 hereof.
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<PAGE>
7. Conditions of the Obligations of the Company. The obligations
of the Company to sell and deliver the Purchased Notes are subject to the
following condition precedent:
Prior to the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and
no proceedings for that purpose shall have been instituted or, to the
knowledge of the Company or you, shall be contemplated by the
Commission.
If this condition shall not have been satisfied, then the Company
shall be entitled, by notice in writing or by telecopy to you, to
terminate this Agreement without any liability on the part of the
Company or any Purchaser, except as set forth in Section 10 hereof.
8. Indemnification.
(a) The Company will indemnify and hold harmless each Purchaser
and each person, if any, who controls any Purchaser within the meaning
of the Act or Exchange Act against any losses, claims, damages or
liabilities, joint or several, to which such Purchaser or such
controlling person may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the
Registration Statement or the Prospectus, or any related preliminary
prospectus or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading; and will
reimburse each Purchaser and each such controlling person for any legal
or other expenses reasonably incurred by such Purchaser or such
controlling person in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that
the Company will not be liable to such Purchaser or controlling person
in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in any such
documents in reliance upon and in conformity with written information
furnished to the Company by such Purchaser or such controlling person
specifically for use therein unless such loss, claim, damage or
liability arises out of the offer or sale of the Purchased Notes
occurring after such Purchaser or controlling person has notified the
Company in writing that such information should no longer be used
therein. This indemnity agreement will be in addition to any liability
which the Company may otherwise have.
(b) Each Purchaser will indemnify and hold harmless the Company,
each of its directors, each of its officers who have signed the
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<PAGE>
Registration Statement and each person, if any, who controls the Company
within the meaning of the Act or the Exchange Act, against any losses,
claims, damages or liabilities to which the Company or any such
director, officer or controlling person may become subject, under the
Act, or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement or the Prospectus, or any
related preliminary prospectus or arise out of or are based upon the
omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity
with written information furnished to the Company by such Purchaser
specifically for use therein; and will reimburse any legal or other
expenses reasonably incurred by the Company or any such director,
officer or controlling person in connection with investigating or
defending any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that such Purchaser will not
be liable to the Company, or any such director, officer or controlling
person in any such case to the extent that any such loss, claim, damage
or liability arises out of the offer or sale of Purchased Notes
occurring after such Purchaser has notified the Company in writing that
such information should no longer be used therein. This indemnity
agreement will be in addition to any liability which such Purchaser may
otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under (a) and (b) above, notify the indemnifying
party of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve it from any liability which it may
have to any indemnified party otherwise than under this Section. In case
any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the
extent that it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who may, with the consent of the
indemnified party, be counsel to the indemnifying party) and who shall
not be counsel to any other indemnified party who may have interests
conflicting with those of such indemnified party, and after notice from
the indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party will not be liable to
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<PAGE>
such indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation.
(d) If recovery is not available under the foregoing
indemnification provisions of this Section, for any reason other than as
specified therein, the parties entitled to indemnification by the terms
thereof shall be entitled to contribution to liabilities and expenses,
except to the extent that contribution is not permitted under Section
11(f) of the Act. In determining the amount of contribution to which the
respective parties are entitled, there shall be considered the relative
benefits received by each party from the offering of the Purchased Notes
(taking into account the portion of the proceeds of the offering
realized by each), the parties' relative knowledge and access to
information concerning the matter with respect to which the claim was
asserted, the opportunity to correct and prevent any statement or
omission, and any other equitable considerations appropriate under the
circumstances. The Company and the Purchasers and such controlling
persons agree that it would not be equitable if the amount of such
contribution were determined by pro rata or per capita allocation (even
if the Purchasers and such controlling persons were treated as one
entity for such purpose). Notwithstanding the provisions of this
subsection (d), no Purchaser or controlling person shall be required to
make contribution hereunder which in the aggregate exceeds the total
public offering price of the Purchased Notes, purchased by the Purchaser
under this Agreement, less the aggregate amount of any damages which
such Purchaser or such controlling person has otherwise been required to
pay in respect of the same claim or any substantially similar claim. The
Purchasers' obligations to contribute are several in proportion to their
respective underwriting obligations and are not joint.
9. Default of Purchasers. If any Purchaser or Purchasers default
in their obligations to purchase Purchased Notes hereunder and the aggregate
principal amount of Purchased Notes which such defaulting Purchaser or
Purchasers agreed but failed to purchase is 10% of the principal amount of
Purchased Notes or less, you may make arrangements satisfactory to the Company
for the purchase of such Purchased Notes by other persons, including any of the
Purchasers, but if no such arrangements are made by the Closing Date the
non-defaulting Purchasers shall be obligated severally, in proportion to their
respective commitments hereunder, to purchase the Purchased Notes which such
defaulting Purchasers agreed but failed to purchase. If any Purchaser or
Purchasers so default and the aggregate principal amount of Purchased Notes with
respect to which such default or defaults occur is more than the above
percentage and arrangements satisfactory to you and the Company for the purchase
of such Purchased Notes by other persons are not made within thirty-six hours
- 13 -
<PAGE>
after such default, this Agreement will terminate without liability on the part
of any non-defaulting Purchaser or the Company, except as provided in Section
10. In the event that any Purchaser or Purchasers default in their obligation to
purchase Purchased Notes hereunder, the Company may, by prompt written notice to
the non-defaulting Purchasers, postpone the Closing Date for a period of not
more than seven full business days in order to effect whatever changes may
thereby be made necessary in the Registration Statement or the Prospectus or in
any other documents, and the Company will promptly file any amendments to the
Registration Statement or supplements to the Prospectus which may thereby be
made necessary. As used in this Agreement, the term "Purchaser" includes any
person substituted for a Purchaser under this Section. Nothing herein will
relieve a defaulting Purchaser from liability for its default.
10. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties, and other
statements of the Company or its officers and of the several Purchasers set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results thereof,
made by or on behalf of any Purchaser or the Company or any of its officers or
directors or any controlling person, and will survive delivery of and payment
for the Purchased Notes. If this Agreement is terminated pursuant to Section 6,
7 or 9 or if for any reason the purchase of the Purchased Notes by the
Purchasers is not consummated, the Company shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 5(g). In addition,
in such event the respective obligations of the Company and the Purchasers
pursuant to Section 8 shall remain in effect; provided, however, that you will
use your best efforts to promptly notify each other Purchaser and each dealer
and prospective customer to whom you have delivered a Prospectus for the
Purchased Notes by telephone or telegraph, confirmed by letter in either case,
of such termination or failure to consummate, including in such notice
instructions regarding the continued use of the Registration Statement, the
Prospectus, or any amendment or supplement thereto, or any related preliminary
prospectus.
11. Notices. All communications hereunder will be in writing,
and, if sent to the Purchasers will be delivered or telecopied and confirmed to
the address furnished in writing for the purpose of such communications
hereunder, or, if sent to the Company, will be delivered or telecopied and
confirmed to it, attention of Treasurer at 39 W. Lexington Street, Baltimore,
Maryland 21201, telecopier (410) 234-5367;
12. Successors. This Purchase Agreement will inure to the benefit
of and be binding upon the parties hereto and their respective successors and
the officers and directors and controlling persons referred to in Section 8, and
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<PAGE>
no other person will have any right or obligation hereunder.
13. Construction. This Purchase Agreement shall be
governed by and construed in accordance with the laws of the State of Maryland.
14. Counterparts. This Agreement may be executed in one or more
counterparts and it is not necessary that the signatures of all parties appear
on the same counterpart, but such counterparts together shall constitute but one
and the same agreement.
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<PAGE>
Exhibit D
to Agency Agreement
PURCHASE AGREEMENT
(for purchaser's account)
[Date]
Constellation Energy Group, Inc.
39 W. Lexington Street
Baltimore, Maryland 21201
Attention: Treasurer
The undersigned agrees to purchase the following principal amount
of the Notes described in the Agency Agreement among Constellation Energy Group,
Inc., Lehman Brothers, Lehman Brothers Inc., and Goldman, Sachs & Co. dated
_____________, 1999 (the "Agency Agreement"):
Principal Amount: $___________________
Fixed Interest Rate (if applicable): ___________________%
Floating Interest Rate (if applicable):
Interest Rate Basis: ___________________
Spread: ___________________
Spread Multiplier: ___________________
Index Maturity: ___________________
Initial Interest Rate: ___________________
Maximum Interest Rate: ___________________
Minimum Interest Rate: ___________________
Interest Reset Dates: ___________________
Interest Determination Dates: ___________________
Calculation Agent: ___________________
<PAGE>
Interest Payment Dates: ___________________
Stated Maturity: ___________________
Redeemable at the option Redemption Prices
of the Company on or after: (% of Principal Amount):
__________________ ___________________
__________________ ___________________
__________________ ___________________
Subject to repurchase by
the Company at the option Repurchase Prices
of the holder on: (% of Principal Amount):
__________________ __________________
__________________ __________________
__________________ __________________
Discount: _________________% of Principal Amount
Price to be paid
to Company
(in immediately
available funds): $_______________________
Settlement Date: _______________________, 19____
Except as otherwise expressly provided therein, all terms used
herein which are defined in the Agency Agreement shall have the same meanings as
in the Agency Agreement. The term Agent, as used in the Agency Agreement, shall
be deemed to refer only to the undersigned for purposes of this Agreement.
This Agreement incorporates by reference Sections 4, 6, 7, 12 and
13 of the Agency Agreement, the first and last sentences of Section 9 thereof
and, to the extent applicable, the Procedures. You and we agree to perform, to
the extent applicable, our respective duties and obligations specifically
provided to be performed by each of us in the Procedures.
Our obligation to purchase Notes hereunder is subject to the
accuracy on the above Settlement Date of your representations and warranties
contained in Section 2 of the Agency Agreement (it being understood that such
representations and warranties shall relate to the Registration Statement and
the Prospectus as amended at such Settlement Date) and to your performance and
observance of all covenants and agreements contained in Sections 4 and 6
thereof. Our obligation hereunder is also subject to the following conditions:
<PAGE>
(a) the satisfaction, at such Settlement Date, of each of the
conditions set forth in subsections (a), (b) and (d) through (g) of Section 5 of
the Agency Agreement (it being understood that each document so required to be
delivered shall be dated such Settlement Date and that each such condition and
the statements contained in each such document that relate to the Registration
Statement or the Prospectus shall be deemed to relate to the Registration
Statement or the Prospectus, as the case may be, as amended or supplemented at
the time of settlement on such Settlement Date and except that the opinion
described in Section 5(d) of the Agency Agreement shall be modified so as to
state that the Notes being sold on such Settlement Date, when delivered against
payment therefor as provided in the Indenture and this Agreement, will have been
duly executed, authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Company enforceable in accordance with their
terms, subject only to the exceptions as to enforcement set forth in clause (ii)
of Section 5(d) of the Agency Agreement, and will conform to the description
thereof contained in the Prospectus as amended or supplemented at such
Settlement Date); and
(b) there shall not have occurred (i) any change, or any
development involving a prospective change not contemplated by the Prospectus,
in or affecting particularly the business or properties of the Company which, in
our judgment, materially impairs the investment quality of the Notes, (ii) any
downgrading in the rating of the Company's debt securities by any "nationally
recognized statistical rating organization" (as defined for purposes of Rule
436(g) under the Act); (iii) any suspension or limitation of trading, other than
a temporary suspension in trading to provide for an orderly market, in
securities generally on the New York Stock Exchange, or any setting of minimum
prices for trading on such exchange, or any suspension of trading of any
securities of the Company on any exchange or in the over-the-counter market;
(iv) any banking moratorium declared by Federal or New York authorities; or (v)
any outbreak or escalation of major hostilities in which the United States is
involved, any declaration of war by Congress or any other substantial national
or international calamity or emergency if, in our judgment, the effect of any
such outbreak, escalation, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion of the sale of and payment
for the Notes.
In further consideration of our agreement hereunder, you agree
that between the date hereof and the above Settlement Date, you will not offer
or sell, or enter into any agreement to sell, any debt securities of the Company
in the United States, other than sales of Notes, borrowings under your revolving
<PAGE>
credit agreements and lines of credit, the private placement of securities and
issuances of your commercial paper.
If for any reason our purchase of the above Notes is not
consummated, you shall remain responsible for the expenses to be paid or
reimbursed by you pursuant to Section 4 of the Agency Agreement and the
respective obligations of you and the undersigned pursuant to Section 7 shall
remain in effect. If for any reason our purchase of the above Notes is not
consummated other than because of our default or a failure to satisfy a
condition set forth in clause (iii), (iv) or (v) of paragraph (b) above, you
shall reimburse us, severally, for all out-of-pocket expenses reasonably
incurred by us in connection with the offering of the above Notes and not
otherwise required to be reimbursed pursuant to Section 4 of the Agency
Agreement.
<PAGE>
This Agreement shall be governed by and construed in accordance
with the laws of the State of Maryland. This Agreement may be executed in
counterparts and the executed counterparts shall together constitute a single
instrument.
[Insert Name of Purchaser]
By:
CONFIRMED AND ACCEPTED, as of
the date first above written:
CONSTELLATION ENERGY GROUP, INC.
By: _____________________________
Exhibit 1(b)
$500,000,000
MEDIUM-TERM NOTES, SERIES A
DUE FROM NINE MONTHS TO THIRTY YEARS
FROM DATE OF ISSUE
FORM OF INTEREST CALCULATION AGENCY AGREEMENT
THIS AGREEMENT dated as of March____, 1999 between
Constellation Energy Group, Inc. (hereinafter called the
"Issuer"), having its principal office at 39 W. Lexington Street,
Baltimore, Maryland 21201, and The Bank of New York, a New York
banking corporation (hereinafter sometimes called the
"Calculation Agent or Paying Agent" which terms shall, unless the
context shall otherwise require, include its successors and
assigns), having its principal corporate trust office at 101
Barclay Street, New York, New York 10286.
Recitals of the Issuer
The Issuer proposes to issue from time to time up to $500,000,000 aggregate
principal amount of Medium-Term Notes, Series A (the "Notes") under an indenture
dated as of March____, 1999 (the "Indenture"), between the Issuer and The Bank
of New York (the "Trustee"), as Trustee. Capitalized terms used in this
Agreement and not otherwise defined herein are used as defined in the Indenture.
Certain of the Notes may bear interest at a floating rate determined by
reference to an interest rate formula (the "Floating
<PAGE>
Rate Notes") and the Issuer desires to engage the Calculation Agent to perform
certain services in connection therewith.
NOW IT IS HEREBY AGREED THAT:
1. The Issuer hereby appoints The Bank of New York as Calculation Agent for
the Floating Rate Notes, upon the terms and subject to the conditions herein
mentioned, and The Bank of New York hereby accepts such appointment. The
Calculation Agent shall act as an agent of the Issuer for the purpose of
determining the interest rate or rates of the Floating Rate Notes.
2. The Issuer agrees to deliver to the Calculation Agent, prior to the
issuance of any Floating Rate Notes, copies of the proposed forms of such Notes,
including copies of all terms and conditions relating to the determination of
the interest rate thereunder. The Issuer shall not issue any Floating Rate Note
prior to the receipt of confirmation from the Calculation Agent of its
acceptance of the proposed form of such Note. The Calculation Agent hereby
acknowledges its acceptance of the proposed form of Floating Rate Note
previously delivered to it.
3. The Issuer shall notify the Calculation Agent of the
issuance of any Floating Rate Notes prior to the issuance thereof and, at the
2
<PAGE>
time of such issuance, shall deliver to the Calculation Agent the information
required to be provided by the Company for the calculation of the applicable
interest rates thereunder. The Calculation Agent shall calculate the applicable
interest rates for Floating Rate Notes in accordance with the terms of such
Notes, the Indenture and the provisions of this Agreement.
4. Promptly following the determination of each change to the interest rate
applicable to any Floating Rate Note, the Calculation Agent will cause to be
forwarded to the Issuer, the Trustee and the principal Paying Agent information
regarding the interest rate then in effect for such Floating Rate Note.
5. The Issuer will pay such compensation as shall be agreed upon with the
Calculation Agent and the expenses, including reasonable counsel fees, incurred
by the Calculation Agent in connection with its duties hereunder, upon receipt
of such invoices as the Issuer shall reasonably require.
6. Notwithstanding any satisfaction or discharge of the Notes
or the Indenture, the Issuer will indemnify the Calculation Agent against any
losses, liabilities, costs, claims, actions or demands which it may incur or
sustain or which may be made against it in connection with its appointment or
the exercise of its powers and duties hereunder as well as the reasonable costs,
including the expenses and fees of counsel in defending any claim, action or
3
<PAGE>
demand, except such as may result from the negligence or willful misconduct of
the Calculation Agent or any of its employees. The Calculation Agent shall incur
no liability and shall be indemnified and held harmless by the Issuer for, or in
respect of, any actions taken or suffered to be taken in good faith by the
Calculation Agent in reliance upon written instructions from the Issuer. In case
any action is brought against the Calculation Agent with respect to which the
Calculation Agent intends to seek indemnification from the Issuer pursuant to
this paragraph 6, the Calculation Agent will notify the Issuer in writing of the
commencement thereof, and the Issuer will be entitled to participate therein and
to assume the defense thereof, with counsel satisfactory to the Calculation
Agent; provided, however, that if the defendants in any such action include both
the Issuer and the Calculation Agent and the Calculation Agent shall have
reasonably concluded, after consultation with legal counsel of its choosing,
that there may be legal defenses available to it which are different from or
additional to those available to the Issuer, the Calculation Agent shall have
the right to select separate counsel to assert such legal defenses and otherwise
to participate in the defense of such action on behalf of the Calculation Agent,
and in such event the Issuer will indemnify the Calculation Agent against the
reasonable compensation and expenses and disbursements of such separate counsel.
4
<PAGE>
7. The Calculation Agent may consult with counsel of its own selection (and
notify the Issuer of such consultation) and the advice of such counsel or any
opinion of counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon.
8. The Calculation Agent accepts its obligations herein set
forth upon the terms and conditions hereof, including the following, to all of
which the Issuer agrees:
(i) in acting under this Agreement and in connection with
the Notes, the Calculation Agent, acting as agent for the Issuer,
does not assume any obligation towards, or any relationship of
agency or trust for or with, any of the Holders of the Notes;
(ii) unless herein otherwise specifically provided, any
order, certificate, notice, request or communication from the
Issuer made or given under any provision of this Agreement shall
be sufficient if signed by any person whom the Calculation Agent
reasonably believes to be a duly authorized officer or
attorney-in-fact of the Issuer;
(iii) the Calculation Agent shall be obligated to perform
only such duties as are set forth specifically herein and any
duties necessarily incidental thereto;
(iv) the Calculation Agent shall be protected and shall
incur no liability for or in respect of any action taken
5
<PAGE>
or omitted to be taken or anything suffered in good faith by
it in reliance upon anything contained in a Floating Rate
Note, the Indenture or any information supplied to it by the
Issuer pursuant to this Agreement, including the information
to be supplied pursuant to paragraph 3 above;
(v) the Calculation Agent, whether acting for itself
or in any other capacity, may become the owner or pledgee of
Notes with the same rights as it would have had if it were not
acting hereunder as Calculation Agent; and
(vi) the Calculation Agent shall incur no liability
hereunder except for loss sustained by reason of its
negligence, willful misconduct or bad faith.
9. (a) The Issuer agrees to notify the Calculation Agent at least 3
business days prior to the issuance of any Floating Rate Note with an interest
rate to be determined by reference to London interbank offered rates (LIBOR) or
any other formula that would require the Calculation Agent to select banks or
other financial institutions (the "Reference Banks") for purposes of quoting
rates. The Calculation Agent shall not be responsible to the Issuer or any third
party for any failure of the Reference Banks to fulfill their duties or meet
their obligations as Reference Banks or as a result of the Calculation Agent
having acted (except in the event of negligence or willful misconduct) on any
6
<PAGE>
quotation or other information given by any Reference Bank which subsequently
may be found to be incorrect.
(b) Except as provided below, the Calculation Agent may at
any time resign as Calculation Agent by giving written notice to
the Issuer and the Trustee of such intention on its part,
specifying the date on which its desired resignation shall become
effective, provided that such notice shall be given not less than
60 days prior to the said effective date unless the Issuer and
the Trustee otherwise agree in writing. Except as provided below,
the Calculation Agent may be removed by the filing with it and
the Trustee of an instrument in writing signed by the Issuer
specifying such removal and the date when it shall become
effective (such effective date being at least 15 days after said
filing). Any such resignation or removal shall take effect upon:
(i) the appointment by the Issuer as hereinafter provided of
a successor Calculation Agent; and
(ii) the acceptance of such appointment by such successor
Calculation Agent
provided, however, that in the event the Calculation Agent
has given not less than 60 days' prior notice of its desired
resignation, and during such 60 days there has not been
acceptance by a successor Calculation Agent of its appointment as
successor Calculation Agent, the Calculation Agent so resigning
may petition any court of competent jurisdiction for the
appointment of a successor Calculation Agent. The Issuer
covenants that it shall appoint a successor Calculation Agent as
7
<PAGE>
soon as practicable after receipt of any notice of resignation
hereunder. Upon its resignation or removal becoming effective,
the retiring Calculation Agent shall be entitled to the payment
of its compensation and the reimbursement of all reasonable
expenses (including reasonable counsel fees) incurred by such
retiring Calculation Agent pursuant to paragraph 5 hereof.
(c) If at any time the Calculation Agent shall resign or be
removed, or shall become incapable of acting or shall be adjudged
bankrupt or insolvent, or liquidated or dissolved, or an order is
made or an effective resolution is passed to wind up the
Calculation Agent, or if the Calculation Agent shall file a
voluntary petition in bankruptcy or make an assignment for the
benefit of its creditors, or shall consent to the appointment of
a receiver, administrator or other similar official of all or any
substantial part of its property, or shall admit in writing its
inability to pay or meet its debts as they mature, or if a
receiver, administrator or other similar official of the
Calculation Agent or of all or any substantial part of its
property shall be appointed, or if any order of any court shall
be entered approving any petition filed by or against the
Calculation Agent under the provisions of any applicable
bankruptcy or insolvency law, or if any public officer shall take
charge or control of the Calculation Agent or its property or
affairs for the purpose of rehabilitation, conservation or
liquidation, then a successor Calculation Agent shall be
appointed by the Issuer by an instrument in writing filed with
the successor Calculation Agent and the Trustee. Upon the
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<PAGE>
appointment as aforesaid of a successor Calculation Agent and
acceptance by the latter of such appointment the former
Calculation Agent shall cease to be Calculation Agent hereunder.
(d) Any successor Calculation Agent appointed hereunder
shall execute and deliver to its predecessor, the Issuer and the
Trustee and instrument accepting such appointment hereunder, and
thereupon such successor Calculation Agent, without any further
act, deed or conveyance, shall become vested with all the
authority, rights, powers, immunities, duties and obligations of
such predecessor with like effect as if originally named as the
Calculation Agent hereunder, and such predecessor, upon payment
of its reasonable compensation, charges and disbursements then
unpaid, shall thereupon become obliged to transfer and deliver,
and such successor Calculation Agent shall be entitled to
receive, copies of any relevant records maintained by such
predecessor Calculation Agent.
(e) Any corporation into which the Calculation Agent may be
merged or converted or any corporation with which the Calculation
Agent may be consolidated or any corporation resulting from any
merger, conversion or consolidation to which the Calculation
Agent shall be a party shall, to the extent permitted by
applicable law, be the successor Calculation Agent under this
Agreement without the execution or filing of any paper or any
further act on the part of any of the parties hereto. Notice of
any such merger, conversion or consolidation shall forthwith be
given to the Issuer and the Trustee.
9
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(f) The provisions of paragraph 6 hereof shall survive any
resignation or removal hereunder.
10. Any notice required to be given hereunder shall be delivered in person,
by overnight mail or sent by facsimile or communicated by telephone (subject, in
the case of communication by telephone, to confirmation dispatched within two
business days by letter or facsimile), in the case of the Issuer, to it at the
address set forth in the heading of this Agreement, Attention: Treasurer; in the
case of the Trustee or the Calculation Agent, to it at the address set forth in
the heading of this Agreement; or, in any case, to any other address of which
the party receiving notice shall have notified the party giving such notice in
writing.
11. This Agreement may be amended only by a writing duly executed and
delivered by each of the parties signing below.
12. The provisions of this Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
13. This Agreement may be executed in counterparts and the executed
counterparts shall together constitute a single instrument.
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<PAGE>
IN WITNESS WHEREOF, this Agreement has been executed and delivered as
of the day and year first above written.
CONSTELLATION ENERGY GROUP, INC.
By: _________________________________
Title:_______________________________
THE BANK OF NEW YORK
By:__________________________________
Title: _______________________________
Exhibit 4(a)
- -------------------------------------------------------------------------------
CONSTELLATION ENERGY GROUP, INC.
AND
THE BANK OF NEW YORK
Trustee
__________
INDENTURE
Dated as of March 24, 1999
__________
- -------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS *
Page
PARTIES .............................................. 1
RECITALS .............................................. 1
Purpose of Indenture ................................. 1
Compliance with Legal Requirements ................... 1
ARTICLE ONE
DEFINITIONS
SECTION 1.01. Definitions ............................. 2
Board of Directors ...................... 2
Board Resolution ....................... 2
Business Day ............................ 2
Corporation ............................. 2
Depositary .............................. 3
Discounted Security ..................... 3
Event of Default ........................ 3
Federal Bankruptcy Code ................. 3
Indenture ............................... 3
Officers' Certificate ................... 3
Opinion of Counsel ...................... 3
Outstanding ............................. 3
Principal Office of the Trustee ......... 4
Prospectus Supplement ................... 4
Responsible Officer ..................... 4
Security or Securities .................. 5
Securityholder........................... 5
Series .................................. 5
Trustee ................................. 5
Trust Indenture Act of 1939 ............. 5
Yield to Maturity ....................... 5
ARTICLE TWO
THE SECURITIES
SECTION 2.01. Forms of Securities ..................... 5
SECTION 2.02. Authentication Agent and Form of
Certificate of Authentication ......... 6
SECTION 2.03. Global Securities ....................... 7
_______
* This table of contents shall not, for any purpose, be deemed to be a part of
the Indenture.
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ARTICLE THREE
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND
EXCHANGE OF SECURITIES
SECTION 3.01. Title, Amount and Terms of Securities .... 7
SECTION 3.02. Denominations, Dates, Interest Payment and
Record Dates, and Place of Payment ..... 9
SECTION 3.03. Execution of Securities ................. 10
SECTION 3.04. Exchange and Registration of Transfer of
Securities ............................. 10
SECTION 3.05. Mutilated, Destroyed, Lost or Stolen
Securities ............................. 12
SECTION 3.06. Temporary Securities ................... 13
SECTION 3.07. Cancellation of Securities Paid, etc. .. 14
SECTION 3.08. Cusip Numbers........................... 14
ARTICLE FOUR
REDEMPTION OF SECURITIES
SECTION 4.01. Applicability of This Article ............ 14
SECTION 4.02. Election to Redeem; Notice to Trustee .... 15
SECTION 4.03. Selection of Securities to be Redeemed ... 15
SECTION 4.04. Notice of Redemption ..................... 15
SECTION 4.05. Deposit of Redemption Price .............. 16
SECTION 4.06. Payment of Securities Called for Redemp-
tion .................................. 16
SECTION 4.07 Delegation of Duties by Trustee .......... 17
ARTICLE FIVE
PARTICULAR COVENANTS OF THE CORPORATION
SECTION 5.01. To Pay Principal (and Premium, if any) and
Interest ............................... 17
SECTION 5.02. To Maintain Office or Agency ............. 17
SECTION 5.03. To Fill a Vacancy in the Office of Trustee 18
SECTION 5.04. Appointment of Paying Agents; Money for
Security Payments to be Set Aside in
Trust; Transfer of Moneys Held by Paying
Agents ................................. 18
SECTION 5.05. Maintenance of Corporate Existence, Rights
and Franchises ......................... 19
SECTION 5.06. Certificate as to No Default ............ 19
SECTION 5.07. Calculation of Original Issue Discount... 20
ARTICLE SIX
SECURITYHOLDERS LISTS AND REPORTS BY THE CORPORATION
AND THE TRUSTEE
SECTION 6.01. Securityholders Lists ..................... 20
SECTION 6.02. Intentionally Omitted ..................... 20
SECTION 6.03. Reports by the Corporation ................ 20
SECTION 6.04. Reports by the Trustee .................... 21
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ARTICLE SEVEN
EVENTS OF DEFAULT; REMEDIES OF THE TRUSTEE AND
SECURITYHOLDERS
SECTION 7.01. Events of Default; Remedies .............. 23
SECTION 7.02. Payment of Securities on Default; Suit
Therefor ............................... 25
SECTION 7.03. Application of Moneys Collected by Trustee 27
SECTION 7.04. Proceedings by Securityholders ........... 28
SECTION 7.05. Proceedings by Trustee ................... 28
SECTION 7.06. Remedies Cumulative and Continuing ....... 28
SECTION 7.07. Direction of Proceedings and Waiver
Defaults by Majority of Securityholders 29
SECTION 7.08. Notice of Defaults ....................... 29
SECTION 7.09. Undertaking to Pay Costs ................. 30
ARTICLE EIGHT
CONCERNING THE TRUSTEE
SECTION 8.01. Duties and Responsibilities of Trustee .. 30
SECTION 8.02. Reliance on Documents, Opinions, etc. ... 32
SECTION 8.03. No Responsibility for Recitals, etc. .... 33
SECTION 8.04. Trustee, Paying Agent or Registrar May
Own Securities ........................ 33
SECTION 8.05. Moneys to Be Held in Trust .............. 34
SECTION 8.06. Compensation and Expenses of Trustee .... 34
SECTION 8.07. Officers' Certificate as Evidence ....... 34
SECTION 8.08. Conflicting Interest of Trustee ......... 35
SECTION 8.09. Eligibility of Trustee .................. 35
SECTION 8.10. Resignation or Removal of Trustee ....... 35
SECTION 8.11. Acceptance by Successor Trustee ......... 37
SECTION 8.12. Succession by Merger, etc. .............. 38
SECTION 8.13. Trustee's Application for Instructions .. 39
ARTICLE NINE
CONCERNING THE SECURITYHOLDERS
SECTION 9.01. Action by Securityholders ............... 39
SECTION 9.02. Proof of Execution by Securityholders ... 39
SECTION 9.03. Who Are Deemed Absolute Owners .......... 40
SECTION 9.04. Corporation-Owned Securities Disregarded 40
SECTION 9.05. Revocation of Consents; Future Holders
Bound ................................. 41
ARTICLE TEN
SECURITYHOLDERS MEETINGS
SECTION 10.01. Purpose of Meetings ................. 41
SECTION 10.02. Call of Meetings by Trustee .............. 41
SECTION 10.03. Call of Meeting by Corporation
Securityholders .......................... 42
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<PAGE>
SECTION 10.04. Qualifications for Voting ................ 42
SECTION 10.05. Regulations .............................. 42
SECTION 10.06. Voting ................................... 43
SECTION 10.07. Written Consent in Lieu of Meeting ....... 43
ARTICLE ELEVEN
SUPPLEMENTAL INDENTURES
SECTION 11.01. Supplemental Indentures Without Consent
of Securityholders ....................... 44
SECTION 11.02. Supplemental Indentures With Consent
of Securityholders ...................... 45
SECTION 11.03. Compliance with Trust Indenture Act;
Effect of Supplemental Indenture ........ 46
SECTION 11.04. Notation on Securities ................... 46
SECTION 11.05. Evidence of Compliance of Supplemental
Indenture to Be Furnished Trustee ....... 47
ARTICLE TWELVE
CONSOLIDATION, MERGER AND SALE
SECTION 12.01. Corporation May Consolidate, etc., on
Certain Terms ........................... 47
SECTION 12.02. Successor Corporation to Be Substituted .. 47
SECTION 12.03. Opinion of Counsel to Be Given to Trustee... 48
ARTICLE THIRTEEN
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 13.01. Discharge of Indenture ................... 48
SECTION 13.02. Deposited Moneys to Be Held in Trust
by Trustee .............................. 49
SECTION 13.03. Paying Agent to Repay Moneys Held ........ 49
SECTION 13.04. Return of Unclaimed Moneys ............... 49
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 14.01. Indenture and Securities Solely Corporate
Obligations ............................. 50
ARTICLE FIFTEEN
SINKING FUNDS
SECTION 15.01. General .................................. 50
SECTION 15.02. Satisfaction of Sinking Fund Payments
with Securities ......................... 50
SECTION 15.03. Redemption of Securities for Sinking
Fund .................................... 51
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<PAGE>
ARTICLE SIXTEEN
MISCELLANEOUS PROVISIONS
SECTION 16.01. Provisions Binding on Corporation's
Successors ..................... 51
SECTION 16.02. Official Acts by Successor Corporation ... 51
SECTION 16.03. Addresses for Notices, etc. .............. 51
SECTION 16.04. Maryland Contract ........................ 52
SECTION 16.05. Evidence of Compliance with Conditions
Precedent ...................... 52
SECTION 16.06. Legal Holidays ........................... 52
SECTION 16.07. Trust Indenture Act to Control ........... 53
SECTION 16.08. Table of Contents, Headings, etc. ........ 53
SECTION 16.09. Execution in Counterparts ................ 53
TESTIMONIUM ............................................. 54
SIGNATURES ............................................. 54
v
<PAGE>
THIS INDENTURE, dated as of March 24, 1999 between CONSTELLATION ENERGY
GROUP, INC. a corporation duly organized and existing under the laws of the
State of Maryland (hereinafter sometimes called the "Corporation"), and THE BANK
OF NEW YORK, as Trustee, a New York banking corporation duly organized and
existing under the laws of the State of New York (hereinafter sometimes called
the "Trustee").
WITNESSETH:
WHEREAS, for its lawful corporate purposes, the Corporation has duly
authorized the issue of its unsecured debt securities from time to time in
series (all such series of debt securities are herein collectively called the
"Securities"), unlimited as to principal amount and, to provide the terms and
conditions upon which the Securities are to be authenticated, issued and
delivered, the Corporation has duly authorized the execution and delivery of
this Indenture; and
WHEREAS, all acts and things necessary to constitute these presents a valid
agreement according to its terms have been done and performed, and the execution
and delivery of this Indenture have in all respects been duly authorized, and
the Corporation proposes to do all acts and things necessary to make the
Securities, when executed by the Corporation and authenticated and delivered by
the Trustee, as in this Indenture provided, and issued, the valid, binding and
legal obligations of the Corporation;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which the Securities
are, and are to be, authenticated, issued and delivered, and in consideration of
the premises and of the purchase and acceptance of the Securities by the holders
thereof, the Corporation covenants and agrees with the Trustee for the equal and
proportionate benefit, except as otherwise expressly provided in this Indenture,
of the respective holders from time to time of the Securities as follows:
<PAGE>
ARTICLE ONE
DEFINITIONS
SECTION 1.01. Definitions. The terms defined in this Section 1.01 (except
as herein otherwise expressly provided or unless the context otherwise requires)
for all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Section 1.01. All other
terms used in this Indenture which are defined in the Trust Indenture Act of
1939 or which are by reference therein defined in the Securities Act of 1933, as
amended (except as herein otherwise expressly provided or unless the context
otherwise requires), shall have the meanings assigned to such terms in said
Trust Indenture Act and in said Securities Act as in force at the date of this
Indenture as originally executed.
Board of Directors:
The term "Board of Directors" shall mean the Board of Directors of the
Corporation or any duly authorized committee of such Board of Directors or any
directors or officers of the Corporation to whom such Board of Directors or such
committee shall have duly delegated its authority to act hereunder.
Board Resolution:
The term "Board Resolution" shall mean a resolution of the Board of
Directors or of any duly authorized committee of the Board of Directors or the
written declaration of any director or officer of the Corporation to whom the
Board of Directors or such committee shall have duly delegated its authority to
act with respect to the matter covered by such declaration, a copy of which has
been certified by the Secretary or an Assistant Secretary of the Corporation to
have been duly adopted by the Board of Directors, such committee, or such
director or officer, as the case may be, and to be in full force and effect on
the date of such certification, which certification shall, in the case of any
action taken by any such duly authorized committee, director or officer, include
a copy of the resolution or resolutions of the Board of Directors, and/or
committee thereof, establishing the authority of the committee, director or
officer with respect to the action taken.
Business Day:
The term "business day" shall mean any day which is not a Saturday or
Sunday or a day on which banking institutions in the City of New York or the
State of Maryland are authorized or required by law or executive order to be
closed.
Corporation:
The term "Corporation" shall mean CONSTELLATION ENERGY GROUP, INC. a
Maryland corporation, and subject to the provisions of Article Twelve shall
include its successors and assigns.
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<PAGE>
Depositary:
The term "Depositary" shall mean, with respect to the Securities of any
series issuable or issued in global form, the person designated pursuant to
Section 3.01(10) as the Depositary with respect thereto or any successor
appointed pursuant to Section 3.04 of the Indenture.
Discounted Security:
The term "Discounted Security" shall mean any Security which provides
for an amount (excluding any amounts attributable to accrued but unpaid interest
thereon) less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the maturity thereof pursuant to Section 7.01.
Event of Default:
The term "Event of Default" shall mean any event specified in Section
7.O1, continued for the period of time, if any, and after the giving of the
notice, if any, therein designated.
Federal Bankruptcy Code:
The term "Federal Bankruptcy Code" shall mean Title 11 of the United
States Code.
Indenture:
The term "Indenture" shall mean this instrument as originally executed
or, if amended or supplemented, as so amended or supplemented, and shall include
the form of each particular series of Securities established as provided in
Section 2.01.
0fficers' Certificate:
The term "Officers' Certificate", when used with respect to the Corpor-
ation, shall mean a certificate signed by the Chairman of the Board, Chief
Executive Officer, Vice Chairman, President or a Vice President of the
Corporation and the Secretary, an Assistant Secretary, the Treasurer or an
Assistant Treasurer of the Corporation. Each such certificate shall include the
statements provided for in Section 16.05 if and to the extent required by the
provisions of such Section.
Opinion of Counsel:
The term "Opinion of Counsel" shall mean an opinion in writing signed
by legal counsel who may be an employee of the Corporation or other counsel
satisfactory to the Trustee. Each such opinion shall include the statements
provided for in Section 16.05 if and to the extent required by the provisions of
such Section.
Outstanding:
The term "outstanding", when used with reference to Securities, shall,
subject to the provisions of Section 9.04, mean, as of any particular time, all
Securities authenticated and delivered by the Trustee under this Indenture,
except:
3
<PAGE>
(a) Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(b) Securities or portions thereof, for the payment of which
moneys in the necessary amount shall have been deposited in trust with
the Trustee or with any paying agent (other than the Corporation) or
shall have been set aside and segregated in trust by the Corporation
(if the Corporation shall act as its own paying agent); and
(c) Securities in lieu of or in substitution for which other
Securities shall have been authenticated and delivered pursuant to the
terms of Section 3.05, or which shall have been paid, unless proof
satisfactory to the Trustee is presented that any such Securities are
held by any person in whose hands any of such Securities is a legal,
valid and binding obligation of the Corporation.
In determining whether the holders of the requisite principal amount of outstan-
ding Securities have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, the principal amount of a Discounted
Security shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon a declaration of acceleration
of the maturity thereof pursuant to Section 7.01.
Principal Office of the Trustee:
The term "Principal Office of the Trustee" or any other similar term
shall mean the principal office of the Trustee at which at any particular time
its corporate trust business shall be administered, which office at the date of
the execution of this Indenture is located at 101 Barclay Street, Floor 21 West,
New York, New York 10286; Attention: Corporate Trust Administration.
Prospectus:
The term "Prospectus" shall mean a prospectus, filed by the Corporation
with the Securities and Exchange Commission pursuant to Rule 424(b) or (c)
promulgated under the Securities Act of 1933, as amended, which sets forth the
terms of the Securities
described therein.
Responsible Officer:
The term "Responsible Officer" shall mean, when used with respect to
the Trustee, any officer within the corporate trust department of the Trustee,
including any vice president, assistant vice president, assistant secretary,
assistant treasurer, trust office or any other officer of the Trustee who
customarily performs functions similar to those performed by the Persons who
at the time shall be such officers, respectively, or to whom any corporate
trust matter is referred because of such person's knowledge of and familiarity
with the particular subject and who shall have direct responsibility for the
administration of this Indenture.
4
<PAGE>
Security or Securities:
The term "Security" or "Securities" shall mean any debt security or
debt securities, as the case may be, authenticated and delivered under this
Indenture in temporary or permanent form and global or definitive form.
Securityholder:
The terms "Securityholder" or "holder of Securities" or other similar
terms, shall mean any person in whose name at the time a particular Security is
registered on the books of the Corporation kept for that purpose in accordance
with the terms hereof.
Series:
The term "series" when used with respect to the Securities shall mean
all Securities described in a Board Resolution as being part of any particular
series.
Trustee:
The term "Trustee" shall mean THE BANK OF NEW YORK until a successor
Trustee shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Trustee" shall mean or include each Trustee which
is then a Trustee hereunder, and if at any time there is more than one such
Trustee, "Trustee" as used with respect to the Securities of any series shall
mean the Trustee with respect to Securities of that series.
Trust Indenture Act of 1939:
The term "Trust Indenture Act of 1939" shall mean the Trust Indenture
Act of 1939 as it was in force at the date of execution of this Indenture,
except as provided in Section 11.03.
Yield to Maturity:
The term "Yield to Maturity", when used with respect to any Discounted
Security shall mean the yield to maturity, if any, set forth in the Prospectus
relating thereto, which shall be equal to the yield to maturity, if any, set
forth on the face of such Security.
ARTICLE TWO
THE SECURITIES
SECTION 2.01. Forms of Securities. The Securities shall be in such
form or forms as shall be established by or pursuant to a Board Resolution, in
each case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture or any indenture
supplemental hereto and may have such letters, numbers or other marks of
5
<PAGE>
identification and such legends or endorsements imprinted thereon as the
officers executing the same may approve (execution thereof to be conclusive
evidence of such approval).
Prior to the delivery of a Security in any such form to the Trustee for
authentication, the Corporation shall deliver to the Trustee the following:
(1) a written order of the Corporation requesting the
Trustee's authentication and delivery of the Securities;
(2) the Board Resolution by or pursuant to which such form
of Security has been approved, and, if a form of security is to
be approved by officer action pursuant to a Board Resolution, an
Officers' Certificate describing the action taken;
(3) an Officers' Certificate dated the date such certificate
is delivered to the Trustee, stating that all conditions
precedent provided for in this Indenture relating to the
authentication and delivery of Securities in such form have been
complied with; and
(4) an Opinion of Counsel stating that Securities in such
form when completed by appropriate insertions and executed and
delivered by the Corporation to the Trustee for authentication in
accordance with this Indenture, authenticated and delivered by
the Trustee in accordance with this Indenture within the
authorization as to aggregate principal amount established from
time to time by the Board of Directors, and sold in the manner
specified in such Opinion of Counsel, will be the legal, valid
and binding obligations of the Corporation entitled to the
benefits of this Indenture, subject to applicable bankruptcy,
reorganization, insolvency and other similar laws generally
affecting creditors' rights, to general equitable principles and
to such other qualifications as, such counsel shall conclude do
not materially affect the rights of holders of such Securities.
The definitive Securities shall be printed, lithographed or engraved or
produced by any combination of these methods or otherwise in any manner as
determined by the officers executing the same (execution thereof to be
conclusive evidence of such approval).
SECTION 2.02. Authentication Agent and Form of Certificate of
Authentication. The Corporation hereby appoints the Trustee as an authentication
agent for the Securities. The Corporation may designate one or more additional
authentication agent(s)for all of the Securities or for one or more series of
the Securities; provided that the Trustee must consent in writing to such
designation.
6
<PAGE>
The following shall be the form of Certificate of Authentication provided
by the Trustee or any authentication agent. This is one of the Securities of the
series designated herein issued under the Indenture described herein.
THE BANK OF NEW YORK
By _________________________
Authorized Signatory
Dated:
Section 2.03. Global Securities. If the Corporation shall establish
pursuant to Section 3.01(10) that the Securities of all or part of a series are
to be issued in whole or in part in the form of a global Security, such global
Security shall be registered in the name of the Depositary for such global
Security or the nominee of such Depositary and shall be delivered by the Trustee
to such Depositary or pursuant to such Depositary's instructions.
ARTICLE THREE
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND
EXCHANGE OF SECURITIES
SECTION 3.01. Title, Amount and Terms of Securities. The aggregate
principal amount of Securities which may be authenticated and delivered and
Outstanding under this Indenture is not limited. The Securities may be issued in
an aggregate principal amount up to the aggregate principal amount of Securities
from time to time authorized by or pursuant to a Board Resolution.
The Securities may be issued in one or more series, the terms of each of
which shall be determined in or pursuant to a Board Resolution. With respect to
each series of Securities, the following terms shall be specified in the Board
Resolution relating thereto, or in an Officers' Certificate detailing any
actions taken pursuant to the Board Resolutions relating thereto:
(1) the title of the Securities (including cusip numbers) of
that series (which shall distinguish the Securities of that
series from Securities of all other series);
(2) any limit upon the aggregate principal amount of the
Securities of that series which may be authenticated and
delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or
in exchange for, or in lieu of, other Securities of that series
pursuant to Section 3.04, 3.05, 3.06, 4.06 or 11.04);
7
<PAGE>
(3) the date or dates on which the principal of the
Securities of that series is payable;
(4) the rate or rates, or the method to be used in
establishing the rate or rates, at which the Securities of that
series shall bear interest (if any), the date or dates from which
such interest shall accrue, the interest payment dates on which
such interest shall be payable, the record date for the interest
payable on any interest payment date and any other terms of
payment of interest on the Securities of that series;
(5) if other than as provided in this Indenture, the place
or places where the principal of (and premium, if any) and
interest, if any, on Securities of that series shall be payable;
(6) the period or periods within which, the price or prices
at which and the terms and conditions upon which Securities of
that series may be redeemed, in whole or in part, at the option
of the Corporation, if such Securities are to be subject to
redemption;
(7) the obligation, if any, of the Corporation to redeem or
purchase Securities of that series pursuant to any sinking fund
or analogous provisions or at the option of a holder thereof and
the period or periods within which, the price or prices at which
and the terms and conditions upon which Securities of that series
shall be redeemed or purchased, in whole or in part, pursuant to
such obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof are to be authorized. the denominations in which
Securities of that series shall be issuable;
(9) if other than the principal amount thereof, the portion
of the principal amount of Securities of that series which shall
be payable upon a declaration of acceleration of the maturity
thereof pursuant to Section 7.01;
(10) if any of such Securities are to be issuable in global
form, (i) when any of such Securities are to be issuable in
global form; (ii) whether beneficial owners of interests in any
such global Security may exchange such interests for Securities
of the same series and of like tenor and of any authorized form
and denomination, and the circumstances under which any such
exchange may occur, if other than in the manner specified in
Section 3.04 hereof, and (iii) the name of the Depositary with
respect to any global Security, provided that a Depositary must,
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at the time of its designation and at all times while it serves
as Depositary, be a clearing agency registered under the
Securities Exchange Act of 1934, as amended, and any other
applicable statute or regulation; and
(11) any other terms of that series.
SECTION 3.02. Denominations, Dates, Interest Payment and Record Dates, and
Place of Payment. In the absence of any provision to the contrary with respect
to the Securities of any particular series, the Securities shall be issuable as
registered Securities without coupons in the denominations of $1,000 and any
multiple of $1,000. Every Security shall be dated the date of its authentication
and shall bear interest, if any, from the date specified in the Board Resolution
authorizing the issuance thereof.
The person in whose name any Security is registered at the close of
business on any record date (as hereinafter in this Section 3.02 defined) with
respect to any interest payment date shall be entitled to receive the interest
payable on such interest payment date notwithstanding the cancellation of such
Security upon any registration of transfer or exchange subsequent to the record
date and prior to such interest payment date; provided, however, that if and to
the extent the Corporation shall default in the payment of the interest due on
such interest payment date, such defaulted interest shall be paid to the persons
in whose names outstanding Securities are registered at the close of business on
a subsequent record date established by notice given by mail by or on behalf of
the Corporation to the holders of Securities not less than 15 days preceding
such subsequent record date, such record date to be not less than five days
preceding the date of payment of such defaulted interest. As used in this
Section 3.02, the term "record date" for the interest payable on any Security on
any interest payment date (except a date for payment of defaulted interest)
shall mean the date, if any, specified in such Security as the "record date" for
the interest payable on such Security on any interest payment date for such
Security (except a date for payment of defaulted interest on such Security).
In the absence of any provision to the contrary with respect to the
Securities of any particular series, payment of principal of (and premium, if
any) and interest, if any, on the Securities of all series shall be made at the
Principal Office of the Trustee, or at any agency to be maintained by the
Corporation for such purpose; provided, however, that payments of installments
of interest, if any, on such Securities may be made at the option of the
Corporation by check mailed to the addresses of the persons entitled thereto as
such addresses appear in the Security register provided for in Section 3.04.
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SECTION 3.03. Execution of Securities. The Securities shall be signed in
facsimile in the name and on behalf of the Corporation by the Chairman of the
Board, Chief Executive Officer, Vice Chairman, President or any Vice President
of the Corporation, under its corporate seal (which may be printed, engraved or
otherwise reproduced thereon, by facsimile or otherwise), attested by its
Secretary or an Assistant Secretary. Only such Securities as shall bear thereon
a certificate of authentication substantially in the form set forth in Section
2.02, executed by the Trustee, shall be entitled to the benefits of this
Indenture or be valid or obligatory for any purpose. Such certificate by the
Trustee upon any Security executed by the Corporation shall be conclusive
evidence that the Security so authenticated has been duly authenticated and
delivered hereunder and that the holder is entitled to the benefits of this
Indenture.
In case any officer of the Corporation who shall have signed any of the
Securities, shall cease to be such officer before the Securities so signed shall
have been authenticated and delivered by the Trustee, or disposed of by the
Corporation, such Securities nevertheless may be authenticated and delivered or
disposed of as though the person who signed such Securities had not ceased to be
such officer of the Corporation; and any Security may be signed on behalf of the
Corporation by such persons as, at the actual date of the execution of such
Security shall be the proper officers of the Corporation, although at the date
of the execution of this Indenture any such person was not such an officer.
SECTION 3.04. Exchange and Registration of Transfer of Securities.
Securities of any series may be exchanged for an equal aggregate principal
amount of Securities of other authorized denominations of the same series.
Securities to be exchanged shall be surrendered at the Principal Office of the
Trustee or at any agency to be maintained by the Corporation for such purpose,
as provided in Section 5.02, and the Corporation shall execute and register, and
the Trustee shall authenticate and deliver in exchange therefor the Security or
Securities which the Securityholder making the exchange shall be entitled to
receive.
The Corporation shall keep at the Principal Office of the Trustee a
register in which, subject to such reasonable regulations as it may prescribe,
the Corporation shall provide for registration of Securities and registration of
transfers of Securities as in this Article Three provided. Such register shall
be in written form or in any other form capable of being converted into written
form within a reasonable time. At all reasonable times with reasonable prior
notice such register shall be open for inspection by the Trustee and the
Corporation. The Trustee is hereby appointed Security registrar for the purpose
of registering Securities and registering the
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transfers of Securities as herein provided. Upon due presentment for
registration of transfer of any Security of a particular series at such office
or agency and compliance in full with the conditions of this Section 3.04, the
Corporation shall execute, the Security registrar shall register, and the
Trustee shall authenticate and deliver in the name of the transferee or
transferees a new Security or Securities of the same series for an equal
aggregate principal amount.
All Securities presented for registration of transfer or for exchange or
payment shall (if so required by the Corporation or the Security registrar) be
duly endorsed by, or be accompanied by a written instrument or instruments of
transfer in form satisfactory to the Corporation and the Security registrar duly
executed by, the holder or his attorney duly authorized in writing.
No service charge shall be made for any exchange or registration of
transfer of Securities, but the Corporation may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection therewith.
Unless otherwise specified with respect to the Securities of a specific
series as contemplated by Section 3.01(10), if at any time a Depositary for any
Securities of a series issued in global form notifies the Corporation that it is
unwilling or unable to continue as Depositary for such Securities or if at any
time a Depositary for any Securities of such series issued in global form shall
no longer be eligible under the last clause of Section 3.01(10), the Corporation
shall appoint a successor Depositary with respect to the Securities of such
series. If a successor Depositary for such Securities is not appointed by the
Corporation within 90 calendar days after the Corporation receives such notice
or becomes aware of such ineligibility, or if an Event of Default with respect
to such Securities has occurred and is continuing, such Securities shall,
notwithstanding the terms of the Securities of such series established pursuant
to Section 3.01(10), no longer be issued in global form and the Corporation will
execute, and the Trustee, upon receipt of the Corporations written order for
the authentication and delivery of definitive Securities of such series, will
authenticate and deliver, in exchange for such global Security from the
Depositary, Securities of such series in definitive form in authorized
denominations, in an aggregate principal amount equal to the principal amount of
each global Security previously delivered to such Depositary and having like
terms and conditions.
The Corporation may at any time and in its sole discretion determine that
the Securities of any series issued in the form of a global Security shall no
longer be represented by such global Security. In such event the Corporation
will execute, and the Trustee, upon receipt of the Corporation's written order
for the authentication and delivery of definitive Securities of
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such series, will authenticated and deliver, in exchange for such global
Security, Securities of such series in definitive form in authorized
denominations, in an aggregate principal amount equal to the principal amount
of the Securities no longer to be represented by such global Security and having
like terms and conditions.
If specified by the Corporation with respect to a series of Securities
pursuant to Section 3.01(10), the Depositary for any Securities of such series
represented by a global Security may surrender such global Security in exchange
in whole or in part for definitive Securities of such series having like terms
and conditions and in definitive form on such terms as are acceptable to the
Corporation and such Depositary. At such Depositary's request the Corporation
shall thereupon execute, and the Trustee shall authenticate and deliver, (i) to
each person specified by such Depositary a new definitive Security or Securities
of the same series, having like terms and conditions and in any authorized
denomination as requested by such person in aggregate principal amount equal
to and in exchange for such person's beneficial interest in the global Security
so surrendered and (ii) to such Depositary a new global Security which is of
like terms and conditions and in a denomination equal to the difference, if
any, between the principal amount of the surrendered global Security and the
aggregate principal amount of definitive Securities delivered to each such
person as provided in clause(i).
Such Securities in definitive form issued pursuant to the preceding
paragraphs of this Section 3.04 shall be registered in such names and in such
authorized denominations as the Depositary, pursuant to instructions from its
direct or indirect participants, or otherwise, shall instruct the Corporation.
After authentication, the Trustee shall deliver such definitive Securities to
the persons in whose names such Securities are so registered.
SECTION 3.05. Mutilated, Destroyed, Lost or Stolen Securities. In case any
temporary or permanent Security shall become mutilated or be destroyed, lost or
stolen, the Corporation in its discretion may execute, and upon the
Corporation's written request the Trustee shall authenticate and deliver, a new
Security of the same series, bearing a number not contemporaneously outstanding,
in exchange and substitution for the mutilated Security, or in lieu of and in
substitution for the Security so destroyed, lost or stolen. In every case the
applicant for a substituted Security shall furnish to the Corporation, to the
Security registrar, any paying agent and to the Trustee such security or
indemnity as may be required by them to save each of them harmless, and, in
every case of destruction, loss or theft, the applicant shall also furnish to
the Corporation, to the Security registrar, to any paying agent and to the
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Trustee evidence to their satisfaction of the destruction, loss or theft of such
Security and of the ownership thereof.
The Trustee may authenticate any substituted Security and deliver the same upon
the written request or authorization of any officer of the Corporation. Upon the
issuance of any substituted Security, the Corporation may require the payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses, including counsel fees of
the Corporation, the Trustee, any paying agent or Security registrar connected
therewith. In case any Security which has matured or is about to mature shall
become mutilated or be destroyed, lost or stolen, the Corporation may, instead
of issuing a substitute Security, pay or authorize the payment of the same
(without surrender thereof except in the case of a mutilated Security) if the
applicant for such payment shall furnish to the Corporation, to the Security
registrar, any paying agent and to the Trustee such security or indemnity as may
be required by them to save each of them harmless and, in case of destruction,
loss or theft, evidence satisfactory to the Corporation, the Security registrar
and the Trustee of the destruction, loss or theft of such Security and of the
ownership thereof.
Every substituted Security issued pursuant to the provisions of this Section
3.05 by virtue of the fact that any Security is destroyed, lost or stolen shall
constitute an additional contractual obligation of the Corporation, whether or
not the destroyed, lost or stolen Security shall be enforceable at any time, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities duly issued hereunder. All
Securities shall be held and owned upon the express condition that the foregoing
provisions are exclusive with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities and shall preclude to the extent
permitted by law any and all other rights or remedies notwithstanding any law or
statute existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other securities without
their surrender.
SECTION 3.06. Temporary Securities. Pending the preparation of permanent
Securities of any series, the Corporation may execute and the Trustee shall
authenticate and deliver temporary Securities (printed or lithographed) of such
series. Temporary Securities of any series shall be issuable in any authorized
denomination, and substantially in the form of the permanent Securities of such
series, but with such omissions, insertions and variations as may be appropriate
for temporary Securities of such series, all as may be determined by the
Corporation. Every such temporary Security shall be authenticated by the Trustee
upon the same conditions and in substantially the same manner, and with the same
effect, as the permanent Securities of such series. Without unreasonable delay
the Corporation will execute and deliver to the Trustee permanent Securities of
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such series and thereupon any or all temporary Securities of such series may be
surrendered in exchange therefor at the Principal Office of the Trustee or at
any agency to be maintained by the Corporation for such purpose as provided in
Section 5.02, and the Trustee shall authenticate and deliver in exchange for
such temporary Securities an equal aggregate principal amount of permanent
Securities of such series. Such exchange shall be made by the Corporation at its
own expense and without any charge therefor except that the Corporation may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto. Until so exchanged, the
temporary Securities of any series shall in all respects be entitled to the same
benefits under, and be subject to the terms and conditions of, this Indenture as
permanent Securities of the same series authenticated and delivered hereunder.
SECTION 3.07. Cancellation of Securities Paid, etc. All Securities
surrendered for the purpose of payment, exchange or registration of transfer
shall, if surrendered to the Corporation or any agent for exchange and
registration of transfer, be surrendered to the Trustee for cancellation and
promptly cancelled by it, or, if surrendered to the Trustee, shall be promptly
cancelled by it, and no Securities shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Indenture. The Trustee
shall dispose of such cancelled securities in its customary manner. If the
Corporation shall acquire any of the Securities, however, such acquisition shall
not operate as a satisfaction of the indebtedness represented by such Securities
unless and until the same are surrendered to the Trustee for cancellation.
SECTION 3.08 CUSIP Numbers. The Corporation in issuing the Securities may
use "CUSIP" numbers (if then generally in use), and, if so, the Trustee shall
use "CUSIP" numbers in notices of redemption as a convenience to Holders;
provided that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained
in any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers. The Corporation
will promptly notify the Trustee of any change in the "CUSIP"numbers.
ARTICLE FOUR
REDEMPTION OF SECURITIES
SECTION 4.01. Applicability of This Article. Redemption of Securities
(whether by operation of a sinking fund or otherwise) as permitted or required
by any form of Security issued pursuant to this Indenture shall be made in
accordance with such form of Security and this Article; provided, however, that
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if any provision of any such form of Security shall conflict with any provision
of this Article, the provision of such form of Security shall govern. Except as
otherwise set forth in the form of Security for such series, each Security shall
be subject to partial redemption only in the amount of $1,000 or integral
multiples of $1,000.
SECTION 4.02. Election to Redeem: Notice to Trustee. The election of the
Corporation to redeem any Securities shall be evidenced by or pursuant to a
Board Resolution. In case of any redemption at the election of the Corporation
of less than all of the Securities of any particular series, the Corporation
shall, at least 45 days prior to the date fixed for redemption (unless a shorter
notice shall be satisfactory to the Trustee) notify the Trustee of such date and
of the principal amount of Securities of that series to be redeemed.
SECTION 4.03. Selection of Securities to be Redeemed. If less than all the
Securities of a particular series are to be redeemed, the Trustee shall select,
in such manner as in its sole discretion it shall deem appropriate and fair
(which may be by lot), the Securities or portions thereof of such series to be
redeemed. The Trustee shall promptly notify the Corporation in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed. For all
purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Securities shall relate, in the case of
any Security redeemed or to be redeemed only in part, to the portion of the
principal amount of such Security which has been or is to be redeemed.
SECTION 4.04. Notice of Redemption. Notice of redemption shall be given by
first-class mail, postage prepaid, mailed not later than the thirtieth day, and
not earlier than the sixtieth day, prior to the date fixed for redemption, to
each holder of Securities to be redeemed, at his address as it appears on the
registry books of the Corporation.
With respect to Securities of each series to be redeemed, each notice of
redemption shall state:
(1) the identity of the securities, including cusip numbers.
(2) the date fixed for redemption for Securities of such series;
(3) the redemption price at which Securities of such series are to be
redeemed;
(4) if less than all outstanding Securities of such particular series are
to be redeemed, the identification (and, in the case of partial redemption, the
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respective principal amounts) of the particular Securities to be redeemed;
(5) that on the date fixed for redemption, the redemption price at which
such Securities are to be redeemed will become due and payable upon each such
Security or portion thereof, and that interest thereon, if any, shall cease to
accrue on and after said date;
(6) the place or places where such Securities are to be surrendered for
payment of the redemption price at which such Securities are to be redeemed; and
(7) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of the
Corporation shall be given by the Corporation or, at the Corporation's request,
by the Trustee in the name and at the expense of the Corporation. The notice if
mailed in the manner herein provided shall be conclusively presumed to have been
duly given, whether or not the holder receives such notice. In any case, a
failure to give such notice by mail or any defect in the notice to the holder of
any Security designated for redemption as a whole or in part shall not affect
the validity of the proceedings for the redemption of any other Security.
SECTION 4.05. Deposit of Redemption Price. Prior to or on the redemption
date specified in the notice of redemption given as provided in Section 4.04,
the Corporation will deposit with the Trustee or with one or more paying agents
an amount of money sufficient to redeem on the redemption date all the
Securities so called for redemption at the applicable redemption price, such
deposit will be made before the deadline with which the Trustee or any paying
agent must settle with the Depository Trust Company, if applicable.
SECTION 4.06. Payment of Securities Called for Redemption. If any notice of
redemption has been given as provided in Section 4.04, the Securities or
portions of Securities with respect to which such notice has been given shall
become due and payable on the date and at the place or places stated in such
notice at the applicable redemption price. On presentation and surrender of such
Securities at a place of payment in said notice specified, the said Securities
or the specified portions thereof shall be paid and redeemed by the Corporation
at the applicable redemption price.
Upon presentation of any Security redeemed in part only, the Corporation
shall execute and the Trustee shall authenticate and deliver to the holder
thereof, at the expense of the Corporation, a new Security or Securities of the
same series, of authorized denominations. in aggregate principal amount equal to
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the unredeemed portion of the Security so presented.
Section 4.07. Delegation of Duties by Trustee. Except in regard to Section
4.03, any reference in this Article to the Trustee with respect to its duties in
regard to the redemption of any Securities shall be deemed to also include any
entity designated by the Corporation with the written consent of the Trustee to
act as its agent for the performance of all or any of its duties under this
Article.
ARTICLE FIVE
PARTICULAR COVENANTS OF THE CORPORATION
SECTION 5.01. To Pay Principal (and Premium if any) and Interest. The
Corporation will duly and punctually pay, or cause to be paid, the principal of
(and premium, if any) and interest, if any, on each and every Security at the
times and place and in the manner provided herein and in such Securities.
Interest upon Securities shall be payable without presentment of such
Securities, and only to or upon the written order of the registered holders
thereof determined as provided in Section 3.02. The Corporation shall have the
right to require a Securityholder, in connection with the payment of the
principal of (and premium, if any) or interest, if any, on a Security, to
present at the office or agency of the Corporation at which such payment is made
a certificate, in such form as the Corporation may from time to time prescribe,
to enable the Corporation to determine its duties and liabilities with respect
to any taxes, assessments or governmental charges which it may be required to
deduct or withhold therefrom under any present or future law of the United
States of America or of any state, county, municipality or taxing or withholding
authority therein, and the Corporation shall be entitled to determine its duties
and liabilities with respect to such deduction or withholding on the basis of
information contained in such certificate or, if no such certificate shall be so
presented, on the basis of any presumption created by any such law, and shall be
entitled to act in accordance with such determination.
SECTION 5.02. To Maintain Office or Agency. So long as any Securities
remain outstanding, the Corporation will maintain an office or agency where the
Securities may be presented for payment, where the Securities may be presented
for registration of transfer and exchange as in this Indenture provided and
where notices or demands to or upon the Corporation in respect of the Securities
or of this Indenture may be served. The Corporation hereby initially appoints
the Trustee as its agent for all such purposes until otherwise designated by the
Corporation in a written notice to the Trustee, the office or agency for all
such purposes shall be the Principal Office of the Trustee. In case the
Corporation shall at any time designate a different office or agency for such
purposes, but shall fail to maintain such office or agency, or shall fail to
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give notice to the Trustee of any change in the location thereof, presentation
and demand may be made and notices may be served, in respect of the Securities
or of this Indenture, at the Principal Office of the Trustee, and the
Corporation hereby appoints the Trustee its agent to receive all such
presentations, surrenders, notices and demands.
In addition to any such office or agency the Corporation may from time to
time constitute and appoint one or more paying agents for the payment of such
Securities, in one or more other cities, and may from time to time rescind such
appointments, as the Corporation may deem desirable or expedient.
SECTION 5.03. To Fill a Vacancy in the Office of Trustee. The Corporation,
whenever necessary to avoid or fill a vacancy in the office of Trustee, will
appoint, in the manner provided in Article Eight, a Trustee, so that there shall
at all times be a Trustee hereunder.
SECTION 5.04. Appointment of Paying Agents; Money for Security Payments to
Be Set Aside in Trust; Transfer or Moneys Held by Paying Agents. (a) If as to
any series of Securities, the Corporation shall appoint a paying agent other
than the Trustee, it will cause such paying agent to execute and deliver to the
Trustee an instrument in which such paying agent shall agree with the Trustee,
subject to the provisions of this Section 5.04:
(1) that it will hold all sums held by it as such paying agent for the
payment of the principal of (and premium, if any) or interest, if any, on
such Securities in trust for the benefit of the holders of the Securities
entitled thereto, or for the benefit of the Trustee, as the case may be,
until such sums shall be paid out to such holders or otherwise as herein
provided;
(2) that it will give the Trustee notice of any failure by the
Corporation in the making of any deposit with such paying agent for the
payment of principal of (and premium, if any) or interest, if any, on such
Securities which shall have become payable and of any default by the
Corporation in making any payment of the principal of (and premium, if any)
or interest on such Securities when the same shall be due and payable, and
(3) that it will at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such paying agent.
(b) If the Corporation shall act as its own paying agent as to any series
of Securities, it will, on or before each due date of the principal of (and
premium, if any) or interest, if any, on such Securities, set aside and hold in
trust for the benefit of the holders of such Securities entitled thereto a sum
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sufficient (together with any sums deposited with any other paying agent for
such purpose) to pay such principal (and premium, if any) or interest, if any,
so becoming due and will notify in writing the Trustee of any, failure by it to
take such action. Whenever the Corporation shall have one or more paying agents
with respect to any particular series of Securities, it will, on or before each
due date of the principal of (and premium, if any) or interest if any on the
Securities, deposit with a paying agent a sum sufficient to pay such principal
(and premium, if any) or interest so becoming due, such sums to be held in trust
for the benefit of the holders of such Securities entitled thereto, and (unless
the paying agent is the Trustee) the Corporation will notify in writing the
Trustee of failure by it to take such action.
(c) Anything in this Section 5.04 to the contrary notwithstanding, the
Corporation may at any time, for the purpose of obtaining the satisfaction and
discharge of this Indenture, or for any other purpose, pay or cause to be paid
to the Trustee all sums held in trust by the Corporation or any paying agent as
required by this Section 5.04, such sums to be held by the Trustee upon the
trusts herein contained.
(d) Anything in this Section 5.04 to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section 5.04 is subject to
the provisions of Sections 13.03 and 13.04.
SECTION 5.05. Maintenance of Corporate Existence, Rights and Franchises. So
long as any of the Securities shall be outstanding, the Corporation will do or
cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence, rights and franchises to carry on its business;
provided that nothing in this Section 5.05 shall prevent (i) any consolidation
or merger of the Corporation, or any sale or conveyance of all or substantially
all its property and assets, permitted by Article Twelve, or (ii) the
liquidation or dissolution of the Corporation after a sale or conveyance of all
or substantially all its property and assets permitted by Article Twelve.
SECTION 5.06. Certificate as to No Default. The Corporation hereby agrees
to deliver to the Trustee, within 120 days after the end of each fiscal year of
the Corporation, commencing with the fiscal year ending December 31, 1999, an
Officers' Certificate, which need not comply with the provisions of Section
16.05, to the effect that, to the knowledge of the signers thereof, the
Corporation is in compliance with all conditions and covenants under this
Indenture and is not in default under any provision of this Indenture or, if
such signers have knowledge of any such default, stating the same and the nature
and status thereof.
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SECTION 5.07 Calculation of Original Issue Discount. If the Corporation has
any Outstanding Securities issued with original issue discount that are
outstanding during any calendar year, the Corporation shall file with the
Trustee promptly at the end of each calendar year (i) a written notice
specifying the amount of original issue discount (including daily rates and
accrual periods) accrued on Outstanding Securities as of the end of such year
and (ii) such other specific information relating to such original issue
discount as may then be relevant under the Internal Revenue Code of 1986, as
amended from time to time.
ARTICLE SIX
SECURITYHOLDERS LISTS AND REPORTS BY THE CORPORATION
AND THE TRUSTEE
SECTION 6.01. Securityholder Lists. The Corporation covenants and agrees
that, with respect to each series of Securities, it will furnish or cause to be
furnished to the Trustee, (a) semiannually, not less than 45 days nor more than
60 days after (i) each record date for the payment of interest on any interest
payment date (except a date for payment of defaulted interest) in the case of
interest-bearing Securities or (ii) the last business day of each June and
December in the case of non-interest-bearing Securities, and (b) at such other
times as the Trustee may request in writing, within 30 days after receipt by the
Corporation of any such request, a list in such form as the Trustee may
reasonably require of the names and addresses of the holders of Securities of
such series as of a date not more than 15 days prior to the time such
information is furnished; provided, however, that if the Trustee shall be the
Security registrar, such list shall not be required to be furnished.
SECTION 6.02. Intentionally Omitted
SECTION 6.03. Reports by the Corporation. (a) The Corporation covenants and
agrees to file with the Trustee within 30 days after the Corporation is required
to file the same with the Securities and Exchange Commission, copies of the
annual reports and of the information, documents and other reports (or copies of
such portions of any of the foregoing as said Commission may from time to time
by rules and regulations prescribe) which the Corporation may be required to
file with said Commission pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934, as amended; or, if the Corporation is not
required to file information, documents or reports pursuant to either of such
sections, then to file with the Trustee and said Commission in accordance with
rules and regulations prescribed from time to time by said Commission, such of
the supplementary and periodic information, documents and reports which may be
required pursuant to section 13 of the Securities Exchange Act of 1934, as
amended, in respect of a security listed and registered on a national securities
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exchange as may be prescribed from time to time in such rules and regulations;
delivery of such reports, information and documents to the Trustee is for
informational purposes only and the Trustees receipt of such shall not
constitute constructive notice of any information contained there or
determinable from information contained therein including the Corporation's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers Certificates.)
(b) The Corporation covenants and agrees to file with the Trustee and the
Securities and Exchange Commission, in accordance with the rules and regulations
prescribed from time to time by said Commission, such additional information,
documents and reports with respect to compliance by the Corporation with the
conditions and covenants provided for in this Indenture as may be required from
time to time by such rules and regulations; delivery of such reports,
information and documents to the Trustee is for informational purposes only and
the Trustee's receipt of such shall not constitute constructive notice of any
information contained there or determinable from information contained therein,
including the Corporation's compliance with any of its covenants hereunder (as
to which the Trustee is entitled to rely exclusively on Officer's Certificates.)
(c) The Corporation covenants and agrees to transmit by mail to all holders
of Securities, as the names and addresses of such holders appear upon the
registry books of the Corporation, within 30 days after the filing thereof with
the Trustee, such summaries of any information, documents and reports required
to be filed by the Corporation pursuant to subsection (a) or (b) of this Section
6.03 as may be required by rules and regulations prescribed from time to time by
the Securities and Exchange Commission.
SECTION 6.04. Reports by the Trustee. (a) On or before October 1, 1999, and
on or before October 1 in every year thereafter, so long as any Securities are
outstanding hereunder, the Trustee, if required by the Trust Indenture Act of
1939, shall transmit to the Securityholders for which it is acting as Trustee, a
brief report dated as of the preceding September 1 with respect to:
(1) its eligibility under Section 8.09, and its qualification under
Section 8.08, or in lieu thereof, if to the best of its knowledge it has
continued to be eligible and qualified under such Sections, a written
statement to such effect;
(2) the character and amount of any advances (and if the Trustee
elects so to state, the circumstances surrounding the making thereof) made
by the Trustee (as such) which remain unpaid on the date of such report,
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and for the reimbursement of which it claims or may claim a lien or charge,
prior to that of the Securities with respect to which it is acting as
Trustee, on any property or funds held or collected by it as Trustee,
except that the Trustee shall not be required (but may elect) to state such
advances if such advances so remaining unpaid aggregate not more than
one-half of one percent of the principal amount of such Securities
outstanding on the date of such report;
(3) the amount, interest rate, and the maturity date of all other
indebtedness owing by the Corporation (or by any other obligor on such
Securities) to the Trustee in its individual capacity, on the date of such
report, with a brief description of any property held as collateral
security therefor, except an indebtedness based upon a creditor
relationship arising in any manner described in paragraph (2), (3), (4) or
(6) of subsection (b) of Section 8.13;
(4) the property and funds, if any, physically in the possession of
the Trustee, as such, at the date of such report;
(5) any additional issue of Securities with respect to which it is
acting as Trustee which it has not previously reported; and
(6) any action taken by the Trustee in the performance of its duties
under this Indenture which it has not previously reported and which in its
opinion materially affects such Securities, except action in respect of a
default, notice of which has been or is to be withheld by it in accordance
with the provisions of Section 7.08.
(b) The Trustee shall transmit to the Securityholders with respect to
which it is acting as Trustee, as hereinafter provided, a brief report with
respect to the character and amount of any advances (and if the Trustee
elects so to state, the circumstances surrounding the making thereof) made
by the Trustee (as such), since the date of the last report transmitted
pursuant to the provisions of subsection (a) of this Section 6.04 (or, if
no such report has yet been so transmitted, since the date of execution of
this Indenture), for the reimbursement of which it claims or may claim a
lien or charge prior to that of the Securities with respect to which it is
acting as Trustee on property or funds held or collected by it as Trustee,
and which it has not previously reported pursuant to this subsection,
except that the Trustee shall not be required (but may elect) to report
such advances if such advances remaining unpaid at any time aggregate ten
percent or less of the principal amount of such Securities outstanding at
such time, such report to be transmitted within ninety days after such
time.
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(c) Reports pursuant to this Section 6.04 shall be transmitted by first
class mail, postage prepaid to all holders of Securities as the names and
addresses of such holders appear upon the registry books of the Corporation.
(d) A copy of each such report shall, at the time of such transmission to
Securityholders, be filed by the Trustee with each stock exchange upon which the
Securities with respect to which it is acting as Trustee are listed and also
with the Securities and Exchange Commission. The Corporation will notify the
Trustee when and as such Securities become listed on any stock exchange or
delisted therefrom.
ARTICLE SEVEN
EVENTS OF DEFAULT; REMEDIES OF THE TRUSTEE
AND SECURITYHOLDERS
SECTION 7.01. Events of Default; Remedies. The occurrence of any of the
following events shall constitute an Event of Default hereunder with respect to
any particular series of Securities:
(a) default in the due and punctual payment of any installments of
interest upon any of the Securities of that series as and when the same
shall become due and payable and continuance of such default for a period
of 30 days: or
(b) default in the due and punctual payment of the principal of (or
premium, if any, on) any of the Securities of that series as and when the
same shall become due and payable either at maturity, by declaration as
authorized by this Indenture, or otherwise; or
(c) failure on the part of the Corporation duly to observe or perform
any other of the covenants or agreements on the part of the Corporation set
forth in the Securities of that series or in this Indenture (other than
those set forth exclusively in the terms of Securities of any series other
than that series) continued for a period of sixty days after there has been
given, by registered or certified mail, to the Corporation by the Trustee,
or to the Corporation and the Trustee by the holders of at least
thirty-three percent in principal amount of the Securities of that series
at the time outstanding, a written notice specifying such failure and
requiring the same to be remedied and stating that such notice is a "Notice
of Default" hereunder; or
(d) the entry of a decree or order by a court having jurisdiction in
the premises granting relief in respect of the Corporation in an
involuntary case under the Federal Bankruptcy Code adjudging the
Corporation a bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjustment or composition of
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or in respect of the Corporation under the Federal Bankruptcy Code or any
other applicable Federal or State law, or appointing a receiver,
liquidator, custodian, assignee, trustee, sequestrator (or other similar
official) of the Corporation, or of any substantial part of the respective
properties of either, or ordering the winding up or liquidation of the
affairs of either, and the continuance of any such decree or order unstayed
and in effect for a period of 120 days; or
(e) the institution by the Corporation of proceedings to be
adjudicated a bankrupt or insolvent, or the consent by the Corporation to
the institution of bankruptcy or insolvency proceedings against it, or the
filing by the Corporation of a petition or answer or consent seeking
reorganization or relief under the Federal Bankruptcy Code or any other
applicable Federal or State law, or the consent by the Corporation to the
filing of any such petition or to the appointment of a receiver,
liquidator, custodian, assignee, trustee, sequestrator (or other similar
official) of the Corporation, or of any substantial part of the respective
properties of either, or the making by the Corporation of an assignment for
the benefit of creditors, or the admission by the Corporation in writing of
its inability to pay its debts generally as they become due, or the taking
of corporate action by the Corporation in furtherance of any such action.
In case one or more of the Events of Default specified above shall have
occurred and be continuing with respect to any particular series of Securities,
then and in each and every such case, unless the principal of all of the
Securities of that series shall have already become due and payable, either the
Trustee or the holders of not less than thirty-three percent in aggregate
principal amount of the Securities of that series then outstanding hereunder, by
notice in writing to the Corporation (and to the Trustee if given by
Securityholders), may declare the principal or, in the case of Discounted
Securities, such amount of principal as may be provided for in such Securities,
of all the Securities of that series to be due and payable immediately, and upon
any such declaration the same shall become and shall be immediately due and
payable, anything in this Indenture or in the Securities of that series
contained to the contrary notwithstanding. This provision, however, is subject
to the condition that if, at any time after such principal or such amount of
principal, as the case may be, shall have been so declared due and payable, and
before any judgment or decree for the payment of the moneys due shall have been
obtained or entered as hereinafter provided, the Corporation shall pay or shall
deposit with the Trustee a sum sufficient to pay all matured installments of
interest upon all Securities of that series and the principal of (and premium,
if any, on) any and all Securities of that series which shall have become due
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otherwise than by acceleration (with interest on overdue installments of
interest (to the extent that payment of such interest is enforceable under
applicable law) and on such principal (and premium, if any) at the rate of
interest (or, in the case of Discounted Securities, at the Yield to Maturity)
borne by such Securities, to the date of such payment or deposit) and the
expenses of the Trustee, and any and all defaults under this Indenture with
respect to the Securities of the series, other than the nonpayment of principal
of (and premium, if any) and accrued interest on the Securities of that series
which shall have become due by acceleration shall have been remedied-then and in
every such case the holder of a majority in aggregate principal amount of the
Securities of that series then outstanding, by written notice to the Corporation
and to the Trustee, may waive all defaults and rescind and annul such
declaration and its consequences; but no such waiver or rescission and annulment
shall extend to or shall affect any subsequent default, or shall impair any
right consequent thereon.
In case the Trustee shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned for any
reason or shall have been determined adversely to the Trustee, then and in every
such case the Corporation and the Trustee shall be restored respectively to
their several positions and rights hereunder, and all rights, remedies and
powers of the Corporation and the Trustee shall continue as though no such
proceeding had been taken.
SECTION 7.02. Payment of Securities on Default; Suit Therefor. The
Corporation covenants that (a) in case default shall be made in the payment of
any installment of interest upon any of the Securities of any series as and when
the same shall become due and payable, and such default shall have continued for
a period of thirty days, or (b) in case default shall be made in the payment of
the principal of (or premium, if any, on) any of the Securities of any series as
and when the same shall have become due and payable, whether at maturity of the
Securities of that series or by declaration or otherwise, then, upon demand of
the Trustee, the Corporation will pay to the Trustee, for the benefit of the
holders of such Securities, the whole amount that then shall have become due and
payable on all such Securities for principal (and premium, if any) or interest,
if any, with interest upon the overdue principal (and premium, if any) and (to
the extent that payment of such interest is enforceable under applicable law)
upon the overdue installments of interest at the rate of interest (or the Yield
to Maturity in the case of Discounted Securities) borne by the Securities of
that series; and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including reasonable
compensation to the Trustee, its agents, attorneys and counsel, and any expenses
or liabilities incurred, and all advances made, by the Trustee hereunder other
than through its negligence or willful misconduct.
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In case the Corporation shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any actions or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Corporation or any other obligor on such
Securities and collect in the manner provided by law out of the property of the
Corporation or any other obligor on such Securities wherever situated the moneys
adjudged or decreed to be payable.
In case there shall be pending proceedings for the bankruptcy or for the
reorganization of the Corporation or any other obligor on the Securities of any
series under the Federal Bankruptcy Code or any other applicable law, or in case
a receiver, custodian or trustee shall have been appointed for the property of
the Corporation or such other obligor, or in the case of any similar judicial
proceedings relative to the Corporation or other obligor upon such Securities,
or to the creditors or property of the Corporation or such other obligor, the
Trustee, irrespective of whether the principal of such Securities shall then be
due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand pursuant to the
provisions of this Section 7.02, shall be entitled and empowered, by
intervention in such proceedings or otherwise, to file and prove a claim or
claims, for the whole amount of principal (and premium, if any) and interest, if
any owing and unpaid in respect of such Securities, and in case of any judicial
proceedings, to file such proofs of claim and other papers or documents as may
be necessary or advisable in order to have the claims of the Trustee and of the
holders of such Securities allowed in such judicial proceedings relative to the
Corporation or any other obligor on such Securities, its or their creditors, or
its or their property, and to collect and receive any moneys or other property
payable or deliverable on any such claims, and to distribute the same after the
deduction of its charges and expenses; and any receiver, custodian, assignee or
trustee in bankruptcy or reorganization is hereby authorized by each of the
Securityholders to make such payments to the Trustee, and, in the event that the
Trustee shall consent to the making of such payments directly to the
Securityholders, to pay to the Trustee any amount due it for compensation and
expenses, including counsel fees incurred by it up to the date of such
distribution.
All rights of action and of asserting claims under this Indenture, or under
any of the Securities, may be enforced by the Trustee without the possession of
any of the Securities, or the production thereof in any trial or other
proceeding relative thereto, and any suit or proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall be for the ratable benefit of the holders of the
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Securities in respect of which such judgment has been recovered.
SECTION 7.03. Application of Moneys Collected by Trustee. Any moneys
collected by the Trustee shall be applied in the order following, at the date or
dates fixed by the Trustee for the distribution of such moneys, upon
presentation of the Securities in respect of which moneys have been collected,
and stamping thereon the payment, if only partially paid, and upon surrender
thereof if fully paid:
FIRST: To the payment of costs and expenses of collection and
reasonable compensation to the Trustee, its agents, attorneys and counsel,
and of all other expenses and liabilities incurred, and all advances made,
by the Trustee except as a result of its negligence or willful misconduct;
SECOND: In case the principal of the outstanding Securities in respect
of which moneys have been collected shall not have become due and be
unpaid, to the payment of interest, if any, on such Securities, in the
order of the maturity of the installments of such interest, with interest
(to the extent that such interest has been collected by the Trustee) upon
the overdue installments of interest at the rate of interest (or the Yield
to Maturity in the case of Discounted Securities) borne by such Securities,
such payments to be made ratably to the persons entitled thereto;
THIRD: In case the principal of the outstanding Securities in respect
of which moneys have been collected shall have become due, by declaration
or otherwise, to the payment of the whole amount then owing and unpaid upon
such Securities for principal (and premium, if any) and interest, if any,
with interest on the overdue principal (and premium, if any) and (to the
extent that such interest has been collected by the Trustee) upon overdue
installments of interest at the rate of interest (or the Yield to Maturity
in the case of Discounted Securities) borne by such Securities; and in case
such moneys shall be insufficient to pay in full the whole amounts so due
and unpaid upon such Securities, then to the payment of such principal (and
premium, if any) and interest without preference or priority of principal
(and premium, if any) over interest, or of interest over principal (and
premium, if any) or of any installment of interest over any other
installment of interest, or of any such Security over any other such
Security, ratably to the aggregate of such principal (and premium, if any)
and accrued and unpaid interest; and,
FOURTH: To the payment of the remainder, if any, to the Corporation,
its successors or assigns, or to whomsoever may be lawfully entitled to
receive the same, or as a court of competent jurisdiction may direct.
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SECTION 7.04. Proceedings by Securityholders. No holder of any Security of
any series shall have any right by virtue of or by availing of any provision of
this Indenture to institute any suit, action or proceeding in equity or at law
upon or under or with respect to this Indenture or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless such holder
previously shall have given to a Responsible Officer of the Trustee written
notice of default and of the continuance thereof, as hereinbefore provided, and
unless also the holders of not less than twenty-five percent in aggregate
principal amount of the Securities of that series then outstanding shall have
made written request upon the Trustee to institute such action, suit or
proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable security or indemnity as it may require against the
costs, expenses and liabilities to be incurred therein or thereby, and the
Trustee for sixty days after its receipt of such notice, request and offer of
indemnity, shall have neglected or refused to institute any such action, suit or
proceeding, it being understood and intended, and being expressly covenanted by
the taker and holder of every Security with every other taker and holder and the
Trustee, that no one or more holders of Securities of that series shall have any
right in any manner whatever by virtue of or by availing of any provision of
this Indenture to affect, disturb or prejudice the right of any other holder of
such Securities, or to obtain or seek to obtain priority over or preference to
any such holder, or to enforce any right under this Indenture, except in the
manner herein provided and for the equal, ratable and common benefit of all
holders of Securities of that series.
Notwithstanding any other provisions in this Indenture, the right of any
holder of any Security to receive payment of the principal of (and premium, if
any) and interest, if any, on such Security, on or after the respective due
dates expressed in such Security, or to institute suit for the enforcement of
any such payment on or after such respective dates shall not be impaired or
affected without the consent of such holder.
SECTION 7.05. Proceedings by Trustee. In case of an Event of Default
hereunder the Trustee may in its discretion proceed to protect and enforce the
rights vested in it by this Indenture by such appropriate judicial proceedings
as the Trustee shall deem necessary to protect and enforce any of such rights,
either by suit in equity or by action at law or by proceeding in bankruptcy or
otherwise, whether for the specific enforcement of any covenant or agreement
contained in this Indenture or in aid of the exercise of any power granted in
this Indenture, or to enforce any other legal or equitable right vested in the
Trustee by this Indenture or by law.
SECTION 7.06. Remedies Cumulative and Continuing. All powers and remedies
given by this Article Seven to the Trustee or to the Securityholders shall, to
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the extent permitted by law, be deemed cumulative and not exclusive of any
thereof or of any other powers and remedies available to the Trustee or the
holders of the Securities, by judicial proceedings or otherwise, to enforce the
performance or observance of the covenants and agreements contained in this
Indenture, and no delay or omission of the Trustee or of any holder of any of
the Securities to exercise any right or power accruing upon any default
occurring and continuing as aforesaid shall impair any such right or power, or
shall be construed to be a waiver of any such default or an acquiescence
therein; and, subject to the provisions of Section 7.04, every power and remedy
given by this Article Seven or by law to the Trustee or to the Securityholders
may be exercised from time to time and as often as may be deemed expedient by
the Trustee or by the Securityholders.
SECTION 7.07. Direction of Proceedings and Waiver of Defaults By Majority
of Securityholders. The holders of a majority in aggregate principal amount of
the Securities of any series at the time outstanding determined in accordance
with Section 9.04 shall have the right to direct the time, method, and place of
conducting any proceedings for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of that series; provided, however, that (subject to the provisions of
Section 8.01) the Trustee shall have the right to decline to follow any such
direction if the Trustee being advised by counsel determines that the action or
proceeding so directed may not lawfully be taken or if the Trustee in good faith
by a trust committee of Responsible Officers shall determine that the action or
proceedings so directed would involve the Trustee in personal liability. Prior
to any declaration accelerating the maturity of the Securities of any series,
the holders of a majority in aggregate principal amount of the Securities
determined in accordance with Section 9.04 of that series at the time
outstanding may on behalf of the holders of all Securities of that series waive
any past default or Event of Default hereunder and its consequences except a
default in the payment of the principal of (or premium, if any) or interest on
the Securities of that series. Upon any such waiver the Corporation, the Trustee
and the holders of such Securities shall be restored to their former positions
and rights hereunder, respectively; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon. Whenever any default or Event of Default hereunder shall have been
waived as permitted by this Section 7.07, said default or Event of Default shall
for all Purposes of the Securities of such series and this Indenture with
respect to such Securities be deemed to have been cured and to be not
continuing.
SECTION 7.08. Notice of Defaults. The Trustee shall, within ninety days
after the occurrence of a default with respect to the Securities of any series,
mail to all holders of such Securities, as the names and addresses of such
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holders appear upon the registry books of the Corporation, notice of all
defaults actually known to a Responsible Officer of the Trustee, unless such
defaults shall have been cured before the giving of such notice (the term
"defaults" for the purpose of this Section 7.08 being hereby defined to be the
events specified in clauses (a), (b), (c), (d) and (e) of Section 7.01, not
including periods of grace, if any, provided for therein and irrespective of the
giving of the notice specified in clause (c) of Section 7.01); provided that,
except in the case of default in the payment of the principal of (or premium, if
any) or interest, if any, on any such Securities, the Trustee shall be protected
in withholding such notice if and so long as a trust committee of Responsible
Officers in good faith determines that the withholding of such notice is in the
interests of the holders of such Securities.
SECTION 7.09. Undertaking to Pay Costs. All parties to this Indenture
agree, and each holder of any Security by his acceptance thereof shall be deemed
to have agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken, suffered or omitted by it as Trustee,
the filing by any party litigant in such suit of an undertaking to pay the costs
of such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section 7.09 shall not apply to
any suit instituted by the Trustee, to any suit instituted by any
Securityholder, or group of Securityholders, holding in the aggregate more than
ten percent in principal amount of the Securities outstanding of any series, or
to any suit instituted by any Securityholder for the enforcement of the payment
of the principal of (or premium, if any) or interest, if any, on any Security
against the Corporation on or after the due date expressed in such Security.
ARTICLE EIGHT
CONCERNING THE TRUSTEE
SECTION 8.01. Duties and Responsibilities of Trustee. With respect to the
Securities of any particular series the Trustee, prior to the occurrence of an
Event of Default and after the curing of all Events of Default which may have
occurred, undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture. In case an Event of Default has
occurred (which has not been cured or waived) with respect to the Securities of
any particular series the Trustee shall exercise such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skill in
their exercise, as a prudent man would exercise or use under the circumstances
in the conduct of his own affairs.
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No provision of this Indenture shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act or
its own willful misconduct, except that
(a) prior to the occurrence of an Event of Default with respect to the
Securities of any particular series and after the curing or waiving of all
Events of Default with respect to the Securities of any particular series
which may have occurred:
(1) the duties and obligations of the Trustee with respect to the
Securities of such series shall be determined solely by the express
provisions of this Indenture, and the Trustee shall not be liable
except for the performance of such duties and obligations as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of willful misconduct on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
any certificates or opinions furnished to the Trustee and conforming
to the requirements of this Indenture; but, in the case of any such
certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine whether or not
they conform to the requirements of this Indenture (but need not
confirm or investigate the accuracy of any mathematical calculations
or other facts stated therein);
(b) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer or Officers of the Trustee, unless it
shall be proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(c) the Trustee shall not be liable with respect to any action taken,
suffered or omitted to be taken by it in good faith in accordance with the
direction of the holders of not less than a majority in principal amount of
the Securities of any particular series at the time outstanding determined
as provided in Section 9.04 relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Indenture.
(d) no provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
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performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(e) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of
this Section.
SECTION 8.02. Reliance on Documents, Opinions, etc. Subject to the
provisions of Section 8.01
(a) the Trustee may rely and shall be protected in acting upon any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond, debenture, coupon or other paper
or document (whether in its original or facsimile form) believed by it to
be genuine and to have been signed or presented by the proper party or
parties;
(b) any request, direction, order or demand of the Corporation
mentioned herein shall be sufficiently evidenced by an Officers'
Certificate (unless other evidence in respect thereof be herein
specifically prescribed); and any resolution of the Board of Directors may
be evidenced to the Trustee by a Board Resolution;
(c) the Trustee may consult with counsel of its own selection and any
advice or Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel;
(d) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders, pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity satisfactory to it against the costs,
expenses and liabilities which may be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within
the discretion or rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default with respect to the
Securities of any particular series hereunder and after the curing or
waiving of all Events of Default with respect to the Securities of such
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series, the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond, debenture, coupon or other paper or document, unless requested in
writing to do so by the holders of not less than a majority in principal
amount of the Securities of such series then outstanding; provided,
however, that if the payment within a reasonable time to the Trustee of the
costs, expenses or liabilities likely to be incurred by it in the making of
such investigation is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security afforded to it by the terms of this
Indenture, the Trustee may require reasonable indemnity satisfactory to it
against such expense or liability as a condition to so proceeding; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys, and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed by it with due
care hereunder.
(h) the Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact
such a default is received by the Trustee at the Corporate Trust office of
the Trustee, and such notice references the Securities and this Indenture;
and
(i) the rights, privileges, protections, immunities and benefits given
to the Trustee, including, without limitation, its right to be indemnified,
are extended to, and shall be enforceable by, the Trustee in each of its
capacities hereunder, and to each agent, custodian and other Person
employed to act hereunder.
SECTION 8.03. No Responsibility for Recitals, etc. The recitals contained
herein and in the Securities (except in the Trustee's certificate of
authentication) shall be taken as the statements of the Corporation, and the
Trustee assumes no responsibility for the correctness of the same. The Trustee
makes no representations as to the validity or sufficiency of this Indenture or
the Securities. The Trustee shall not be accountable for the use or application
by the Corporation of any Securities or the proceeds of any Securities
authenticated and delivered by the Trustee in conformity with the provisions of
this Indenture.
SECTION 8.04. Trustee, Paying Agent or Registrar May Own Securities. The
Trustee or any paying agent or Security registrar, in its individual or any
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other capacity, may become the owner or pledgee of Securities with the same
rights it would have if it were not Trustee, paying agent or Security registrar.
SECTION 8.05. Moneys to Be Held in Trust. Subject to the provisions of
Section 13.04, all moneys received by the Trustee or any paying agent shall,
until used or applied as herein provided, be held in trust for the purposes for
which they were received. Neither the Trustee nor any paying agent shall be
under any liability for interest on any moneys received by it hereunder except
such as it may agree in writing with the Corporation to pay thereon. So long as
no Event of Default shall have occurred and be continuing, all interest allowed
on any such moneys shall be paid from time to time upon the written order of the
Corporation, signed by any one of the Chairman of the Board, the Chief Executive
Officer, the Vice Chairman, the President, a Vice President, the Secretary, an
Assistant Secretary, the Treasurer or an Assistant Treasurer of the Corporation.
SECTION 8.06. Compensation and Expenses of Trustee. The Corporation
covenants and agrees to pay to the Trustee from time to time, and the Trustee
shall be entitled to, reasonable compensation as shall be agreed upon from time
to time in writing (which shall not be limited by any provision of law in regard
to the compensation of a trustee of an express trust), and the Corporation will
pay or reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any of the provisions of this Indenture (including the reasonable compensation
and the expenses and disbursements of its counsel and of all persons not
regularly in its employ) except any such expense, disbursement or advance as may
arise from its negligence or willful misconduct. The Corporation also covenants
to indemnify the Trustee and any predecessor Trustee for, and to hold it
harmless against, any loss, claim, damage, liability or expense incurred without
negligence or willful misconduct on the part of the Trustee and arising out of
or in connection with the acceptance or administration of this trust or the
performance of its duties hereunder, including the reasonable costs and expenses
of defending itself against any claim of liability in the premises. The
obligations of the Corporation under this Section 8.06 to compensate the Trustee
and to pay or reimburse the Trustee for expenses, disbursements and advances
shall constitute additional indebtedness hereunder. Such additional indebtedness
shall have a prior claim to that of the Securities upon all property and funds
held or collected by the Trustee as such, except funds held in trust for the
benefit of the holders of particular Securities The provisions of this section
shall survive the termination of this Indenture.
SECTION 8.07. Officers Certificate as Evidence. Subject to the provisions
of Section 8.01, whenever in the administration of the provisions of this
Indenture the Trustee shall deem it necessary or desirable that a matter be
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proved or established prior to taking, suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or willful misconduct
on the part of the Trustee, be deemed to be conclusively proved and established
by an Officers' Certificate delivered to the Trustee, and such Certificate, in
the absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.
SECTION 8.08. Conflicting Interest of Trustee. (a) If the Trustee has or
shall acquire any conflicting interest with respect to the Securities of any
series, as defined in the Trust Indenture Act of 1939. It shall, within 90 days
after ascertaining that it has such conflicting interest, either eliminate such
conflicting interest or resign with respect to the Securities of that series in
the manner and with the effect prescribed by the Trust Indenture Act of 1939.
SECTION 8.09. Eligibility of Trustee. The Trustee hereunder shall at all
times be a corporation organized and doing business under the laws of the United
States or any State or Territory thereof or of the District of Columbia
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least fifty million dollars and subject to supervision
or examination by Federal, State, Territorial, or District of Columbia
authority. If such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section 8.09, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section 8.09, the Trustee shall resign immediately in the
manner and with the effect specified in Section 8.10.
SECTION 8.10. Resignation or Removal of Trustee. (a) The Trustee may at any
time resign with respect to the Securities of one or more series by giving
written notice of such resignation to the Corporation and by mailing notice
thereof to the holders of Securities of such series at their addresses as they
shall appear on the registry books of the Corporation. Upon receiving such
notice of resignation, the Corporation shall promptly appoint a successor
trustee or trustees with respect to the Securities of such series by written
instrument, in duplicate, executed by order of the Board of Directors, one copy
of which instrument shall be delivered to the resigning Trustee and one copy to
each successor trustee. If no successor trustee shall have been so appointed and
have accepted appointment within sixty days after the mailing of such notice of
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resignation to the Securityholders of such series, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor
trustee, or any Securityholder who has been a bona fide holder of a Security or
Securities of such series for at least six months may, subject to the provisions
of Section 7.09, on behalf of himself and all others similarly situated,
petition any such court for the appointment of a successor trustee. Such court
may thereupon, after such notice, if any, as it may deem proper and prescribe,
appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(1) the Trustee shall fail to comply with the provisions of subsection
(a) of Section 8.08 after written request therefor by the Corporation or by
any Securityholder who has been a bona fide holder of a Security or
Securities for at least six months, or
(2) the Trustee shall cease to be eligible in accordance with the
provisions of Section 8.09 and shall fail to resign after written request
therefor by the Corporation or by any such Securityholder, or
(3) the Trustee shall become incapable of acting, or shall be adjudged
a bankrupt or insolvent, or a receiver of the Trustee or of its property
shall be appointed, or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, the Corporation may remove the Trustee with respect to
to all Securities and appoint a successor trustee or trustees by written
instrument, in duplicate, executed by order of the Board of Directors, one copy
of which instrument shall be delivered to the Trustee so removed and one copy to
each successor trustee, or, subject to the provisions of Section 7.09, any
Securityholder who has been a bona fide holder of a Security or Securities for
at least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor trustee or trustees. Such court may thereupon,
after such notice, if any, as it may deem proper and prescribe, remove the
Trustee and appoint a successor trustee or trustees.
(c) The holders of a majority in aggregate principal amount of the
Securities of any series at the time outstanding may at any time remove the
Trustee with respect to such series and nominate a successor trustee.
(d) Any resignation or removal of the Trustee and any appointment of a
successor trustee pursuant to any of the provisions of this Section 8.10 shall
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become effective upon acceptance of appointment by the successor trustee as
provided in Section 8.11.
SECTION 8.11. Acceptance by Successor Trustee. In the case of the
appointment hereunder of a successor trustee with respect to all Securities, any
successor trustee so appointed as provided in Section 8.10 shall execute,
acknowledge and deliver to the Corporation and to its predecessor trustee an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor trustee shall become effective and such successor
trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, duties and obligations of its predecessor hereunder,
with like effect as if originally named as trustee herein: nevertheless, on the
written request of the Corporation or of the successor trustee, the trustee
ceasing to act shall, upon payment of any amounts then due it pursuant to the
provisions of Section 8.06, execute and deliver an instrument transferring to
such successor trustee all the rights and powers of the trustee so ceasing to
act. In case of the appointment hereunder of a successor trustee with respect to
the Securities of one or more (but not all) series, the Corporation, the
predecessor trustee and each successor trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to vest in, or
confirm to, each successor trustee all the rights, powers, duties and
obligations of the predecessor trustee with respect to the Securities of that or
those series to which the appointment of such successor trustee relates, (2) if
the predecessor trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, duties and obligations of the predecessor trustee
with respect to the Securities of that or those series as to which the
predecessor trustee is not retiring shall continue to be vested in the
predecessor trustee, and (3) shall add to or change any of the provisions of the
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such trustees
co-trustees of the same trust and that each such trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such trustee; and upon the execution and delivery of
such supplemental indenture the resignation or removal of the predecessor
trustee shall become effective to the extent provided therein and each such
successor trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, duties and obligations of the predecessor
trustee with respect to the Securities of that or those series to which the
appointment of such successor trustee relates; but, nevertheless, on the written
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request of the Corporation or any successor trustee, such predecessor trustee
shall, upon payment of any amounts then due pursuant to Section 8.06 hereof,
duly assign, transfer and deliver to such successor trustee all property and
money held by such predecessor trustee hereunder with respect to the Securities
of that or those series to which the appointment of such successor trustee
relates. Upon request of any such successor trustee, the Corporation shall
execute any and all instruments in writing in order more fully and certainly to
vest in and confirm to such successor trustee all such rights, powers and trusts
referred to in the two preceding sentences. Any trustee ceasing to act shall,
nevertheless, retain a prior claim upon all property or funds held or collected
by such trustee to secure any amounts then due it pursuant to the provisions of
Section 8.06.
No successor trustee shall accept appointment as provided in this Section
8.11 unless at the time of such acceptance such successor trustee shall be
qualified under the provisions of Section 8.08 and eligible under the provisions
of Section 8.09.
Upon acceptance of appointment by a successor trustee as provided in this
Section 8.11, the Corporation shall mail notice of the succession of such
trustee hereunder to all holders of Securities of the series affected as the
names and addresses of such holders appear on the registry books of the
Corporation. If the Corporation fails to mail such notice in the prescribed
manner within 30 days after the acceptance of appointment by the successor
trustee, the successor trustee shall cause such notice to be mailed at the
expense of the Corporation.
SECTION 8.12. Succession by Merger, etc. Any corporation into which the
Trustee may be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Trustee shall be a party or any corporation succeeding to all or substantially
all of the corporate trust business of the Trustee, shall be the successor of
the Trustee hereunder without the execution or filing of any paper or any
further act on the part of any of the parties hereto.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities shall have been
authenticated but not delivered, any such successor to the Trustee may adopt the
certificate of authentication of any predecessor trustee, and deliver such
Securities so authenticated; and in case at that time any of the Securities
shall not have been authenticated, any successor to the Trustee may authenticate
such Securities either in the name of any predecessor hereunder or in the name
of the successor trustee; and in all such cases such certificates shall have the
full force which it is anywhere in the Securities or in this Indenture provided
that the certificate of the Trustee shall have; provided, however, that the
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right to adopt the certificate of authentication of any predecessor Trustee or
authenticate Securities in the name of any predecessor Trustee shall apply only
to its successor or successors by merger, conversion or consolidation.
SECTION 8.13. Trustees Application for Instructions from The Corporation.
The Trustee may apply in writing, sent by registered or certified mail, for
instructions from the Corporation regarding actions to be taken or omitted under
the Indenture, and as part of the application, the Trustee may set forth the
action proposed to be taken or omitted by it, and the date on and/or after which
such action shall be taken or such omission shall be effective. The Trustee
shall not be liable for any action taken by, or omission of, the Trustee in
accordance with a proposal included in such application on or after the date
specified in such application (which date shall not be less than three Business
Days after the date any officer of the corporation actually receives such
application, unless any such officer shall have consented in writing to any
earlier date) unless prior to taking any such action (or the effective date in
the case of an omission), the Trustee shall have received written instructions
in response to such application specifying the action to be taken or omitted.
ARTICLE NINE
CONCERNING THE SECURITYHOLDERS
SECTION 9.01. Action by Securityholders. Whenever in this Indenture it is
provided that the holders of a specified percentage in aggregate principal
amount of the Securities of any or all series may take any action (including the
making of any demand or request, the giving of any notice, consent or waiver or
the taking of any other action) the fact that at the time of taking any such
action the holders of such specified percentage have joined therein may be
evidenced, subject to Section 10.07, (a) by any instrument or any number of
instruments of similar tenor executed by holders of such Securities in person or
by agent or proxy appointed in writing, or (b) by the record of the holders of
such Securities voting in favor thereof at any meeting of holders of such
Securities duly called and held in accordance with the provisions of Article
Ten, or (c) by a combination of such instrument or instruments and any such
record of such a meeting of holders of such Securities.
SECTION 9.02. Proof of Execution by Securityholders. Subject to the
provisions of Sections 8.01, 8.02 and 10.05, proof of the execution of any
instruments by a Securityholder or his agent or proxy shall be sufficient if
made in accordance with such reasonable rules and regulations as may be
prescribed by the Trustee or in such manner as shall be satisfactory to the
Trustee. The ownership of Securities shall be proved by the registry books of
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the Corporation or by a certificate of the Security registrar.
The record of any Securityholders' meeting shall be proved in the manner
provided in Section 10.06.
SECTION 9.03. Who Are Deemed Absolute Owners. The Corporation, the Trustee,
any paying agent and any Security registrar may deem the person in whose name
any Securities shall be registered upon the registry books of the Corporation to
be, and may treat such person as, the absolute owner of such Security (whether
or not such Security shall be overdue) for the purpose of receiving payment of
or on account of the principal of (and premium, if any) and interest, if any, on
such Security and for all other purposes; and neither the Corporation nor the
Trustee nor any paying agent nor any Security registrar shall be affected by any
notice to the contrary. All such payments so made to any holder for the time
being, or upon his order shall be valid, and, to the extent of the sum or sums
so paid, effective to satisfy and discharge the liability for moneys payable
upon any such Security.
No holder of any beneficial interest in any global Security held on its
behalf by a Depositary shall have any rights under this Indenture with respect
to such global Security, and such Depositary may be treated by the Corporation,
the Trustee, any paying agent and any agent of the Corporation or the Trustee as
the owner of such global Security for all purposes whatsoever. None of the
Corporation, the Trustee, any paying agent or any Security registrar will have
any responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of a global Security
or for maintaining, supervising or reviewing any records related to such
beneficial ownership interests.
SECTION 9.04. Corporation-Owned Securities Disregarded. In determining
whether the holders of the requisite aggregate principal amount of Securities
have concurred in any direction, consent or waiver under this Indenture,
Securities which are owned by the Corporation or any other obligor on the
Securities or by any person directly or indirectly controlling or controlled by
or under direct or indirect common control with the Corporation or any other
obligor on the Securities shall be disregarded and deemed not to be outstanding
for the purpose of any such determination; provided that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, consent or waiver only Securities which a Responsible Officer of the
Trustee actually knows are so owned shall be so disregarded. Securities so owned
which have been pledged in good faith may be regarded as outstanding for the
purposes of this Section 9.04 if the pledgee shall establish to the satisfaction
of the Trustee the pledgee's right to vote such Securities and that the pledgee
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is not a person directly or indirectly controlling or controlled by or under
direct or indirect common control with the Corporation or any such other
obligor. In the case of a dispute as to such right, any decision by the Trustee
taken upon the advice of counsel shall be full protection to the Trustee.
SECTION 9.05. Revocation of Consents; Future Holders Bound. At any time
prior to (but not after) the evidencing to the Trustee, as provided in Section
9.01, of the taking of any action by the holders of the percentage in aggregate
principal amount of the Securities specified in this Indenture in connection
with such action, any holder of a Security the serial number of which is shown
by the evidence to be included in the Securities the holders of which have
consented to such action may, by filing written notice with the Trustee at its
principal office and upon proof of holding as provided in Section 9.02, revoke
such action so far as concerns such Security. Except as aforesaid any such
action taken by the holder of any Security shall be conclusive and binding upon
such holder and upon all future holders and owners of such Security and of any
Security issued in exchange or substitution therefore, irrespective of whether
or not any notation in regard thereto is made upon such Security.
ARTICLE TEN
SECURITYHOLDERS' MEETINGS
SECTION 10.01. Purposes of Meetings. A meeting of holders of Securities of
one or more series may be called at any time and from time to time pursuant to
the provisions of this Article Ten for any of the following purposes:
(1) to give any notice to the Corporation or to the Trustee, or to
give any directions to the Trustee, or to consent to the waiving of any
default hereunder and its consequences, or to take any other action
authorized to be taken by such Securityholders pursuant to any of the
provisions of Article Seven;
(2) to remove the Trustee and nominate a successor trustee pursuant to
the provisions of Article Eight;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 11.02; or
(4) to take any other action authorized to be taken by or on behalf of
the holders of any specified aggregate principal amount of the Securities
of one or more series under any other provision of this Indenture or under
applicable law.
SECTION 10.02. Call of Meetings by Trustee. The Trustee may at any time
call a meeting of holders of Securities of one or more series to take any action
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specified in Section 10.01, to be held at such time and at such place, as the
Trustee shall determine. Notice of every such meeting of the Securityholders,
setting forth the time and place of such meeting and in general terms the action
proposed to be taken at such meeting, shall be mailed to holders of Securities
of each series affected at their addresses as they shall appear on the registry
books of the Corporation. Such notice shall be mailed not less than 20 nor more
than 90 days prior to the date fixed for the meeting.
SECTION 10.03. Call of Meetings by Corporation or Securityholders. In case
at any time the Corporation, pursuant to a Board Resolution, or the holders of
at least ten percent in aggregate principal amount of the Securities of one or
more series then outstanding, shall have requested the Trustee to call a meeting
of Securityholders of Securities of such series, by written request setting
forth in reasonable detail the action proposed to be taken at the meeting, and
the Trustee shall not have mailed the notice of such meeting within 20 days
after receipt of such request, then the Corporation or such Securityholders may
determine the time and the place in said City of Baltimore for such meeting and
may call such meeting to take any action authorized in Section 10.01, by mailing
notice thereof as provided in Section 10.02.
SECTION 10.04. Qualifications for Voting. To be entitled to vote at any
meeting of holders of Securities of any series a person shall (a) be a holder of
one or more Securities of such series or (b) be a person appointed by an
instrument in writing as proxy by a holder of one or more Securities of such
series. The only persons who shall be entitled to be present or to speak at any
meeting of Securityholders shall be the persons entitled to vote at such meeting
and their counsel and any representatives of the Trustee and its counsel and any
representatives of the Corporation and its counsel.
SECTION 10.05. Regulations. Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as are necessary or
as it may deem advisable for any meeting of Securityholders, in regard to proof
of the holding of Securities and of the appointment of proxies, and in regard to
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall think
fit.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Corporation or by the Securityholders as provided in Section 10.03, in which
case the Corporation or the Securityholders calling the meeting, as the case may
be, shall in like manner appoint a temporary chairman. A permanent chairman and
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a permanent secretary of the meeting shall be elected by majority vote of the
meeting.
Subject to the provisions of Section 9.04, at any meeting each
Securityholder or proxy shall be entitled to one vote for each $1,000 principal
amount (in the case of Discounted Securities, such principal amount to be
determined as provided in the definition of the term "outstanding") of
Securities held or represented by such Securityholder; provided, however, that
no vote shall be cast or counted at any meeting in respect of any Security
challenged as not outstanding and ruled by the chairman of the meeting to be not
outstanding. The chairman of the meeting shall have no right to vote other than
by virtue of Securities held by him or instruments in writing as aforesaid duly
designating him as the person to vote on behalf of other Securityholders. Any
meeting of Securityholders duly called pursuant to the provisions of Section
10.02 or 10.03 may be adjourned from time to time by a majority of those
present. whether or not constituting a quorum, and the meeting may be held as so
adjourned without further notice.
SECTION 10.06. Voting. The vote upon any resolution submitted to any
meeting of Securityholders shall be by written ballots on which shall be
subscribed the signatures of the holders of Securities or of their
representatives by proxy and the principal amount of the Securities held or
represented by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or against
any resolution and who shall make and file with the secretary of the meeting
their verified written reports in duplicate of all votes cast at the meeting. A
record in duplicate of the proceedings of each meeting of Securityholders shall
be prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having knowledge of the
facts setting forth a copy of the notice of the meeting and showing that said
notice was mailed as provided in Section 10.02. The record shall show the
principal amount of the Securities voting in favor of or against any resolution.
The record shall be signed and verified by the affidavits of the permanent
chairman and secretary of the meeting and one of the duplicates shall be
delivered to the Corporation and the other to the Trustee to be preserved by the
Trustee.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
SECTION 10.07. Written Consent in Lieu of Meeting. The written
authorization or consent of the requisite percentage of Securityholders herein
provided, entitled to vote at any such meeting, evidenced as provided in Article
Nine and filed with the Trustee shall be effective in lieu of a meeting of
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Securityholders, with respect to any matter provided for in this Article Ten.
ARTICLE ELEVEN
SUPPLEMENTAL INDENTURES
SECTION 11.01. Supplemental Indentures Without Consent of Securityholders.
The Corporation, when authorized by a resolution of the Board of Directors, and
the Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto for one or more of the following purposes:
(a) to evidence the succession of another corporation to the
Corporation, or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Corporation
pursuant to Article Twelve hereof;
(b) to add to the covenants of the Corporation such further covenants,
restrictions or conditions for the protection of the holders of the
Securities as the Board of Directors and the Trustee shall consider to be
for the protection of the holders of Securities, and to make the
occurrence, or the occurrence and continuance, of a default in any of such
additional covenants, restrictions or conditions a default or an Event of
Default permitting the enforcement of all or any of the several remedies
provided in this Indenture as herein set forth; provided, however, that in
respect of any such additional covenant, restriction or condition such
supplemental indenture may provide for a particular period of grace after
default (which period may be shorter or longer than that allowed in the
case of other defaults) or may provide for an immediate enforcement upon
such default or may limit the remedies available to the Trustee upon such
default;
(c) to provide for the issuance under this Indenture of Securities in
coupon form (including Securities registrable as to principal only) and to
provide for exchangeability of such Securities with the Securities of the
same series issued hereunder in fully registered form and to make all
appropriate changes for such purpose;
(d) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any
supplemental indenture or to make such other provisions in regard to
matters or questions arising under this Indenture which shall not adversely
affect the interest of the holders of the Securities;
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(e) to add to the conditions, limitations and restrictions on the
authorized amount, terms or purposes of issue, authentication and delivery
of Securities, as herein set forth, other conditions, limitations and
restrictions thereafter to be observed; or
(f) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the Trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 8.11 hereof.
The Trustee is hereby authorized to join with the Corporation in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer and assignment of any property thereunder, but the Trustee
shall not be obligated to, but may in its discretion, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section
11.01 may be executed by the Corporation and the Trustee without the consent of
the holders of any of the Securities at the time outstanding, notwithstanding
any of the provisions of Section 11.02.
SECTION 11.02. Supplemental Indentures with Consent of Securityholders.
With the consent (evidenced as provided in Section 9.01) of the holders of not
less than 66 2/3% in aggregate principal amount of the Securities of all series
affected by such supplemental indenture (voting as one class) at the time
outstanding, the Corporation, when authorized by a resolution of the Board of
Directors, and the Trustee may from time to time and at any time enter into an
indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of any supplemental indenture or of modifying in any manner
the rights of the holders of the Securities of each such series; provided,
however, that no such supplemental indenture shall extend the fixed maturity of
any Security, or reduce the rate or change the method to be used in establishing
the rate or extend the time of payment of interest thereon, or reduce the
principal amount thereof, or reduce any premium payable upon the redemption
thereof, or reduce the amount of the principal of a Discounted Security that
would be due and payable upon a declaration of acceleration of the maturity
thereof pursuant to Section 7.01, or make the principal thereof or premium or
interest thereon payable in any coin or currency other than that provided in
such Securities, without the consent of the holder of each Security so affected,
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or (ii) reduce the aforesaid percentage of Securities, the holders of which are
required to consent to any such supplemental indenture, without the consent of
the holders of all Securities of the series affected then outstanding. A
supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the holders of Securities of any other series.
Upon the request of the Corporation, accompanied by a Board Resolution
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of Securityholders as
aforesaid, the Trustee shall join with the Corporation in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated to, enter
into such supplemental indenture.
It shall not be necessary for the consent of the Securityholders under this
Section 11.02 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
SECTION 11.03. Compliance with Trust Indenture Act; Effect of Supplemental
Indenture. Any supplemental indenture executed pursuant to the provisions of
this Article Eleven shall comply with the Trust Indenture Act of 1939, as then
in effect. Upon the execution of any supplemental indenture pursuant to the
provisions of this Article Eleven, this Indenture shall be and be deemed to be
modified and amended in accordance therewith and the respective rights,
limitations of rights, obligations, duties and immunities under this Indenture
of the Trustee, the Corporation and the holders of Securities of the series
affected shall thereafter be determined, exercised and enforced hereunder
subject in all respects to such modifications and amendments and all the terms
and conditions of any such supplemental indenture shall be and be deemed to be
part of the terms and conditions of this Indenture for any and all purposes.
SECTION 11.04. Notation on Securities. Securities authenticated and
delivered after the execution of any supplemental indenture pursuant to the
provisions of this Article Eleven may bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Corporation shall so determine, new Securities so modified as to conform, in the
opinion of the Trustee and the Board of Directors, to any modification of this
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Indenture contained in any such supplemental indenture, may be prepared and
executed by the Corporation, authenticated by the Trustee and delivered in
exchange for the Securities then outstanding.
SECTION 11.05. Evidence of Compliance of Supplemental Indenture to Be
Furnished Trustee. The Trustee, subject to the provisions of Sections 8.01 and
8.02, shall receive an Officers' Certificate and an Opinion of Counsel as
conclusive evidence that any supplemental indenture executed pursuant hereto
complies with the requirements of this Article Eleven.
ARTICLE TWELVE
CONSOLIDATION, MERGER AND SALE
SECTION 12.01. Corporation May Consolidate, etc., on Certain Terms. Nothing
contained in this Indenture or in any of the Securities shall prevent any
consolidation or merger of the Corporation with or into any other corporation or
corporations (whether or not affiliated with the Corporation), or successive
consolidations or mergers in which the Corporation or its successor or
successors shall be a party or parties, or shall prevent any sale or conveyance
of all or substantially all the property of the Corporation to any other
corporation (whether or not affiliated with the Corporation) authorized to
acquire and operate the same; provided, however, and the Corporation hereby
covenants and agrees, that upon any such consolidation, merger, sale or
conveyance, the due and punctual payment of the principal of (and premium, if
any) and interest, if any, on all of the Securities, according to their tenor,
and the due and punctual performance and observance of all of the covenants and
conditions of this Indenture to be performed by the Corporation, shall be
expressly assumed by supplemental indenture satisfactory in form to the Trustee,
executed and delivered to the Trustee, by the corporation (if other than the
Corporation) formed by such consolidation, or into which the Corporation shall
have been merged, or by the corporation which shall have acquired such property.
SECTION 12.02. Successor Corporation to Be Substituted. In case of any such
consolidation, merger, sale or conveyance and upon the assumption by the
successor corporation, by supplemental indenture, executed and delivered to the
Trustee and satisfactory in form to the Trustee, of the due and punctual payment
of the principal of (and premium, if any) and interest, if any, on all of the
Securities and the due and punctual performance of all of the covenants and
conditions of this Indenture to be performed by the Corporation, such successor
corporation shall succeed to and be substituted for the Corporation, with the
same effect as if it had been named herein as the Corporation. Such successor
corporation thereupon may cause to be signed, and may issue either in its own
name or in the name of Constellation Energy Group, Inc. any or all of the
Securities issuable hereunder which theretofore shall not have been signed by
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the Corporation and delivered to the Trustee; and, upon the order of such
successor corporation instead of the Corporation and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Trustee shall
authenticate and shall deliver any Securities which previously shall have been
signed and delivered by the officers of the Corporation to the Trustee for
authentication, and any Securities which such successor corporation thereafter
shall cause to be signed and delivered to the Trustee for that purpose. All the
Securities of a particular series so issued shall in all respects have the same
legal rank and benefit under this Indenture as the Securities of such series
theretofore or thereafter issued in accordance with the terms of this Indenture
as though all of such Securities had been issued at the date of the execution
hereof.
Nothing contained in this Indenture or in any of the Securities shall
prevent the Corporation from merging into itself any other corporation (whether
or not affiliated with the Corporation) or acquiring by purchase or otherwise
all or any part of the property of any other corporation (whether or not
affiliated with the Corporation), provided that, immediately after such merger
or acquisition, the Corporation shall not be in default in the performance or
observance of any of the terms, covenants and conditions of this Indenture to be
kept or performed by it.
SECTION 12.03. Opinion of Counsel to Be Given To Trustee. The Trustee,
subject to Sections 8.01 and 8.02, shall receive an Opinion of Counsel as
conclusive evidence that any such consolidation, merger, sale or conveyance and
any such assumption complies with the provisions of this Article.
ARTICLE THIRTEEN
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 13.01. Discharge of Indenture. When (a) the Corporation shall
deliver to the Trustee for cancellation all Securities theretofore authenticated
(other than any Securities which shall have been destroyed, lost or stolen and
which shall have been replaced or paid as provided in Section 3.05) and not
theretofore cancelled, or (b) all the Securities not theretofore delivered to
the Trustee for cancellation shall have become due and payable, or are by their
terms to become due and payable within one year and the Corporation shall
deposit with the Trustee or any paying agent, in trust, funds sufficient to pay
at maturity all of the Securities (other than any Securities which shall have
been mutilated, destroyed, lost or stolen and which shall have been replaced or
paid as provided in Section 3.05) not theretofore delivered to the Trustee for
cancellation, including principal (and premium, if any) and interest, if any,
due or to become due to such date of maturity, but excluding, however, the
amount of any moneys for the payment of the principal of (and premium, if any)
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or interest, if any, on the Securities (1) theretofore deposited with the
Trustee or any paying agent and repaid by the Trustee or any paying agent to the
Corporation in accordance with the provisions of Section 13.04, or (2) paid to
any State or to the District of Columbia pursuant to its unclaimed property or
similar laws, and if in either case the Corporation shall also pay or cause to
be paid all other sums payable hereunder by the Corporation, then this Indenture
shall cease to be of further effect, and the Trustee, on demand of the
Corporation accompanied by an Officers' Certificate and an Opinion of Counsel as
required by Section 16.05 and at the cost and expense of the Corporation, shall
execute proper instruments acknowledging satisfaction of and discharging this
Indenture. The Corporation, however, hereby agrees to reimburse the Trustee for
any costs or expenses thereafter reasonably and properly incurred by the Trustee
in connection with this Indenture or the Securities.
SECTION 13.02. Deposited Moneys to Be Held in Trust by Trustee. All moneys
deposited with the Trustee or any paying agent pursuant to Section 13.01 shall
be held in trust and applied by it to the payment, either directly or through
any paying agent (including the Corporation if acting as its own paying agent),
to the holders of the particular Securities for the payment of which such moneys
have been deposited with the Trustee, or any paying agent, of all sums due and
to become due thereon for principal (and premium, if any) and interest.
SECTION 13.03. Paying Agent to Repay Moneys Held. Upon the satisfaction and
discharge of this Indenture all moneys then held by any paying agent of the
Securities (other than the Trustee) shall, upon demand of the Corporation, be
repaid to it or paid to the Trustee, and thereupon such paying agent shall be
released from all further liability with respect to such moneys.
SECTION 13.04. Return of Unclaimed Moneys. Any moneys deposited with or
paid to the Trustee for payment of the principal of (or premium, if any) or
interest on Securities of any series and not applied but remaining unclaimed by
the holders of such Securities for two years after the date upon which the
principal of (or premium, if any) or interest on such Securities, as the case
may be, shall have become due and payable, shall on written request of the
Corporation be repaid to the Corporation by the Trustee; and the holder of any
of such Securities shall thereafter look only to the Corporation for any payment
which such holder may be entitled to collect. Any reference to the Trustee in
this Section 13.04 shall be deemed to also include any entity designated by the
Corporation with the consent of the Trustee to act as its agent for the
performance of all or any of its duties under this Section.
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ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 14.01. Indenture and Securities Solely Corporate Obligations. No
recourse for the payment of the principal of (or premium, if any) or interest on
any Security, or for any claim based thereon or otherwise in respect thereof,
and no recourse under or upon any obligation, covenant or agreement of the
Corporation in this Indenture or in any supplemental indenture, or in any
Security, or because of the creation of any indebtedness represented thereby,
shall be had against any incorporator, stockholder, officer or director, as
such, past, present or future, of the Corporation or of any successor
corporation, either directly or through the Corporation or any successor
corporation, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise; it being expressly
understood that all such liability is hereby expressly waived and released as a
condition of, and as a consideration for, the execution of this Indenture and
the issue of the Securities.
ARTICLE FIFTEEN
SINKING FUNDS
SECTION 15.01. General. Any redemption of Securities of any series under
any sinking fund as required or permitted by the terms of any Securities duly
issued pursuant to this Indenture shall be made in accordance with such terms
and this Article Fifteen.
The Securities of any series may be subject to redemption pursuant to a
sinking fund, in whole or in part, as set forth in
the form of Security for such series.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment," and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional sinking
fund payment." If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 15.02 hereof. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
SECTION 15.02. Satisfaction of Sinking Fund Payments with Securities. The
Corporation (1) may deliver to the Trustee for cancellation outstanding
Securities of a series (other than any previously called for redemption) and (2)
may apply as a credit Securities of a series which have been redeemed either at
the election of the Corporation pursuant to the terms of such Securities or
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through the application of permitted optional sinking fund payments pursuant to
the terms of such Securities, in each case in satisfaction of all or any part of
any sinking fund payment with respect to the Securities of such series required
to be made pursuant to the terms of such Securities as provided for by the terms
of such series; provided that such Securities have not been previously so
credited. Such Securities shall be received and credited for such purpose by the
Trustee at the redemption price specified in such Securities for redemption
through operation of the sinking fund and the amount of such sinking fund
payment shall be reduced accordingly.
SECTION 15.03. Redemption of Securities for Sinking Fund. Not less than
sixty days prior to each sinking fund payment date for any series of Securities,
the Corporation will deliver to the Trustee an Officers' Certificate specifying
the amount of the next ensuing sinking fund payment for that series pursuant to
the terms of that series, the portion thereof, if any, which is to be by payment
of cash and the portion thereof, if any, which is to be satisfied by delivering
and crediting Securities of that series as permitted by Section 15.02 and will
also deliver to the Trustee any Securities to be so delivered if not theretofore
delivered. The Trustee shall select the Securities to be redeemed upon such
sinking fund payment date in the manner specified in Section 4.03 and cause
notice of the redemption thereof to be given in the manner provided in Section
4.04. Such notice having been duly given, the redemption of such Securities
shall be made upon the terms and in the manner stated in Sections 4.05 and 4.06.
ARTICLE SIXTEEN
MISCELLANEOUS PROVISIONS
SECTION 16.01. Provisions Binding on Corporation's Successors. All the
covenants, stipulations, promises and agreements in this Indenture contained by
the Corporation shall bind its successors and assigns whether so expressed or
not.
SECTION 16.02. Official Acts by Successor Corporation. Any act or
proceeding by any provision of this Indenture authorized or required to be done
or performed by any board, committee or officer of the Corporation shall and may
be done and performed with like force and effect by the like board, committee or
officer of any corporation that shall at the time be the lawful sole successor
of the Corporation.
SECTION 16.03. Addresses for Notices, etc. Any notice or demand which by
any provision of this Indenture is required or permitted to be given or served
by the Trustee or by the holders of Securities on the Corporation may be given
or served by being deposited postage prepaid in a post office letter box
addressed (until another address is filed by the Corporation with the Trustee)
to Constellation Energy Group, Inc., P.O. Box 1475, Baltimore, Maryland 21203,
Attention: Treasurer. Deliveries by hand may be made by being brought to the
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Corporation at, 39 W. Lexington Street, Baltimore, Maryland 21201, Attention:
Treasurer. Any notice, direction, request or demand by any Securityholder to or
upon the Trustee shall be deemed to have been sufficiently given or made, for
all purposes, if given or made in writing at the Principal Office of the
Trustee, addressed to the attention of its Corporate Trust Administration.
SECTION 16.04. New York Contract. This Indenture and each Security shall be
deemed to be a contract made under the laws of the State of New York, and for
all purposes shall be governed by and construed in accordance with the laws of
said State.
SECTION 16.05. Evidence of Compliance with Conditions Precedent. Upon any
application or demand by the Corporation to the Trustee to take any action under
any of the provisions of this Indenture, the Corporation shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
Each certificate or opinion provided for in this Indenture and delivered to
the Trustee with respect to compliance with a condition or covenant provided for
in this Indenture shall include (1) a statement that the person making such
certificate or opinion has read such covenant or condition; (2) a brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinion contained in such certificate or opinion are
based; (3) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and (4) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
SECTION 16.06. Legal Holidays. In any case where the date of maturity of
interest on or premium, if any on, or principal of the Securities is not a
business day, then payment of such interest on or premium, if any on, or
principal of the Securities need not be made on such date but may be made on the
next succeeding business day with the same force and effect as if made on the
date of maturity and no interest shall accrue for the period from and after such
date of maturity.
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SECTION 16.07. Trust Indenture Act to Control. If and to the extent that
any provision of this Indenture limits, qualifies or conflicts with another
provision included in this Indenture which is required to be included in this
Indenture by any of Sections 310 to 317, inclusive, of the Trust Indenture Act
of 1939, such required provision shall control.
SECTION 16.08. Table of Contents, Headings, etc. The table of contents and
the titles and headings of the articles and sections of this Indenture have been
inserted for convenience of reference only, are not to be considered a part
hereof, and shall in no way modify or restrict any of the terms or provisions
hereof.
SECTION 16.09. Execution in Counterparts. This Indenture may be executed in
any number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
The Bank of New York, as Trustee, hereby accepts the trusts in this
Indenture declared and provided, upon the terms and conditions herein above set
forth.
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IN WITNESS WHEREOF, Constellation Energy Group, Inc. has caused this
Indenture to be signed in its corporate name and acknowledged by its Chairman of
the Board, its Chief Executive Officer, Vice Chairman, its President or one of
its Vice Presidents and The Bank of New York, Trustee, has caused this Indenture
to be signed by one of its authorized signatories, as of the day and year first
written above.
CONSTELLATION ENERGY GROUP, INC.
By: /s/ David A. Brune
-------------------
David A. Brune
Vice President
THE BANK OF NEW YORK
By: /s/ Mary Lewicki
--------------------
Mary Lewicki
Assistant Vice President
54
Exhibit 4(b)
FIXED-RATE MEDIUM TERM NOTE
FRONT
REGISTERED REGISTERED
No. FXR ___
CUSIP
CONSTELLATION ENERGY GROUP, INC.
INCORPORATED UNDER THE LAWS OF THE STATE OF MARYLAND
MEDIUM-TERM NOTE, SERIES A
(FIXED-RATE)
[If this Note is registered in the name of The Depository Trust Company (the
"Depositary") (55 Water Street, New York, New York) or its nominee, this Note
may not be transferred except as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary unless and until
this Note is exchanged in whole or in part for Notes in definitive form. Unless
this certificate is presented by an authorized representative of the Depositary
to the Company or its agent for registration of transfer, exchange or payment,
and any certificate issued is registered in the name of Cede & Co. or such other
name as requested by an authorized representative of the Depositary and any
payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner
hereof, Cede & Co. has an interest herein.]
- -----------------------------------------------------------------
PRINCIPAL AMOUNT: _____________________
INTEREST RATE: ______________________
STATED MATURITY: ______________________
ORIGINAL ISSUE DATE: ______________________
ISSUE PRICE: ______________________
REDEEMABLE
AT THE OPTION OF THE REDEMPTION PRICES
COMPANY ON OR AFTER (% OF PRINCIPAL AMOUNT)
_________________________ ________________________
_________________________ ________________________
_________________________ ________________________
- 1 -
<PAGE>
SUBJECT TO REPURCHASE
AT THE OPTION REPURCHASE PRICES
OF THE HOLDER ON (% OF PRINCIPAL AMOUNT)
__________________________ __________________________
__________________________ __________________________
__________________________ __________________________
__________________________ __________________________
[Remarketing provisions, if any, to be included here]
__________________________________________________________________________
Constellation Energy Group, Inc., a Maryland corporation (herein called the
"Company", which term includes any successor corporation under the Indenture, as
hereinafter defined), for value received, promises to pay to Cede & Co. or its
registered assigns, the principal sum of
_________________________________________________________ DOLLARS on the Stated
Maturity shown above and to pay interest on said principal sum from the Original
Issue Date shown above if interest has not been paid on this Note or from the
most recent Interest Payment Date for which interest has been paid or duly
provided for, at the fixed rate per annum shown above, semi-annually on May 1
and November 1 (the "Interest Payment Date(s)") of each year until the Stated
Maturity or upon redemption or repurchase of this Note. Each payment of interest
payable on each Interest Payment Date and at Stated Maturity or, if applicable,
upon redemption or repurchase shall include interest to, but excluding the
relevant Interest Payment Date and the date of Stated Maturity or redemption,
respectively. Said interest shall be computed on the basis of a 360-day year of
twelve 30-day months. In the event this Note is issued between a Record Date
(the April 15 and October 15 next preceding the May 1 and November 1 Interest
Payment Dates) and an Interest Payment Date or on an Interest Payment Date, the
first day that interest shall be payable will be on the Interest Payment Date
following the next succeeding Record Date. In the event of a default in the
payment of interest, interest will be payable as provided in that certain
Indenture dated as of __________, 1999 (the "Indenture"), by and between the
Company and The Bank of New York, a corporation duly organized and existing
under the laws of the State of New York, as Trustee (herein called the
"Trustee," which term includes any successor Trustee under the Indenture).
Pursuant to the provisions of the Indenture, the Company will maintain an
agency at The Bank of New York in The City of New York, New York (the "Bank"),
or at such other agencies as may from time to time be designated, where the
Notes may be presented for payment, for registration of transfer and exchange,
and where notices or demands to, or upon, the Company may be served.
The interest so payable on any May 1 or November 1 will, subject to certain
exceptions provided in the Indenture, be paid to the person in whose name this
Note is registered at the close of business on the Record Date for such Interest
Payment Date, which shall be the April 15 and October 15 next preceding the May
1 and November 1 Interest Payment Dates; provided, however, that interest
payable at Stated Maturity or, if applicable, upon redemption or repurchase,
shall be payable to the person to whom principal shall be payable. Payment of
the principal of and interest on this Note will be made at the Bank
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in U.S. dollars; provided, however, that payments of interest (other than any
interest payable at Stated Maturity or upon redemption or repurchase) may be
made at the option of the Company (i) by checks mailed to the addresses of the
persons entitled thereto as such addresses shall appear in the register of the
Notes or (ii) by wire transfer to persons who are holders of record at such
other addresses that have been filed with the Bank on or prior to the Record
Date.
Payment of the principal, premium, if any, and interest payable at Stated
Maturity, or, if applicable, upon redemption or repurchase, on this Note will be
made in immediately available funds at the request of the holder provided that
this Note is presented to the Bank in time for the Bank to make such payments in
such funds in accordance with its normal procedures.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth at
this place.
Unless the certificate of authentication hereon has been executed by or on
behalf of the Trustee or a duly designated authentication agent by manual
signature, this Note shall not be entitled to any benefit under said Indenture,
or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, Constellation Energy Group, Inc. has caused this
instrument to be executed in its corporate name with the manual or facsimile
signature of its President or a Vice President and a facsimile of its corporate
seal to be imprinted hereon, attested by the manual or facsimile signature of
its Secretary or an Assistant Secretary.
Dated:
CONSTELLATION ENERGY GROUP, INC.
By: ____________________
President
ATTEST:
____________________ [SEAL]
Secretary
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of
the series designated herein
issued under the Indenture
described herein.
Dated: _____________________
THE BANK OF NEW YORK
By: ____________________
Authorized Signatory
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<PAGE>
FORM OF FIXED-RATE MEDIUM-TERM NOTE
(REVERSE)
CONSTELLATION ENERGY GROUP, INC.
MEDIUM-TERM NOTE, SERIES A
(FIXED RATE)
This Note is one of a duly authorized issue of debt securities (the
"Securities") of the Company, of a series designated as its Medium-Term Notes,
Series A (herein called the "Notes"), limited (except as otherwise provided in
the Indenture) in aggregate principal amount to $500,000,000, issued and to be
issued under the Indenture, to which Indenture and all relevant indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, obligations, duties and immunities thereunder of the Company, the
Trustee, the Bank and the Securityholders and the terms upon which the Notes
are, and are to be, authenticated and delivered. The Securities, of which the
Notes constitute a series, may be issued in one or more series, which different
series may be issued in various aggregate principal amounts, may mature at
different times, may bear interest at different rates, may be subject to
different covenants and Events of Default and may otherwise vary as in the
Indenture provided. All capitalized terms not otherwise defined herein shall
have the definitions assigned to them in the Indenture.
This Note may not be redeemed by the Company prior to Stated Maturity
unless otherwise set forth on the face hereof. Notwithstanding Section 4.03 of
the Indenture, pursuant to Section 4.01 thereof, and if so indicated on the face
of this Note, this Note may be redeemed at the option of the Company on any date
on or after the date set forth on the face hereof in whole or in part in
increments of $1,000, at a redemption price or prices designated on the face
hereof to be redeemed together with interest thereon payable to the date fixed
for redemption. This Note may be so redeemed in whole or in part whether or not
other Notes of the same series are redeemed.
Notice of redemption by the Company will be given by the Company by mail to
holders of the Notes to be redeemed, not less than 30 nor more than 60 days
prior to the date fixed for redemption, all as provided in the Indenture. The
Bank may carry out the responsibilities to be performed by the Trustee required
by Article Four of the Indenture.
The Company is not required to repurchase Notes from holders prior to
Stated Maturity unless otherwise set forth on the face hereof. If so indicated
on the face hereof, this Note may be repurchased by the Company at the option of
the holder on the dates and at the prices designated thereon, in whole or in
part in increments of $1,000, together with interest payable to the repurchase
date. For book-entry notes, unless otherwise specified on the face of this Note,
holders must deliver written notice to the Bank at least 30, but no more than
60, days prior to the date of repurchase, but no later than 5:00 p.m. New York
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City time on the last day for giving notice. The written notice must specify the
principal amount to be repurchased and must be signed by a duly authorized
officer of the Depositary participant (signature guaranteed). For definitive
notes, unless otherwise specified on the face of this Note, holders must
complete the "Option to Elect Repayment" on the reverse of this Note and then
deliver this Note to the Bank at least 30, but no more than 45, days prior to
the date of repurchase, but no later than 5:00 p.m. New York City time on the
last day for giving notice. All notices are irrevocable.
In the event of redemption or repurchase of this Note in part only, a new
Note or Notes of this series, having the same Stated Maturity, optional
redemption or repurchase provisions, Interest Rate and other terms and
provisions of this Note, in authorized denominations in an aggregate principal
amount equal to the unredeemed portion hereof will be issued in the name of the
holder hereof upon the surrender hereof.
[Remarketing provisions, if any, to be included here]
The Notes will not be subject to conversion, amortization or any
sinking fund.
As provided in the Indenture and subject to certain limitations herein and
therein set forth, the transfer of this Note may be registered on the register
of the Notes, upon surrender of this Note for registration of transfer at the
Bank, or at such other agencies as may be designated pursuant to the Indenture,
duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Trustee or the Bank duly executed by, the holder hereof or
his attorney duly authorized in writing, and thereupon one or more new Notes, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Notes are issuable only as registered Notes without coupons in
denominations of $1,000 or any amount in excess thereof that is an integral
multiple of $1,000. As provided in the Indenture, and subject to certain
limitations herein and therein set forth, the Notes are exchangeable for a like
aggregate principal amount of Notes of other authorized denominations having the
same interest rate, Stated Maturity, optional redemption or repurchase
provisions, if any, and Original Issue Date, as requested by the Securityholder
surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Company, the Trustee, the Bank, the Security registrar and any agent of
the Company, the Trustee, the Bank, or the Security registrar may treat the
Securityholder in whose name this Note is registered as the absolute owner
hereof for the purpose of receiving payment as herein provided and for all
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<PAGE>
other purposes, whether or not this Note is overdue, and neither the Company,
the Trustee, the Bank, the Security registrar nor any such agent shall be
affected by notice to the contrary.
If an Event of Default (as defined in the Indenture) with respect to the
Notes shall occur and be continuing, the principal of all the Notes may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the holders of the Securities of any series under the
Indenture at any time by the Company with the consent of the holders of not less
than 66 2/3% in aggregate principal amount of the Securities at the time
Outstanding to be affected (voting as one class). The Indenture also permits the
Company and the Trustee to enter into supplemental indentures without the
consent of the holders of Securities of any series for certain purposes
specified in the Indenture, including the making of such other provisions in
regard to matters arising under the Indenture which shall not adversely affect
the interest of the holders of such Securities. The Indenture also contains
provisions permitting the holders of specified percentages in aggregate
principal amount of the Securities of any series at the time Outstanding, on
behalf of the holders of all the Securities of such series, to waive compliance
by the Company with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such consent or waiver
by the holder of this Note shall be conclusive and binding upon such holder and
upon all future holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof whether
or not notation of such consent or waiver is made upon this Note.
The Indenture provides that no holder of any Security of any series may
enforce any remedy with respect to such series under the Indenture except in the
case of refusal or neglect of the Trustee to act after notice of a continuing
Event of Default and after written request by the holders of not less than 33%
in aggregate principal amount of the Outstanding Securities of such series and
the offer to the Trustee of reasonable indemnity; provided, however, that such
provision shall not prevent the holder hereof from enforcing payment of the
principal of or interest on this Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency, herein prescribed.
No recourse shall be had for the payment of the principal of or the
interest on this Note, or for any claim based hereon, or otherwise in respect
hereof, or based on or in respect of the Indenture or any indenture supplemental
thereto, against any incorporator, stockholder, officer or
- 6 -
<PAGE>
director, as such, past, present or future, of the Company or any predecessor or
successor corporation, whether by virtue of any constitution, statute or rule of
law, or by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the consideration for
the issue hereof, expressly waived and released.
This Note shall be governed by and construed in accordance with the laws of
the State of New York.
ASSIGNMENT FORM
To assign this Note, fill in the form below:
Assignee's Social Security or Tax I. D. Number: ________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
_______________________________________________________________________________
_______________________________________________________________________________
(Print or Type Assignee's Name, Address and Zip Code)
the within Note of the Company and hereby does irrevocably constitute and
appoint
_______________________________________________________________________________
_______________________________________________________________________________
Attorney to transfer the said Note on the books of the Company, with full power
of substitution in the premises.
__________________
Signature of Assignor
(Sign exactly as name appears on the face of the Note)
Dated: _______________
- 7 -
<PAGE>
[HOLDER'S OPTION TO ELECT REPURCHASE]
[IN THE CASE OF CERTIFICATED NOTES ONLY]
The undersigned hereby irrevocably requests and instructs the Company to
repurchase the within or attached Note (or portion thereof specified below)
pursuant to its terms at a price equal to ____ % of the principal amount
thereof, together with accrued interest, if any, to the repurchase date, to the
undersigned, at
- --------------------------------------------------------------------------------
(Print or type name, address and phone number of the undersigned)
For the within or attached Note to be repurchased on the repurchase date, the
Bank must receive at least 30, but not more than 45, days prior to the date of
repurchase, but no later than 5:00 p.m. New York City time on the last day for
giving notice, (i) this Note with the "Option to Elect Repayment" form duly
completed or (ii) a telegram, telex, facsimile transmission or letter from a
member of a national securities exchange or the National Association of
Securities Dealers, Inc. or a commercial bank or a trust company in the United
States of America setting forth the name, address and telephone number of the
holder of such Note, the principal amount of such Note, the amount of the Note
to be repurchased, a statement that the option to elect repayment is being made
thereby and a guarantee that the Note to be repaid with the form entitled
"Option to Elect Repurchase" on the reverse of such Note duly completed will be
received by the Bank not later than five Business Days after the date of such
telegram, telex, facsimile transmission or letter, and such Note and form are
received by the Bank by such fifth Business Day.
If less than the entire principal amount of the within or attached Note is to be
repurchased, specify the portion to be repurchased: $ ______________ and specify
the denomination or denominations of the Note or Notes to be issued to the
holder for the portion of the Note not being repurchased (in the absence of
specific instruction, one such Note will be issued): $ _____________.
NOTICE: The signature to this Option to Elect Repayment must correspond with the
names as written upon the face of the within instrument in every particular,
without alteration or enlargement or any change whatever.
__________________________
Signature of Holder
(Sign exactly as name appears on the face of the Note)
Dated: _______________
- 8 -
Exhibit 4(c)
[FRONT]
REGISTERED REGISTERED
No. FLR ____
[CUSIP]
CONSTELLATION ENERGY GROUP, INC.
INCORPORATED UNDER THE LAWS OF THE STATE OF MARYLAND
MEDIUM-TERM NOTE, SERIES A
(FLOATING RATE)
[If this Note is registered in the name of The Depository Trust Company (the
"Depositary") (55 Water Street, New York, New York) or its nominee, this Note
may not be transferred except as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary unless and until
this Note is exchanged in whole or in part for Notes in definitive form. Unless
this certificate is presented by an authorized representative of the Depositary
to the Company or its agent for registration of transfer, exchange or payment,
and any certificate issued is registered in the name of Cede & Co. or such other
name as requested by an authorized representative of the Depositary and any
payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner
hereof, Cede & Co. has an interest herein.]
- -----------------------------------------------------------------
PRINCIPAL AMOUNT: _____________________
INITIAL INTEREST RATE: ______________________
STATED MATURITY: ______________________
INDEX MATURITY: ______________________
SPREAD: ______________________
ORIGINAL ISSUE DATE: ______________________
SPREAD MULTIPLIER: ______________________ %
ISSUE PRICE: ______________________
MAXIMUM INTEREST RATE: ______________________ %
MINIMUM INTEREST RATE: ______________________ %
<PAGE>
CALCULATION AGENT: ______________________
INTEREST PAYMENT DATES:
(Monthly, Quarterly,
Semi-Annually
or Annually) ______________________
INTEREST RESET DATES:
(Daily, Weekly, Monthly,
Quarterly, Semi-Annually
or Annually) ______________________
INTEREST DETERMINATION
DATES: ______________________
CALCULATION DATES: ______________________
INTEREST RATE BASIS (Check One):
_____ CD Rate
_____ Commercial Paper Rate
_____ LIBOR ( _____ Reuters _____ Telerate)
_____ Treasury Rate
_____ Federal Funds Effective Rate
_____ Prime Rate _____
CMT Rate ( _____ Telerate 7055)
( _____ Telerate 7052)
REDEEMABLE
AT THE OPTION OF THE REDEMPTION PRICES
COMPANY ON OR AFTER (% OF PRINCIPAL AMOUNT)
__________________________ __________________________
_________________________ __________________________
_________________________ __________________________
_________________________ __________________________
SUBJECT TO REPURCHASE
AT THE OPTION REPURCHASE PRICES
OF THE HOLDER ON (% OF PRINCIPAL AMOUNT)
___________________________ ___________________________
___________________________ ___________________________
___________________________ ___________________________
___________________________ ___________________________
[Remarketing provisions, if any, to be included here]
________________________________________________________________________________
- 2-
<PAGE>
Constellation Energy Group, Inc., a Maryland corporation (herein called the
"Company" which term includes any successor corporation under the Indenture, as
hereinafter defined), for value received, promises to pay to Cede & Co. or its
registered assigns, the principal sum of
_________________________________________________________ DOLLARS on the Stated
Maturity shown above and to pay interest on said principal sum from the Original
Issue Date shown above if interest has not been paid on this Note or from the
most recent Interest Payment Date for which interest has been paid or duly
provided for until Stated Maturity or, if applicable, upon redemption or
repurchase at the rate per annum determined in accordance with the provisions on
the reverse hereof, depending on the Interest Rate Basis and the Spread and/or
Spread Multiplier, as the case may be, specified above. Interest will be payable
on each Interest Payment Date and at Stated Maturity or upon redemption or
repurchase. Each payment of interest payable at Stated Maturity or, if
applicable, upon redemption or repurchase shall include interest to, but
excluding the date of Stated Maturity or redemption or repurchase. In the event
this Note is issued between a Record Date (the date 15 calendar days prior to
each Interest Payment Date whether or not such day shall be a Business Day) and
an Interest Payment Date or on an Interest Payment Date, the first day that
interest shall be payable will be on the Interest Payment Date following the
next succeeding Record Date. In the event of a default in the payment of
interest, interest will be payable as provided in that certain Indenture, dated
as of __________, 1999 (the "Indenture"), by and between the Company and The
Bank of New York, a corporation duly organized and existing under the laws of
the State of New York, as Trustee (herein called the "Trustee," which term
includes any successor Trustee under the Indenture).
Pursuant to the provisions of the Indenture, the Company will maintain an
agency at The Bank of New York in The City of New York, New York (the "Bank"),
or at such other agencies as may from time to time be designated, where the
Notes may be presented for payment, for registration of transfer and exchange,
and where notices or demands to, or upon, the Company may be served.
The interest so payable on the dates specified above will, subject to
certain exceptions provided in the Indenture, be paid to the person in whose
name this Note is registered at the close of business on the Record Date for
such Interest Payment Date, which shall be the date 15 calendar days prior to
each Interest Payment Date whether or not such day shall be a Business Day;
provided, however, that interest payable at Stated Maturity or, if applicable,
upon redemption or repurchase, shall be payable to the person to whom principal
shall be payable. Payment of the principal of and interest on this Note will be
made at the Bank in U.S. dollars; provided, however, that payments of interest
(other than any interest payable at Stated Maturity or upon redemption or
repurchase) may be made at the option of the Company (i) by checks mailed to the
addresses of the persons entitled thereto as such addresses shall appear in the
register of the Notes or (ii) by wire transfer to persons who are holders of
record at such other addresses that have been filed with the Bank on or prior to
the Record Date.
- 3 -
<PAGE>
Payment of the principal, premium, if any, and interest payable at Stated
Maturity, or, if applicable, upon redemption or repurchase, on this Note will be
made in immediately available funds at the request of the holder provided that
this Note is presented to the Bank in time for the Bank to make such payments in
such funds in accordance with its normal procedures.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth at
this place.
Unless the certificate of authentication hereon has been executed by or on
behalf of the Trustee or a duly designated authentication agent by manual
signature, this Note shall not be entitled to any benefit under said Indenture,
or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, Constellation Energy Group, Inc. has caused this
instrument to be executed in its corporate name with the manual or facsimile
signature of its President or a Vice President and a facsimile of its corporate
seal to be imprinted hereon, attested by the manual or facsimile signature of
its Secretary or an Assistant Secretary.
Dated:
CONSTELLATION ENERGY GROUP, INC.
By: ____________________
President
ATTEST: ____________________ [SEAL]
Secretary
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein issued under the
Indenture described herein.
Dated: __________________
THE BANK OF NEW YORK
By: ____________________
Authorized Signatory
- 4 -
<PAGE>
(REVERSE)
(REVERSE)
CONSTELLATION ENERGY GROUP, INC.
MEDIUM-TERM NOTE, SERIES A
(FLOATING RATE NOTE)
This Note is one of a duly authorized issue of debt securities (the
"Securities") of the Company, of a series designated as its Medium-Term Notes,
Series A (herein called the "Notes"), limited (except as otherwise provided in
the Indenture) in aggregate principal amount to $500,000,000, issued and to be
issued under the Indenture, to which Indenture and all relevant indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, obligations, duties and immunities thereunder of the Company, the
Trustee, the Bank and the Securityholder and the terms upon which the Notes are,
and are to be, authenticated and delivered. The Securities, of which the Notes
constitute a series, may be issued in one or more series, which different series
may be issued in various aggregate principal amounts, may mature at different
times, may bear interest at different rates, may be subject to different
covenants and Events of Default and may otherwise vary as in the Indenture
provided. All capitalized terms not otherwise defined herein shall have the
definitions assigned to them in the Indenture.
Commencing with the applicable Interest Reset Date first following the
Original Issue Date specified on the face hereof, the rate at which interest on
this Note is payable shall be reset daily, weekly, monthly, quarterly,
semi-annually or annually as shown on the face hereof. The interest rate per
annum for each interest reset period shall be calculated on the applicable
Interest Determination Date specified on the face hereof and shall be the
Interest Rate Basis specified on the face hereof, determined in accordance with
the provisions of the applicable heading below, adjusted by adding or
subtracting a Spread and/or multiplying by a Spread Multiplier, as the case may
be, specified on the face hereof; provided, however, that (i) the interest rate
in effect from the Original Issue Date to the first Interest Reset Date with
respect to this Note will be the Initial Interest Rate specified on the face
hereof and (ii) the interest rate in effect for the ten days immediately prior
to the Stated Maturity or redemption or repurchase will be that in effect on the
tenth day preceding such Stated Maturity or redemption or repurchase. Each such
adjusted rate shall be applicable on and after the Interest Reset Date to which
it relates, to, but not including, the next succeeding Interest Reset Date or
until the Stated Maturity, or the date of redemption or repurchase, as the case
may be. If any Interest Reset Date would otherwise be a day that is not a
Business Day, such Interest Reset Date shall be postponed to the next succeeding
day that is a Business Day (as defined below), except that if the Interest Rate
Basis specified on the face hereof is LIBOR, and if such Business Day is in the
next succeeding calendar month, such Interest Reset Date shall be the
immediately preceding Business Day. Subject to provisions of applicable law and
- 5 -
<PAGE>
except as specified herein, on each Interest Reset Date the rate of interest on
this Note shall be the rate determined in accordance with the provisions of the
applicable heading below.
All percentages resulting from any calculation on this Note will be
rounded, if necessary, to the nearest one hundred-thousandth of a percentage
point, with five one-millionths of a percentage point rounded upward (e.g.,
9.876545% (or .09876545) would be rounded to 9.87655% (or .0987655)), and all
dollar amounts used in or resulting from such calculation will be rounded to the
nearest cent with one-half cent being rounded upward.
DETERMINATION OF CD RATE.
If the Interest Rate Basis on this Note is the CD Rate, the CD Rate with
respect to this Note shall equal the rate on each Interest Determination Date
designated on the face hereof for negotiable certificates of deposit having the
Index Maturity designated on the face hereof as published in H.15(519) under the
heading "CDs (Secondary Market)." In the event that such rate is not published
prior to 9:00 A.M., New York City time, on the Calculation Date designated on
the face hereof pertaining to such Interest Determination Date, then the CD Rate
will be the rate on such Interest Determination Date for negotiable certificates
of deposit having the Index Maturity as published in Composite Quotations under
the heading "Certificates of Deposit." If such rate was neither published in
H.15(519) by 9:00 A.M., New York City time, on such Calculation Date nor in
Composite Quotations by 3:00 P.M., New York City time, on such date, the CD Rate
for that CD Interest Determination Date shall be calculated by the Calculation
Agent and shall be the arithmetic mean of the secondary market offered rates, as
of 10:00 A.M., New York City time, on that Interest Determination Date, of three
leading nonbank dealers of negotiable U.S. dollar certificates of deposit in The
City of New York selected by the Calculation Agent for negotiable certificates
of deposit of major United States money market banks with a remaining maturity
closest to the Index Maturity in a denomination of $5,000,000; provided,
however, that if fewer than three dealers selected as aforesaid by the
Calculation Agent are quoting as mentioned in this sentence, the rate of
interest in effect for the applicable period will be the same as the CD Rate as
adjusted for the Spread and/or Spread Multiplier, as the case may be, for the
immediately preceding interest reset period.
The CD Rate determined with respect to any Interest Determination Date will
become effective on and as of the applicable Interest Reset Date specified on
the face hereof; provided, however, that (i) the interest rate in effect for the
period from the Original Issue Date to first Interest Reset Date will be the
Initial Interest Rate specified on the face hereof, and (ii) the interest rate
in effect for the ten days immediately preceding the Stated Maturity or
redemption will be that in effect on the tenth day preceding such Stated
Maturity or redemption.
DETERMINATION OF COMMERCIAL PAPER RATE.
If the Interest Rate Basis on this Note is the Commercial Paper Rate, the
Commercial Paper Rate with respect to this Note shall equal the Money Market
- 6 -
<PAGE>
Yield (calculated as described below) of the rate on each Interest Determination
Date designated on the face hereof for commercial paper having the Index
Maturity designated on the face hereof as published in H.15(519) under the
heading "Commercial Paper." In the event that such rate is not published prior
to 9:00 A.M., New York City time, on the Calculation Date designated on the face
hereof pertaining to such Interest Determination Date, then the Commercial Paper
Rate will be the Money Market Yield of the rate on such Interest Determination
Date for commercial paper having the Index Maturity as published in Composite
Quotations under the heading "Commercial Paper." If such rate was neither
published in H.15(519) by 9:00 A.M., New York City time, on such Calculation
Date nor in Composite Quotations by 3:00 P.M., New York City time, on such date,
the Commercial Paper Rate for that Interest Determination Date will be
calculated by the Calculation Agent and will be the Money Market Yield of the
arithmetic mean of the offered rates, as of 11:00 A.M., New York City time, on
that Interest Determination Date, of three leading dealers of commercial paper
in The City of New York selected by the Calculation Agent for commercial paper
having the Index Maturity designated on the face hereof placed for an industrial
issuer whose bond rating is "AA," or the equivalent, from a nationally
recognized rating agency; provided, however, that if fewer than three dealers
selected as aforesaid by the Calculation Agent are quoting as mentioned in this
sentence, the rate of interest in effect for the applicable period will be the
same as the Commercial Paper Rate as adjusted for the Spread and/or Spread
Multiplier, as the case may be, for the immediately preceding interest reset
period.
"Money Market Yield" shall be a yield (expressed as a percentage rounded
upwards, if necessary, to the next higher one-hundred thousandth of a percentage
point) calculated in accordance with the following formula:
Money Market Yield = D x 360
-------------- x 100
360 - (D x M)
where "D" refers to the per annum rate for commercial paper quoted on a bank
discount basis and expressed as a decimal; and "M" refers to the actual number
of days in the period for which interest is being calculated.
The Commercial Paper Rate determined with respect to any Interest
Determination Date will become effective on and as of the applicable Interest
Reset Date specified on the face hereof; provided, however, that (i) the
interest rate in effect for the period from the Original Issue Date to the first
Interest Reset Date will be the Initial Interest Rate specified on the face
hereof; and (ii) the interest rate in effect for the ten days immediately
preceding the Stated Maturity or redemption will be that in effect on the tenth
day preceding such Stated Maturity or redemption.
DETERMINATION OF LIBOR.
- 7 -
<PAGE>
If the Interest Rate Basis on this Note is LIBOR, LIBOR with respect to
this Note will be determined by the Calculation Agent in accordance with the
following provisions:
(a) With respect to any Interest Determination Date, LIBOR will be
determined by either (i) the arithmetic mean of the offered rates for deposits
in U.S. dollars having the Index Maturity designated on the face hereof,
commencing on the second Business Day immediately following such Interest
Determination Date, which appear on the Reuters Screen LIBO Page as of 11:00
A.M., London time, on that Interest Determination Date, if at least two such
offered rates appear on the Reuters Screen LIBO Page, or (ii) the rate for
deposits in U.S. dollars having the Index Maturity designated on the face
hereof, commencing on the second Business Day immediately following such
Interest Determination Date, that appears on the Telerate Page 3750 as of 11:00
a.m., London time, on such Interest Determination Date. If neither Reuters
Screen LIBO Page nor Telerate Page 3750 is specified on the face hereof, LIBOR
will be determined as if Telerate Page 3750 had been specified.
(b) With respect to an Interest Determination Date on which fewer than two
offered rates appear on the Reuters Screen LIBO Page or no rate appears on
Telerate Page 3750 for the applicable Index Maturity as described in (a) above,
LIBOR will be determined on the basis of the rates at approximately 11:00 A.M.,
London time, on such Interest Determination Date at which deposits in U.S.
dollars having the Index Maturity designated on the face hereof are offered to
prime banks in the London interbank market by four major banks in the London
interbank market selected by the Calculation Agent commencing on the second
Business Day immediately following such Interest Determination Date and in a
principal amount not less than $1,000,000 that in the Calculation Agent's
judgment is representative for a single transaction in such market at such time
(a "Representative Amount"). The Calculation Agent will request the principal
London office of each of such banks to provide a quotation of its rate. If at
least two such quotations are provided, LIBOR for such Interest Determination
Date will be the arithmetic mean of such quotations. If fewer than two
quotations are provided, LIBOR for such Interest Determination Date will be the
arithmetic mean of the rates quoted at approximately 11:00 A.M., New York City
time, on such Interest Determination Date by three major banks in The City of
New York, selected by the Calculation Agent, for loans in U.S. dollars to
leading European banks having the specified Index Maturity commencing on the
second Business Day immediately following such Interest Determination Date and
in a Representative Amount; provided, however, that if fewer than three banks
selected as aforesaid by the Calculation Agent are quoting as mentioned in this
sentence, the rate of interest in effect for the applicable period will be the
same as LIBOR as adjusted for the Spread and/or Spread Multiplier, as the case
may be, for the immediately preceding interest reset period.
LIBOR determined with respect to any Interest Determination Date will
become effective on and as of the applicable Interest Reset Date specified on
the face hereof; provided, however, that (i) the interest rate in effect for the
period from the Original Issue Date to the first Interest Reset Date will be the
Initial Interest Rate specified on the face hereof and (ii) the interest rate in
effect for the ten days immediately preceding the Stated Maturity or redemption
will be that in effect on the tenth day preceding such Stated Maturity or
redemption.
- 8 -
<PAGE>
DETERMINATION OF FEDERAL FUNDS EFFECTIVE RATE.
If the Interest Rate Basis on this Note is the Federal Funds Effective
Rate, the Federal Funds Effective Rate with respect to this Note shall equal
with respect to each Interest Determination Date designated on the face hereof
the rate on such date for Federal Funds as published in H.15(519) under the
heading "Federal Funds (Effective)" or, if not so published prior to 11:00 A.M.,
New York City time, on the Calculation Date designated on the face hereof
pertaining to such Interest Determination Date, then the Federal Funds Effective
Rate will be the rate on such Interest Determination Date as published in
Composite Quotations under the heading "Federal Funds/Effective Rate." If such
rate was neither published in H.15(519) by 11:00 A.M., New York City time, on
such Calculation Date nor in Composite Quotations by 3:00 P.M., New York City
time, on such date, the Federal Funds Effective Rate for such Interest
Determination Date will be calculated by the Calculation Agent and will be the
arithmetic mean of the rates, as of 11:00 A.M., New York City time, on that
Interest Determination Date, for the last transaction in overnight Federal Funds
arranged by three leading brokers of Federal Funds transactions in The City of
New York selected by the Calculation Agent; provided, however, that if fewer
than three brokers selected as aforesaid by the Calculation Agent are quoting as
mentioned in this sentence, the rate of interest in effect for the applicable
period will be the same as the Federal Funds Effective Rate as adjusted for the
Spread and/or Spread Multiplier, as the case may be, for the immediately
preceding interest reset period.
The Federal Funds Effective Rate determined with respect to any Interest
Determination Date will become effective on and as of the applicable Interest
Reset Date specified on the face hereof; provided, however, that (i) the
interest rate in effect for the period from the Original Issue Date to the first
Interest Reset Date will be the Initial Interest Rate specified on the face
hereof; and (ii) the interest rate in effect for the ten days immediately
preceding the Stated Maturity or redemption will be that in effect on the tenth
day preceding such Stated Maturity or redemption.
DETERMINATION OF PRIME RATE.
If the Interest Rate Basis on this Note is the Prime Rate, the Prime Rate
with respect to the Note shall equal with respect to each Interest Determination
Date designated on the face hereof the rate set forth on such date in H.15(519)
under the heading "Bank Prime Loan." In the event that such rate is not
published prior to 9:00 A.M., New York City time, on the Calculation Date
designated on the face hereof pertaining to such Interest Determination Date,
then the Prime Rate will be the arithmetic mean (rounded upwards, if necessary,
to the next higher one-hundred thousandth of a percentage point) of the rates of
interest publicly announced by each bank that appear on the Reuters Screen
USPRIMEONE Page as such bank's prime rate or base lending rate as in effect for
that Interest Determination Date. If fewer than four such rates but more than
one such rate appear on the Reuters Screen USPRIMEONE Page for the Interest
Determination Date, the Prime Rate will be the arithmetic mean of the prime
rates (quoted on the basis of the actual number of days in the year divided by a
360-day year) as of the close of business on such Interest Determination Date by
- 9 -
<PAGE>
four major money center banks in The City of New York selected by the
Calculation Agent. If fewer than two quotations are provided, the Prime Rate
shall be determined on the basis of the rates furnished in The City of New York
by the appropriate number of substitute banks or trust companies organized and
doing business under the laws of the United States, or any State thereof, having
total equity capital of at least $500 million and being subject to supervision
or examination by a Federal or State authority, selected by the Calculation
Agent to provide such rate or rates; provided, however, that if the banks
selected as aforesaid by the Calculation Agent are not quoting as mentioned in
this sentence, the rate of interest in effect for the applicable period will be
the same as the Prime Rate as adjusted for the Spread and/or Spread Multiplier,
as the case may be, for the immediately preceding interest reset period.
The Prime Rate determined with respect to any Interest Determination Date
will become effective on and as of the applicable Interest Reset Date specified
on the face hereof; provided, however, that (i) the interest rate in effect for
the period from the Original Issue Date to the first Interest Reset Date will be
the Initial Interest Rate specified on the face hereof; and (ii) the interest
rate in effect for the ten days immediately preceding the Stated Maturity or
redemption will be that in effect on the tenth day preceding such Stated
Maturity or redemption.
DETERMINATION OF TREASURY RATE.
If the Interest Rate Basis on this Note is the Treasury Rate, the Treasury
Rate with respect to this Note shall equal with respect to each Interest
Determination Date designated on the face hereof the rate for the most recent
auction of direct obligations of the United States ("Treasury bills") having the
Index Maturity designated on the face hereof as published in H.15(519) under the
heading, "U.S. Government Securities/Treasury Bills/Auction Average
(Investment)" or, if not so published by 9:00 A.M., New York City time, on the
Calculation Date designated on the face hereof pertaining to such Interest
Determination Date, the auction average rate (expressed as a bond equivalent, on
the basis of a year of 365 or 366 days, as applicable, and applied on a daily
basis) for such auction as otherwise announced by the United States Department
of the Treasury. In the event that the results of the auction of Treasury bills
having the Index Maturity designated on the face hereof are neither published in
H.15(519) by 9:00 A.M., New York City time, on such Calculation Date, nor
otherwise published or reported as provided above by 3:00 P.M., New York City
time on such date, or if no such auction is held in a particular week, then the
Treasury Rate shall be calculated by the Calculation Agent and shall be a yield
to maturity (expressed as a bond equivalent, on the basis of a year of 365 or
366 days, as applicable, and applied on a daily basis) of the arithmetic mean of
the secondary market bid rates as of approximately 3:30 P.M., New York City
time, on such Interest Determination Date, of three leading primary United
States government securities dealers in The City of New York selected by the
Calculation Agent, for the issue of Treasury bills with a remaining maturity
closest to the specified Index Maturity; provided, however, that if fewer than
three dealers selected as aforesaid by the Calculation Agent are quoting as
mentioned in this sentence, the rate of interest in effect for the applicable
period will be the same as the Treasury Rate as adjusted for the
- 10 -
<PAGE>
Spread and/or Spread Multiplier, as the case may be, for the immediately
preceding interest reset period.
The Treasury Rate determined with respect to any Interest Determination
Date will become effective on and as of the applicable Interest Reset Date
specified on the face hereof; provided, however, that (i) the interest rate in
effect for the period from the Original Issue Date to the first Interest Reset
Date will be the Initial Interest Rate specified on the face hereof; and (ii)
the interest rate in effect for the ten days immediately preceding the Stated
Maturity or redemption will be that in effect on the tenth day preceding such
Stated Maturity or redemption.
Determination of CMT Rate
If the Interest Rate Basis on this Note is the CMT Rate, the CMT Rate with
respect to this Note shall equal with respect to each Interest Determination
Date designated on the face hereof the rate displayed on the Designated CMT
Telerate Page under the caption "...Treasury Constant Maturities.. Federal
Reserve Board Release H.15... Mondays Approximately 3:45 P.M.," under the column
for the Index Maturity designated on the face hereof (i) if the Designated CMT
Telerate Page is 7055, the rate for the applicable Interest Determination Date
and (ii) if the Designated CMT Telerate Page is 7052, the week, or the month, as
applicable, ended immediately preceding the week in which the Interest
Determination Date occurs. If no page is specified on the face hereof, the
Designated CMT Telerate Page shall be 7052, for the most recent week. If such
rate is no longer displayed on the relevant page, or if not displayed by 3:00
P.M., New York City time, on the related Calculation Date, then the CMT Rate for
such Interest Determination Date will be such Treasury Constant Maturity rate
for the Index Maturity designated on the face hereof as published in the
relevant H.15 (519). If such rate is no longer published, or if not published by
3:00 P.M., New York City time, on the related Calculation Date, then the CMT
Rate for such Interest Determination Date will be such Treasury Constant
Maturity rate for the Index Maturity on the face hereof (or other United States
Treasury rate for such Index Maturity for that Interest Determination Date with
respect to such Interest Reset Date) as may then be published by either the
Federal Reserve Board or the United States Department of the Treasury that the
Calculation Agent determines to be comparable to the rate formerly displayed on
the Designated CMT Telerate Page and published in the relevant H.15(519). If
such information is not provided by 3:00 P.M., New York City time, on the
related Calculation Date, then the CMT Rate for that Interest Determination Date
will be calculated by the Calculation Agent and will be a yield to maturity,
based on the arithmetic mean of the secondary market closing offer side prices
as of approximately 3:30 P.M. (New York City time) on that Interest
Determination Date reported, according to their written records, by three
leading primary United States government securities dealers (each, a "Reference
Dealer") in The City of New York selected by the Calculation Agent (from five
such Reference Dealers selected by the Calculation Agent and eliminating the
highest quotation (or, in the event of equality, one of the highest) and the
lowest quotation (or, in the event of equality, one of the lowest)), for the
most recently issued direct noncallable fixed rate obligations of the United
States ("Treasury Note") with an original maturity of approximately the Index
Maturity designated on the face hereof and a remaining
- 11 -
<PAGE>
term to maturity of not less than such Index Maturity minus one year. If two
Treasury Notes with an original maturity as described in the preceding sentence
have remaining terms to maturity equally close to the Index Maturity designated
on the face hereof, the quotes for the Treasury Note with the shorter remaining
term to maturity will be used. If the Calculation Agent cannot obtain three such
Treasury Note quotations, the CMT Rate for that Interest Determination Date will
be calculated by the Calculation Agent and will be a yield to maturity based on
the arithmetic mean of the secondary market offer side prices as of
approximately 3:30 P.M. (New York City time) on that Interest Determination Date
of three Reference Dealers in The City of New York (from five such Reference
Dealers selected by the Calculation Agent and eliminating the highest quotation
(or, in the event of equality, one of the highest) and the lowest quotation (or,
in the event of equality, one of the lowest)), for Treasury Notes with an
original maturity of the number of years that is the next highest to the Index
Maturity designated on the face hereof and a remaining term to maturity closest
to such Index Maturity and in an amount of at least $100 million. If three or
four (and not five) of such Reference Dealers are quoting as described above,
then the CMT Rate will be based on the arithmetic mean of the offer prices
obtained and neither the highest nor the lowest of such quotes will be
eliminated; provided, however, that if fewer than three Reference Dealers
selected by the Calculation Agent are quoting as described herein, the rate of
interest in effect for the applicable period will be the same as the CMT Rate as
adjusted for the Spread and/or Spread Multiplier, as the case may be, for the
immediately preceding Interest Reset Period.
The CMT Rate determined with respect to any Interest Determination Date
will become effective on and as of the applicable Interest Reset Date specified
on the face hereof; provided, however, that (i) the interest rate in effect for
the period from the Original Issue Date to the first Interest Reset Date will be
the Initial Interest Rate specified on the face hereof; and (ii) the interest
rate, in effect for the ten days immediately preceding the Stated Maturity or
redemption will be that in effect on the tenth day preceding such Stated
Maturity or redemption.
Notwithstanding the foregoing, the interest rate hereon shall not be
greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, shown on the face hereof. The Calculation Agent shall
calculate the interest rate on this Note in accordance with the foregoing on
each Interest Determination Date.
The Interest Rate on this Note will in no event be higher than the maximum
rate permitted by Maryland law as the same may be modified by the United States
law of general applicability.
The Calculation Agent will, upon the request of the Holder of this Note
provide to such Holder the interest rate hereon then in effect and, if
different, the interest rate which will become effective as of the next
applicable Interest Reset Date.
If any Interest Payment Date specified on the face hereof would otherwise
be a day that is not a Business Day, the Interest Payment Date shall be
postponed to the next day that is a Business Day, except that if (i) the rate of
interest on this Note shall be determined in accordance with the provisions
- 12 -
<PAGE>
of the heading "Determination of LIBOR" above, and (ii) such Business Day is in
the next succeeding calendar month, such Interest Payment Date shall be the
immediately preceding Business Day. "Business Day" means any day other than a
Saturday or Sunday that (a) is not a day on which banking institutions in
Baltimore, Maryland, or in New York, New York, are authorized or obligated by
law or executive order to be closed, and (b) with respect to LIBOR Notes only,
is a day on which dealings in deposits in U.S. dollars are transacted in the
London interbank market.
Interest payments for this Note will include interest accrued to but
excluding the Interest Payment Dates; provided, however, that if the Interest
Reset Dates with respect to this Note are daily or weekly, interest payable on
any Interest Payment Date, other than interest payable on any date on which
principal hereof is payable, will include interest accrued to and including the
Record Date next preceding such Interest Payment Date. Accrued interest hereon
from the Original Issue Date or from the last date to which interest hereon has
been paid, as the case may be, shall be an amount calculated by multiplying the
face amount hereof by an accrued interest factor. Such accrued interest factor
shall be computed by adding the interest factor calculated for each day from the
Original Issue Date or from the last date to which interest shall have been
paid, as the case may be, to the date for which accrued interest is being
calculated. The interest factor (expressed as a decimal rounded upwards, if
necessary, to the next higher one hundred-thousandth of a percentage point) for
each such day shall be computed by dividing the interest rate (expressed as a
decimal, rounded upwards, if necessary, to the next higher one
hundred-thousandth of a percentage point) applicable to each such day by 360, in
the case of the Commercial Paper Rate, CD Rate, LIBOR, Federal Funds Effective
Rate or Prime Rate, or by the actual number of days in the year in the case of
the Treasury Rate or the CMT Rate.
This Note may not be redeemed by the Company prior to Stated Maturity
unless otherwise set forth on the face hereof. Notwithstanding Section 4.03 of
the Indenture, pursuant to Section 4.01 thereof, and if so indicated on the face
of this Note, this Note may be redeemed at the option of the Company, on any
date on or after the date set forth on the face hereof in whole or in part in
increments of $1,000, at a redemption price or prices designated on the face
hereof to be redeemed together with interest thereon payable to the date fixed
for redemption. This Note may be so redeemed in whole or in part whether or not
other Notes of the same series are redeemed.
Notice of redemption or repurchase will be given by the Company by mail to
holders of the Notes to be redeemed, not less than 30 nor more than 60 days
prior to the date fixed for redemption, all as provided in the Indenture. The
Bank may carry out the responsibilities to be performed by the Trustee required
by Article Four of the Indenture.
The Company is not required to repurchase Notes from holders prior to
Stated Maturity unless otherwise set forth on the face hereof. If so indicated
on the face hereof, this Note may be repurchased by the Company at the option of
the holder on the dates and at the prices designated thereon, in whole or in
- 13 -
<PAGE>
part in increments of $1,000, together with interest payable to the repurchase
date. For book-entry notes, unless otherwise specified on the face of this Note,
holders must deliver written notice to the Bank at least 30, but no more than
60, days prior to the date of repurchase, but no later than 5:00 p.m. New York
City time on the last day for giving notice. The written notice must specify the
principal amount to be repurchased and must be signed by a duly authorized
officer of the Depositary participant (signature guaranteed). For definitive
notes, unless otherwise specified on the face of this Note, holders must
complete the "Option to Elect Repayment" on the reverse of this Note and then
deliver this Note to the Bank at least 30, but no more than 45, days prior to
the date of repurchase, but no later than 5:00 p.m. New York City time on the
last day for giving notice. All notices are irrevocable.
In the event of redemption or repurchase of this Note in part only, a new
Note or Notes of this series, having the same Stated Maturity, optional
redemption or repurchase provisions, Interest Rate and other terms and
provisions of this Note, in authorized denominations in an aggregate principal
amount equal to the unredeemed portion hereof will be issued in the name of the
holder hereof upon the surrender hereof.
[Remarketing provisions, if any, to be included here]
The Notes will not be subject to conversion, amortization or any sinking
fund.
As provided in the Indenture and subject to certain limitations herein and
therein set forth, the transfer of this Note may be registered on the register
of the Notes, upon surrender of this Note for registration of transfer at the
Bank, or at such other agencies as may be designated pursuant to the Indenture,
duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Trustee or the Bank duly executed by, the holder hereof or
his attorney duly authorized in writing, and thereupon one or more new Notes, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Notes are issuable only as registered Notes without coupons in
denominations of $1,000 or any amount in excess thereof that is an integral
multiple of $1,000. As provided in the Indenture, and subject to certain
limitations herein and therein set forth, the Notes are exchangeable for a like
aggregate principal amount of Notes of other authorized denominations having the
same Interest Rate, Stated Maturity, optional redemption or repurchase
provisions, if any, and Original Issue Date, as requested by the Securityholder
surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
- 14 -
<PAGE>
The Company, the Trustee, the Bank, the Security registrar and any agent of
the Company, the Trustee, the Bank, or the Security registrar may treat the
Securityholder in whose name this Note is registered as the absolute owner
hereof for the purpose of receiving payment as herein provided and for all other
purposes, whether or not this Note is overdue, and neither the Company, the
Trustee, the Bank, the Security registrar nor any such agent shall be affected
by notice to the contrary.
If an Event of Default (as defined in the Indenture) with respect to the
Notes shall occur and be continuing, the principal of all the Notes may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the holders of the Securities of any series under the
Indenture at any time by the Company with the consent of the holders of not less
than 66 2/3% in aggregate principal amount of the Securities at the time
outstanding to be affected (voting as one class). The Indenture also permits the
Company and the Trustee to enter into supplemental indentures without the
consent of the holders of Securities of any series for certain purposes
specified in the Indenture, including the making of such other provisions in
regard to matters arising under the Indenture which shall not adversely affect
the interest of the holders of such Securities. The Indenture also contains
provisions permitting the holders of specified percentages in aggregate
principal amount of the Securities of any series at the time outstanding, on
behalf of the holders of all the Securities of such series, to waive compliance
by the Company with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such consent or waiver
by the holder of this Note shall be conclusive and binding upon such holder and
upon all future holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof whether
or not notation of such consent or waiver is made upon this Note.
The Indenture provides that no holder of any Security of any series may
enforce any remedy with respect to such series under the Indenture except in the
case of refusal or neglect of the Trustee to act after notice of a continuing
Event of Default and after written request by the holders of not less than 33%
in aggregate principal amount of the outstanding Securities of such series and
the offer to the Trustee of reasonable indemnity; provided, however, that such
provision shall not prevent the holder hereof from enforcing payment of the
principal of or interest on this Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency, herein prescribed.
- 15 -
<PAGE>
No recourse shall be had for the payment of the principal of or the
interest on this Note, or for any claim based hereon, or otherwise in respect
hereof, or based on or in respect of the Indenture or any indenture supplemental
thereto, against any incorporator, stockholder, officer or director, as such,
past, present or future, of the Company or any predecessor or successor
corporation, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as part of the consideration for the issue
hereof, expressly waived and released.
This Note shall be governed by and construed in accordance with
the laws of the State of New York.
- 16 -
<PAGE>
ASSIGNMENT FORM
To assign this Note, fill in the form below:
Assignee's Social Security or Tax I. D. Number: ________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
_______________________________________________________________________________
_______________________________________________________________________________
(Print or Type Assignee's Name, Address and Zip Code)
the within Note of the Company and hereby does irrevocably constitute and
appoint
_______________________________________________________________________________
_______________________________________________________________________________
Attorney to transfer the said Note on the books of the Company, with full power
of substitution in the premises.
____________________________
____________________________
Signature of Assignor
(Sign exactly as name appears on the face of the Note)
Dated: _______________
- 17 -
<PAGE>
[HOLDER'S OPTION TO ELECT REPURCHASE]
[IN THE CASE OF CERTIFICATED NOTES ONLY]
The undersigned hereby irrevocably requests and instructs the Company to
repurchase the within or attached Note (or portion thereof specified below)
pursuant to its terms at a price equal to ___ % of the principal amount thereof,
together with accrued interest, if any, to the repurchase date, to the
undersigned, at
_______________________________________________________________________________
_______________________________________________________________________________
(Print or type name, address and phone number of the undersigned)
For the within or attached Note to be repurchased on the repurchase date, the
Bank must receive at least 30, but not more than 45, days prior to the date of
repurchase, but no later than 5:00 p.m. New York City time on the last day for
giving notice, (i) this Note with the "Option to Elect Repayment" form duly
completed or (ii) a telegram, telex, facsimile transmission or letter from a
member of a national securities exchange or the National Association of
Securities Dealers, Inc. or a commercial bank or a trust company in the United
States of America setting forth the name, address and telephone number of the
holder of such Note, the principal amount of such Note, the amount of the Note
to be repurchased, a statement that the option to elect repayment is being made
thereby and a guarantee that the Note to be repaid with the form entitled
"Option to Elect Repurchase" on the reverse of such Note duly completed will be
received by the Bank not later than five Business Days after the date of such
telegram, telex, facsimile transmission or letter, and such Note and form are
received by the Bank by such fifth Business Day.
If less than the entire principal amount of the within or attached Note is to be
repurchased, specify the portion to be repurchased: $ ______________ and specify
the denomination or denominations of the Note or Notes to be issued to the
holder for the portion of the Note not being repurchased (in the absence of
specific instruction, one such Note will be issued): $ _____________.
NOTICE: The signature to this Option to Elect Repayment must correspond with the
names as written upon the face of the within instrument in every particular,
without alteration or enlargement or any change whatever.
__________________________
Signature of Holder
(Sign exactly as name appears on the face of the Note)
Dated: _______________
Exhibit 5
March 24, 1999
Constellation Energy Group, Inc.
c/o David A. Brune
39 W. Lexington Street
Baltimore, Maryland 21201
Gentlemen:
This opinion is provided in connection with the registration statement (the
"Registration Statement") being filed by Constellation Energy Group, Inc.
(formerly Constellation Energy Corporation) ("Constellation Energy") with the
Securities and Exchange Commission ("SEC") under the Securities Act of 1933,
regarding the proposed issuance of up to $500,000,000 principal amount of Medium
Term Notes, Series A (the "Notes"). The Registration Statement also acts as a
post-effective amendment to a registration statement filed by Constellation
Energy Corporation with the SEC under the Securities Act of 1933.
Pursuant to an Agreement and Plan of Share Exchange dated February 19,
1999, between Constellation Energy and Baltimore Gas and Electric Company (BGE),
upon the occurrence of certain events all of the outstanding common stock of BGE
will be exchanged, on a one-for-one basis, for common stock of Constellation
Energy. In anticipation of the consummation of the share exchange, Constellation
Energy is filing this Registration Statement in regard to its Notes to be
offered upon effectiveness of the share exchange.
I am an attorney in the Corporate Unit of the legal department of BGE. BGE
is a shareholder of Constellation Energy, and Constellation Energy has requested
that I provide this opinion. Constellation Energy is a Maryland corporation. In
connection with this opinion I, together with other attorneys assisting me, have
considered, among other things: (1) the current articles of incorporation of
Constellation Energy, as amended, and a form of amended and restated articles of
incorporation of Constellation Energy (the "Charter") to be filed and effective
upon consummation of the share exchange; (2) the current by-laws of
Constellation Energy, and a form of by-laws of Constellation Energy to be
adopted effective upon consummation of the share exchange (the "By-Laws"); (3)
the Indenture dated as of March 24, 1999 from Constellation Energy to The Bank
of New York under which the Notes will be issued; (4) the corporate proceedings
for the approval and issuance of the Notes; (5) the Registration Statement; (6)
the agency agreement (including the standard purchase provisions) filed as an
exhibit to the Registration Statement (the "Purchase Agreement"); (7) the
provisions of the Public Utility Holding Company Act of 1935 (the "1935 Act");
and (8) such other documents, transactions, and matters of law as we deemed
necessary in order to render this opinion.
<PAGE>
This opinion is subject to: (1) the share exchange becoming effective and
the filing with the appropriate State authority, and effectiveness of,
Constellation Energy's Charter; (2) the proper adoption by Constellation
Energy's Board of Directors of the By-Laws; (3) the Registration Statement
becoming effective under the Securities Act of 1933; (4) the proper execution,
authentication, and delivery of the Notes upon receipt of the purchase price
pursuant to the Purchase Agreement; and (5) the qualification of the Indenture
under the Trust Indenture Act of 1939.
It is my opinion that when there has been compliance with the Securities
Act of 1933 and the applicable state securities laws, the Notes, when issued and
delivered pursuant to the Purchase Agreement, will constitute legally issued and
binding obligations of Constellation Energy.
The opinion expressed herein concerns only the effect of the law (excluding
the principles of conflicts of law) of the State of Maryland and the United
States of America as currently in effect.
This opinion is provided solely for your benefit and may not be relied
upon by, or quoted to, any other person or entity, in whole or in part, without
my prior written consent.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. I am the attorney referred to in the Registration
Statement and I consent to the references to me in the Registration Statement
(and any amendments thereto) or the prospectus constituting a part of the
Registration Statement (and any amendments or supplements thereto). In so doing,
I do not admit that I am in the category of persons whose consent is required
under Section 7 of the Securities Act of 1933 or the rules and regulations of
the SEC promulgated thereunder.
Very truly yours,
/s/ Donna M. Levy
Exhibit 23(b)
CONSENT OF INDEPENDENT ACCOUNTANTS
-------------
We consent to the incorporation by reference in the Registration Statement on
Form S-3, which also serves as a post-effective amendment to the Registration
Statement (File No. 333-24855) on Form S-3, covering $500,000,000 of
Constellation Energy Group, Inc. Medium-Term Notes Series A (the "Registration
Statement") of our report dated January 15, 1999, on our audits of the
consolidated financial statements and financial statement schedule included on
Form 10-K of Baltimore Gas and Electric Company and Subsidiaries as of December
31, 1998 and 1997 and for each of the three years in the period ended December
31, 1998.
We also consent to the reference to our firm under the caption "Experts" in this
Registration Statement.
PricewaterhouseCoopers LLP
/s/ PricewaterhouseCoopers LLP
Baltimore, Maryland
March 29, 1999
Exhibit 24
CONSTELLATION ENERGY GROUP, INC.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned directors and officers
of Constellation Energy Group, Inc. hereby constitute and appoint David A. Brune
and Thomas E. Ruszin, Jr. and each of them their true and lawful attorneys and
agents to do any and all acts and things and to execute, in their name any and
all instruments which said attorneys and agents, or any of them, may deem
necessary or advisable to enable said corporation to comply with the Securities
Act of 1933, as amended, and any rules, regulations and requirements of the
Securities and Exchange Commission in respect thereof in connection with the
registration under said Act of not exceeding $500,000,000 principal amount of
Medium-Term Notes, Series A of said Company, maturing not more than thirty years
after the date as of which they are issued, all as authorized by Resolutions
adopted by a unanimous consent of the Board of Directors of Constellation Energy
Group, Inc. dated as of March 15,1999, including specifically, but without
limiting the generality of the foregoing, power and authority to sign the names
of the undersigned directors and officers in the capacities indicated below, to
any registration statement to be filed with the Securities and Exchange
Commission in respect of said Medium-Term Notes, Series A, to any and all
amendments to any registration statement in respect to said Medium-Term Notes,
Series A, or to any instruments or documents filed as part of or in connection
with said registration statement or amendments to such documents; and each of
the undersigned hereby ratifies and confirms all that said attorneys and agents,
or any of them, shall do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, each of the undersigned has subscribed, or caused to be
subscribed, these presents this 22nd day of March, 1999.
Signature
Principal Executive
Officer and Director /s/ Charles. W. Shivery
--------------------------
Charles. W. Shivery
Chairman of the Board,
President and Director
Principal Financial and
Accounting Officer /s/ David A. Brune
and Director -------------------------
David A. Brune
Vice President, Secretary
and Director
Director /s/ Thomas E. Ruszin, Jr.
---------------------------
Treasurer and Director
Exhibit 25
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
-------------------
Constellation Energy Group, Inc.
(Exact name of obligor as specified in its charter)
Maryland 52-1964611
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
39 West Lexington Street
Baltimore, Maryland 21201
(Address of principal executive offices) (Zip code)
----------------------
Medium-Term Notes, Series A
(Title of the indenture securities)
================================================================================
<PAGE>
1. General information.Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and
Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission,
are incorporated herein by reference as an exhibit hereto, pursuant to
Rule 7a-29 under the Trust Indenture Act of 1939 (the "Act") and 17
C.F.R. 229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains
the authority to commence business and a grant of powers to
exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to
Form T-1 filed with Registration Statement No. 33-6215, Exhibits
1a and 1b to Form T-1 filed with Registration Statement No.
33-21672 and Exhibit 1 to Form T-1 filed with Registration
Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to
Form T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration
Statement No. 33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
- 2 -
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 26th day of February, 1999.
THE BANK OF NEW YORK
By: /s/REMO J. REALE
Name: REMO J. REALE
Title: ASSISTANT VICE PRESIDENT
<PAGE>
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business December 31,
1998, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands Cash and balances due from depository
institutions:
Noninterest-bearing balances and currency and coin.. $3,951,273
Interest-bearing balances........................... 4,134,162
Securities:
Held-to-maturity securities......................... 932,468
Available-for-sale securities....................... 4,279,246
Federal funds sold and Securities purchased under
agreements to resell................................ 3,161,626
Loans and lease financing receivables:
Loans and leases, net of unearned
income...............37,861,802
LESS: Allowance for loan and
lease losses............619,791
LESS: Allocated transfer risk
reserve........................3,572
Loans and leases, net of unearned income,
allowance, and reserve............................ 37,238,439
Trading Assets......................................... 1,551,556
Premises and fixed assets (including capitalized
leases)............................................. 684,181
Other real estate owned................................ 10,404
Investments in unconsolidated subsidiaries and
associated companies................................ 196,032
Customers' liability to this bank on acceptances
outstanding......................................... 895,160
Intangible assets...................................... 1,127,375
Other assets........................................... 1,915,742
Total assets........................................... $60,077,664
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LIABILITIES
Deposits:
In domestic offices................................. $27,020,578
Noninterest-bearing.......................11,271,304
Interest-bearing..........................15,749,274
In foreign offices, Edge and Agreement
subsidiaries, and IBFs............................ 17,197,743
Noninterest-bearing..........................103,007
Interest-bearing..........................17,094,736
Federal funds purchased and Securities sold under
agreements to repurchase............................ 1,761,170
Demand notes issued to the U.S.Treasury................ 125,423
Trading liabilities.................................... 1,625,632
Other borrowed money:
With remaining maturity of one year or less......... 1,903,700
With remaining maturity of more than one year
through three years............................... 0
With remaining maturity of more than three years.... 31,639
Bank's liability on acceptances executed and
outstanding......................................... 900,390
Subordinated notes and debentures...................... 1,308,000
Other liabilities...................................... 2,708,852
Total liabilities...................................... 54,583,127
EQUITY CAPITAL
Common stock........................................... 1,135,284
Surplus................................................ 764,443
Undivided profits and capital reserves................. 3,542,168
Net unrealized holding gains (losses) on
available-for-sale securities....................... 82,367
Cumulative foreign currency translation adjustments.... ( 29,725)
Total equity capital................................... 5,494,537
Total liabilities and equity capital................... $60,077,664
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I, Thomas J. Mastro, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Thomas J. Mastro
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Thomas A. Reyni
Gerald L. Hassell Directors
Alan R. Griffith
