Exhibit 1(a)
$300,000,000
CONSTELLATION ENERGY CORPORATION
MEDIUM-TERM NOTES
SERIES F
AGENCY AGREEMENT
__________, 1997
Xxxxxx Brothers
Xxxxxx Brothers Inc.
3 World Financial Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
1. Introduction. Constellation Energy Corporation, a
Maryland and Virginia corporation (the "Corporation"), confirms
its agreement with Xxxxxx Brothers, Xxxxxx Brothers Inc.;
Xxxxxxx, Xxxxx & Co.; and Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated (individually, an "Agent" and
collectively, the "Agents") with respect to the issue and sale
from time to time by the Corporation of up to $300,000,000
aggregate principal amount of its Medium-Term Notes, Series F
registered under the registration statement referred to in
Section 2(a) (the "Notes"). The Notes will be issued under an
indenture, dated as of April 4, 1997 (the "Indenture"), between
the Corporation 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 Corporation in accordance
with the Indenture, the Notes and the Procedures (as defined in
Section 3(d) hereof).
2. Representations and Warranties of the Corporation. The
Corporation represents and warrants to, and agrees with, each
Agent as follows:
(a) A registration statement on Form S-3 (No. 333-_____),
covering $300 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, including (i) the prospectus included
therein dated ____________ (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
Corporation 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
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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.
(a) Subject to the terms and conditions stated herein, the
Corporation hereby appoints each of the Agents as an agent of the
Corporation for the purpose of soliciting or receiving offers to
purchase the Notes from the Corporation 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 Corporation, to use
all reasonable efforts when requested by the Corporation 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 Corporation as
contemplated by Section 4(b) hereof, each Agent shall suspend its
solicitation of purchases of Notes until such time as the
Corporation 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 Corporation 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 Corporation, the
Agents will use their best efforts promptly to suspend
solicitation of offers to purchase Notes from the Corporation,
but in no event later than one business day after notice, until
such time as the Corporation 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
Corporation, orally or in writing, each reasonable offer to
purchase Notes received by it as Agent. The Corporation 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
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have the right, in its discretion reasonably exercised, without
notice to the Corporation, 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 Corporation has agreed to sell pursuant
to this Agreement shall be deemed to have been purchased and paid
for, or sold, by the Corporation until such Note shall have been
delivered to the purchaser thereof against payment by such
purchaser.
(c) At the time of delivery of, and payment for, any Notes
sold by the Corporation as a result of a solicitation made by, or
offer to purchase received by, an Agent, the Corporation 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 Corporation. The initial Procedures, which are
set forth in Exhibit B hereto, shall remain in effect until
changed by agreement among the Corporation and the Agents. Each
Agent and the Corporation agree to perform the respective duties
and obligations specifically provided to be performed by each of
them herein and in the Procedures. The Corporation 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 Corporation, 00
X. Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx, 00000, 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 Corporation 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 Corporation. The Corporation
agrees with the Agents that it will furnish to Xxxxxx Xxxxxx &
Xxxxxxx, 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:
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(a) From the time solicitation regarding sale of the Notes
is begun until all of the Notes have been sold (i) the
Corporation 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 amendments, 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 Corporation
will afford the Agents a reasonable opportunity to comment on any
such proposed post-effective amendment, sticker, or supplement;
(iii) the Corporation will advise each Agent of the filing of any
such post-effective amendment, sticker, or supplement; and (iv)
the Corporation will (x) advise each Agent of the institution by
the Commission of any stop order proceedings in respect of the
Registration 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
Corporation 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 Corporation will promptly notify
each Agent to suspend solicitation of purchases of the Notes.
Notwithstanding Section 4(a) if the Corporation 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 Corporation has accepted
an offer to purchase Notes but the related settlement has not
occurred, then the Corporation, 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 Corporation, 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
Corporation will immediately notify each Agent of any downgrading
in the rating of the Notes or any other debt securities of the
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Corporation, or any proposal to downgrade the rating of the Notes
or any other debt securities of the Corporation, by any
"nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act), as soon as
the Corporation learns of such downgrading or proposal to
downgrade.
(d) The Corporation 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 Corporation 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 will continue such
qualifications in effect so long as required for the
distribution; provided, however, that the Corporation 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
Corporation to be unduly burdensome.
(f) So long as any Notes are outstanding, the Corporation
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 Corporation
filed with the Commission under the Exchange Act or mailed to
shareholders, and (iii) from time to time, such other information
concerning the Corporation as you may reasonably request.
(g) The Corporation 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
Corporation in which the Closing Date or any other Representation
Date occurs, the Corporation will make generally available to its
security holders an earnings statement (which need not be
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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 Corporation 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
Corporation's officers made pursuant to the provisions hereof on
each such date, to the performance by the Corporation 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 Corporation or any Agent,
shall be contemplated by the Commission.
(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 Corporation 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 counsel of the Corporation,
(relying on Piper and Marbury as to Virginia law)to the effect
that:
(i) The Corporation has been duly incorporated and is
validly existing as a corporation in good standing under
the laws of the State of Maryland and the Commonwealth of
Virginia, with power and authority (corporate and other)
to own its respective properties and conduct its
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respective businesses as described in the Prospectus; and
the Corporation is duly qualified to do business as a
foreign corporation in good standing in the Commonwealth
of Pennsylvania, the District of Columbia and 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 Corporation, and is a valid
instrument, legally binding on the Corporation,
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
Corporation. 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 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
Corporation 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
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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) The approvals of the Public Service Commission of
Maryland and the Public Service Commission of the District
of Columbia necessary for the valid issuance by the
Corporation of Notes pursuant to this Agreement have been
obtained and continues in full force and effect. The
Corporation has received the approval of the Federal
Energy Regulatory Commission ("FERC") for the issuance of
Notes on or before December 31, 1998 with maturities of
not more than 12 months after the date of issuance and the
approval of FERC will be required for the issuance of any
Notes having such maturities after December 31, 1998.
Such counsel knows of no other approval of any other
regulatory authority which is legally required for the
valid offering, issuance, sale and delivery of the Notes
by the Corporation under this Agreement (except that such
opinion need not pass upon 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 Corporation
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 Corporation's Charter
or By-Laws or any indenture, mortgage or deed of trust or
other agreement or instrument to which the Corporation 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
Corporation;
(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
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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, Chief Executive Officer, Vice Chairman, President, any
Vice President or the Treasurer and a principal financial or
accounting officer of the Corporation 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 Corporation in this Agreement are true and correct in all
material respects, (ii) the Corporation 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 Corporation, 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
letters, dated the Closing Date, of Coopers & Xxxxxxx related to
Baltimore Gas and Electric Company and Price Waterhouse related
to Potomac Electric Power Company, 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 for
the respective companies that:
(i) In their opinion, the consolidated financial
statements and supporting schedules audited by them which
are included in the company'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
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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 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
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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 Xxxxxx Xxxxxx &
Xxxxxxx, 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 Corporation
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, Xxxxxx Xxxxxx & Xxxxxxx may
rely, as to the incorporation of the Corporation, the approval of
the Public Service Commission of Maryland and the Public Service
Commission of the District of Columbia required for the issuance,
sale and delivery of the Notes, and all other matters governed
by the laws of the State of Maryland and the Commonwealth of
Virginia, the applicability of the 1935 Act and the approval of
FERC for the issuance, sale and delivery of the Notes, upon the
opinion of counsel for the Corporation referred to above.
In addition, such counsel shall state that such counsel
has participated in conferences with officers, counsel and other
representatives of the Corporation, representatives of the
independent certified public accountants for the Corporation 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 contained in the Registration
Statement and Prospectus (except as to the matters referred to in
their opinion rendered pursuant to subheading (x) 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 Corporation), 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
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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).
(h) The approvals of the Public Service Commission of
Maryland and the Public Service Commission of the District of
Columbia necessary for the valid issuance of Notes by the
Corporation pursuant to this Agreement have been obtained and
continue in full force and effect. The Corporation has received
the approval of FERC for the issuance of Notes on or before
December 31, 1998 with maturities of not more than 12 months
after the date of issuance and the approval of FERC will be
obtained before the issuance of any Notes after December 31, 1998
having such maturities.
The Corporation 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 Corporation. The Corporation
agrees that:
(a) Each acceptance by the Corporation 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
Corporation of an offer for the purchase of Notes shall be deemed
to constitute an additional representation, warranty and
agreement by the Corporation 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 Corporation 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 Corporation (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
- 13 -
aforementioned documents is referred to as a "Representation
Date"); the Corporation shall furnish the Agents (but in the case
of (iv) above only if requested by the Agents) with a certificate
of the Chairman, Chief Executive Officer, Vice Chairman,
President, any Vice President or the Treasurer and a principal
financial or accounting officer of the Corporation, 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 Corporation in this Agreement are true and
correct in all material respects; (ii) the Corporation 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 Corporation, 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 Corporation shall
concurrently furnish the Agents with a written opinion or
opinions of counsel for the Corporation, 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 Corporation shall cause Coopers &
Xxxxxxx and Price Waterhouse each concurrently to furnish the
Agents with a letter, addressed jointly to the Corporation and
the Agents and dated the Representation Date or the date of such
- 14 -
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 the financial statements
and other information derived from the accounting records of the
Corporation; 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,
Coopers & Xxxxxxx and Price Waterhouse may limit the scope of
such letters 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 letters, in which event such letters 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
Corporation 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 the
General Counsel or an Associate General Counsel of the
Corporation, dated the date of delivery thereof, in form
satisfactory to such Agent, to the effect set forth in clauses
(i), (ii), (iii) and (v) 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 Corporation 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 Corporation 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 Corporation 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 Corporation'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), (c) and (h), 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 Corporation which materially impairs the
investment quality of the Notes; and (iv) no downgrading in the
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rating of the Corporation's debt securities by any "nationally
recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act).
7. Indemnification and Contribution.
(a) The Corporation will indemnify and hold harmless each
Agent and each person if any, who controls any 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 Corporation 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
Corporation 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 Corporation in
writing that such information should no longer be used therein.
This indemnity agreement will be in addition to any liability
which the Corporation may otherwise have.
(b) Each Agent will indemnify and hold harmless the
Corporation, each of its directors, each of its officers who have
signed the Registration Statement and each person, if any, who
controls the Corporation within the meaning of the Act or the
Exchange Act, against any losses, claims, damages or liabilities
to which the Corporation 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
- 16 -
alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written information
furnished to the Corporation by such Agent specifically for use
therein; and will reimburse any legal or other expenses
reasonably incurred by the Corporation 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 Agent
will not be liable to the Corporation 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
Corporation 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
- 17 -
any statement or omission, and any other equitable considerations
appropriate under the circumstances. The Corporation 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), 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 Corporation, 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 Corporation 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 Corporation and not as principal. Each Agent will use all
reasonable efforts to assist the Corporation in obtaining
performance by each purchaser whose offer to purchase Notes from
the Corporation has been solicited by such Agent and accepted by
the Corporation, but such Agent shall have no liability to the
Corporation in the event any such purchase is not consummated for
any reason. If the Corporation shall default on its obligations
to deliver Notes to a purchaser whose offer it has accepted, the
Corporation (i) shall hold the Agents harmless against any loss,
claim or damage arising from or as a result of such default by
the Corporation, 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 Corporation 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 Corporation 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
- 18 -
Agreement is terminated pursuant to Section 10 or for any other
reason, the Corporation shall remain responsible for the expenses
to be paid or reimbursed by it pursuant to Section 4(g) and the
obligations of the Corporation under Sections 4(f) and (h) and
the respective obligations of the Corporation 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 Corporation has accepted an offer to
purchase Notes and prior to the related settlement, the
obligations of the Corporation 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 Corporation as to any Agent or, in the
case of any 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
Corporation, 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 Corporation to purchase all or a
portion of Notes from the Corporation 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
Corporation in substantially the form attached hereto as Exhibit
C.
Without the oral consent (confirmed in writing) of the
Corporation, no Agent shall have the right to purchase all or a
portion of the Notes for its own account. In the event the
Corporation 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 Corporation 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 Corporation to any person
or entity without the involvement of any of the Agents or from
entering into similar agreements with other firms as agents.
The Corporation will not appoint another agent without
providing each Agent with at least one business day's notice.
- 19 -
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 mailed or
transmitted by any standard form of telecommunication. Notices
to Xxxxxx Brothers Inc. shall be mailed, delivered or telecopied
to it at 3 World Financial Center, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000, telecopier, (000) 000-0000, Attention: Medium-Term
Note Department; notices to Xxxxxxx, Sachs & Co. shall be mailed,
delivered or telecopied to it at 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, telecopier, (000)000-0000, Attention: Registration
Department; notices to Xxxxxxx Xxxxx & Co. shall be mailed,
delivered or telecopied to it at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, telecopier, (000) 000-0000, Attention: MTN Product
Management; and notices to the Corporation shall be mailed,
delivered or telecopied to it at 00 X. Xxxxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx 00000, telecopier, (000) 000-0000, 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
Corporation, 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.
- 20 -
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 CORPORATION
By: _____________________________
CONFIRMED AND ACCEPTED, as of the
date first above written:
XXXXXX BROTHERS INC.
By: _____________________
XXXXXXX, SACHS & CO.
_______________________
Xxxxxxx, Xxxxx & Co.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
By: ___________________
- 21 -
Exhibit A
to Agency Agreement
The Corporation agrees to pay any 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
Exhibit B
to Agency Agreement
Exhibit B to the Agency Agreement will be added at the time the
Agency Agreement is signed and will consist of administrative
procedures agreed on by the Corporation and the Agents.
Exhibit C
to Agency Agreement
CONSTELLATION ENERGY CORPORATION
MEDIUM-TERM NOTES, SERIES F
FORM OF PURCHASE AGREEMENT
INCLUDING
STANDARD PURCHASE PROVISIONS
CONSTELLATION ENERGY CORPORATION
MEDIUM-TERM NOTES, SERIES F
PURCHASE AGREEMENT
________________________
(Date)
Constellation Energy Corporation
00 X. Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Dear Sirs:
Referring to the Medium-Term Notes, Series F of Constellation
Energy Corporation (the "Corporation") covered by the
registration statement on Form S-3 (No. 333-______), (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 Corporation
agrees to sell to the Purchasers, severally, the respective
principal amounts of the Corporation's Medium-Term Notes, Series
F 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 Corporation 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.
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
Corporation on or after: (% of Principal Amount):
______________ ___________________
______________ ___________________
______________ ___________________
- 2 -
Subject to Repurchase by
the Corporation at the Repurchase Prices
option of 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 Corporation 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.
- 3 -
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 Corporation 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 CORPORATION
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.
- 4 -
SCHEDULE A
Name of Purchaser Amount
_________________ ______
__________
Total $
===========
- 5 -
CONSTELLATION ENERGY CORPORATION
STANDARD PURCHASE PROVISIONS
____________________________
From time to time, Constellation Energy Corporation, a
Maryland and Virginia corporation ("Corporation") 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 Corporation proposes to issue and
sell from time to time its Medium-Term Notes, Series F ("Notes")
registered under the registration statement referred to in
Section 2(a). The Notes will be issued under an Indenture, dated
as of April 4, 1997, between the Corporation 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 Corporation.
The Corporation represents and warrants to and agrees with each
Purchaser that:
(a) A registration statement on Form S-3 (No. 333-_____),
covering $300 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 Corporation by any
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 Corporation 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
Corporation, at the office of the Corporation, 00 X. Xxxxxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxx, 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 Corporation 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 Corporation 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 Corporation 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 Corporation, 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.
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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 Corporation. The Corporation
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 Corporation or of which the
Corporation shall be advised in writing by the Purchasers
shall occur which, in the Corporation'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 Corporation 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 Corporation 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
Corporation in which the Closing Date occurs, the Corporation
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 Corporation 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
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prospectus relating to the Purchased Notes is required to be
delivered under the Act, all post-effective amendments and
supplements to the Registration Statement or Prospectus,
respectively (except supplements relating to securities that
are not Purchased Notes).
(e) The Corporation 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 Corporation 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 Corporation to be unduly burdensome.
(f) During the period of five years after the Closing
Date, the Corporation 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 Corporation filed with the Commission under
the Exchange Act or mailed to shareholders, and (iii) from
time to time, such other information concerning the
Corporation as you may reasonably request.
(g) The Corporation 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 Corporation
shall not be obligated to reimburse the Purchasers for any of
the foregoing expenses.
(h) The Corporation 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
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representations and warranties on the part of the Corporation
herein, to the accuracy of the statements of Corporation officers
made pursuant to the provisions hereof, to the performance by the
Corporation of its obligations hereunder and to the following
additional conditions precedent:
(a) Subsequent to the signing of this Agreement, you
shall have received letters of Coopers & Xxxxxxx related to
Baltimore Gas and Electric Company and Price Waterhouse
related to Potomac Electric Power Company, 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 for the respective
companies that:
(i) In their opinion, the consolidated financial
statements and supporting schedules audited by them which
are included in the company'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
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
- 5 -
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 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 Corporation or
you, shall be contemplated by the Commission.
- 6 -
(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 the business or
properties of the Corporation 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 Corporation'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) There shall not be in effect on the Closing Date any
order of the Public Service Commission of Maryland or the
Public Service Commission of the District of Columbia which
would prevent the issuance, sale and delivery of the
Purchased Notes in accordance with the terms contemplated by
this Agreement.
(e) You shall have received an opinion, dated the Closing
Date, of counsel of the Corporation (relying on Piper and
Marbury as to Virginia law) to the effect that:
(i) The Corporation has been duly incorporated and is
validly existing as a corporation in good standing under
the laws of the State of Maryland and the Commonwealth of
Virginia, with power and authority (corporate and other)
to own its respective properties and conduct its
respective businesses as described in the Prospectus; and
the Corporation is duly qualified to do business as a
foreign corporation in good standing in the Commonwealth
of Pennsylvania, the District of Columbia and 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 Corporation and is a valid
instrument, legally binding on the Corporation and
enforceable in accordance with its terms, except as
limited by bankruptcy, insolvency, or other laws
- 7 -
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 Corporation. 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 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 Corporation 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
- 8 -
exhibit thereto or as to the Statement of Eligibility and
Qualification on Form T-l of the Trustee under the
Indenture.
(v) The approvals of the Public Service Commission of
Maryland and the Public Service Commission of the
District of Columbia necessary for the valid issuance by
the Corporation of the Purchased Notes pursuant to this
Agreement have been obtained and continue in full force
and effect. The Corporation has received the approval of
FERC for the issuance of Purchased Notes on or before
December 31, 1998 with maturities of not more than 12
months after the date of issuance and the approval of
FERC will be required for the issuance of any Purchased
Notes having such maturities after December 31, 1998 and
such counsel knows of no other approval of any other
regulatory authority which is legally required for the
valid offering, issuance, sale and delivery of the
Purchased Notes by the Corporation under this Agreement
(except that such opinion need not pass upon 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 Corporation
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 Corporation's Charter
or By-Laws or any indenture, mortgage or deed of trust or
other agreement or instrument to which the Corporation 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 Corporation;
(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.
(f) The Purchasers shall have received from Xxxxxx Xxxxxx
& Xxxxxxx, counsel for the Purchasers, an opinion dated the
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Closing Date, with respect to the matters referred to in
paragraph 6(e) subheadings (ii), (iii), (iv)(b), (v), (vii),
(viii) and (x) and such other matters as the Purchasers shall
reasonably request and the Corporation 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, Xxxxxx Xxxxxx & Xxxxxxx
may rely, as to the incorporation of the Corporation, the
approvals of the Public Service Commission of Maryland and the
Public Service Commission of the District of Columbia required
for the issuance, sale and delivery of the Purchased Notes and
all other matters governed by the laws of the State of Maryland
and the Commonwealth of Virginia, the applicability of the 1935
Act, and FERC approval for the issuance, sale and delivery of the
Purchased Notes, upon the opinion of Counsel for the Corporation
referred to above.
In addition, such counsel shall state that such
counsel has participated in conferences with officers, counsel
and other representatives of the Corporation, representatives of
the independent public accountants for the Corporation and
representatives of the Purchasers 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 contained in the Registration
Statement and Prospectus (except as to the matters referred to in
their opinion rendered pursuant to subheading (x) 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 Corporation), 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).
(g) You shall have received a certificate of the Chairman
of the Board, Chief Executive Officer, Vice Chairman,
President, any Vice President or the Treasurer and a
principal financial or accounting officer of the Corporation,
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
- 10 -
representations and warranties of the Corporation in this
Agreement are true and correct in all material respects, that
the Corporation 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 Corporation except as set forth or contemplated in the
Prospectus or as described in such certificate.
(h) The Corporation 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 Corporation without liability or obligation on
the part of the Corporation or any Purchaser, except as set forth
in Section 10 hereof.
7. Conditions of the Obligations of the Corporation. The
obligations of the Corporation to sell and deliver the Purchased
Notes are subject to the following conditions precedent:
(a) 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 Corporation or
you, shall be contemplated by the Commission.
(b) There shall not be in effect on the Closing Date any
order of the Public Service Commission of Maryland, the
Public Service Commission of the District of Columbia, or the
Federal Energy Regulatory Commission which would prevent the
issuance, sale and delivery of the Purchased Notes or which
contains conditions or provisions with respect thereto which
are not acceptable to the Corporation, it being understood
that no order in effect at the date of this Agreement
contains any such unacceptable conditions or provisions.
If any such condition shall not have been satisfied, then
the Corporation shall be entitled, by notice in writing or by
telecopy to you, to terminate this Agreement without any
liability on the part of the Corporation or any Purchaser,
except as set forth in Section 10 hereof.
8. Indemnification.
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(a) The Corporation 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 Corporation 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 Corporation 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 Corporation in writing
that such information should no longer be used therein. This
indemnity agreement will be in addition to any liability
which the Corporation may otherwise have.
(b) Each Purchaser will indemnify and hold harmless the
Corporation, each of its directors, each of its officers who
have signed the Registration Statement and each person, if
any, who controls the Corporation within the meaning of the
Act or the Exchange Act, against any losses, claims, damages
or liabilities to which the Corporation 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 Corporation by such Purchaser
specifically for use therein; and will reimburse any legal or
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other expenses reasonably incurred by the Corporation 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
Corporation, 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 Corporation 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 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
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statement or omission, and any other equitable considerations
appropriate under the circumstances. The Corporation 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
Corporation 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 Corporation for the
purchase of such Purchased Notes by other persons are not made
within thirty-six hours after such default, this Agreement will
terminate without liability on the part of any non-defaulting
Purchaser or the Corporation, except as provided in Section 10.
In the event that any Purchaser or Purchasers default in their
obligation to purchase Purchased Notes hereunder, the Corporation
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 Corporation 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,
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warranties, and other statements of the Corporation 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 Corporation
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 Corporation 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 Corporation 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 mailed, delivered
or telecopied and confirmed to the address furnished in writing
for the purpose of such communications hereunder, or, if sent to
the Corporation, will be mailed, delivered or telecopied and
confirmed to it, attention of Treasurer at 00 X. Xxxxxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000, telecopier (000) 000-0000;
provided, however, that any notice to a Purchaser pursuant to
Section 8 will be mailed, delivered or telecopied to such
Purchaser at its address appearing in its Purchasers'
Questionnaire.
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 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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Exhibit D
to Agency Agreement
PURCHASE AGREEMENT
(for purchaser's account)
[Date]
Constellation Energy Corporation
00 X. Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Treasurer
The undersigned agrees to purchase the following
principal amount of the Notes described in the Agency Agreement
among Constellation Energy Corporation; Xxxxxx Brothers, Xxxxxx
Brothers Inc.; Xxxxxxx, Xxxxx & Co.; and Xxxxxxx Xxxxx & Co.,
Xxxxxxx Xxxxx Xxxxxx, Xxxxxx & Xxxxx Incorporated dated
_____________, 1997 (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: ___________________
Interest Payment Dates: ___________________
Stated Maturity: ___________________
Redeemable at the Redemption Prices
option of the Corporation (% of Principal Amount)
on or after:
________________ ___________________
________________ ___________________
________________ ___________________
Subject to repurchase
by the Corporation at the Repurchase Prices
option of the holder on: (% of Principal Amount)
________________ __________________
________________ __________________
________________ __________________
Discount: ______________ % of Principal Amount
Price to be paid
to Corporation
(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
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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:
(a) the satisfaction, at such Settlement Date, of each of
the conditions set forth in subsections (a), (b) and (d) through
(h) 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 Corporation 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 Corporation which, in our judgment, materially
impairs the investment quality of the Notes, (ii) any downgrading
in the rating of the Corporation'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
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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 Corporation 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 Corporation in the United States,
other than sales of Notes, borrowings under your revolving 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.
- 4 -
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 CORPORATION
By: ____________________________
