Exhibit 1(b)
$500,000,000
MEDIUM-TERM NOTES, SERIES A
DUE FROM NINE MONTHS TO THIRTY YEARS
FROM DATE OF ISSUE
FORM OF INTEREST CALCULATION AGENCY AGREEMENT
THIS AGREEMENT dated as of March____, 1999 between
Constellation Energy Group, Inc. (hereinafter called the
"Issuer"), having its principal office at 00 X. Xxxxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx 00000, and The Bank of New York, a New York
banking corporation (hereinafter sometimes called the
"Calculation Agent or Paying Agent" which terms shall, unless the
context shall otherwise require, include its successors and
assigns), having its principal corporate trust office at 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
Recitals of the Issuer
The Issuer proposes to issue from time to time up to $500,000,000 aggregate
principal amount of Medium-Term Notes, Series A (the "Notes") under an indenture
dated as of March____, 1999 (the "Indenture"), between the Issuer and The Bank
of New York (the "Trustee"), as Trustee. Capitalized terms used in this
Agreement and not otherwise defined herein are used as defined in the Indenture.
Certain of the Notes may bear interest at a floating rate determined by
reference to an interest rate formula (the "Floating
Rate Notes") and the Issuer desires to engage the Calculation Agent to perform
certain services in connection therewith.
NOW IT IS HEREBY AGREED THAT:
1. The Issuer hereby appoints The Bank of New York as Calculation Agent for
the Floating Rate Notes, upon the terms and subject to the conditions herein
mentioned, and The Bank of New York hereby accepts such appointment. The
Calculation Agent shall act as an agent of the Issuer for the purpose of
determining the interest rate or rates of the Floating Rate Notes.
2. The Issuer agrees to deliver to the Calculation Agent, prior to the
issuance of any Floating Rate Notes, copies of the proposed forms of such Notes,
including copies of all terms and conditions relating to the determination of
the interest rate thereunder. The Issuer shall not issue any Floating Rate Note
prior to the receipt of confirmation from the Calculation Agent of its
acceptance of the proposed form of such Note. The Calculation Agent hereby
acknowledges its acceptance of the proposed form of Floating Rate Note
previously delivered to it.
3. The Issuer shall notify the Calculation Agent of the
issuance of any Floating Rate Notes prior to the issuance thereof and, at the
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time of such issuance, shall deliver to the Calculation Agent the information
required to be provided by the Company for the calculation of the applicable
interest rates thereunder. The Calculation Agent shall calculate the applicable
interest rates for Floating Rate Notes in accordance with the terms of such
Notes, the Indenture and the provisions of this Agreement.
4. Promptly following the determination of each change to the interest rate
applicable to any Floating Rate Note, the Calculation Agent will cause to be
forwarded to the Issuer, the Trustee and the principal Paying Agent information
regarding the interest rate then in effect for such Floating Rate Note.
5. The Issuer will pay such compensation as shall be agreed upon with the
Calculation Agent and the expenses, including reasonable counsel fees, incurred
by the Calculation Agent in connection with its duties hereunder, upon receipt
of such invoices as the Issuer shall reasonably require.
6. Notwithstanding any satisfaction or discharge of the Notes
or the Indenture, the Issuer will indemnify the Calculation Agent against any
losses, liabilities, costs, claims, actions or demands which it may incur or
sustain or which may be made against it in connection with its appointment or
the exercise of its powers and duties hereunder as well as the reasonable costs,
including the expenses and fees of counsel in defending any claim, action or
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demand, except such as may result from the negligence or willful misconduct of
the Calculation Agent or any of its employees. The Calculation Agent shall incur
no liability and shall be indemnified and held harmless by the Issuer for, or in
respect of, any actions taken or suffered to be taken in good faith by the
Calculation Agent in reliance upon written instructions from the Issuer. In case
any action is brought against the Calculation Agent with respect to which the
Calculation Agent intends to seek indemnification from the Issuer pursuant to
this paragraph 6, the Calculation Agent will notify the Issuer in writing of the
commencement thereof, and the Issuer will be entitled to participate therein and
to assume the defense thereof, with counsel satisfactory to the Calculation
Agent; provided, however, that if the defendants in any such action include both
the Issuer and the Calculation Agent and the Calculation Agent shall have
reasonably concluded, after consultation with legal counsel of its choosing,
that there may be legal defenses available to it which are different from or
additional to those available to the Issuer, the Calculation Agent shall have
the right to select separate counsel to assert such legal defenses and otherwise
to participate in the defense of such action on behalf of the Calculation Agent,
and in such event the Issuer will indemnify the Calculation Agent against the
reasonable compensation and expenses and disbursements of such separate counsel.
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7. The Calculation Agent may consult with counsel of its own selection (and
notify the Issuer of such consultation) and the advice of such counsel or any
opinion of counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon.
8. The Calculation Agent accepts its obligations herein set
forth upon the terms and conditions hereof, including the following, to all of
which the Issuer agrees:
(i) in acting under this Agreement and in connection with
the Notes, the Calculation Agent, acting as agent for the Issuer,
does not assume any obligation towards, or any relationship of
agency or trust for or with, any of the Holders of the Notes;
(ii) unless herein otherwise specifically provided, any
order, certificate, notice, request or communication from the
Issuer made or given under any provision of this Agreement shall
be sufficient if signed by any person whom the Calculation Agent
reasonably believes to be a duly authorized officer or
attorney-in-fact of the Issuer;
(iii) the Calculation Agent shall be obligated to perform
only such duties as are set forth specifically herein and any
duties necessarily incidental thereto;
(iv) the Calculation Agent shall be protected and shall
incur no liability for or in respect of any action taken
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or omitted to be taken or anything suffered in good faith by
it in reliance upon anything contained in a Floating Rate
Note, the Indenture or any information supplied to it by the
Issuer pursuant to this Agreement, including the information
to be supplied pursuant to paragraph 3 above;
(v) the Calculation Agent, whether acting for itself
or in any other capacity, may become the owner or pledgee of
Notes with the same rights as it would have had if it were not
acting hereunder as Calculation Agent; and
(vi) the Calculation Agent shall incur no liability
hereunder except for loss sustained by reason of its
negligence, willful misconduct or bad faith.
9. (a) The Issuer agrees to notify the Calculation Agent at least 3
business days prior to the issuance of any Floating Rate Note with an interest
rate to be determined by reference to London interbank offered rates (LIBOR) or
any other formula that would require the Calculation Agent to select banks or
other financial institutions (the "Reference Banks") for purposes of quoting
rates. The Calculation Agent shall not be responsible to the Issuer or any third
party for any failure of the Reference Banks to fulfill their duties or meet
their obligations as Reference Banks or as a result of the Calculation Agent
having acted (except in the event of negligence or willful misconduct) on any
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quotation or other information given by any Reference Bank which subsequently
may be found to be incorrect.
(b) Except as provided below, the Calculation Agent may at
any time resign as Calculation Agent by giving written notice to
the Issuer and the Trustee of such intention on its part,
specifying the date on which its desired resignation shall become
effective, provided that such notice shall be given not less than
60 days prior to the said effective date unless the Issuer and
the Trustee otherwise agree in writing. Except as provided below,
the Calculation Agent may be removed by the filing with it and
the Trustee of an instrument in writing signed by the Issuer
specifying such removal and the date when it shall become
effective (such effective date being at least 15 days after said
filing). Any such resignation or removal shall take effect upon:
(i) the appointment by the Issuer as hereinafter provided of
a successor Calculation Agent; and
(ii) the acceptance of such appointment by such successor
Calculation Agent
provided, however, that in the event the Calculation Agent
has given not less than 60 days' prior notice of its desired
resignation, and during such 60 days there has not been
acceptance by a successor Calculation Agent of its appointment as
successor Calculation Agent, the Calculation Agent so resigning
may petition any court of competent jurisdiction for the
appointment of a successor Calculation Agent. The Issuer
covenants that it shall appoint a successor Calculation Agent as
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soon as practicable after receipt of any notice of resignation
hereunder. Upon its resignation or removal becoming effective,
the retiring Calculation Agent shall be entitled to the payment
of its compensation and the reimbursement of all reasonable
expenses (including reasonable counsel fees) incurred by such
retiring Calculation Agent pursuant to paragraph 5 hereof.
(c) If at any time the Calculation Agent shall resign or be
removed, or shall become incapable of acting or shall be adjudged
bankrupt or insolvent, or liquidated or dissolved, or an order is
made or an effective resolution is passed to wind up the
Calculation Agent, or if the Calculation Agent shall file a
voluntary petition in bankruptcy or make an assignment for the
benefit of its creditors, or shall consent to the appointment of
a receiver, administrator or other similar official of all or any
substantial part of its property, or shall admit in writing its
inability to pay or meet its debts as they mature, or if a
receiver, administrator or other similar official of the
Calculation Agent or of all or any substantial part of its
property shall be appointed, or if any order of any court shall
be entered approving any petition filed by or against the
Calculation Agent under the provisions of any applicable
bankruptcy or insolvency law, or if any public officer shall take
charge or control of the Calculation Agent or its property or
affairs for the purpose of rehabilitation, conservation or
liquidation, then a successor Calculation Agent shall be
appointed by the Issuer by an instrument in writing filed with
the successor Calculation Agent and the Trustee. Upon the
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appointment as aforesaid of a successor Calculation Agent and
acceptance by the latter of such appointment the former
Calculation Agent shall cease to be Calculation Agent hereunder.
(d) Any successor Calculation Agent appointed hereunder
shall execute and deliver to its predecessor, the Issuer and the
Trustee and instrument accepting such appointment hereunder, and
thereupon such successor Calculation Agent, without any further
act, deed or conveyance, shall become vested with all the
authority, rights, powers, immunities, duties and obligations of
such predecessor with like effect as if originally named as the
Calculation Agent hereunder, and such predecessor, upon payment
of its reasonable compensation, charges and disbursements then
unpaid, shall thereupon become obliged to transfer and deliver,
and such successor Calculation Agent shall be entitled to
receive, copies of any relevant records maintained by such
predecessor Calculation Agent.
(e) Any corporation into which the Calculation Agent may be
merged or converted or any corporation with which the Calculation
Agent may be consolidated or any corporation resulting from any
merger, conversion or consolidation to which the Calculation
Agent shall be a party shall, to the extent permitted by
applicable law, be the successor Calculation Agent under this
Agreement without the execution or filing of any paper or any
further act on the part of any of the parties hereto. Notice of
any such merger, conversion or consolidation shall forthwith be
given to the Issuer and the Trustee.
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(f) The provisions of paragraph 6 hereof shall survive any
resignation or removal hereunder.
10. Any notice required to be given hereunder shall be delivered in person,
by overnight mail or sent by facsimile or communicated by telephone (subject, in
the case of communication by telephone, to confirmation dispatched within two
business days by letter or facsimile), in the case of the Issuer, to it at the
address set forth in the heading of this Agreement, Attention: Treasurer; in the
case of the Trustee or the Calculation Agent, to it at the address set forth in
the heading of this Agreement; or, in any case, to any other address of which
the party receiving notice shall have notified the party giving such notice in
writing.
11. This Agreement may be amended only by a writing duly executed and
delivered by each of the parties signing below.
12. The provisions of this Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
13. This Agreement may be executed in counterparts and the executed
counterparts shall together constitute a single instrument.
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IN WITNESS WHEREOF, this Agreement has been executed and delivered as
of the day and year first above written.
CONSTELLATION ENERGY GROUP, INC.
By: _________________________________
Title:_______________________________
THE BANK OF NEW YORK
By:__________________________________
Title: _______________________________
