Exhibit 1(b)
UNSECURED DEBT SECURITIES
DUE FROM NINE MONTHS TO THIRTY YEARS
FROM DATE OF ISSUE
FORM OF INTEREST CALCULATION AGENCY AGREEMENT
THIS AGREEMENT dated as of _____, 200 between Constellation Energy Group, Inc.
(hereinafter called the "Issuer"), having its principal office at ▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, 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 ▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇, Attn: Corporate Trust
Administration.
Recitals of the Issuer
The Issuer proposes to issue from time to time up to $2,500,000,000
aggregate principal amount of Unsecured Debt Securities (the "Debt Securities")
under an indenture dated as of March 24, 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 Debt Securities may bear interest at a floating
rate determined by reference to an interest rate formula (the "Floating Rate
Debt Securities") 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 Debt Securities, 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 Debt Securities.
2. The Issuer agrees to deliver to the Calculation Agent, prior to the
issuance of any Floating Rate Debt Securities, copies of the proposed forms of
such Debt Securities, 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.
2
3. The Issuer shall notify the Calculation Agent of the issuance of any
Floating Rate Debt Securities prior to the issuance thereof and, at the 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 Debt Securities in accordance with the terms of such
Debt Securities, 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 and
expenses, 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 Debt Securities 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
3
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
demand, except such as may result from the negligence or willful misconduct of
the Calculation Agent or any of its employees. The Calculation Agent shall incur
no liability and shall be indemnified and held harmless by the Issuer for, or in
respect of, any actions taken or suffered to be taken in good faith by the
Calculation Agent in reliance upon written instructions from the Issuer. In case
any action is brought against the Calculation Agent with respect to which the
Calculation Agent intends to seek indemnification from the Issuer pursuant to
this paragraph 6, the Calculation Agent will notify the Issuer in writing of the
commencement thereof, and the Issuer will be entitled to participate therein and
to assume the defense thereof, with counsel satisfactory to the Calculation
Agent; provided, however, that if the defendants in any such action include both
the Issuer and the Calculation Agent and the Calculation Agent shall have
reasonably concluded, after consultation with legal counsel of its choosing,
that there may be legal defenses available to it which are different from or
additional to those available to the Issuer, the Calculation Agent shall have
the right to select separate counsel to assert such legal defenses and otherwise
to participate in the defense of such action on behalf of the Calculation Agent,
and in such event the Issuer will indemnify the Calculation Agent against the
reasonable compensation and expenses and disbursements of such separate counsel.
4
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 Debt
Securities, 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 Debt Securities;
(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;
5
(iv) the Calculation Agent shall be protected and shall incur no
liability for or in respect of any action taken 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 Debt Securities 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 or 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
6
having acted (except in the event of negligence or willful misconduct) on any
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 (which successor shall be reasonably
satisfactory to the Trustee and shall not be an Affiliate (as such term is
defined in Rule 12b-2 of the rules and regulations promulgated under the
Exchange Act of 1934) of the Issuer), 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 soon as practicable after receipt of any notice of
resignation hereunder. Upon its resignation or removal becoming effective, the
7
retiring Calculation Agent shall be entitled to the payment of its compensation
and the reimbursement of all reasonable expenses (including reasonable counsel
fees and expenses) 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 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.
8
(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.
(f) The provisions of paragraph 6 hereof shall survive any resignation or
removal hereunder.
9
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.
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: __________________
10