Exhibit 10(g)
GRANTOR TRUST AGREEMENT
DATED AS OF APRIL 30, 1999
BETWEEN
CONSTELLATION ENERGY GROUP, INC.
AND
CITIBANK, N.A.
GRANTOR TRUST AGREEMENT
CONTENTS
Page
SECTION 1 ESTABLISHMENT OF TRUST 2
1.1 Trust is established with Trustee.
1.2 Trust is irrevocable.
1.3 Trust is a grantor trust.
1.4 Assets subject to claims of creditors.
1.5 Due date of Trust contributions.
1.6 Discretionary contributions.
1.7 Eligibility for Trust benefits.
1.8 Definition of "Required Contribution."
1.9 Responsibility for Required Contribution calculation.
1.10 Notification upon failure to made Required Contribution.
SECTION 2 PAYMENTS TO PLAN PARTICIPANTS AND THEIR SURVIVING SPOUSES 8
2.1 CEG required to provide Payment Schedule to Trustee.
2.2 Failure by CEG to provide Payment Schedule.
2.3 Tax withholding.
2.4 Determination entitlement to benefits.
2.5 Payment of benefits directly by CEG.
2.6 Authorization for Trustee to defer payments.
2.7 Determination of insufficient assets.
2.8 Notification of insufficiency.
2.9 Restoration of discontinued or reduced payments.
2.10 Determination of immediate taxation.
2.11 Reduction of future benefits following immediate taxation.
SECTION 3 TRUSTEE RESPONSIBILITY REGARDING PAYMENTS
TO TRUST BENEFICIARY WHEN CEG IS INSOLVENT 17
3.1 Payments cease when CEG is Insolvent.
3.2 Assets subject to claims of creditors.
3.2(a) Duty to inform Trustee of CEG's Insolvency.
3.2(b) Trustee's responsibility to cease payments.
3.2(c) Trustee reliance on Insolvency evidence.
3.2(d) Trustee holds assets for general creditors.
3.2(e) Authority to resume payments.
3.3 Restoration of discontinued payments.
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SECTION 4 PAYMENTS TO BGE 20
4.1 Return or diversion of Trust assets.
4.2 Distribution of excess Trust assets to CEG.
4.3 Distribution of excess Trust assets following a
Change of Control.
SECTION 5 INVESTMENT AUTHORITY 21
5.1 No investment in CEG stock.
5.2 Acknowledgement of investment guidelines.
5.3 CEG may appoint investment advisor.
5.4 CEG may transfer life insurance to Trust.
SECTION 6 DISPOSITION OF INCOME 23
SECTION 7 ACCOUNTING BY TRUSTEE 23
7.1 Trustee provides monthly accounting to CEG.
7.2 Deemed approval of accounting by CEG.
7.3 Tax returns.
7.4 Right of Trustee to judicial settlement of accounts.
SECTION 8 RESPONSIBILITY OF TRUSTEE 26
8.1 Prudency standard for Trustee.
8.2 Indemnification of Trustee.
8.3 Powers of Trustee.
8.4 Additional powers of Trustee.
8.5 Trustee prohibited from carrying on business through Trust.
SECTION 9 COMPENSATION AND EXPENSES OF TRUSTEE 30
9.1 Trustee's fees.
9.2 Taxes on Trust income.
SECTION 10 RESIGNATION AND REMOVAL OF TRUSTEE 31
10.1 Resignation of Trustee.
10.2 Removal of Trustee.
10.3 Removal of Trustee after Change of Control.
10.4 Resignation of Trustee after Change of Control.
10.5 Transfer of assets after resignation or removal of Trustee.
10.6 Appointment of successor Trustee.
SECTION 11 APPOINTMENT OF SUCCESSOR 32
11.1 Appointment of successor after removal or
resignation of Trustee.
ii
11.2 Appointment of successor Trustee following Change
of Control.
11.3 Responsibility of successor Trustee.
11.4 Trustee provides written account after removal or resignation.
SECTION 12 AMENDMENT OR TERMINATION 33
12.1 Amendments to Trust.
12.2 Termination date of Trust.
12.3 Trust termination after participant approval.
12.4 Amendment following Change of Control.
SECTION 13 MISCELLANEOUS 34
13.1 Provisions prohibited by law.
13.2 Alienation clause.
13.3 Trust under New York law.
13.4 Definitions and plurals.
13.5 Definition of Change of Control.
13.6 Certification of authority to act.
13.7 Indemnification of Trustee.
13.8 Authority of Trust Agreement.
13.9 Addresses for Trustee and CEG.
SECTION 14 EFFECTIVE DATE 39
EXHIBIT A PAYMENT SCHEDULE
iii
GRANTOR TRUST AGREEMENT
Dated as of April 30, 1999
between
Constellation Energy Group, Inc.
and
Citibank, N.A.
THIS AGREEMENT dated as ofApril 30, 1999, by and betweenConstellation
Energy Group, Inc., a Maryland corporation, or its successor ("CEG") and
Citibank, N. A., a national banking association as trustee for the trust created
hereby ("Trustee").
WITNESSETH THAT:
WHEREAS, effective with the April 30, 1999 share exchange between CEG
and the common stockholders of Baltimore Gas and Electric Company (BGE), BGE
transferred to CEG the former BGE Executive Benefits Plan and BGE's rights and
obligations under the Grantor Trust Agreement Dated as of July 31, 1994 between
BGE and Citibank, N.A.; and
WHEREAS, CEG has adopted the Constellation Energy Group, Inc. Executive
Benefits Plan (formerly the Baltimore Gas and Electric Company Executive
Benefits Plan) ("Plan"); and
WHEREAS, CEG has incurred or expects to incur liability under the terms
of such Plan for nonqualified supplemental pension retirement benefits with
respect to the individuals participating in such Plan; and
1
WHEREAS, CEG wishes to adopt the trust ("Trust") and to contribute to
the Trust assets that shall be held therein, subject to the claims of CEG's
creditors in the event of CEG's Insolvency, as defined in Section 3.1 hereof,
until paid to Plan participants and their surviving spouses, as defined in
Section 7 of the Plan, in such manner and at such times as specified in the
Plan; and
WHEREAS, it is the intention of the parties that this Trust shall
constitute an unfunded arrangement and shall not affect the status of the Plan
as an unfunded plan maintained for the purpose of providing nonqualified
supplemental pension retirement benefits for a select group of management or
highly compensated employees, for purposes of Title I of the Employee Retirement
Income Security Act of 1974; and
WHEREAS, it is the intention of CEG to make contributions to the Trust
to provide a source of funds to assist in meeting CEG's liabilities under the
Plan;
NOW, THEREFORE, the parties do hereby establish the Trust and agree
that the Trust shall be comprised, held and disposed of as follows:
Section 1. ESTABLISHMENT OF TRUST.
1.1 CEG hereby adopts and establishes with Trustee the Trust consisting
of such sums of cash and other property,
2
including collateral assignments of interests in certain split dollar life
insurance policies, (the "principal"), that currently constitute the Trust and
as from time to time shall be paid or delivered to Trustee to be held,
administered, and disposed of by Trustee as provided in this Trust Agreement.
The principal of the Trust and any earnings thereon (the "Trust assets") shall
be held by Trustee and shall be dealt with in accordance with the provisions of
this Trust Agreement until all payments required by this Trust Agreement have
been made.
1.2 The Trust hereby established shall be irrevocable.
1.3 The Trust is intended to be a grantor trust, of which CEG is the
grantor, within the meaning of subpart E, part I, subchapter J, chapter 1,
subtitle A of the Internal Revenue Code of 1986, as amended, and shall be
construed accordingly.
1.4 The Trust assets shall be held separate and apart from other funds
of CEG and shall be used exclusively for the uses and purposes of Plan
participants, their surviving spouses, and CEG's general creditors as herein set
forth. Plan participants and their surviving spouses shall have no preferred
claim on, or any beneficial ownership interest in, any Trust assets. Any rights
created under the Plan and this Trust Agreement shall be mere unsecured
contractual rights of Plan participants and their surviving spouses against CEG.
Any Trust assets will be subject
3
to the claims of CEG's general creditors under federal and state law in the
event of Insolvency, as defined in Section 3.1 hereof.
1.5 By August 31, 1994, for the Plan year 1993, BGE was required to
irrevocably contribute cash or other property to the Trust in an amount equal to
50% of the Required Contribution, as defined in Section 1.9 hereof. By April 30
of the year following each of the Plan years 1994-1998, BGE was required to
irrevocably contribute additional cash or other peroperty to the Trust in an
amount equal to 100% of the Required Contribution. By April 30 of the year
following each of the Plan years 1999-2002, , CEG shall be required to
irrevocably contribute cash or other property to the Trust in an amount equal to
100% of the Required Contribution.
1.6 CEG, in its sole discretion, may at any time, or from time to time,
make additional contributions of cash or other property to the Trust to augment
the Trust assets to be held, administered and disposed of by Trustee as provided
in this Trust Agreement. Neither Trustee nor any Plan participant or surviving
spouse shall have any right to compel such additional contributions.
1.7 Plan participants or their surviving spouses shall be eligible to
receive benefits under this Trust Agreement only if the Plan participant was an
employee of CEG or a subsidiary in CEG's controlled group ("Employee") as well
as a Plan participant
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as of the end of any Plan year for which a contribution was required pursuant to
Section 1.5 hereof, or as of the end of any Plan year for which a contribution
was made pursuant to Section 1.6, except that for the Plan year 1993, Plan
participants or their surviving spouses shall be eligible to receive benefits
under this Trust Agreement only if the Plan participant was an Employee as well
as a Plan participant as of the first day of 1993.
1.8 "Required Contribution," for purposes of the contribution
requirements as set forth in Section 1.5 hereof, means the sum of (1), (2), (3),
(4) and (5) below computed as indicated herein, less the fair market value of
the Trust assets at the end of the Plan year for which the contribution is
required.
(1) For Plan participants eligible to receive benefits under this Trust
Agreement pursuant to Section 1.7 hereof, who were also Employees as of the end
of the Plan year for which the contribution is required (except Employees
entitled to lump sum payments as indicated under Section 1.8(4) hereof) and who
were not eligible for early retirement under the Plan at the end of the Plan
year for which the contribution is required, an amount equal to the present
value of an annuity including the estimated present value of post retirement
supplemental survivor annuity benefits under the Plan commencing effective with
the month in which the participant becomes age 65 using (i) the net accrued
benefit as computed under the Plan (without regard to age and
5
Credited Service eligibility requirements), expressed as a monthly amount, (ii)
an interest rate equal to the lesser of 8% or 95% of the Interest Rate under the
Plan, and (iii) the Mortality Table.
(2) For Plan participants eligible to receive benefits under this Trust
Agreement pursuant to Section 1.7 hereof, who were also Employees as of the end
of the Plan year for which the contribution is required (except CEG Employees
entitled to lump sum payments as indicated under Section 1.8(4) hereof) and who
were eligible for early retirement under the Plan as of the end of the Plan year
for which the contribution is required, an amount equal to the present value of
an annuity including the present value of post retirement supplemental survivor
annuity benefits under the Plan commencing effective with the first month
following the Plan year for which the contribution is required using (i) the net
accrued benefit as computed under the Plan, expressed as a monthly amount, (ii)
an interest rate equal to the lesser of 8% or 95% of the Interest Rate under the
Plan, and (iii) the Mortality Table.
(3) For Plan participants or their surviving spouses who are eligible
to receive benefits under this Trust Agreement pursuant to Section 1.7 hereof
who were also receiving a retirement benefit under the Plan in the form of a
monthly payment as of the end of the Plan year for which the contribution is
required, an amount equal to the present value of an annuity as computed under
(2)(i),(ii), and (iii) above except that the
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interest rate used to compute the present value under (ii) shall be 8%.
(4) For all Plan participants eligible to receive benefits under this
Trust Agreement pursuant to Section 1.7 hereof who are also entitled under
Section 5(c) of the Plan to receive a lump sum payment at the later of age 55 or
upon separation from service as of the end of the Plan year for which the
contribution is required, an amount equal to the present value of an annuity as
computed under (1) above.
(5) In the event there has been a reduction or discontinuance of
payments pursuant to Sections 2.6, 2.7, or Section 3 hereof, an amount equal to
the total amount of any previously reduced or discontinued payments to Plan
participants and their surviving spouses, less the aggregate amount of any
payments made to Plan participants and their surviving spouses by CEG or BGE in
lieu of such payments, plus interest computed pursuant to Section 2.9 hereof on
the net aggregate amount.
1.9 CEG shall have sole responsibility for providing to Trustee the
determination and calculation of the Required Contribution which shall be
determined and calculated by the actuary of the Pension Plan of Constellation
Energy Group, Inc. Trustee shall have no responsibility with respect to such
determination and calculation including the responsibility to verify (i) the
accuracy of such calculation or (ii) compliance by CEG with the terms of Section
1 hereof, except as provided in Section 1.11 hereof. Trustee shall have no duty,
obligation or
7
responsibility to bring any action or proceeding to enforce the collection of
the Required Contribution from CEG.
1.10 In the event CEG fails to make the Required Contribution to the
Trust by the dates specified in Section 1.5 hereof, Trustee shall notify CEG of
such failure by the 15th day of the month following the month in which the
contribution was required. Such notification shall stipulate that CEG may
correct the failure to contribute by the last day of the month following the
month in which the contribution was required (the "Required Contribution
correction date"). Trustee shall notify the Plan participants or their surviving
spouses shown on the most recent Payment Schedule, as defined in Section 2.1
hereof, provided by CEG to Trustee, in the event CEG fails to make the Required
Contribution by the Required Contribution correction date. Trustee shall make
such notification no later than 15 days following the Required Contribution
correction date.
Section 2. PAYMENTS TO PLAN PARTICIPANTS AND THEIR SURVIVING SPOUSES.
2.1 By April 30 of the year following each Plan year until termination
of the Trust under the provisions of Section 12 hereof, and at other times as
reasonably requested by Trustee including such times as Trustee is notified in
writing of the death of a Plan participant or surviving spouse eligible to
receive benefits under this Trust Agreement, CEG shall deliver to Trustee a
schedule, substantially in the format of Exhibit A
8
hereof, and any other necessary documentation (such schedule and other
documentation being referred to for this purpose as the "Payment Schedule") that
indicates the Plan benefit amounts currently payable in respect of each Plan
participant (and his or her surviving spouse), the form in which such amount is
to be paid (as provided for or available under the Plan), the time of
commencement for payment of such amounts, whether the Plan participant is
receiving such payment as a result of an entitlement event (as defined in
Section 5(c) of the Plan), the present value of the future benefits payable to
Plan participants and their surviving spouses under the terms of this Trust
Agreement computed as under Section 1.8 (1), (2), (3), and (4) hereof, and the
Required Contribution computed pursuant to Section 1.8 hereof.
Plan participants or their surviving spouses shall be included on the
Payment Schedule and shall be eligible for benefits under this Trust Agreement
pursuant to Section 1.7 hereof only to the extent contributions to the Trust
were required under Section 1.5 hereof, or for which a contribution was made by
CEG to the Trust pursuant to Section 1.6 hereof. A modified Payment Schedule
shall be delivered by CEG to Trustee upon the occurrence of any event, such as
early retirement of a Plan participant or an entitlement event, as defined in
Section 5(c) of the Plan, requiring a modification of the Payment Schedule or a
modified Payment Schedule.
9
CEG shall cause the Payment Schedule which CEG shall provide to Trustee
to be prepared by the actuary for the Pension Plan of Constellation Energy
Group, Inc.
Except as otherwise provided in Sections 2.5 through 2.11 hereof,
Trustee shall make payments to Plan participants and their surviving spouses in
accordance with such Payment Schedule, and shall act only upon such written
direction and shall have no duty to determine the rights of any person under
this Trust Agreement or under the Plan or to inquire into the right or power of
CEG to direct or not direct any such payment and shall be authorized to rely on
the Payment Schedule most recently provided to Trustee by CEG.
2.2 In the event CEG fails to deliver the Payment Schedule to Trustee
by the date specified in Section 2.1 hereof, Trustee shall notify CEG of such
failure by the 15th day of the month following the month in which the Payment
Schedule was required to be delivered to Trustee. Such notification shall
stipulate that CEG may correct the failure by the last day of the month
following the month in which the Payment Schedule was required to be delivered
to Trustee (the "Payment Schedule correction date"). Trustee shall notify the
Plan participants or their surviving spouses shown on the most recent Payment
Schedule provided by CEG to Trustee in the event CEG fails to deliver the
Payment Schedule to Trustee by the Payment Schedule correction date. Trustee
shall make such notification no later than 15 days following the Payment
Schedule correction date If CEG fails to deliver the
10
Payment Schedule to Trustee by the date specified in Section 2.1 hereof, Trustee
shall make payments to Plan participants and their surviving spouses, except as
otherwise provided in Sections 2.5 through 2.11 hereof, in accordance with the
Payment Schedule most recently provided to Trustee by CEG (or prior to April 30,
1999, by BGE). Within a reasonable period of time after CEG delivers the updated
Payment Schedule to Trustee, Trustee shall pay all amounts due to the Plan
participants and their surviving spouses for the period during which Trustee
relied on the previous Payment Schedule to the extent such amounts have not been
paid by Trustee under the previous Payment Schedule or by CEG pursuant to
Sections 2.5 through 2.11 hereof. Such amounts paid by Trustee shall include
interest computed at an 8% per annum rate from the date the payments were due
under the Plan to the first day of the month in which such amount was paid.
2.3 Trustee shall make provision for the reporting and withholding of
any federal, state or local taxes that may be required to be withheld with
respect to the payment of benefits from the Trust and shall pay amounts withheld
to the appropriate taxing authorities or determine that such amounts have been
reported, withheld and paid by CEG, provided, however, that CEG shall be
required to provide Trustee with all information reasonably necessary for
Trustee to perform such withholding.
2.4 The entitlement of Plan participants and their surviving spouses to
benefits under the Plan shall be determined
11
by CEG or such party as it shall designate under the Plan, and any claim for
such benefits shall be considered and reviewed under the procedures set out in
the Plan. Except as provided in Section 2.7 hereof, Trustee shall have no
responsibility to determine such entitlements or to verify the accuracy of their
determination or to review or supervise the review of claims for benefits.
2.5 CEG may make payment of benefits directly to Plan participants and
their surviving spouses as they become due in accordance with the most recent
Payment Schedule provided by CEG to Trustee. CEG shall notify Trustee of its
decision to make payment of benefits prior to the time amounts are payable to
Plan participants and their surviving spouses by indicating such intent on the
Payment Schedule provided by CEG to Trustee pursuant to Section 2.1 or by
separate written notification. CEG shall provide Trustee with documentation
substantiating that such payments were made no later than the last day of the
month in which such payments were due in accordance with the most recent Payment
Schedule provided by CEG to Trustee. If such documentation is not provided,
Trustee is authorized to make such payments directly to Plan participants and
their surviving spouses. In addition, if the Trust assets are insufficient to
make payments of benefits in accordance with the most recent Payment Schedule
provided by CEG to Trustee, or are not available to make such payments because
all or part of the Trust assets are invested in collateral assignments of
certain split dollar life
12
insurance policies, CEG shall pay the balance of each such payment to the Plan
participant or their surviving spouse as it falls due. Trustee shall notify CEG
of such insufficiency or unavailability as specified in Sections 2.6 and 2.8
hereof.
2.6 Where Trustee is required to make payments from the Trust according
to the most recent Payment Schedule and CEG does not make payments in lieu of
such payments as provided under Section 2.5 hereof, and Trustee is unable to
make the required payments because all or part of the Trust assets are invested
in the collateral assignment portion of certain split dollar life insurance
policies, Trustee is authorized to defer the required payments until cash is
available to make the required payments under the terms of this Trust Agreement.
2.7 A determination of insufficiency of Trust assets shall be made with
respect to the end of each Plan year after receipt by the Trustee of the Payment
Schedule prepared with respect to such Plan year or the most recent Payment
Schedule in the event CEG fails to deliver the Payment Schedule to Trustee by
the date specified in Section 2.1 hereof. The Trust assets will be deemed to be
insufficient to make payments of benefits in accordance with the terms of such
Payment Schedule if the market value of the Trust assets at the end of the Plan
year for which the determination is being made plus the Required Contribution
actually made with respect to such Plan year is less than the present value of
the future benefits as shown on the most recent
13
Payment Schedule. In determining the market value of collateral assignments of
interests in split dollar life insurance policies held by the Trust, Trustee may
rely on the valuation provided by the insurance carrier who issued such
policies, or the broker administering such policies.
In the event of such insufficiency and to the extent CEG does not make
payments directly to Plan participants or their surviving spouses as provided
under Section 2.5 hereof, any payment made from the Trust will be reduced by
multiplying such payment by a fraction, the numerator of which shall be the
value of all cash and other property held by the Trust and the denominator of
which shall be the aggregate present value of all benefits under the Plan as
shown on the most recent Payment Schedule.
2.8 If the Trust assets are insufficient to make payments of benefits
in accordance with the most recent Payment Schedule, Trustee shall notify CEG of
such insufficiency by May 15 of the year following the Plan year with respect to
which the insufficiency has been determined. Such notification shall stipulate
that CEG may correct the insufficiency by May 31 of the year following the Plan
year with respect to which the insufficiency has been determined (the
"insufficiency correction date"). Trustee shall notify the participants or their
surviving spouses shown on the most recent Payment Schedule provided by CEG to
Trustee in the event CEG fails to correct the insufficiency by the insufficiency
correction date. Trustee shall make such
14
notification no later than 15 days following the insufficiency correction date
and shall proceed to reduce any payment made from the Trust in the manner
specified in Section 2.7 hereof as soon as practicable.
2.9 If Trustee reduces or discontinues the payment of benefits from the
Trust pursuant to Section 2.6 and 2.7 hereof and the Trust assets subsequently
become sufficient to pay all or part of the previously reduced or discontinued
benefits, the first payment following thereafter shall include the aggregate of
all payments due to Plan participants and their surviving spouses under the
terms of this Trust Agreement for the period of such reduction or discontinuance
to the extent Trust assets are available, less the aggregate amount of any
payments made to Plan participants and their surviving spouses by CEG in lieu of
the payments provided for hereunder during any such period of reduction or
discontinuance. In such event where Trust assets are sufficient to pay only a
part of the previously reduced or discontinued benefits, amounts relating to the
earliest payments reduced or discontinued shall be paid before all other amounts
due under this Trust Agreement. Such payments shall also include interest
computed at an 8% per annum rate on the net aggregate amount of all payment
reductions from the date the payments were due under the Plan to the first day
of the month in which such net aggregate amount was paid.
15
2.10 In the event there is a final judicial determination or a final
determination by the Internal Revenue Service that the Plan participants and
their surviving spouses are subject to any tax with respect to any amounts held
under the terms of the Trust, then Trustee shall make payments from the Trust to
such Plan participants and their surviving spouses in such amounts as set forth
in such final determination for the purpose of paying federal taxes and interest
and any penalties thereon which such Plan participants and their surviving
spouses incur arising out of such determination. Trustee's decision as to
whether a final determination has occurred shall be binding and conclusive on
all Plan participants and their surviving spouses.
2.11 Any payment from the Trust, as provided in Section 2.10 hereof,
excluding interest and penalties paid with respect to federal taxes, shall
reduce the benefits payable under the Plan of those participants and their
surviving spouses on whose behalf such payments are made. It shall be the
responsibility of CEG to determine or cause to be determined by the actuary for
the Pension Plan of Constellation Energy Group, Inc. the amount of such
reduction and to provide Trustee with an updated Payment Schedule to reflect any
such reduction made hereunder. Trustee shall have no duty to verify any
calculations provided by CEG under this Section 2.11.
16
Section 3. TRUSTEE RESPONSIBILITY REGARDING PAYMENTS TO TRUST
BENEFICIARY WHEN CEG IS INSOLVENT.
3.1 Trustee shall cease payment of benefits to Plan participants and
their surviving spouses if CEG is Insolvent. CEG shall be considered Insolvent
for purposes of this Trust Agreement if (i) CEG makes a voluntary filing under
the United States Bankruptcy Code, or (ii) CEG is subject to a pending
involuntary proceeding as a debtor under the United States Bankruptcy Code.
3.2 At all times during the continuance of this Trust, as provided in
Section 1.4 hereof, the Trust assets shall be subject to claims of general
creditors of CEG under federal and state law as set forth below.
3.2(a) The Board of Directors of CEG and the Chief Executive Officer of
CEG shall have the duty to inform Trustee in writing of CEG's Insolvency. If a
person claiming to be a creditor of CEG alleges in writing to Trustee that CEG
has become Insolvent, Trustee shall determine whether CEG is Insolvent and,
pending such determination, Trustee shall discontinue payment of benefits to
Plan participants and their surviving spouses.
3.2(b) Until receipt of a notice of Insolvency as set forth above,
Trustee shall be under no obligation and shall have no responsibility to suspend
payments hereunder and hold the Trust assets for the benefit of CEG's general
creditors. Trustee
17
shall not be deemed to have notice or knowledge of facts or events in public
records or received by departments or divisions of Trustee bank other than the
Investor Services division of Trustee bank. Trustee shall not have any liability
to any party for making any payments or withholding any payments pursuant to
court order or request from trustee in bankruptcy or receivership pursuant to
notice of Insolvency as provided above.
3.2(c) Unless Trustee has actual knowledge of CEG's Insolvency, or has
received notice from CEG or a person claiming to be a creditor alleging that CEG
is Insolvent, Trustee shall have no duty to inquire whether CEG is Insolvent.
Trustee may in all events rely on such evidence concerning CEG's solvency as may
be furnished to Trustee and that provides Trustee with a reasonable basis for
making a determination concerning CEG's solvency.
3.2(d) If at any time Trustee has determined that CEG is Insolvent,
Trustee shall discontinue payments to Plan participants and their surviving
spouses and shall hold the Trust assets for the benefit of CEG's general
creditors. Nothing in this Trust Agreement shall in any way diminish any rights
of Plan participants and their surviving spouses to pursue their rights as
general creditors of CEG with respect to benefits due under the Plan or
otherwise.
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3.2(e) Trustee shall resume the payment of benefits to Plan
participants and their surviving spouses in accordance with Section 2 of this
Trust Agreement only after Trustee has determined that CEG is not Insolvent (or
is no longer Insolvent). Where CEG is subject to a pending proceeding as a
debtor under the United States Bankruptcy Code, Trustee shall resume payment
when such proceeding is dismissed. In all other cases, Trustee shall have no
obligation to so resume payment until it shall have received an unqualified
opinion of a certified public accountant that CEG is no longer Insolvent and an
opinion of counsel that there is no legal prohibition to resuming payment
hereunder.
3.3 If Trustee discontinues the payment of benefits from the Trust
pursuant to Section 3.2 hereof and subsequently resumes such payments, the first
payment following such discontinuance shall include the aggregate amount of all
payments due to Plan participants and their surviving spouses under the terms of
this Trust Agreement for the period of such discontinuance, less the aggregate
amount of any payments made to Plan participants and their surviving spouses by
CEG or BGE in lieu of the payments provided for hereunder during any such period
of discontinuance plus interest computed as under Section 2.9 hereof on the net
aggregate amount of all payments from the date the payments were due under the
Plan to the first day of the month in which such net aggregate amount was paid.
CEG shall cause to be determined and calculated by the actuary of the Pension
Plan of Constellation Energy Group, Inc. such net aggregate amount, which
19
determination shall be conclusive for CEG, Trustee, and all Plan participants
and their surviving spouses.
Section 4. PAYMENTS TO CEG.
4.1 Except as provided in Sections 3.2 and 4.2 hereof, CEG shall have
no right or power to direct Trustee to return to CEG or to divert to others any
of the Trust assets before all payments of benefits have been made to Plan
participants and their surviving spouses in accordance with the most recent
Payment Schedule provided by CEG to Trustee and the terms of this Trust
Agreement.
4.2 In the event the market value of Trust assets as of the end of a
Plan year exceeds 120 percent of the present value of future benefits as shown
on the Payment Schedule for such Plan year, plus the amount of any payments as
computed under Section 1.9(5) hereof as of the end of such Plan year, then CEG
may, in its sole discretion, direct Trustee in writing to distribute such excess
Trust assets, in whole or in part, to CEG provided such distribution does not
contravene any provision of law. Trustee shall have no responsibility to
determine the propriety of any such direction.
4.3 Notwithstanding Section 4.2 hereof, CEG may not direct Trustee to
distribute such excess Trust assets for 2 years from the date a Change of
Control is deemed to occur under Section 13.5 hereof.
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Section 5. INVESTMENT AUTHORITY.
5.1 In no event may Trustee invest in securities (including stock or
rights to acquire stock) or obligations issued by CEG or BGE, other than a de
minimis amount held in common investment vehicles in which Trustee invests. All
rights associated with the Trust assets shall be exercised by Trustee, and shall
in no event be exercisable by or rest with Plan participants and their surviving
spouses; provided that CEG may at any time, upon delivery of written notice to
Trustee, terminate Trustee's authority over the Trust assets.
5.2 CEG shall submit to Trustee investment guidelines which shall be
acknowledged by Trustee in writing. The Trust assets shall be held, invested and
reinvested by Trustee upon written direction of CEG and only in accordance with
the investment guidelines most recently acknowledged by Trustee. CEG shall
direct Trustee to invest or reinvest from time to time the Trust assets (taking
into account, among other things, anticipated cash requirements for benefits
under the Plans); provided, however, that pending receipt of investment
directions or guidelines from CEG or pending the acknowledgement by Trustee of
such investment guidelines, the Trust assets may be held in interest bearing
cash accounts maintained by Trustee; and provided, however, that Trustee shall
not be liable for any failure to maximize the income earned on the Trust assets,
or for any loss suffered by the Trust, as a result of its investment or
reinvestment of the
21
Trust assets in accordance with 1) directions received by Trustee from CEG, or
2) the investment guidelines as acknowledged by Trustee.
5.3 CEG may, in its sole discretion, appoint an investment manager or
managers to manage (including the power to acquire and dispose of) any Trust
assets. Trustee may rely on direction of such investment manager upon receipt of
written direction from CEG and shall be entitled to rely on such direction until
revoked in writing by CEG. Trustee shall not be liable for the acts or omissions
of such investment manager or managers, unless Trustee participates knowingly
in, or knowingly undertakes to conceal, an act or omission of such investment
manager, knowing that such act or omission is a breach of its or the investment
manager's fiduciary duty. Trustee is under no obligation to review, inquire into
or examine the acts or omissions of any such investment manager. Trustee shall
have the duty to inform CEG in the event Trustee becomes aware of any such acts
or omissions. Trustee shall not be under an obligation to invest or otherwise
manage Trust assets which are subject to the management of the investment
manager.
5.4 CEG reserves the right to transfer to the Trust in satisfaction of
the contribution requirements as set forth in Section 1.5 hereof, life
insurance, annuity policies or contracts on or for the life of any Plan
participant, or to direct Trustee to purchase any such policies or contracts on
or for the life of
22
any such Plan participant out of the Trust assets. Any such policy or contract
shall be a Trust asset subject to the claims of CEG's creditors in the event of
Insolvency, as defined in Section 3.1 hereof. The proceeds, dividends, or
distributions of cash value paid with respect to any life insurance policy or
contract held in the Trust shall be paid to the Trust. Trustee shall be under no
duty to question any direction of CEG or to review the form of any policies or
contracts or the selection of the issuer thereof, or to make suggestions to CEG
with respect to the form of such policies or contracts or to the issuer thereof.
Section 6. DISPOSITION OF INCOME.
During the term of this Trust, all income received by the Trust, net of
expenses and taxes, shall be accumulated and reinvested, until otherwise
required for disbursement under the terms of this Trust Agreement.
Section 7. ACCOUNTING BY TRUSTEE.
7.1 Trustee shall keep accurate and detailed records of all
investments, receipts, disbursements, and all other transactions required to be
made, including such specific records as shall be agreed upon in writing between
CEG and Trustee. Within 15 days following the close of each calendar month and
within 90 days after the removal or resignation of Trustee, Trustee shall
deliver to CEG a written account of its administration of the Trust pursuant to
terms of this Trust Agreement during such year or during the period from the
close of the last preceding year to
23
the date of such removal or resignation, setting forth all investments,
receipts, disbursements and other transactions effected by it, including a
description of all securities and investments purchased and sold with the cost
or net proceeds of such purchases or sales (accrued interest paid or receivable
being shown separately), and showing all cash, and the cost and market value of
all securities and other property held in the Trust at the end of such year or
as of the date of such removal or resignation, as the case may be.
In the event the insurance carrier who issued the insurance policies
which are held by or collaterally assigned to the Trust or the broker who
administers such policies does not timely provide Trustee with the market value
of such insurance policies or collateral assignments, Trustee shall provide to
CEG written accounts under this Section 7.1 containing all valuations except
such insurance valuations. As soon as practicable following the receipt of the
market valuations from the carrier or the broker, Trustee shall provide CEG with
written accounts containing such insurance valuations.
7.2 Unless CEG shall have filed with Trustee written exceptions to any
such statement or account delivered by Trustee pursuant to Section 7.1 hereof
within 90 days after receipt of such statement or account, CEG shall be deemed
to have approved such statement or account, and in such case or upon the written
approval by CEG of any such statement or account, Trustee shall be forever
released and discharged with respect to all matters
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and things embraced in such statement or account as though it had been settled
by a decree of a court of competent jurisdiction in an action or proceeding to
which CEG or persons having any beneficial interest in the Trust were parties.
7.3 CEG shall prepare and file such tax returns and other reports as
may be required for the Trust, with any taxing authority or any other government
authority and shall provide Trustee with copies of such returns and reports as
soon as practicable following the date of filing. Trustee shall provide to CEG
such information, to the extent not already provided through written accounts
delivered to CEG pursuant to Section 7.1, as is necessary for CEG to prepare and
file such tax returns and other reports.
7.4 Nothing contained in this Trust Agreement or in the Plan shall
deprive Trustee of the right to have a judicial settlement of its accounts. In
any proceeding for a judicial settlement of the accounts of Trustee or for
instruction in connection with the Trust assets, the only necessary party
thereto in addition to Trustee shall be CEG. If Trustee so elects, it may bring
in as a party any other person or persons. No person interested in the Trust
assets, other than CEG, shall have a right to compel an accounting, judicial or
otherwise, by Trustee and each such person shall be bound by all accountings as
herein provided, as if the account had been settled by decree of
25
a court of competent jurisdiction in an action or proceeding to which such
person was a party.
Section 8. RESPONSIBILITY OF TRUSTEE.
8.1 Trustee shall act with the care, skill, prudence and diligence
under the circumstances then prevailing that a prudent person acting in like
capacity and familiar with such matters would use in the conduct of an
enterprise of a like character and with like aims, provided, however, that
Trustee shall incur no liability to any person for any action taken pursuant to
a direction, request or approval given by CEG (or investment manager designated
pursuant to terms hereof) which is contemplated by, and in conformity with, the
terms of this Trust Agreement and is given in writing by CEG.
8.2 Trustee need not engage in any litigation, arbitration or
administrative proceeding related to this Trust Agreement unless first
indemnified to its reasonable satisfaction by CEG unless such litigation,
arbitration or administrative proceeding is prompted by an allegation that
Trustee has breached its duties undertaken pursuant to this Trust Agreement. If
Trustee proceeds to engage in any such litigation, arbitration or administrative
proceeding and is not so indemnified, all reasonable costs of Trustee including
reasonable attorney's fees incurred pursuant to such action shall be charged
against and paid from the Trust assets, except when the claim relates to an
allegation that
26
Trustee has breached its duties in which case Trustee shall be responsible for
such costs.
Trustee may consult with any legal counsel, including, without
limitation, counsel to CEG or Trustee's own independent counsel, to assist
Trustee in the management and administration of the Trust or with respect to (a)
the meaning or construction of the terms of this Trust Agreement, (b) its
obligations or duties hereunder, (c) any act which Trustee should take or omit
hereunder, (d) any action or proceeding, or (e) any question of law. In any
action taken or omitted by Trustee in good faith pursuant to the advice of such
counsel, CEG shall indemnify and hold Trustee harmless against reasonable
litigation expenses and attorney's fees occasioned by such action; except when
Trustee acted or omitted to act upon the advice of counsel other than counsel to
CEG.
8.3 Trustee shall have, without exclusion, all powers conferred on
trustees by applicable law, unless expressly provided otherwise herein,
provided, however, that if an insurance policy is held as an asset of the Trust,
Trustee shall have no power to name a beneficiary of the policy other than the
Trust, to assign the policy (as distinct from conversion of the policy to a
different form) other than to a successor Trustee, or to loan to any person the
proceeds of any borrowing against such policy. Trustee, as assignee under split
dollar life insurance policies, may exercise the right to obtain policy loans in
accordance with the terms of the collateral assignment document.
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8.4 In executing its duties, obligations and responsibilities as herein
provided, and in addition to those powers given by law, Trustee shall have the
power, in its sole discretion:
(a) to collect and receive any and all money and other property due to
the Trust and to give full discharge therefor;
(b) to settle, compromise or submit to arbitration any claims, debts or
damages due to or owing to or from the Trust; to commence or defend suits or
legal proceedings to protect any interest of the Trust; and to represent the
Trust in all suits or legal proceedings in any court or before any other body or
tribunal;
(c) if specifically instructed by CEG, to provide benefits through the
purchase of individual or group annuity or life insurance contracts issued by
insurance companies licensed to do business in the State of New York;
(d) if specifically instructed by CEG, to act as agent for CEG to
perform multiple services for the Plan, its participants and beneficiaries and
to receive and withdraw from the Trust assets reasonable compensation therefor;
(e) to engage accountants or other advisors as Trustee may deem
necessary to control and manage the Trust assets and to carry out the purposes
of this Trust Agreement;
(f) subject to Section 5 hereof, to invest and reinvest the Trust
assets without distinction between principal and income in any form of property
not prohibited by law including, without
28
limitation on the amount which may be invested therein, any common or group
trust fund operated by Trustee or in demand deposits of Trustee;
(g) to hold cash uninvested in an amount considered necessary and
practical for proper administration of the Trust and/or to deposit the same with
any banking, savings or similar financial institution supervised by the United
States or any State, including Trustee's own banking department; and
(h) to perform all such acts and exercise all such rights and
privileges consistent with applicable law and the terms of this Trust Agreement,
although not specifically mentioned herein, as Trustee may deem desirable or
necessary to control and manage the Trust assets and to carry out the purposes
of this Trust Agreement.
Except as provided under Section 13.2, if all or any part of the Trust
assets are at any time attached, garnished, or levied upon by any court order,
or in case the payment, assignment, transfer, conveyance or delivery of any such
property shall be stayed or enjoined by any court order, or in case any order,
judgment or decree shall be made or entered by a court affecting such property
or any part thereof, then and in any of such events Trustee is authorized, in
its sole discretion, to rely upon and comply with any such order, writ, judgment
or decree, and it shall not be liable to CEG (or any of its subsidiaries) or any
participant by reason of such compliance even though such order, writ, judgment
or decree subsequently may be reversed, modified, annulled, set aside or
vacated.
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8.5 Notwithstanding any powers granted to Trustee pursuant to this
Trust Agreement or to applicable law, Trustee shall not have any power that
could give this Trust the objective of carrying on a business and dividing the
gains therefrom, within the meaning of section 301.7701-2 of the Procedure and
Administrative Regulations promulgated pursuant to the Internal Revenue Code.
Section 9. COMPENSATION AND EXPENSES OF TRUSTEE.
9.1 CEG shall pay all administrative and Trustee's fees and expenses
(including, without limitation, reasonable fees of agents and counsel). If not
so paid, the fees and expenses shall be paid from the Trust; provided, however,
that CEG may approve in writing the automatic payment of fees, compensation and
expenses from the Trust. Trustee shall have a lien on the Trust in the amount of
such fees, expenses and compensation until the same have been paid.
9.2 CEG shall pay any federal, state, local or other taxes imposed or
levied with respect to the Trust assets under the existing or future laws.
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Section 10. RESIGNATION AND REMOVAL OF TRUSTEE.
10.1 Trustee may resign at any time by written notice to CEG, which
shall be effective 30 days after receipt of such notice unless CEG and Trustee
agree otherwise in writing.
10.2 Accept as provided in Section 10.3, Trustee may be removed by CEG
on 30 days written notice or upon shorter notice accepted by Trustee.
10.3 Upon a Change of Control, as defined in Section 13.5 hereof,
Trustee may not be removed by CEG for 2 years from the date a Change of Control
is deemed to occur under Section 13.5 hereof.
10.4 If Trustee resigns within 2 years of a Change of Control, Trustee
shall select a successor Trustee in accordance with the provisions of Section
11.2 hereof prior to the effective date of Trustee's resignation.
10.5 Upon resignation or removal of Trustee and appointment of a
successor Trustee, all Trust assets shall subsequently be transferred to the
successor Trustee. The transfer shall be completed at the later of (i) 90 days
after receipt of notice of resignation or removal of Trustee, or (ii)
appointment of successor Trustee, unless CEG extends the time limit in writing.
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10.6 If Trustee resigns or is removed, a successor shall be appointed,
in accordance with Section 11 hereof, by the effective date of resignation or
removal under Sections 10.1 or 10.2 hereof. If no such appointment has been
made, Trustee may apply to a court of competent jurisdiction for appointment of
a successor or for instructions. All expenses of Trustee in connection with the
proceeding shall be allowed as administrative expenses of the Trust.
Section 11. APPOINTMENT OF SUCCESSOR.
11.1 If Trustee resigns or is removed in accordance with Sections 10.1
or 10.2 hereof, CEG may appoint any third party, such as a bank trust department
or other party that may be granted corporate trustee powers under state law, as
a successor to replace Trustee upon resignation or removal. The appointment
shall be effective when accepted in writing by the successor Trustee, who shall
have all of the rights and powers of the former Trustee, including ownership
rights in the Trust assets. The former Trustee shall execute any instrument
necessary or reasonably requested by CEG or the successor Trustee (in which case
Trustee shall have received a copy of successor Trustee's acceptance) to
evidence the transfer of the Trust assets.
11.2 If Trustee resigns pursuant to the provisions of Section 10.4
hereof, Trustee may appoint any third party such as a bank trust department or
other party that may be granted corporate trustee powers under state law. The
appointment of a
32
successor Trustee shall be effective when accepted in writing by the successor
Trustee. The successor Trustee shall have all the rights and powers of the
former Trustee, including ownership rights in Trust assets. The former Trustee
shall execute any instrument necessary or reasonably requested by the successor
Trustee to evidence the transfer of the Trust assets.
11.3 The successor Trustee need not examine the records and acts of any
prior Trustee and may retain or dispose of existing Trust assets, subject to
Sections 7 and 8 hereof. The successor Trustee shall not be responsible for and
CEG shall indemnify and defend the successor Trustee from any claim or liability
resulting from any action or inaction of any prior Trustee or from any other
past event, or any condition existing at the time it becomes successor Trustee.
11.4 In the event of such removal or resignation, Trustee shall duly
file with CEG a written account as provided in Section 7.1 hereof.
Section 12. AMENDMENT OR TERMINATION.
12.1 Except as provided in Section 12.4, this Trust Agreement may be
amended by a written instrument executed by Trustee and CEG. Notwithstanding the
foregoing, no such amendment shall conflict with the terms of the Plan or shall
make the Trust revocable.
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12.2 The Trust shall not terminate until the earlier of the date on
which Plan participants and their surviving spouses are no longer entitled to
benefits pursuant to the terms of the Plan or have received payment of all
benefits to which they are entitled under this Trust Agreement. Upon termination
of the Trust any assets remaining in the Trust shall be returned to CEG.
12.3 Upon written approval of all Plan participants and surviving
spouses entitled to payment of benefits pursuant to the terms of the Plan and
this Trust Agreement, CEG may terminate this Trust prior to the time all benefit
payments under the Plan and this Trust Agreement have been made. All Trust
assets at termination shall be returned to CEG.
12.4 This Trust Agreement may not be amended by CEG for 2 years
following a Change of Control, unless such amendment is by written agreement
between CEG and Trustee and such amendment does not adversely affect the rights
of the Plan participants and their surviving spouses entitled to payment of
benefits pursuant to terms of the Plan on the date a Change of Control is deemed
to occur.
Section 13. MISCELLANEOUS.
13.1 Any provision of this Trust Agreement prohibited by law shall be
ineffective to the extent of any such prohibition, without invalidating the
remaining provisions hereof.
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13.2 Benefits payable to Plan participants and their surviving spouses
under this Trust Agreement may not be anticipated, assigned (either at law or in
equity), alienated, pledged, encumbered or subjected to attachment, garnishment,
levies, execution or other legal or equitable process, and any attempt to so
alienate, sell, transfer, assign, pledge, attach, charge or otherwise encumber
any such amount, whether presently or thereafter payable, shall be void. The
Trust shall be in no manner liable for or subject to the debts or liabilities of
any participant.
13.3 This Trust Agreement shall be governed by and construed in
accordance with the laws of the State of New York and Trustee shall be liable to
account only in the courts of that state.
13.4 All words beginning with an initial capital letter and not
otherwise defined herein shall have the meaning set forth in the Plan. All
singular terms defined in this Trust will include the plural and vice versa.
13.5 For purposes of this Trust Agreement, Change of Control shall mean
(a) the purchase or acquisition by any person, entity or group of persons
(within the meaning of section 13(d) or 14(d) of the Securities Exchange Act of
1934 (the "Exchange Act"), or any comparable successor provisions) of beneficial
35
ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act)
of 20 percent or more of either the outstanding shares of common stock of CEG or
the combined voting power of CEG's then outstanding shares of voting securities
entitled to a vote generally, or (b) the consummation of, following the approval
by the stockholders of CEG of a reorganization, merger, or consolidation of CEG,
in each case, with respect to which persons who were stockholders of CEG
immediately prior to such reorganization, merger, or consolidation do not,
immediately thereafter, own more than 50 percent of the combined voting power
entitled to vote generally in the election of directors of the reorganized,
merged or consolidated entity's then outstanding securities, or (c) a
liquidation or dissolution of CEG or the sale of substantially all of its
assets, or (d) a change of more than one-half of the members of the Board of
Directors of CEG within a 90-day period for reasons other than death,
disability, or retirement of such members.
13.6 CEG shall certify to Trustee the name or names of any person or
persons authorized to act for CEG under this Trust Agreement. Such certification
shall be signed by a Vice President of CEG. Until CEG notifies Trustee, in a
similarly signed notice or certification, that any such person is no longer
authorized to act for CEG, Trustee may continue to rely upon the authority of
such person.
Trustee may rely upon any certificate, schedule, notice or direction of
CEG which Trustee in good faith believes to be
36
genuine, executed and delivered by a duly authorized officer or agent of CEG.
Trustee shall have no duty to verify any calculations provided by CEG in
connection with such certificate, schedule, notice or direction.
Communications to Trustee shall be sent in writing to Trustee at the
address specified in Section 13.9 hereof or to such other address as the Trustee
may specify in writing. No communication shall be binding upon the Trust or
Trustee until it is received by Trustee and unless it is in writing and signed
by an authorized person.
Communications to CEG shall be sent in writing to CEG's principal
offices at the address specified in Section 13.9 hereof or to such other address
as CEG may specify in writing. No communication shall be binding upon CEG until
it is received by CEG and unless it is in writing and signed by Trustee.
13.7 CEG shall pay and shall protect, indemnify and save harmless
Trustee and its officers, employees and agents from and against any and all
losses, liabilities (including liabilities for penalties), actions, suits,
judgments, demands, damages, costs and expenses of any nature arising from or
relating to any action by or any failure to act by Trustee (and its officers,
employees and agents) in accordance with the terms of this Trust Agreement, or
the transactions contemplated by this Trust Agreement (including any action by
Trustee on the direction or instruction of CEG or any failure to act on the part
of Trustee in the absence of directions or instructions by CEG),
37
except to the extent that any such loss, liability, action, suit, judgment,
demand, damage or expense has been determined by final judgement of a court of
competent jurisdiction to be the result of the negligence or willful misconduct
of Trustee, its officers, employees or agents. To the extent that CEG has not
fulfilled its obligations under the foregoing provisions of this Section 13.7,
Trustee shall be reimbursed out of the Trust assets or may set up reasonable
reserves for the payment of such obligations. To the maximum extent permitted by
applicable law, no personal liability whatsoever shall attach to or be incurred
by any employee, officer or director of CEG, as such, under or by reason of the
terms or conditions contained in or implied from this Trust Agreement.
Trustee assumes no obligation or responsibility with respect to any
action required by this Trust Agreement on the part of CEG and shall have those
responsibilities only as expressly set forth herein.
13.8 This Trust Agreement sets forth the entire understanding of the
parties with respect to the subject matter hereof and supersedes any and all
prior agreements, arrangements and understandings relating thereto.
13.9 Any notice, report, demand, waiver or communication required or
permitted hereunder shall be in writing and shall be given personally or by
prepaid registered or certified mail, return receipt requested, addressed as
follows:
38
If to CEG:
Constellation Investments, Inc.
250 West Pratt Street
Baltimore, Maryland 21201
Attention: Steven D. Kesler
If to Trustee:
Citibank, N. A.
Client Services Division
111 Wall Street, 24th Floor
New York, NY 10005
Attention: Ed Flannery
If to a participant or to a participant's
surviving spouse:
To the address shown on the most recent Payment
Schedule provided by CEG to Trustee.
Section 14. EFFECTIVE DATE.
The date of this Trust Agreement shall be July 31, 1994.
IN WITNESS WHEREOF, and intending to be legally bound hereby, CEG and
Trustee sign and seal this Trust Agreement the day and year first above written.
WITNESS: CITIBANK, N. A.:
By: (Seal)
Name: Sam Borowski
Title: Managing Director
WITNESS: CONSTELLATION ENERGY GROUP, INC.:
By: (Seal)
Name: Linda D. Miller
Title: Vice President
Human Resources
39