EXECUTION COPY
WISCONSIN PUBLIC SERVICE CORPORATION
SENIOR NOTES, 5.55% SERIES DUE DECEMBER 1,
2036
UNDERWRITING AGREEMENT
November 27, 2006
UBS Securities LLC
Wachovia Capital Markets, LLC
as Representatives of the
several Underwriters listed
on Schedule II hereto
c/o UBS Securities LLC
677 Washington Boulevard
Stamford, Connecticut 06901
Ladies and Gentlemen:
Wisconsin
Public Service Corporation, a corporation organized under the laws
of Wisconsin (the “Company”), proposes to sell to the
several underwriters named in Schedule II hereto (the
“Underwriters”), for whom you (the
“Representatives”) are acting as representatives, the
principal amount of its senior debt securities identified in
Schedule I hereto (the “Senior Notes”), to be
issued under an Indenture dated as of December 1, 1998, between the
Company and U.S. Bank National Association (as successor to Firstar
Bank Milwaukee, N.A.), as trustee (the “ Senior
Trustee”), as amended and supplemented to the date hereof
(the “Original Senior Indenture”) and to be further
supplemented by the Fifth Supplemental Indenture dated as of
December 1, 2006, creating the series in which the Senior Notes are
to be issued (the “Supplemental Indenture to the Senior
Indenture”). The term “Senior Indenture,” as used
herein, means the Original Senior Indenture as supplemented by the
Supplemental Indenture to the Senior Indenture. To the extent there
are no additional Underwriters listed on Schedule II other
than you, the term Representatives as used herein shall mean you,
as Underwriters.
Until
the Release Date (as defined in the Senior Indenture), the Senior
Notes will be secured as to payment of principal and interest by
the Company’s First Mortgage Bonds, Collateral Series E (the
“Collateral Bonds”), issued under and ratably secured
by the First Mortgage and Deed of Trust dated January 1, 1941
between the Company and U.S. Bank National Association (the
successor to First Wisconsin Trust Company), as Trustee (the
“Mortgage Trustee”), as amended and supplemented to the
date hereof (as so amended and supplemented, the “Original
Mortgage Indenture”) and to be further supplemented by the
Thirty-Seventh Supplemental Indenture thereto creating the
Collateral Bonds (the “Supplemental Indenture to the Mortgage
Indenture”). The term “Mortgage Indenture,” as
used herein, means the Original Mortgage Indenture, as supplemented
by the Supplemental Indenture to the Mortgage Indenture. The
Collateral Bonds will be issued, pledged and delivered to the
Senior Trustee by the Company concurrently with the issue and
delivery of the Senior Notes.
Any
reference herein to the Registration Statement, the Base
Prospectus, any Preliminary Prospectus or the Final Prospectus
shall be deemed to refer to and include the documents incorporated
by reference therein pursuant to Item 12 of Form S-3
which were filed under the Exchange Act on or before, in the case
of the Registration Statement, the Time of Sale (as defined below),
or, in the case of the Base Prospectus, any Preliminary Prospectus
or the Final Prospectus, the applicable issue date, and any
reference herein to the terms “amend”,
“amendment” or “supplement” shall be deemed
to refer to and include the filing of any document under the
Exchange Act after the Time of Sale, with respect to the
Registration Statement, or the issue date of the Base Prospectus,
any Preliminary Prospectus or the Final Prospectus, as the case may
be, that is deemed to be incorporated therein by reference. All
references in this Agreement to financial statements and schedules
and other information which is “contained,”
“included,” “set forth” or
“stated” in the Registration Statement, the Base
Prospectus, any Preliminary Prospectus or the Final Prospectus (and
all other references of like import) shall be deemed to mean and
include all such financial statements and schedules and other
information that are or are deemed to be incorporated by reference
in the Registration Statement, the Base Prospectus, any Preliminary
Prospectus, or the Final Prospectus, as the case may be. Certain
terms used herein are defined in Section 19 hereof.
1. Representations and
Warranties . The Company represents and warrants to,
and agrees with, each Underwriter as set forth below in this
Section 1.
(a)
Filing Status; Filing and Effectiveness of Registration
Statement . The Company meets the requirements for use of
Form S-3 under the Act and has prepared and filed with the
Commission a registration statement on Form S-3 (the file number of
which is set forth in Schedule I hereto), including a related
base prospectus, for registration under the Act of the offering and
sale of the Senior Notes, from time to time, in accordance with
Rule 415 under the Act. The Company has filed with the Commission
such amendments thereto, if any, as may have been required prior to
the date hereof. Such registration statement, if and as amended,
has been declared effective by the Commission. The Company is not
and was not an “ineligible issuer,” as defined under
Rule 405 under the Securities Act, at the relevant times specified
in the Act in connection with the offering of the Senior Notes. The
Registration Statement meets the requirements set forth in Rule
415(a)(1)(x).
(b)
Time of Sale Information . At or prior to the time when
sales of the Senior Notes were first made (the “Time of
Sale”), the Company prepared a Preliminary Prospectus, dated
November 27, 2006, and each “free-writing prospectus”
(as defined pursuant to Rule 405 under the Act), if any, listed on
Annex A hereto. Such Preliminary Prospectus and the free-writing
prospectuses, if any, included on Annex A, are collectively
referred to in this Agreement as the “Time of Sale
Information.”
(c)
Final Prospectus . Except to the extent the Representative
shall agree in writing to a modification, the Final Prospectus
shall be in all substantive respects in the form furnished to you
prior to the execution and delivery of this Agreement or, to the
extent not completed as of such time, shall contain only such
specific additional information and other changes (beyond that
contained in the Base Prospectus and the Time of Sale Information)
as the Company has advised you, prior to such time, will be
included or made therein.
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(d)
Preliminary Prospectus. No order preventing or suspending
the use of any Preliminary Prospectus has been issued by the
Commission, and each Preliminary Prospectus, at the time of filing
thereof, complied in all material respects with the Act and did not
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that
the Company makes no representation and warranty with respect to
any statements or omissions made in reliance upon and in conformity
with information relating to any Underwriter furnished to the
Company in writing by such Underwriter through the Representatives
expressly for use in any Preliminary Prospectus. The Preliminary
Prospectus delivered to the Underwriters for use in connection with
the offering of the Senior Notes was identical to the
electronically transmitted copy thereof filed with the Commission
pursuant to EDGAR, except to the extent permitted by Regulation S-T
under the Act.
(e)
Time of Sale Information . The Time of Sale Information, at
the Time of Sale, did not, and at the Closing Date 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
the light of the circumstances under which they were made, not
misleading; provided that the Company makes no
representation and warranty with respect to any statements or
omissions made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Representatives expressly for use in
such Time of Sale Information. No statement of material fact
included in the Final Prospectus has been omitted from the Time of
Sale Information, and no statement of material fact included in the
Time of Sale Information that is required to be included in the
Final Prospectus has been omitted therefrom.
(f)
Issuer Free Writing Prospectus. The Company
(including its agents and representatives, other than the
Underwriters in their capacity as such) has not prepared, made,
used, authorized, approved or referred to and will not prepare,
make, use, authorize, approve or refer to any “written
communication” (as defined in Rule 405 under the Act) that
constitutes an offer to sell or solicitation of an offer to buy the
Securities (each such communication by the Company or its agents
and representatives (other than a communication referred to in
clauses (i) (ii) and (iii) below) an “Issuer Free Writing
Prospectus”) other than (i) any document not constituting a
prospectus pursuant to Section 2(a)(10)(a) of the Act or Rule 134
under the Act, (ii) the Preliminary Prospectus included in the Time
of Sale Information, (iii) the Final Prospectus, (iv) the documents
listed on Annex A hereto as constituting the Time of Sale
Information, and (v) any electronic road show or other written
communications, in each case approved in writing in advance by the
Representative. Each such Issuer Free Writing Prospectus complied
in all material respects with the Act, has been or will be (within
the time period specified in Rule 433) filed in accordance with the
Act (to the extent required thereby) and, when taken together with
the Preliminary Prospectus filed prior to the first use of such
Issuer Free Writing Prospectus, did not, and at the Closing Date
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 the light of the circumstances under which they were
made, not misleading; provided that the Company makes no
representation and warranty with respect to any statements or
omissions made in each such Issuer Free Writing Prospectus in
reliance upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by such Underwriter
through the Representatives expressly for use in any Issuer Free
Writing Prospectus.
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(g)
Registration Statement and Final Prospectus. The Company has
not received, and has no notice of, any order preventing or
suspending the effectiveness of the Registration Statement or
instituting proceedings for that purpose. On the Effective Date,
the Registration Statement complied, and when the Final Prospectus
is first filed in accordance with Rule 424(b) and on the
Closing Date (as defined below), the Final Prospectus (and any
supplement thereto) will comply, in all material respects with the
applicable requirements of the Act, the Exchange Act and the Trust
Indenture Act and the respective rules thereunder. On the Effective
Date, at the Time of Sale and on the Closing Date, the Registration
Statement did not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading.
On the Effective Date and on the Closing Date the Senior Indenture
did or will comply in all material respects with the applicable
requirements of the Trust Indenture Act and the rules thereunder;
and on the date thereof and on the Closing Date, the Final
Prospectus (together with any supplement thereto) will not include
any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; provided, however , that the Company makes no
representations or warranties as to (i) that part of the
Registration Statement which shall constitute the Statement of
Eligibility and Qualification (Form T-1) under the Trust Indenture
Act of the Trustee or (ii) the information contained in or omitted
from the Registration Statement or the Final Prospectus (or any
supplement thereto) in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of
any Underwriter through the Representatives specifically for
inclusion in the Registration Statement or the Final Prospectus (or
any supplement thereto).
(h)
Incorporated Documents. The documents incorporated by
reference in the Registration Statement, the Time of Sale
Information, and the Final Prospectus when they became effective or
were filed with the Commission, as the case may be, conformed in
all material respects to the requirements of the Exchange Act, and
none of such documents contained any untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
and any further documents so filed and incorporated by reference in
the Registration Statement, the Time of Sale Information and the
Final Prospectus, when such documents become effective or are filed
with the Commission, as the case may be, will conform in all
material respects to the requirements of the Act or the Exchange
Act, as applicable, and will not contain any 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 the
light of the circumstances under which they were made, not
misleading.
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(i)
Incorporation and Good Standing. The Company has been duly
incorporated and is validly existing as a corporation under the
laws of the State of Wisconsin with power and authority (corporate
and other) to own or lease, as the case may be, and to operate its
properties and conduct its business as described in the
Registration Statement, the Time of Sale Information and the Final
Prospectus; the Company has not filed Articles of Dissolution with
the Department of Financial Institutions of the State of Wisconsin,
and no grounds exist for the Department of Financial Institutions
of the State of Wisconsin to dissolve such corporation
administratively pursuant to the provisions of the Wisconsin
Business Corporation Law; the Company is duly qualified to do
business as a foreign corporation and is in good standing under the
laws of each jurisdiction which requires such qualification; the
Company is a “public utility company,” as such term was
previously defined in the Public Utility Holding Company Act of
1935, as amended. The copies of the Company’s articles of
incorporation and by-laws incorporated by reference as exhibits to
the Company’s most recent Annual Report on Form 10-K are
complete and correct as of the date hereof.
(j)
Subsidiaries. The Company has no subsidiaries which, either
individually or considered in the aggregate as a single subsidiary,
constitute a “significant subsidiary” as defined in
Rule 1-02 of Regulation S-X.
(k)
Ownership of Common Stock; Capitalization . All of the
Company’s issued and outstanding shares of common stock are
owned, beneficially and of record, by WPS Resources Corporation, a
Wisconsin corporation (“WPSR”); the Company’s
authorized preferred stock is as set forth in the Registration
Statement, Time of Sale Information, and Final Prospectus; except
as set forth in the Registration Statement, Time of Sale
Information and Final Prospectus, no options, warrants or other
rights to purchase, agreements or other obligations to issue, or
rights to convert any obligations into or exchange any securities
for, shares of capital stock or ownership interests of the Company
are outstanding.
(l)
Material Contracts . There is no franchise, contract or
other document of a character required to be described in the
Registration Statement, Time of Sale Information and Final
Prospectus, or to be filed as an exhibit to the Registration
Statement, which is not described or filed as required.
(m)
Underwriting Agreement . This Agreement has been duly
authorized, executed and delivered by the Company and constitutes a
valid and binding obligation of the Company enforceable in
accordance with its terms.
(n)
Senior Indenture . The Original Senior Indenture has been
duly authorized, executed and delivered by the Company; the
Supplemental Indenture to the Senior Indenture has been duly
authorized by the Company and, on the Closing Date, will have been
duly executed and delivered by the Company and, assuming due
authorization, execution and delivery by the Senior Trustee, the
Senior Indenture will be a valid and binding instrument enforceable
against the Company in accordance with its terms, subject, as to
enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium, or other laws affecting creditors’
rights generally from time to time in effect and to general
principles of equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing,
regardless of whether considered in a proceeding in equity or at
law (the “Bankruptcy Exceptions”); the Senior Indenture
conforms in all material respects to the description thereof
contained in the Final Prospectus.
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(o)
Senior Notes . The Senior Notes have been duly authorized by
the Company; on the Closing Date, the Senior Notes will have been
duly executed by the Company, and when authenticated in accordance
with the provisions of the Senior Indenture and delivered and paid
for by the Underwriters pursuant to this Agreement, will constitute
valid and legally binding obligations of the Company entitled to
the benefits and security provided by the Senior Indenture and
enforceable against the Company in accordance with their terms,
subject, as to enforcement of remedies, to the Bankruptcy
Exceptions; the Senior Notes conform in all material respects to
the description thereof contained in the Registration Statement,
Time of Sale Information and Final Prospectus.
(p)
Mortgage Indenture . The Original Mortgage Indenture has
been duly authorized, executed and delivered by the Company; the
Supplemental Indenture to the Mortgage Indenture has been duly
authorized by the Company and, on the Closing Date, will have been
duly executed and delivered by the Company and, assuming due
authorization, execution and delivery by the Mortgage Trustee, the
Mortgage Indenture will constitute a valid and binding instrument,
enforceable against the Company in accordance with its terms,
except as the same may be limited by the laws of the States of
Wisconsin and Michigan affecting the remedies for the enforcement
of the security provided for therein (which laws do not make such
remedies inadequate for the realization of the benefits of such
security) and by the Bankruptcy Exceptions; the Mortgage Indenture
conforms in all material respects to the description thereof
contained in the Registration Statement, Time of Sale Information
and Final Prospectus.
(q)
Collateral Bonds . The Collateral Bonds have been duly
authorized by the Company and, when duly executed and authenticated
in accordance with the provisions of the Mortgage Indenture and
delivered to the Senior Trustee in the manner provided therein,
will have been duly authorized, executed, authenticated and issued
and will constitute valid and legally binding obligations of the
Company, secured by the lien of, and entitled to the benefits
provided by, the Mortgage Indenture, equally and ratably with all
other bonds of the Company duly issued and outstanding under the
Mortgage Indenture, and will be enforceable against the Company in
accordance with their terms, except as the same may be limited by
the laws of the States of Wisconsin and Michigan affecting the
remedies for the enforcement of the security provided for therein
(which laws do not make such remedies inadequate for the
realization of the benefits of such security) and by the Bankruptcy
Exceptions; the Collateral Bonds conform in all material respects
to the description thereof contained in the Registration Statement,
Time of Sale Information and Final Prospectus.
(r)
Ownership of Properties . Each of the Company and its
subsidiaries owns or leases all such properties as are necessary to
the conduct of its operations as presently conducted. The
properties of the Company described under Item 2 of the
Company’s most recent Annual Report on Form 10-K are
owned in fee simple either individually or jointly, as indicated in
such annual report, or are held under valid leases, in each case
subject only to the lien of the Mortgage Indenture and minor
imperfections of titles and encumbrances, if any, which are not
substantial in amount, do not materially detract from the value or
marketability of the properties subject thereto, and do not
materially impair the Company’s operations.
(s)
Investment Company Act . The Company is not and, after
giving effect to the offering and sale of the Senior Notes and the
application of the proceeds thereof as described in the
Registration Statement, Time of Sale Information and Final
Prospectus, will not be an “investment company” as
defined in the Investment Company Act of 1940, as
amended.
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(t)
Regulatory Approvals . The Public Service Commission of
Wisconsin has duly authorized the issuance and sale by the Company
of the Senior Notes and the issuance and pledge of the Collateral
Bonds on the terms set forth in the Registration Statement, Time of
Sale Information, Final Prospectus and this Agreement, and such
authorization is in force and effect and sufficient for the
issuance and sale of the Senior Notes to the Underwriters and the
issuance and pledge of the Collateral Bonds to the Senior Trustee.
No other consent, approval, authorization, filing with or order of
any court or other governmental agency or body is required in
connection with the transactions contemplated herein, except such
as have been obtained under the Act and the Trust Indenture Act and
such as may be required under the blue sky laws of any jurisdiction
in connection with the purchase and distribution of the Senior
Notes by the Underwriters in the manner contemplated herein and in
the Registration Statement, Time of Sale Information and Final
Prospectus.
(u)
No Conflicts . The execution and delivery of this Agreement,
the Senior Indenture or the Supplemental Indenture to the Mortgage
Indenture, the issue and sale of the Senior Notes, the issue and
pledge of the Collateral Bonds, the consummation of any other of
the transactions herein contemplated or the fulfillment of the
terms hereof will not conflict with, or result in a breach or
violation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its subsidiaries (or
constitute an event which with notice, lapse of time, or both would
result in any breach, violation or imposition of any lien, charge
or encumbrance upon any property or assets of the Company or any of
its subsidiaries) pursuant to (i) the charter or by-laws of
the Company or any of its subsidiaries, (ii) the terms of any
indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which the Company or any of
its subsidiaries is a party or bound or to which its or their
property is subject (other than the lien of the Mortgage
Indenture), or (iii) any statute, law, rule, regulation,
judgment, order or decree applicable to the Company or any of its
subsidiaries of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having
jurisdiction over the Company or any of its subsidiaries or any of
its or their properties.
(v)
Absence of Registration Rights. No holders of securities of
the Company have rights to the registration of such securities
under the Registration Statement.
(w)
Financial Statements . The consolidated historical financial
statements and schedules of the Company and its consolidated
subsidiary included in the Registration Statement, Time of Sale
Information and Final Prospectus present fairly the financial
condition, results of operations and cash flows of the Company and
its subsidiary as of the dates and for the periods indicated,
comply as to form with the applicable accounting requirements of
the Act and have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis
throughout the periods involved (except as otherwise noted
therein). The selected financial data set forth under the caption
“Summary Financial Information” in the Registration
Statement, Time of Sale Information and Final Prospectus fairly
present, on the basis stated in the Registration Statement, Time of
Sale Information and Final Prospectus, the information included
therein.
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(x)
Legal Proceedings . No action, suit or proceeding by or
before any court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries or its
or their property is pending or, to the knowledge of the Company,
threatened that (i) could reasonably be expected to have a
material adverse effect on the performance of this Agreement or the
consummation of any of the transactions contemplated hereby or
(ii) could reasonably be expected to have a material adverse
effect on the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set
forth in or contemplated in the Registration Statement, Time of
Sale Information and Final Prospectus (exclusive of any supplement
thereto).
(y)
No Violation or Default. Neither the Company nor any of its
subsidiaries is in violation or default (nor has any event occurred
which, with notice, lapse of time, or both would result in a
violation or default) of (i) any provision of its charter or
bylaws, (ii) the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant or instrument to which
it is a party or bound or to which its property is subject, except
for such violations or defaults which would not, individually or in
the aggregate, have a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or
properties of the Company and its subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of
business, or (iii) any statute, law, rule, regulation,
judgment, order or decree of any court, regulatory body,
administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Company or such subsidiary
or any of its properties, as applicable.
(z)
Independent Accountants. Deloitte & Touche LLP, who have
certified certain financial statements of the Company and its
consolidated subsidiary and delivered their report with respect to
the audited consolidated financial statements and schedules
incorporated by reference in the Registration Statement, the
Preliminary Prospectus and the Final Prospectus, is an independent
registered public accounting firm with respect to the Company and
its subsidiary within the meaning of the Act and the applicable
published rules and regulations thereunder and under the applicable
rules and regulations of the Public Company Accounting Oversight
Board. The Company has complied and will comply with the Act and
all applicable regulations under the Act and the Exchange Act with
respect to the inclusion of the audit report of Deloitte &
Touche LLP in the Company’s most recent Annual Report on Form
10-K and the incorporation by reference of such Annual Report on
Form 10-K in the Registration Statement, the Preliminary Prospectus
and the Final Prospectus.
(aa)
Taxes. The Company has filed all foreign, federal, state and
local tax returns that are required to be filed or has requested
extensions thereof (except in any case in which the failure so to
file would not have a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or
properties of the Company and its subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the
Registration Statement, Time of Sale Information and Final
Prospectus (exclusive of any supplement thereto)and has paid all
taxes required to be paid by it and any other assessment, fine or
penalty levied against it, to the extent that any of the foregoing
is due and payable, except for any such assessment, fine or penalty
that is currently being contested in good faith or as would not
have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the
Company and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business
(except as set forth in or contemplated in the Registration
Statement, Time of Sale Information and Final Prospectus (exclusive
of any supplement thereto)).
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(bb)
No Labor Disputes . No labor problem or dispute with the
employees of the Company exists or is threatened or imminent, and
the Company is not aware of any existing or imminent labor
disturbance by the employees of any of its principal suppliers,
contractors or customers, that could have a material adverse effect
on the condition (financial or otherwise), prospects, earnings,
business or properties of the Company and its subsidiaries, taken
as a whole, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated
in the Registration Statement, Time of Sale Information and Final
Prospectus (exclusive of any supplement thereto).
(cc)
Insurance. The Company and each of its subsidiaries are
insured by insurers of recognized financial responsibility against
such losses and risks and in such amounts as are prudent and
customary in the businesses in which they are engaged; all policies
of insurance and fidelity or surety bonds insuring the Company or
any of its subsidiaries or their respective businesses, assets,
employees, officers and directors are in full force and effect; the
Company and its subsidiaries are in compliance with the terms of
such policies and instruments in all material respects; and there
are no claims by the Company or any of its subsidiaries under any
such policy or instrument as to which any insurance company is
denying liability or defending under a reservation of rights
clause, except for such claims which, if successfully denied, would
not have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the
Company and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business;
neither the Company nor any such subsidiary has been refused any
insurance coverage sought or applied for; and neither the Company
nor any subsidiary has any reason to believe that it will not be
able to renew its existing insurance coverage as and when such
coverage expires or to obtain similar coverage from similar
insurers as may be necessary to continue its business at a cost
that would not have a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or
properties of the Company and its subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the
Registration Statement, Time of Sale Information and Final
Prospectus (exclusive of any supplement thereto).
(dd)
Licenses and Permits. The Company and its subsidiaries
possess all licenses, certificates, permits and other
authorizations issued by the appropriate federal, state or foreign
regulatory authorities necessary to conduct their respective
businesses, and neither the Company nor any subsidiary has received
any notice of proceedings relating to the revocation or
modification of any such certificate, authorization or permit
which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would have a material adverse effect
on the condition (financial or otherwise), prospects, earnings,
business or properties of the Company and its subsidiaries, taken
as a whole, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated
in the Registration Statement, Time of Sale Information and Final
Prospectus (exclusive of any supplement thereto).
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(ee)
Disclosure Controls. The Company has established and
maintains “disclosure controls and procedures” (as such
term is defined in Rule 13a-15 and 15d-15 under the Exchange Act)
that (i) are designed to ensure that material information relating
to the Company, including its consolidated subsidiaries, is made
known to the Company’s Chief Executive Officer and its Chief
Financial Officer (or persons performing similar functions) by
others within these entities, particularly during the periods in
which the filings made by the Company with the Commission which it
may make under Sections 13(a), 13(c), 14 or 15(d) of the Exchange
Act are being prepared, (ii) have been evaluated for effectiveness
as of a date within 90 days prior to the filing of the
Company’s most recent quarterly report on Form 10-Q filed
with the Commission, and (iii) are effective to perform the
functions for which they were established.
(ff)
Accounting Controls . The Company and its subsidiaries
maintain systems of “internal control over financial
reporting” (as such term is defined in Rule 13a-15 and 15d-15
under the Exchange Act) that comply with the requirements of the
Exchange Act and have been designed by, or under the supervision
of, their respective principal executive and principal financial
officers, or persons performing similar functions, to provide
reasonable assurance regarding the reliability of financial
reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting
principles, including but not limited to, internal accounting
controls sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with
management’s general or specific authorizations,
(ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for
assets, (iii) access to assets is permitted only in accordance
with management’s general or specific authorization, and
(iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences. The Company’s
independent auditors and the Audit Committee of the Board of
Directors of the Company have been advised of: (i) all significant
deficiencies, if any, in the design or operation of internal
controls which could adversely affect the Company’s ability
to record, process, summarize and report financial data; and (ii)
all fraud, if any, whether or not material, that involves
management or other employees who have a role in the
Company’s internal controls; all material weaknesses, if any,
in internal controls have been identified to the Company’s
independent auditors; since the date of the most recent evaluation
of such disclosure controls and procedures and internal controls,
there have been no significant changes in internal controls or in
other factors that could significantly affect internal controls,
including any corrective actions with regard to significant
deficiencies and material weaknesses; the principal executive
officers (or their equivalents) and principal financial officers
(or their equivalents) of the Company have made all certifications
required by the Sarbanes-Oxley Act of 2002 (the
“Sarbanes-Oxley Act”) and any related rules and
regulations promulgated by the Commission, and the statements
contained in each such certifications are complete and
correct.
(gg)
No Stabilization . The Company has not taken, directly or
indirectly, any action designed to or which has constituted or
which might reasonably be expected to cause or result, under the
Exchange Act or otherwise, in stabilization or manipulation of the
price of any security of the Company to facilitate the sale or
resale of the Senior Notes.
10
(hh)
Compliance with Environmental Laws . The Company and its
subsidiaries are (i) in compliance with any and all applicable
foreign, federal, state and local laws and regulations relating to
the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
(“Environmental Laws”), (ii) have received and are in
compliance with all permits, licenses or other approvals required
of them under applicable Environmental Laws to conduct their
respective businesses, and (iii) have not received notice of
any actual or potential liability for the investigation or
remediation of any disposal or release of hazardous or toxic
substances or wastes, pollutants or contaminants, except where such
non-compliance with Environmental Laws, failure to receive required
permits, licenses or other approvals, or liability would not,
individually or in the aggregate, have a material adverse effect on
the condition (financial or otherwise), prospects, earnings,
business or properties of the Company and its subsidiaries, taken
as a whole, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated
in the Registration Statement, Time of Sale Information and Final
Prospectus (exclusive of any supplement thereto). Except as set
forth in the Registration Statement, Time of Sale Information and
Final Prospectus, the Company has not been named as a
“potentially responsible party” under the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as
amended, except in such instances which would not, individually or
in the aggregate, have a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or
properties of the Company and its subsidiaries, taken as a
whole.
(ii)
Periodic Review of the Effect of Environmental Laws . In the
ordinary course of its business, the Company periodically reviews
the effect of Environmental Laws on the business, operations and
properties of the Company and its subsidiaries, in the course of
which it identifies and evaluates associated costs and liabilities
(including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or
compliance with Environmental Laws, or any permit, license or
approval, any related constraints on operating activities and any
potential liabilities to third parties). On the basis of such
review, the Company has reasonably concluded that such associated
costs and liabilities would not, singly or in the aggregate, have a
material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set
forth in or contemplated in the Registration Statement, Time of
Sale Information and Final Prospectus (exclusive of any supplement
thereto).
(jj)
Compliance with ERISA . Each of the Company and its
subsidiaries has fulfilled its obligations, if any, under the
minimum funding standards of Section 302 of the United States
Employee Retirement Income Security Act of 1974, as amended
(“ERISA”), and the regulations and published
interpretations thereunder with respect to each “plan”
(as defined in Section 3(3) of ERISA and such regulations and
published interpretations) in which employees of the Company and
its subsidiaries are eligible to participate, and each such plan is
in compliance in all material respects with the presently
applicable provisions of ERISA and such regulations and published
interpretations. The Company and its subsidiaries have not incurred
any unpaid liability to the Pension Benefit Guaranty Corporation
(other than for the payment of premiums in the ordinary course) or
to any such plan under Title IV of ERISA.
11
(ff)
No Material Adverse Effect . Subsequent to the respective
dates as of which information has been given in the Registration
Statement, Time of Sale Information and Final Prospectus, there has
not been (i) any material adverse change, or any development which,
in the Company’s reasonable judgment, is likely to cause a
material adverse change, in the business, properties, or assets
described or referred to in the Registration Statement, Time of
Sale Information and Final Prospectus, or the results of
operations, condition (financial or otherwise), business or
operations of the Company and its subsidiaries taken as a whole,
(ii) any transaction which is material to the Company or its
subsidiaries, except transactions in the ordinary course of
business or disclosed in the Registration Statement, Time of Sale
Information and Final Prospectus, (iii) any obligation, direct or
contingent, which is material to the Company and its subsidiaries
taken as a whole, incurred by the Company or its subsidiaries,
except obligations incurred in the ordinary course of business or
disclosed in the Registration Statement, Time of Sale Information
and Final Prospectus, (iv) any change in the capital stock or
outstanding indebtedness of the Company or its subsidiaries other
than short-term debt of the kind contemplated by the Registration
Statement, Time of Sale Information, and Final Prospectus or (v)
any dividend or distribution of any kind declared, paid or made on
the capital stock of the Company, other than dividends on the
Company’s preferred stock in accordance with the terms
thereof and return of capital payments on the common stock of the
Company that have been declared or paid in order to maintain the
Company’s equity at a level consistent with that allowed by
the Public Service Commission of Wisconsin. Neither the Company nor
its Subsidiaries has any material contingent obligation which is
not disclosed in the Registration Statement, Time of Sale
Information, and Final Prospectus.
(kk)
Sarbanes Oxley Compliance . The Company and the
Company’s directors and officers are each in compliance in
all material respects with all applicable effective provisions of
the Sarbanes-Oxley Act and the rules and regulations of the
Commission.
Any
certificate signed by any officer of the Company and delivered to
the Representatives or counsel for the Underwriters in connection
with the offering of the Senior Notes shall be deemed a
representation and warranty by the Company, as to matters covered
thereby, to each Underwriter.
2. Purchase and
Sale . Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth,
the Company agrees to sell to each Underwriter, and each
Underwriter agrees, severally and not jointly, to purchase from the
Company, at the purchase price set forth in Schedule I hereto the
principal amount of the Senior Notes set forth opposite such
Underwriter’s name in Schedule II hereto.
3. Delivery and
Payment . Delivery of and payment for the Senior Notes
shall be made on the date and at the time specified in
Schedule I hereto or at such time on such later date not more
than three Business Days after the foregoing date as the
Representatives shall designate, which date and time may be
postponed by agreement between the Representatives and the Company
or as provided in Section 10 hereof (such date and time of delivery
and payment for the Senior Notes being herein called the
“Closing Date”). Delivery of the Senior Notes shall be
made to the Representatives for the respective accounts of the
several Underwriters against payment by the several Underwriters
through the Representatives of the purchase price thereof to or
upon the order of the Company by wire transfer payable in same-day
funds to an account specified by the Company. Delivery of the
Senior Notes shall be made through the facilities of The Depository
Trust Company.
12
4. Offering by
Underwriters . It is understood that the several
Underwriters propose to offer the Senior Notes for sale to the
public as set forth in the Time of Sale Information and Final
Prospectus.
5. Agreements
. The Company agrees with the several Underwriters as
follows:
(a)
Filings with the Commission; Issuer Free Writing
Prospectuses . Prior to the termination of the offering of the
Senior Notes, the Company will not (i) file any amendment of the
Registration Statement or supplement (including the Final
Prospectus or any Preliminary Prospectus) to the Base Prospectus or
any Rule 462(b) Registration Statement or (ii) use, authorize,
approve, refer to or file any Issuer Free Writing Prospectus,
unless in each such case, the Company has furnished you a copy for
your review prior to such filing, use, authorization, approval, or
reference thereto, and the Company will not file any such proposed
amendment or supplement or use, authorize, approve, refer to or
file any Issuer Free Writing Prospectus to which you reasonably
object. Subject to the foregoing sentence, the Company will cause
the Final Prospectus, properly completed, and any supplement
thereto to be filed with the Commission pursuant to the applicable
paragraph of Rule 424(b) within the time period prescribed and
will provide evidence satisfactory to the Representatives of such
timely filing. The Company will promptly advise the Representatives
(1) when the Final Prospectus, and any supplement thereto,
shall have been filed with the Commission pursuant to
Rule 424(b) or when any Rule 462(b) Registration
Statement shall have been filed with the Commission, (2) when,
prior to termination of the offering of the Senior Notes, any
amendment to the Registration Statement shall have been filed or
become eff
