Exhibit (1)(b)
WPS RESOURCES CORPORATION
$______________
Medium-Term Notes Due
One Year or More From Date of Issue
DISTRIBUTION AGREEMENT
_____________, 1999
[Agent Addresses]
Ladies and Gentlemen:
WPS Resources Corporation, a Wisconsin corporation (the "Company"),
confirms its agreement with each of you with respect to the issue from time to
time by the Company of up to $____________ in aggregate initial offering price
of its fixed-rate medium-term notes due one year or more from the date of issue
(the "Notes"). The Notes will be issued pursuant to the terms and conditions of
an Indenture, dated as of October 1, 1999 (the "Base Indenture"), between the
Company and Firstar Bank, National Association, a national banking association
organized under the laws of the United States, as trustee (the "Trustee"), as
supplemented by the First Supplemental Indenture thereto, to be dated _________,
______, between the Company and the trustee (the "Supplemental Indenture and,
together with the Base Indenture and any other amendments or supplements
thereto, the "Indenture").
This Distribution Agreement (this "Agreement") provides both for the
sale of Notes by the Company (i) directly to purchasers, in which case each of
you will act as an agent of the Company in soliciting Note purchasers (herein
sometimes referred to as "Agency Transactions"), and (ii) as may from time to
time be agreed to by you and the Company, to any of you as principal for resale
to purchasers (herein sometimes referred to as "Principal Transactions"). In
addition, this Agreement permits the Company to sell Notes directly to investors
on its own behalf in transactions in which none of you has acted as an agent of
the Company in soliciting such purchases. This Agreement shall not be construed
to create either an obligation on the part of the Company to sell any Notes or
an obligation by you to purchase Notes as a principal.
The Company has filed with the Securities and Exchange Commission (the
"SEC") a registration statement on Form S-3 (No. 333-_________) under the
Securities Act of 1933, as amended (the "1933 Act"), relating to the offer and
sale, from time to time, of up to $400,000,000, in the aggregate, of the
Company's senior debt securities, subordinated debt securities, and common
stock, together with the associated common stock purchase rights (the
"Registered Securities"), in accordance with Rule 415 of the rules and
regulations of the SEC under the 1933 Act (the "1933 Regulations"), including a
prospectus relating to the Registered Securities, and has filed, or proposes to
file, pursuant to Rule 424(b) a prospectus supplement and one or more pricing
supplements relating to the Notes and the plan of distribution thereof. Such
registration statement, including the exhibits thereto, as from time to time
amended or supplemented, is herein referred to as the "Registration Statement,"
and the prospectus constituting a part of the Registration Statement, together
with any prospectus supplement and pricing supplements relating to the Notes
that are subsequently filed with the SEC pursuant to Rule 424(b), is herein
referred to as the "Prospectus;" provided, however, that if any revised
prospectus shall be provided to the Agents by the Company for use in connection
with the offering of the Notes which is not required to be filed by the Company
with the SEC pursuant to Rule 424(b) of the 1933 Act Regulations, the term
"Prospectus" shall also refer to such revised prospectus from and after the time
it is first provided to an Agent for such use.
All references in this Agreement to the Registration Statement or the
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
Securities Act of 1934, as amended (the "1934 Act"), on or before the date of
this Agreement or the issue date of the Prospectus, as the case may be (the
"Incorporated Documents"). All references in this Agreement to financial
statements and schedules and other information that is "contained," "included,"
or "stated" in the Registration Statement or 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 or the
Prospectus, as the case may be. All references in this Agreement to "amendments"
or "supplements" to the Registration Statement or the Prospectus shall be deemed
to refer to and include the filing of any Incorporated Document after the time
of execution of this Agreement; provided, however, that any supplement to the
Prospectus filed with the SEC pursuant to Rule 424(b) of the 1933 Act
Regulations with respect to an offering of Registered Securities, other than the
Notes, shall not be deemed to be a supplement to, or a part of, the Prospectus
for purposes of this Agreement.
For purposes of this Agreement, all references to the Registration
Statement or Prospectus or any amendment or supplement thereto shall be deemed
to include the copy filed with the SEC pursuant to its Electronic Data
Gathering, Analysis and Retrieval System ("XXXXX").
SECTION 1. Appointment as Agents.
(a) Appointment of Agents. Subject to the terms and conditions stated
herein, the Company hereby appoints each of you as the agent of the Company
(each an "Agent" and, collectively, the "Agents") for the purpose of soliciting
purchases of the Notes from the Company
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by others and agrees that, except as otherwise contemplated herein, whenever the
Company determines to sell Notes directly to an Agent as principal for resale to
others, it will enter into aTerms Agreement (as hereafter defined) relating to
such sale in accordance with the provisions of Section 3(b) hereof. Each Agent
is authorized to appoint sub-agents or to engage the services of any other
broker or dealer in connection with the offer or sale of the Notes.
The Company will not engage any other person or party to solicit
purchases of the Notes (a "New Agent") , except that the Company may amend this
Agreement to appoint a New Agent as an additional Agent hereunder on the same
terms and conditions (including, without limitation, commission rates) as
provided herein for the Agents, provided that the Company shall have given the
Agents prior notice of such appointment.
The Company reserves the right to sell Notes directly to investors on
its own behalf and to contact and solicit potential investors in connection
therewith and, in the case of any such sale not resulting from a solicitation
made by any Agent, no commission will be payable hereunder to any Agent with
respect to such sale. The Company agrees that, during the period in which the
Agents are acting as the Company's agents hereunder, the Company will not
contact or solicit potential investors introduced to the Company by an Agent to
purchase the Notes.
(b) Commercially Reasonable Efforts Solicitations; Right to Reject
Offers. Upon receipt of instructions from the Company, each Agent will use
commercially reasonable efforts to solicit purchases of such principal amount of
the Notes as the Company and such Agent shall agree upon from time to time
during the term of this Agreement, it being understood that the Company shall
not approve the solicitation of purchases of Notes in excess of the amount which
shall be authorized by the Company from time to time or the amount of the
Registered Securities remaining available for issuance under the Registration
Statement. The Agents will have no responsibility for maintaining records with
respect to the aggregate principal amount of Notes sold or otherwise monitoring
the availability of Notes for sale under the Registration Statement. Each Agent
will communicate to the Company, orally or in writing, each offer to purchase
Notes, other than those offers rejected by such Agent. Each Agent shall have the
right, in its discretion reasonably exercised, to reject any proposed purchase
of Notes, in whole or in part, and any such rejection shall not be deemed a
breach of such Agent's agreement contained herein. The Company may accept or
reject any proposed purchase of the Notes, in whole or in part.
(c) Solicitations as Agent; Purchases as Principal. In soliciting
purchases of the Notes on behalf of the Company, each Agent shall act solely as
agent for the Company and not as principal. Each Agent shall make reasonable
efforts to assist the Company in obtaining performance by each purchaser whose
offer to purchase Notes has been solicited by such Agent and accepted by the
Company. Such Agent shall not have any liability to the Company in the event any
such purchase is not consummated for any reason. The Agents shall not have any
obligation to purchase Notes from the Company as principal, but each Agent may
agree from time to time to purchase Notes as principal. Any such purchase of
Notes by an Agent as principal shall be made pursuant to a Terms Agreement in
accordance with Section 3(b) hereof.
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(d) Reliance. The Company and each of the Agents agree that any Notes
the placement of which that Agent arranges shall be placed by that Agent, and
any Notes purchased by any of the Agents shall be purchased by such Agent, in
reliance on the representations, warranties, covenants and agreements of the
Company contained herein and on the terms and conditions and in the manner
provided herein.
SECTION 2. Representations and Warranties.
(a) The Company represents and warrants to, and agrees with, each
Agent, as of the date hereof, as of the date of each acceptance by the Company
of an offer for the purchase of Notes (whether in an Agency Transaction or in a
Principal Transaction), as of the date of each delivery of Notes (whether in an
Agency Transaction or in a Principal Transaction) (the date of each such
delivery to an Agent in a Principal Transaction being hereinafter referred to as
a "Settlement Date"), and as of any time that the Registration Statement or the
Prospectus shall be amended or supplemented (each of the times referenced above
being referred to herein as a "Representation Date") as follows:
(i) Due Incorporation and Qualification. 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 to own, lease and operate its
properties and to conduct its business as described in the Registration
Statement and 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 the Company administratively pursuant to the provisions of
the Wisconsin Business Corporation Law; the Company is duly qualified as a
foreign corporation to transact business and is in good standing in each
jurisdiction in which its ownership or lease of substantial properties or the
conduct of its business requires such qualification, except where the failure to
so qualify and be in good standing would not have a material adverse effect on
the condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its subsidiaries, considered as one
enterprise.
(ii) Subsidiaries. Each subsidiary of the Company which is a
significant subsidiary (each a "Significant Subsidiary"), as defined in Rule 405
of Regulation C of the rules and regulations promulgated under the 1933 Act (the
"1933 Act Regulations"), has been duly incorporated and is validly existing as a
corporation under the laws of the jurisdiction of its incorporation, and has
corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement and Prospectus;
no Significant Subsidiary which is incorporated under the laws of the State of
Wisconsin has 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 any such
Significant Subsidiary administratively pursuant to the provisions of the
Wisconsin Business Corporation Law; each Significant Subsidiary is duly
qualified as a foreign corporation to transact business and is in
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good standing in each jurisdiction in which its ownership or lease of
substantial properties or the conduct of its business requires such
qualification, except where the failure to so qualify and be in good standing
would not have a material adverse effect on the condition, financial or
otherwise, or the earnings, business affairs or business prospects of the
Company and its subsidiaries, considered as one enterprise.
(iii) Ownership of Company and Significant Subsidiaries. All of the
issued and outstanding capital stock of the Company and of each Significant
Subsidiary has been duly authorized and validly issued and is fully paid and
non-assessable, except with respect to wage claims of employees of the Company
and each Significant Subsidiary as provided in Section 180.0622(2)(b) of the
Wisconsin Business Corporation Law, as such statutory provision has been
judicially interpreted; the Company owns, beneficially and of record, all of the
common stock of each Significant Subsidiary, directly or through subsidiaries,
in each case free and clear of any mortgage, pledge, lien, encumbrance, claim or
equity. None of the outstanding shares of capital stock of the Significant
Subsidiaries was issued in violation of the preemptive or similar rights of any
securityholder of such subsidiary. Other than the Significant 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 405 under the 1933 Act Regulations.
(iv) Registration Statement and Prospectus.
(A) The Company meets the requirements for use of Form S-3
under the 1933 Act and the 1933 Act Regulations. The Registration Statement has
become effective under the 1933 Act and the 1933 Act Regulations, and no stop
order suspending the effectiveness of the Registration Statement has been
issued, and no proceedings for that purpose have been instituted or are pending
or, to the knowledge of the Company, threatened by the Commission. The Company
has complied with any request on the part of the SEC for additional information.
(B) The Registration Statement, at the Effective Date (as
herein defined), complied, and as of the applicable Representation Date will
comply, in all material respects with the requirements of the 1933 Act, the 1933
Act Regulations, the Trust Indenture Act of 1939, as amended (the "1939 Act")
and the rules and regulations of the SEC promulgated thereunder (the "1939 Act
Regulations"). The Registration Statement, at the Effective Date, did not, and
as of each Representation Date, will not, contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. The Prospectus, as of
the date hereof, does not, and as of each Representation Date, will not, contain
an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements made therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that the representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or Prospectus made in
reliance upon and in conformity with information furnished to the Company in
writing by the Agents expressly for use in the Registration Statement or
Prospectus or to any statements in or omissions from the Statement of
Eligibility of the Trustee on Form T-1 (the "Form T-1"). As used herein, the
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term "Effective Date" means the later of (i) the date that the Registration
Statement or the most recent post-effective amendment thereto was or is declared
effective by the SEC under the 1933 Act and (ii) the date that the Company's
Annual Report on Form 10-K for its most recently completed fiscal year is filed
with the SEC under the 1934 Act.
(C) Each Prospectus delivered to the Agents for use in connection with
the offering of the Notes was or will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX, except
to the extent permitted by Regulation S-T under the 1933 Act Regulations.
(v) Incorporated Documents. The Incorporated Documents, at the time
they were or hereafter are filed with the SEC, complied and will comply in all
material respects with the requirements of the 1934 Act and the rules and
regulations promulgated thereunder (the "1934 Act Regulations"), and, when read
together with the other information in the Registration Statement and
Prospectus, did not and will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances under
which they were or are made, not misleading.
(vi) Accountants. Xxxxxx Xxxxxxxx LLP, the accountants who audited the
annual financial statements included or incorporated by reference in the
Registration Statement and Prospectus (the "Accountants"), are independent
public accountants with respect to the Company and its subsidiaries within the
meaning of the 1933 Act and the 1933 Act Regulations.
(vii) Financial Statements. The financial statements and any supporting
schedules of the Company and its consolidated subsidiaries included or
incorporated by reference in the Registration Statement and the Prospectus
present fairly the financial position of the Company and its consolidated
subsidiaries as of the dates indicated and the results of operations,
stockholders' equity and cash flows of the Company and its consolidated
subsidiaries for the periods specified. Such financial statements have been
prepared in conformity with generally accepted accounting principles which have
been consistently applied in all material respects throughout the periods
involved, except as may otherwise be stated therein and except to the extent
that certain information normally disclosed in financial statements and related
notes may be omitted or condensed in the quarterly financial statements of the
Company and its consolidated subsidiaries if done so pursuant to the rules and
regulations of the SEC. The Company's ratios of earnings to fixed charges
included in the Prospectus under the caption "Ratios of Earnings to Fixed
Charges" and in Exhibit 12 to the Registration Statement have been calculated in
compliance with Item 503(d) of Regulation S-K of the Commission.
(viii) Authorization and Validity of this Agreement, the Base Indenture
and the Notes. This Agreement has been duly authorized, executed and delivered
by the Company and, upon execution and delivery by the Agents, will constitute
the legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other laws
relating
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to or affecting the enforcement of creditors' rights generally or by general
equity principles. The Base Indenture has been duly authorized, executed and
delivered by the Company and the Supplemental Indenture has been duly authorized
by the Company, and the Base Indenture constitutes, and upon execution and
delivery thereof, the Supplemental Indenture will constitute, the legal, valid
and obligation of the Company, enforceable against the Company in accordance
with their terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws relating to or affecting
the enforcement of creditors' rights generally or by general equity principles.
The Indenture has been duly qualified under the 1939 Act; the Indenture is
substantially in the form filed or incorporated by reference, as the case may
be, as an exhibit to the Registration Statement and conforms in all material
respects to all statements relating thereto contained in the Prospectus. The
Notes have been duly and validly authorized for issuance, offer and sale
pursuant to this Agreement and, when issued, authenticated and delivered
pursuant to the terms of this Agreement and the Indenture against payment of the
consideration therefor specified in the Prospectus or pursuant to any Terms
Agreement, will constitute valid and legally binding obligations of the Company
enforceable against the Company in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency or other similar
laws relating to or affecting creditors' rights generally or by general equity
principles; and the Notes will be substantially in the form included or
incorporated by reference as an exhibit to the Registration Statement and will
conform in all material respects to all statements relating thereto contained in
the Prospectus.
(ix) Material Changes or Material Transactions. Since the respective
dates as of which information is given in the Registration Statement and the
Prospectus, except as may otherwise be stated or contemplated therein, (a) the
Company and its subsidiaries considered as one enterprise have not sustained any
material loss or interference with their business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, (b) there has not been any
material change in the capital stock, short-term debt or long-term debt of the
Company and its subsidiaries considered as one enterprise, except for borrowings
under existing revolving credit agreements and pursuant to the Company's
existing commercial paper and 4(2) short-term note program, in each case
consistent with past practices and the accrual of interest on long-term debt of
the Company's Employee Stock Ownership Plan that is guaranteed by Wisconsin
Public Service Corporation ("WPSC"), or any material adverse change, or any
development involving a prospective material adverse change, in the condition
(financial or other), net worth or results of operations or business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, and (c)
there has not been any material transaction entered into by the Company and its
subsidiaries considered as one enterprise, other than transactions in the
ordinary course of business. The Company does not have any material contingent
obligations required to be disclosed in the Registration Statement and
Prospectus which are not disclosed therein.
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(x) No Defaults; Regulatory Compliance. Neither the Company nor any
Significant Subsidiary is in violation of its articles of incorporation or
by-laws or in breach or default in the performance or observance of any material
obligation, agreement, covenant or condition contained in the Indenture or in
any other material contract, mortgage, loan agreement, lease, note or other
instrument to which it is a party or by which it or any of them may be bound or
to which any of their properties may be subject, or any rule, order, law,
administrative regulation or administrative or court order, except to the extent
set forth in the Registration Statement and Prospectus.
(xi) No Conflicts. The execution and delivery of this Agreement, the
Base Indenture, the Supplemental Indenture, and each applicable Terms Agreement,
if any, the issuance, sale and delivery by the Company of the Notes, the
compliance by the Company with the terms of this Agreement, the Indenture, each
applicable Terms Agreement and the Notes, the consummation of the transactions
contemplated herein and therein, and the use of the proceeds from the sale of
the Notes as described in the Prospectus under the caption "Use of Proceeds" do
not and will not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, the articles of incorporation or
by-laws of the Company, any material contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument to which the Company or
any Significant Subsidiary is a party, or by which it or any of them is bound or
to which any of their properties may be subject, or result in the violation of
any law, order, rule, administrative regulation or administrative or court
decree applicable to the Company or any Significant Subsidiary of any court or
of any Federal or state regulatory body or administrative agency or other
governmental body having jurisdiction over the Company or any Significant
Subsidiary or their respective properties; there are no proceedings, at law or
in equity or before any governmental agency or body, pending, or to the
knowledge of the Company threatened, which affect or may affect any of the
transactions contemplated by this Agreement; and the Company has full power and
lawful authority to authorize, issue and sell the Notes on the terms and
conditions herein set forth.
(xii) No Consents. No filing with, or consent, approval, authorization,
order or decree of, any court or governmental authority or agency is required
for the consummation of the transactions herein contemplated, other than such as
may be required under the 1933 Act, the 1939 Act, the 1933 Act Regulations, the
1939 Act Regulations, or state securities or blue sky laws.
(xiii) Public Utility Holding Company Act Compliance . The Company is
not currently required to register as a "holding company" under the Public
Utilities Holding Company Act of 1935, as amended.
(xiv) Legal Proceedings. Except as may be set forth in the Registration
Statement and the Prospectus, there is no action, suit, proceeding, inquiry or
investigation before or by any court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of the Company, overtly threatened in
writing against or affecting, the Company or any of its subsidiaries which is
required to be disclosed in the Registration Statement or which might result in
any material adverse change in the condition, financial or otherwise, of the
Company and its subsidiaries considered as one enterprise, or in the earnings,
business affairs or business prospects of the
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Company and its subsidiaries considered as one enterprise, or which might
materially and adversely affect the properties or assets thereof or might
materially and adversely affect the consummation of this Agreement or of an
applicable Terms Agreement, if any. The aggregate of all pending legal or
governmental proceedings to which the Company or any of its subsidiaries is a
party or of which any of their respective property or assets is the subject
which are not described in the Registration Statement or the Prospectus,
including ordinary routine litigation incidental to the business, would not, if
adversely determined, result in a material adverse change in the condition,
financial or otherwise, of the Company and its subsidiaries considered as one
enterprise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise.
(xv) Exhibits. There are no contracts or other documents of the Company
or any of its subsidiaries which are required to be described in the
Registration Statement, the Prospectus, or the Incorporated Documents or to be
filed as exhibits to the Registration Statement by the 1933 Act or the 1933 Act
Regulations which have not been so described and filed as required.
(xvi) Licenses and Authorizations. 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 of its
subsidiaries 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 considered as one enterprise, whether or not arising from
transactions in the ordinary course of business, except as set forth in or
contemplated in the Registration Statement and Prospectus.
(xvii) Restrictions on Dividends. The Prospectus (including the
Incorporated Documents) accurately describes the most restrictive of the
existing limitations on the payment of dividends by WPSC on the shares of common
stock of WPSC held by the Company.
(xvii) Internal Accounting Controls. The Company and each of its
subsidiaries maintains a system of 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 asset
accountability; (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.
(xviii) Environmental Compliance. The Company and each of 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
9
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 considered as one enterprise, whether or not
arising from transactions in the ordinary course of business, except as set
forth in or contemplated in the Registration Statement and Prospectus. Except as
set forth in the Registration Statement and Prospectus, neither the Company nor
any of its subsidiaries has 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 considered as one enterprise.
(xix) Year 2000 Compliance. The Company, on behalf of itself and each
of its subsidiaries, has implemented, or caused to be implemented, a
comprehensive, detailed program to analyze and address the risk that the
computer hardware and software used by it may be unable to recognize and
properly execute date-sensitive functions involving certain dates prior to and
any dates after December 31, 1999, and reasonably believe that such risk will be
remedied on a timely basis without material expense, except as set forth or
contemplated in the Registration Statement and Prospectus, and will not have a
material adverse effect upon the financial condition and results of operations
of the Company and its subsidiaries considered as one enterprise.
(xx) Not Investment Company. The Company is not an "investment company
or a company "controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended (the "Investment Company Act"), and
is not required to register or take any other action with respect to or under
the Investment Company Act by reason of the issuance of the Notes by the
Company.
(b) Additional Certifications. Any certificate signed by any officer of
the Company and delivered to any Agent or to counsel for such Agent in
connection with an offering of Notes by an Agent or the sale of Notes to an
Agent as principal shall be deemed a representation and warranty by the Company
to such Agent as to the matters covered thereby.
SECTION 3. Offer and Sale of the Notes.
(a) Solicitations as Agent. On the basis of the representations and
warranties herein contained, but subject to the terms and conditions herein set
forth, each Agent agrees, as agent of the Company, to use reasonable commercial
efforts to solicit offers to purchase the Notes from time
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to time as requested by the Company upon the terms and conditions set forth
herein and in the Prospectus. The Agents may act separately or together in
connection with any particular sale of Notes; however, the obligations of the
Agents hereunder shall, in either case, be several and not joint.
The Company reserves the right, in its sole discretion, to sell Notes
itself or to suspend solicitation of purchases of the Notes through an Agent, as
agent, commencing at any time for any period of time or permanently. As soon as
practicable upon receipt of instructions from the Company, such Agent will
forthwith suspend solicitation of purchases from the Company until such time as
the Company has advised such Agent that such solicitation may be resumed.
The Company agrees to pay the applicable Agent a commission, in the
form of a discount if funds are advanced by such Agent on behalf of a purchaser,
equal to the applicable percentage of the principal amount of each Note sold by
the Company as a result of a solicitation made by such Agent as set forth in
Schedule A hereto. An Agent may reallow any portion of the commission payable
pursuant hereto to dealers or purchasers in connection with the offer and sale
of any Notes.
The purchase price, interest rate, maturity date and other terms of the
Notes shall be agreed upon by the Company and the Agents and set forth in a
pricing supplement to the Prospectus to be prepared following each acceptance by
the Company of an offer for the purchase of Notes. All Notes sold through an
Agent as agent will be sold at 100% of their principal amount unless otherwise
agreed to by the Company and such Agent.
(b) Purchases as Principal. Each sale of Notes to an Agent as principal
shall be made in accordance with the terms of this Agreement and (unless the
Company and such Agent shall agree otherwise) pursuant to a separate agreement
which will provide for the sale of such Notes to, and the purchase and
reoffering thereof by, such Agent. Each such separate agreement (which may be an
oral agreement confirmed in writing which shall be substantially in the form of
Exhibit A hereto or in the form of an exchange of any standard form of written
telecommunication between each Agent and the Company, including an exchange by
facsimile transmission) between the Agent and the Company is herein referred to
as a "Terms Agreement." Unless the context otherwise requires, each reference
contained herein to "this Agreement" shall be deemed to include any applicable
Terms Agreement between the Company and any Agent. Each such Terms Agreement
shall be with respect to such information (as applicable) as is specified in
Exhibit A hereto.
Each Agent's commitment to purchase Notes pursuant to any Terms
Agreement or otherwise shall be deemed to have been made on the basis of the
representations and warranties of the Company herein contained and shall be
subject to the terms and conditions herein set forth. Each Terms Agreement shall
specify the principal amount of Notes to be purchased by the Agent thereunder,
the price to be paid to the Company for such Notes (which, if not so specified
in a Terms Agreement, shall be at a discount equivalent to the applicable
commission set forth in Schedule A), the price to the public, the time and place
of delivery of and payment for such Notes, any provisions applicable to the
failure of any Agent (if more than one) to purchase and pay for the Notes it has
11
agreed to purchase and pay for thereunder, and such other provisions (including
further terms of the Notes) as may be mutually agreed upon by the parties to the
Terms Agreement. Each Agent may utilize a selling or dealer group in connection
with the resale of the Notes purchased. Such Terms Agreement shall also specify
the requirements for the stand-off agreement, the officers' certificates,
opinion of counsel and comfort letter pursuant to Sections 4(k), 7(b), 7(c) and
7(d) hereof.
(c) Administrative Procedures. The Notes will be issued in accordance
with the administrative procedures specified in Exhibit B hereto, as such
procedures may be amended from time to time by written agreement between the
Agents and the Company (the "Administrative Procedures"). The Agents and the
Company agree to perform the respective duties and obligations specifically
provided to be performed by them in the Administrative Procedures.
(d) Delivery of Closing Documents. The documents required to be
delivered by Section 5 hereof shall be delivered at the office of Xxxxx &
Xxxxxxx, 000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000, at 9:00 a.m.,
central time, on the date hereof, or at such other time or place as the Agents
and the Company may agree.
SECTION 4. Covenants.
The Company covenants and agrees with each Agent as follows:
(a) Notice of Certain Events. The Company will notify the Agents
immediately, and confirm such notice in writing, (i) of the effectiveness of any
amendment to the Registration Statement (which shall not include the filing of
any Incorporated Document), (ii) of the receipt of any comments from the SEC
with respect to the Registration Statement or the Prospectus, (iii) of any
request by the SEC for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional information, (iv) of
the issuance by the SEC of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that purpose,
and v) any change in the rating assigned by any nationally recognized
statistical rating organization to the Notes or the public announcement by any
nationally recognized statistical rating organization that it has under
surveillance or review, with possible negative implications, its rating of the
Notes or the withdrawal by any nationally recognized statistical rating
organization of its rating of the Notes. The Company will make every reasonable
effort to prevent the issuance of any stop order and, if any stop order is
issued, to obtain the lifting thereof at the earliest possible moment.
(b) Notice of Certain Proposed Filings. The Company will give the
Agents notice of its intention to file or prepare any additional registration
statement with respect to the registration of additional Notes, any amendment to
the Registration Statement (which shall not include the filing of any
Incorporated Document) or any amendment or supplement to the Prospectus by the
filing of documents pursuant to the 1933 Act, and the Company will, in each
case, including the filing of any Incorporated Document, furnish the Agents with
copies of any such amendment or supplement or other documents proposed to be
filed or prepared a reasonable time in advance of such proposed
12
filing or preparation, as the case may be, and will not file any such amendment
or supplement or other documents (excluding Incorporated Documents) in a form to
which the Agents or counsel for the Agents shall reasonably object.
(c) Copies of the Registration Statement and the Prospectus. The
Company will deliver to the Agents as many signed and conformed copies of the
Registration Statement (as originally filed) and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein and
Incorporated Documents) as the Agents may reasonably request. The Company will
furnish to the Agents as many copies of the Prospectus (as amended or
supplemented) as the Agents shall reasonably request so long as the Agents are
required to deliver a Prospectus in connection with sales or solicitations of
offers to purchase the Notes. The copies of the Registration Statement and each
amendment thereto and of the Prospectus furnished to the Agents will be
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(d) Preparation of Pricing Supplements. The Company will prepare, with
respect to any Notes to be sold through or to any Agent pursuant to this
Agreement, a Pricing Supplement with respect to such Notes in a form previously
approved by such Agent and will file such Pricing Supplement pursuant to Rule
424(b) under the 1933 Act not later than the close of business of the SEC on the
second business day after the date on which such Pricing Supplement is first
used.
(e) Prospectus Revisions--Material Changes. Except as otherwise
provided in subsection (m) of this Section 4, if at any time during the term of
this Agreement any event shall occur or condition exist as a result of which it
is necessary, in the reasonable opinion of counsel for the Agents or counsel for
the Company, to further amend or supplement the Prospectus in order that the
Prospectus will not include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time the Prospectus
is delivered to a purchaser, or if it shall be necessary, in the reasonable
opinion of either such counsel, to amend or supplement the Registration
Statement or the Prospectus in order to comply with the requirements of the 1933
Act or the 1933 Act Regulations, immediate notice shall be given, and confirmed
in writing, to the Agents to cease the solicitation of offers to purchase the
Notes in the Agents' capacity as agent and to cease sales of any Notes the
Agents may then own as principal pursuant to a Terms Agreement, and the Company
will promptly prepare and file with the SEC such amendment or supplement,
whether by filing documents pursuant to the 1934 Act, the 1933 Act or otherwise,
as may be necessary to correct such untrue statement or omission or to make the
Registration and Prospectus comply with such requirements.
(f) Prospectus Revisions--Periodic Financial Information. Except as
otherwise provided in subsection (m) of this Section 4, on the date on which
there shall be released to the general public interim financial statement
information related to the Company with respect to each of the first three
quarters of any fiscal year or preliminary financial statement information with
respect to any fiscal year, the Company shall furnish such information to each
Agent, confirmed in writing, and, if such information is required to be
described or is proposed to be described by the Company in a filing
13
under the 1933 Act or the 1934 Act, shall cause the Prospectus to be amended or
supplemented, whether by a filing under the 1933 Act , the 1934 Act, or
otherwise, to include or incorporate by reference financial information with
respect thereto and corresponding information for the comparable period of the
preceding fiscal year, as well as such other information and explanations as
shall be necessary for an understanding thereof or shall be required by the 1933
Act or the 1933 Act Regulations.
(g) Prospectus Revisions--Audited Financial Information. Except as
otherwise provided in subsection (m) of this Section 4, on or prior to the date
on which there shall be released to the general public financial information
included in or derived from the audited financial statements of the Company for
the preceding fiscal year, the Company shall cause the Registration Statement
and the Prospectus to be amended, whether by the filing of documents pursuant to
the 1934 Act, the 1933 Act or otherwise, to include or incorporate by reference
such audited financial statements and the report or reports, and consent or
consents to such inclusion or incorporation by reference, of the Accountants
with respect thereto, as well as such other information and explanations as
shall be necessary for an understanding of such financial statements or as shall
be required by the 1933 Act or the 1933 Act Regulations.
(h) Earnings Statements. The Company will make generally available to
its security holders as soon as practicable, but not later than 90 days after
the close of the period covered thereby, an earnings statement (in form
complying with the provisions of Rule 158 under the 1933 Act Regulations)
covering the twelve-month period beginning, in each case, not later than the
first day of the Company's fiscal quarter next following the "effective date" as
defined in such Rule 158) of the Registration Statement with respect to each
sale of Notes.
(i) Blue Sky Qualifications. The Company will endeavor, in cooperation
with the Agents, to qualify the Notes for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United States as
the Agents may designate, and will maintain such qualifications in effect for as
long as may be required for the distribution of the Notes; provided, however,
that the Company shall not be obligated to file any general consent to service
of process or to qualify as a foreign corporation in any jurisdiction in which
it is not so qualified. The Company will file such statements and reports as may
be required by the laws of each jurisdiction in which the Notes have been
qualified as above provided. The Company will promptly advise each Agent of the
receipt by the Company of any notification with respect to the suspension of the
qualification of the Notes for sale in any such state or jurisdiction or the
initiating or threatening of any proceeding for such purpose.
(j) 1934 Act Filings. The Company, during the period during which the
Prospectus is required to be delivered under the 1933 Act, will file within the
time periods required by the 1934 Act and the 1934 Act Regulations all documents
required to be filed with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d)
of the 1934 Act.
14
(k) Stand-Off Agreement. If required pursuant to the terms of a Terms
Agreement, between the date of such Terms Agreement and the Settlement Date with
respect to such Terms Agreement, the Company will not, without the appropriate
Agent's prior consent, offer or sell, or enter into any agreement to sell, any
debt securities (other than the Notes that are to be sold pursuant to such Terms
Agreement, bank borrowings, leases, commercial paper and short-term notes sold
pursuant to the Company's Section 4(2) program in the ordinary course of
business).
(l) Use of Proceeds. The net proceeds from the sale of the Notes will
be used by the Company as described in the Prospectus.
(m) Suspension of Certain Obligations. The Company shall not be
required to comply with the provisions of subsections (e), (f) or (g) of this
Section 4 or the provisions of subsections (b), (c), or (d) of Section 7 during
any period from the time (i) the Agents shall have suspended solicitation of
purchases of the Notes in their capacity as agents pursuant to a request from
the Company and (ii) the Agents shall not then hold any Notes as principal
purchased pursuant to a Terms Agreement, to the time the Company shall determine
that solicitation of purchases of the Notes should be resumed or shall
subsequently enter into a new Terms Agreement with any of the Agents. Prior to
instructing the Agents to resume the solicitation of offers to purchase Notes or
prior to entering into a new Terms Agreement, the Company shall be required to
comply with the provisions of subsections (b), (c) and (d) of Section 7, by
delivering or causing to be delivered the certificates, opinions or letters
which would have otherwise been required under each such subsection unless the
Agents otherwise determine in their sole discretion that such documents in
respect of prior periods need not be delivered.
(n) Condition to Agency Transactions. Any person who has agreed to
purchase Notes as the result of an offer to purchase solicited by an Agent shall
have the right to refuse to purchase and pay for such Notes if, on the related
settlement date fixed pursuant to the Administrative Procedures, (i) there has
been, since the date on which such person agreed to purchase the Notes (the
"Trade Date"), or since the respective dates as of which information is given in
the Registration Statement, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business or (ii) the rating
assigned by any nationally recognized securities rating agency to any debt
securities of the Company as of the Trade Date shall have been lowered since
that date or if any such rating agency shall have publicly announced that it has
under surveillance or review, with possible negative implications, its rating of
any debt securities of the Company.
SECTION 5. Conditions of Obligations.
The obligations of each Agent, as agent of the Company, to solicit
offers to purchase the Notes, the obligations of any purchasers of the Notes
sold through an Agent as agent, and any obligation of an Agent to purchase Notes
as principal pursuant to a Terms Agreement or otherwise will be subject to the
accuracy of the representations and warranties on the part of the Company
15
herein, to the accuracy of the statements of the Company's officers made in any
certificate furnished pursuant to the provisions hereof, to the performance and
observance by the Company of all of its covenants and agreements herein
contained and to the following additional conditions precedent:
(a) Legal Opinion. On the date hereof, the Agents shall have received
the following legal opinions, dated the date hereof:
(1) Opinion of Counsel to the Company. The opinion of Xxxxx &
Xxxxxxx, counsel to the Company, in form and substance satisfactory to
the Agents and counsel to the Agents, to the following effect:
(i) The Company has been duly incorporated and is
validly existing as a corporation under the laws of the State of
Wisconsin; based solely on a certificate of the Department of Financial
Institutions of the State of Wisconsin, the Company has filed its most
recent required annual report and, as of the applicable date specified
in such certificates, (a) the Company has not filed articles of
dissolution with the Department of Financial Institutions of the State
of Wisconsin, and (b) the Department of Financial Institutions of the
State of Wisconsin has not commenced proceedings for the dissolution of
the Company and has made no determination that grounds exist for such
action against the Company.
(ii) The Company has corporate power and authority to own,
lease and operate its properties and to conduct its business as
described in the Registration Statement and Prospectus.
(iii) The Company is duly qualified as a foreign corporation
to transact business and is in good standing in each jurisdiction in
which its ownership or lease of substantial properties or the conduct
of its business requires such qualification and in which the failure of
the Company to be so qualified and in good standing would have a
material adverse effect upon the Company and its subsidiaries
considered as one-enterprise.
(iv) Each Significant Subsidiary of the Company has been duly
incorporated and is validly existing as a corporation under the laws of
the jurisdiction of its incorporation, has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Registration Statement and the Prospectus.
(v) All of the issued and outstanding common stock of each
Significant Subsidiary has been duly authorized and validly issued and
is fully paid and non-assessable, except with respect to wage claims of
employees of the Company and each Significant Subsidiary as provided in
Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as
such statutory provision has been judicially interpreted; the Company
is the owner of record of all of the common stock of each Significant
Subsidiary, directly or through subsidiaries.
16
(vi) This Agreement has been duly and validly authorized,
executed and delivered by the Company and constitutes the legal, valid
and binding obligation of the Company, enforceable against the Company
in accordance with its terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
laws relating to or affecting the enforcement of creditors' rights
generally or by general equity principles and except that no opinion as
to enforceability need be expressed as to rights to indemnification and
contribution provided in Section 8 and 9 of this Agreement or clauses
concerning agreements to agree.
(vii) The Indenture has been duly and validly authorized,
executed and delivered by the Company and constitutes the legal, valid
and binding obligation of the Company, enforceable against the Company
in accordance with its terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
laws relating to or affecting the enforcement of creditors' rights
generally or by general equity principles.
(viii) The Notes are in due and proper form, have been duly
authorized for issuance, offer and sale pursuant to this Agreement and
the Indenture, and, when issued, authenticated and delivered pursuant
to the provisions of this Agreement and the Indenture and against
payment of the consideration therefor, will constitute legal, valid and
binding obligations of the Company enforceable against the Company in
accordance with their terms, except as enforcement thereof may be
limited by bankruptcy, insolvency or other similar laws relating to or
affecting the enforcement of creditors' rights generally or by general
equity principles, and each holder of the Notes will be entitled to the
benefits provided by the Indenture.
(ix) The statements and summaries of documents in the
Prospectus under the caption "Description of Notes" and "Description of
the Debt Securities" are accurate in all material respects.
(x) The Indenture is qualified under the 1939 Act.
(xi) The Registration Statement is effective under the 1933
Act and, to the best of such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement has been
issued under the 1933 Act or proceedings therefor initiated or
threatened by the SEC.
(xii) The Registration Statement, at the Effective Date, and
the Prospectus, as of the date hereof (other than in each case
financial statements and other financial or statistical data included
or incorporated by reference therein and the Form T-1, as to which no
opinion need be rendered) complied as to form in all material respects
with the requirements of the 1933 Act, the 1933 Act Regulations, the
1939 Act, and the 1939 Act Regulations.
17
(xiii) To the best of such counsel's knowledge, there are no
contracts, indentures, mortgages, loan agreements, notes, leases or
other instruments or documents required to be described or referred to
in the Registration Statement and Prospectus or to be filed as exhibits
to the Registration Statement other than those described or referred to
therein or filed or incorporated by reference as exhibits thereto.
(xiv) Each Incorporated Document complied as to form, when
filed, in all material respects with the 1934 Act and the 1934 Act
Regulations.
(xv) To the best of such counsel's knowledge, there are no
legal or governmental proceedings pending or threatened which are
required to be disclosed in the Prospectus, other than those that are
disclosed therein.
(xvi) To the best of such counsel's knowledge and information,
neither the Company nor any Significant Subsidiary is in violation of
its articles of incorporation or by-laws or in breach or default in the
performance or observance of any material obligation, agreement,
covenant or condition contained in the Indenture or any other material
contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which the Company or any Significant Subsidiary is a
party or by which it or any of them or their properties may be bound.
(xvii) No filing with, or consent, approval, authorization,
order, or decree of any court or governmental authority or agency is
required for the consummation by the Company of the transactions
contemplated by this Agreement, except (A) such as have been obtained
under the 1933 Act, the 1933 Act Regulations, the 1939 Act or the 1939
Act Regulations, and (B) such as may be required under state securities
or blue sky laws.
(xviii) To the best of such counsel's knowledge and
information, the execution and delivery of this Agreement, the
Indenture, each Terms Agreement and the Notes, and the incurrence of
the obligations and the consummation of the transactions contemplated
herein and therein will not conflict with or constitute a breach of, or
default under, the provisions of the articles of incorporation or
by-laws of the Company or any of its Significant Subsidiaries, any
material contract, indenture, mortgage, loan agreement, note, lease or
other instrument known to such counsel and to which the Company or any
Significant Subsidiary is a party or by which it or any of them may be
bound or to which any of the property or assets of the Company or any
Significant Subsidiary is subject, or result in the creation of or
imposition of any lien, charge or encumbrance upon any assets of the
Company or any Significant Subsidiary or result in the violation of any
rule, order, law, administrative regulation or administrative or court
decree known to such counsel to be applicable to the Company or any
Significant Subsidiary of any court or governmental agency, authority
or body or any arbitrator having jurisdiction over the Company or any
Significant Subsidiary.
18
(xix) The Company is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended, and is not required to be
registered thereunder.
(xx) The Company and its Subsidiaries have statutory
authority, franchises, permits, easements and consents adequate to
conduct the businesses in which they are respectively engaged without
legal restrictions that would materially affect their ability to so
conduct such business.
(xxi) The Company is not currently required to register as a
"holding company" under the Public Utilities Holding Company Act of
1935, as amended.
(2) Opinion of Counsel for the Agents. The favorable opinion
of Xxxxxx Xxxxxx & Xxxxx, counsel to the Agents, with respect to
issuance and sale of the Notes, the Registration Statement, the
Prospectus and such other related matters as the Agents may reasonably
request (it being understood that such counsel may rely as to all
matters of Wisconsin law and legal conclusions based thereon upon the
opinion of counsel for the Company referred to in subsection (a)(1) of
this Section 5.
(3) In giving their opinions required by subsection (a)(1) and
(a)(2) of this Section 5, Xxxxx & Xxxxxxx and Xxxxxx Xxxxxx & Xxxxx
shall each additionally state that nothing has come to their attention
that would lead them to believe that the Registration Statement, as of
the Effective Date, contained an untrue statement of material fact or
omitted to state a material fact necessary to be stated therein in
order to make the statements therein not misleading, or that the
Prospectus, at the date hereof, or (if such opinion is being delivered
in connection with a Terms Agreement pursuant to Section 3(b) hereof)
at the date of any Terms Agreement, and at the Settlement Date with
respect thereto, as the case may be, contains any untrue statement of a
material fact or omits 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. Such counsel need not render an
opinion with respect to financial statements and other financial or
statistical data included or incorporated by reference in the
Registration Statement or the Prospectus or as to the Form T-1.
(b) Officer's Certificates. At the date hereof, the Agents shall have
received a certificate of the President, Chief Financial Officer, Treasurer or
Assistant Treasurer of the Company, dated as of the date hereof, to the effect
that (i) since the respective dates as of which information is given in the
Registration Statement and the Prospectus or since the date of any applicable
Terms Agreement, there has not been any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries, considered as one
enterprise, whether or not arising in the ordinary course of business, (ii) the
other representations and warranties of the Company contained in Section 2 are
true and correct with the same force and effect as though expressly made at and
as of the date of each such certificate, (iii) the Company has performed or
complied with all agreements and satisfied all conditions on its part
19
to be performed or satisfied at or prior to the date of such certificate, and
(iv) no stop order suspending the effectiveness of the Registration Statement
has been issued, and no proceedings for that purpose have been initiated or, to
the knowledge of the Company, threatened by the SEC.
(c) Accountant's Letter. On the date hereof, each of the Agents shall
have received from the Accountants, in form and substance satisfactory to the
Agents, a letter dated as of the date hereof prepared in accordance with
Statement on Auditing Standards No. 72 ("SAS 72"), to the effect that:
(i) They are independent public accountants with respect to
the Company and its subsidiaries within the meaning of the 1933 Act and
the 1933 Act Regulations.
(ii) In their opinion, the consolidated financial statements
and supporting schedules of the Company and its subsidiaries examined
by them and incorporated by reference in the Registration Statement and
Prospectus comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act and the 1933 Act
Regulations with respect to a registration statement on Form S-3 and
the 1934 Act and the 1934 Act Regulations.
(iii) They have performed procedures specified by the American
Institute of Certified Public Accountants for a review of interim
financial information as described in SAS No. 71, Interim Financial
Information, not constituting an audit, including a reading of the
latest available interim financial statements of the Company and its
subsidiaries, a reading of the minute books of the Company and such
subsidiaries since the end of the most recent fiscal year with respect
to which an audit report has been issued, inquiries of and discussions
with certain officials of the Company and such subsidiaries responsible
for financial and accounting matters with respect to the unaudited
consolidated financial statements included in the Registration
Statement and the Prospectus and the latest available interim unaudited
financial statements of the Company and its subsidiaries, and such
other inquiries and procedures as may be specified in such letter, and
on the basis of such inquiries and procedures nothing came to their
attention that caused them to believe that: (A) the unaudited
consolidated financial statements of the Company and its subsidiaries
included in the Registration Statement and the Prospectus do not comply
as to form in all material respects with the applicable accounting
requirements of the 1933 Act, the 1933 Act Regulations, the 1934 Act
and the 1934 Act Regulations, (B) any material modifications should be
made to said unaudited consolidated financial statements for them to be
in conformity with generally accepted accounting principles, or (C) at
a specified date not more than three days prior to the date of such
letter, there was any decrease in the capital stock or any increase in
consolidated long-term debt of the Company and its subsidiaries or any
decrease in the consolidated net assets of the Company and its
subsidiaries, in each case as compared with the amounts shown on the
most recent consolidated balance sheet of the Company and its
subsidiaries included in the Registration Statement and the Prospectus
or, during the period from the date of such balance sheet to a
specified date not more than three days prior to the date of such
letter, there were
20
any decreases, as compared with the corresponding period in the
preceding year, in the consolidated operating revenues, operating
income, or net income of the Company and its subsidiaries, except in
each such case as set forth in or contemplated by the Registration
Statement and the Prospectus or except for such exceptions enumerated
in such letter as shall have been agreed to by the Agents and the
Company and for changes occasioned by the declaration or payment of
dividends on the stock of the Company or the preferred stock of its
subsidiaries or occasioned by sinking fund payments made on the debt
securities of the Company or its subsidiaries.
(iv) In addition to the examination referred to in their
report included or incorporated by reference in the Registration Statement and
the Prospectus, and the limited procedures referred to in clause (iii) above,
they have carried out certain other procedures, specified by you, not
constituting an audit, with respect to certain amounts, percentages, numerical
data and financial information which are included or incorporated by reference
in the Registration Statement and the Prospectus and which are specified by the
Agents, and have compared such amounts, percentages, numerical data, and
financial information with, and have found such items to be in agreement with,
or derived from, the relevant accounting, financial and other records of the
Company and its subsidiaries identified in such letter.
(d) Further Conditions. The ratings assigned by any nationally
recognized securities rating agency to any debt securities of the Company, if
any, as of the date of the acceptance by the Company of an offer to purchase
Notes or as of the date of an applicable Terms Agreement shall not have been
lowered since such respective dates, and no such rating agency shall have
publicly announced that it had placed such debt securities on what is commonly
termed a "watch list" for possible downgrading, and there shall not have come to
the attention of the Agents or, in the case of notes sold through the Agents as
agents, the applicable purchaser, any facts that would cause the Agents or such
purchaser to believe that the Disclosure Documents contained an untrue statement
of a material fact or omitted to state a material fact necessary in order to
make the statements therein, in light of the circumstances existing at such
time, not misleading.
(e) Other Documents. On the date hereof and on each Settlement
Date with respect to any applicable Terms Agreement, counsel for the Agents
shall have been furnished with such documents and opinions as such counsel may
reasonably require for the purpose of enabling such counsel to pass upon the
issuance and sale of Notes as herein contemplated and related proceedings, or in
order to evidence the accuracy and completeness of any of the representations
and warranties, or the fulfillment of any of the conditions, herein contained;
and all proceedings taken by the Company in connection with the issuance and
sale of Notes as herein contemplated shall be satisfactory in form and substance
to the Agents and to counsel for the Agents.
If any condition specified in this Section 5 shall not have
been fulfilled when and as required to be fulfilled, this Agreement (or, at the
option of the applicable Agent, any applicable Terms Agreement) may be
terminated by the Agents by notice to the Company at any time and any such
termination shall be without liability of any party to any other party, except
that the covenant
21
regarding provision of an earnings statement set forth in Section 4(h) hereof,
the provisions concerning payment of expenses under Section 10 hereof, the
indemnity and contribution agreements set forth in Sections 8 and 9 hereof, the
provisions concerning the representations, warranties and agreements to survive
delivery under Section 11 hereof and the provisions set forth under Section 15
hereof shall remain in effect.
SECTION 6. Delivery of Payment for Notes Sold Through the Agents.
Delivery of Notes sold through the Agents, as agents, shall be made by
the Company for the account of any purchaser only against payment therefor in
immediately available funds. In the event that a purchaser shall fail either to
accept delivery of or to make payment for a Note on the date fixed for
settlement, the appropriate Agent shall promptly notify the Company and deliver
the Note to the Company, and, if such Agent has theretofore advanced to the
Company the purchaser's payment for such Note, the Company will promptly return
such funds to such Agent. If such failure occurred for any reason other than
default by such Agent in the performance of its respective obligations
hereunder, the Company will reimburse such Agent on an equitable basis for its
loss of the use of the funds for the period such funds were credited to the
Company's account.
SECTION 7. Additional Covenants.
The Company covenants and agrees with the Agents that:
(a) Reaffirmation of Representations and Warranties. Each acceptance by
the Company of an offer for the purchase of Notes, and each delivery of Notes to
an Agent pursuant to a Terms Agreement, shall be deemed to be an affirmation
that the representations and warranties of the Company contained in this
Agreement and in any certificates theretofore delivered to the Agents pursuant
hereto are true and correct at the time of such acceptance or sale, as the case
may be, and an undertaking that such representations and warranties will be true
and correct at the time of delivery to the purchaser or his agent, or to an
Agent, of the Note or Notes relating to such acceptance or sale, as the case may
be, as though made at and as of each such time (and it is understood that such
representations and warranties shall relate to the Registration Statement and
Prospectus as amended and supplemented to each such time).
(b) Subsequent Delivery of Certificates. Except as otherwise provided
in Section 4(m), each time that the Registration Statement or the Prospectus
shall be amended or supplemented, including without limitation through the
filing with the SEC of any Incorporated Document (other than any Current Report
on Form 8-K relating exclusively to the issuance of Notes under the Registration
Statement, unless the Agents otherwise specify) or (if so indicated in the
applicable Terms Agreement) the Company sells Notes to the Agents pursuant to a
Terms Agreement, the Company shall furnish or cause to be furnished to the
Agents forthwith a certificate, dated the date of effectiveness of such
amendment or supplement, the date of filing with the SEC of such Incorporated
Document, or the date of such sale, as the case may be, in form satisfactory to
the Agents to the effect that the statements contained in the certificate
referred to in Section 5(b) hereof
22
which was furnished to the Agents are true and correct at the time of the
effectiveness of such amendment or supplement, the date of such filing, or the
date of such sale, as the case may be, as though made at and as of such time
(except that such statements shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to such time) or in
lieu of such a certificate, a certificate of the same tenor as the certificate
referred to in said Section 5(b), modified as necessary to relate to the
Registration Statement and Prospectus as amended and supplemented to the date of
such certificate.
(c) Subsequent Delivery of Legal Opinion. Except as otherwise provided
in Section 4(m), each time that (i) the Registration Statement or the Prospectus
shall be amended or supplemented, including without limitation through the
filing with the SEC of any Incorporated Document (other than any Current Report
on Form 8-K or Quarterly Report on Form 10-Q, unless the Agents shall otherwise
specify) or (ii) if so indicated in the applicable Terms Agreement, the Company
sells Notes to an Agent pursuant to a Terms Agreement, the Company shall furnish
or cause to be furnished forthwith to each of the Agents (in case of (i) above)
or to the Agent party thereto (in the case of (ii) above) and to counsel for the
Agents a written opinion of Xxxxx & Xxxxxxx, as counsel to the Company, or other
counsel satisfactory to the Agent or Agents receiving the opinion, dated the
date of effectiveness of such amendment or supplement, the date of filing with
the SEC of such Incorporated Document, or the date of such sale, as the case may
be, in form and substance satisfactory to the Agent or Agents receiving the
opinion, of the same tenor as the opinion referred to in Section 5(a)(1) hereof,
but modified, as necessary, to relate to the Registration Statement and
Prospectus as amended and supplemented to the date of such opinion or, in lieu
of such opinion, counsel last furnishing such opinion to the Agents or to such
Agent, as the case may be, shall furnish the Agents or such Agent with a letter
to the effect that the Agents or such Agent may rely on such last opinion to the
same extent as though it was dated the date of such letter authorizing reliance
(except that statements in such last opinion shall be deemed to relate to the
Registration Statement and Prospectus as amended and supplemented to the date of
such letter authorizing reliance).
(d) Subsequent Delivery of Accountant's Letter. Except as otherwise
provided in Section 4(m), each time (1) the Company files an Annual Report on
Form 10-K or (2) the Company sells Notes in any three-month period (whether in
Agency Transactions, Principal Transactions or any combination thereof) in an
aggregate principal amount which equals or exceeds $25 million, the Company
shall cause the Accountants or another firm of certified public accountants of
national reputation forthwith to furnish to each of the Agents or to the Agent
party thereto (in the case of (2) above), a letter, dated the date such document
is filed with the SEC or the date of sale of Notes in an aggregate principal
amount which, when combined with the aggregate principal amount of all Notes
sold in the preceding three-month period, equals or exceeds $25 million, as the
case may be, in form satisfactory to the Agent or Agents receiving such letter,
containing the statements prescribed in Section 5(c) hereof for such letter,
modified to relate to the Registration Statement and Prospectus, as amended and
supplemented to the date of such letter, with such changes as may be necessary
to reflect changes in the financial statements and other information derived
from the accounting records of the Company, except that:
23
(i) only in the case of the filing by the Company of an Annual
Report on Form 10-K shall the Agents be entitled to require the additional
procedures referred to in clause (iv) of Section 5(c) and the inclusion by the
Accountants or such other firm of certified public accountants of national
reputation in such letter of their findings as a result of performing such
additional procedures; and
(ii) in all other cases, the Accountants or such other firm of
certified public accountants of national reputation need only furnish each of
the Agents with a letter pursuant to Section 5(i), (ii) and (iii) (which may
refer to letters previously delivered to the Agents under this Agreement), as
appropriately modified.
SECTION 8. Indemnification
(a) Indemnification of the Agents. The Company agrees to indemnify and
hold harmless each Agent and each person, if any, who controls each Agent within
the meaning of Section 15 of the 1933 Act and Section 20 of the 1934 Act as
follows:
(i) against any and all loss, liability, claim, damage and
expense, whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement (or
any amendment or supplement thereto) or Prospectus (or any amendment or
supplement thereto), or omission or alleged omission therefrom of a material
fact necessary to make the statements therein in the light of the circumstances
under which they were made, not misleading,;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any governmental
agency or body, commenced or threatened, or of any claim whatsoever based upon
any such untrue statement or omission, or any such alleged untrue statement or
omission if such settlement is effected with the written consent of the Company;
and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by the Agents),
reasonably incurred in investigating, preparing or defending against any
litigation, or investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission, to the
extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by the
Agents expressly for use in the Registration Statement (or any amendment or
supplement thereto) or Prospectus (or any amendment or supplement thereto); and
provided further,
24
that the foregoing indemity with respect to any untrue statement or omission
from a preliminary prospectus shall not inure to the benefit of any Agent (or
any person controlling such Agent) from whom the person asserting such loss,
liability, claim, damage or expense purchased any of the Notes that are the
subject thereof if the Company shall sustain the burden of proving that: (i) the
untrue statement or omission contained in the preliminary prospectus (excluding
Incorporated Documents) was corrected, (ii) such person was not sent or given a
copy of the Prospectus (excluding Incorporated Documents) which corrected the
untrue statement or omission at or prior to the written confirmation of the sale
of the Notes to such person if required by applicable law, and (iii) the Company
satisfied its obligation to provide a sufficient number of copies of the
Prospectus to such Agent.
(b) Indemnification of the Company. Each of the Agents agrees,
severally and not jointly, to indemnify and hold harmless the Company, its
directors, each of its officers who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act and Section 20 of the 1934 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a)
of this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment or supplement thereto) or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with the
written information furnished to the Company by such Agent expressly for use in
the Registration Statement (or any amendment or supplement thereto) or the
Prospectus (or any amendment or supplement thereto), as set forth in Schedule B.
(c) General. Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but the
failure to so notify an indemnifying party shall not relieve such indemnifying
party from any liability hereunder to the extent it is not materially prejudiced
as a result thereof and in any event shall not relieve it from any liability
which it may have otherwise than on account of this indemnity agreement. In the
case of parties indemnified pursuant to Section 8(a) above, counsel to the
indemnified parties shall be selected by the Agents, and, in the case of parties
indemnified pursuant to Section 8(b) above, counsel to the indemnified parties
shall be selected by the Company, in each case reasonably acceptable to the
indemnifying party. An indemnifying party may participate at its own expense in
the defense of any such action; provided, however, that counsel to the
indemnifying party shall not (except with the consent of the indemnified party)
also be counsel to the indemnified party. In no event shall the indemnifying
parties be liable for the fees and expenses of more than one counsel (in
addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever in respect of which indemnification or contribution could
be sought under this Section 8 or Section 9 hereof (whether or not the
indemnified parties are actual
25
or potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim, and (ii)
does not include a statement as to or an admission of fault, culpability or a
failure to act by or on behalf of any indemnified party.
SECTION 9. Contribution
In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Section 8 is for
any reason held to be unavailable to or is insufficient to hold harmless the
indemnified parties although applicable in accordance with its terms, the
Company and the Agents shall contribute to the aggregate losses, liabilities,
claims, damages and expenses, of the nature contemplated by said indemnity
agreement incurred by the Company and the Agents, as incurred, in such
proportions that each Agent is severally responsible for that portion
represented by the percentage that the total commissions and underwriting
discounts received by such Agent to the date of such liability bears to the
total sales price received by the Company from the sale of Notes sold to or
through such Agent to the date of such liability, and the Company is responsible
for the balance; provided, however, that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section, each person, if any, who
controls each Agent within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act shall have the same rights to contribution as such Agent, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act and Section 20 of the 1934 Act shall
have the same rights to contribution as the Company.
SECTION 10. Payment of Expenses.
Except as set forth in a Terms Agreement, the Company will pay all
expenses incident to the performance of its obligations under this Agreement,
including:
(i) The preparation and filing of the Registration Statement and all
amendments thereto and of the Prospectus and all amendments or supplements
thereto;
(ii) The preparation, printing, issuance and delivery of the Notes,
including the cost of obtaining CUSIP or other identification numbers for the
Notes;
(iii) The fees and disbursements of the Company's counsel, of the
Accountants, and of the Trustee and its counsel;
(iv) The reasonable fees and disbursements of counsel for the Agents
incurred from time to time in connection with the transactions contemplated
hereby;
26
(v) The qualification of the Notes under state securities laws in
accordance with the provisions of Section 4(i), including filing fees and the
reasonable fees and disbursements of counsel for the Agents in connection
therewith and in connection with the preparation of any Blue Sky Survey and any
Legal Investment Survey; and
(vi) The printing and delivery to the Agents in quantities as
hereinabove stated of copies of the Registration Statement and any amendments
thereto, and of the Prospectus and any amendments or supplements thereto, and
the delivery by the Agents of the Prospectus and any amendments or supplements
thereto in connection with solicitations or confirmations of sales of the Notes;
(vii) Any fees charged by rating agencies for the rating of the Notes;
(viii) Any out-of-pocket expenses of the Agents incurred with the
written approval of the Company; and
(ix) The fees and expenses of any depositary and any nominees thereof
in connection with the use of book-entry Notes;
SECTION 11. Representations, Warranties and Agreements to Survive
Delivery.
All representations, warranties and agreements contained in this
Agreement or any Terms Agreement, or contained in certificates of officers of
the Company submitted pursuant hereto or thereto, shall remain operative and in
full force and effect regardless of any investigation made by or on behalf of
the Agents or any controlling person of any Agent, or by or on behalf of the
Company, and shall survive each delivery of and payment for any of the Notes.
SECTION 12. Termination.
(a) Termination of This Agreement. This Agreement (excluding any Terms
Agreement) may be terminated for any reason at any time by the Company as to any
Agent or by any Agent insofar as this Agreement relates to such Agent, upon the
giving of 30 days' prior written notice of such termination to such Agent or the
Company, as the case may be.
(b) Termination of a Terms Agreement. Each Agent may terminate any
Terms Agreement to which it is a party, immediately upon notice to the Company,
at any time prior to the Settlement Date (as defined in such Terms Agreement)
relating thereto (i) if there has been, since the date of such Terms Agreement
or since the respective dates as of which information is given in the
Registration Statement or Prospectus, any material adverse change in the
condition, financial or otherwise, of the Company and its subsidiaries
considered as one enterprise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, or (ii) if there has
occurred any material adverse change in the financial markets of the United
States or any outbreak or escalation of hostilities or other national or
international calamity or crisis the effect of which change, outbreak
27
or escalation, or calamity or crisis is such as to make it, in the judgment of
such Agent, impracticable to market the Notes or enforce contracts for the sale
of the Notes, or (iii) if trading in any securities of the Company has been
suspended by the SEC or a national securities exchange, or if trading generally
on the New York Stock Exchange has been suspended, or minimum or maximum prices
for trading have been fixed, or maximum ranges for prices for securities have
been required, by said exchange or by order of the SEC or any other governmental
authority, or if a banking moratorium has been declared by either Federal, New
York, or Wisconsin authorities, or (iv) if the ratings assigned by any
nationally recognized securities rating agency to any debt securities of the
Company as of the date of any applicable Terms Agreement shall have been lowered
since that date or if any such rating agency shall have publicly announced that
it has placed under surveillance or review, with possible negative implications,
its rating of any debt securities of the Company, or (v) if there shall have
come to the attention of such Agent any facts that would cause such Agent to
believe that the Prospectus, at the time it was required to be delivered to the
purchaser of Notes, contained an untrue statement of a material fact or omitted
to state a material fact necessary in order to make the statements therein, in
the light of the circumstances existing at the time of such delivery, not
misleading.
(c) General. In the event of any such termination, no party with
respect to which such termination has become effective will have any liability
to the other parties hereto, except that (i) each Agent shall be entitled to any
commissions earned in accordance with the third paragraph of Section 3(a)
hereof, (ii) if at the time of termination (A) any Agent shall own any Notes
purchased pursuant to a Terms Agreement with the intention of reselling them or
(b) an offer to purchase any of the Notes has been accepted by the Company, but
the time of delivery to the purchaser or his agent of the Note or Notes relating
thereto has not occurred, the covenants set forth in Sections 4 and 7 hereof
shall remain in effect until such Notes are so resold or delivered, as the case
may be, and (iii) the covenant set forth in Section 4(h) hereof, the indemnity
and contribution agreements set forth in Sections 8 and 9 hereof, and the
provisions of Sections 10, 11, 14 and 15 hereof shall remain in effect.
SECTION 13. Notices.
Unless otherwise provided herein, all notices required under the terms
and provisions hereof shall be in writing, either delivered by hand, by mail or
by telex, telecopier or telegram, and any such notice shall be effective when
received at the address specified below.
If to the Company:
WPS Resources Corporation
000 Xxxxx Xxxxx Xxxxxx
Xxxxx Xxx, Xxxxxxxxx 00000
Attention: Treasurer
Telecopier: (000) 000-0000
28
If to the Agents:
[Insert Names, Addresses and Facsimile Numbers]
or at such other address as such party may designate from time to time by notice
duly given in accordance with the terms of this Section 13.
SECTION 14. Governing Law.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York applicable to agreements made and to be
performed in such State.
SECTION 15. Parties.
This Agreement shall inure to the benefit of and be binding upon each
Agent, the Company and their respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the parties hereto and their respective
successors and the controlling persons and officers and directors referred to in
Sections 8 and 9 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the parties
hereto and their respective successors and said controlling persons and officers
and directors and their heirs and legal representatives, and for the benefit of
no other person, firm or corporation. No purchaser of Notes shall be deemed to
be a successor by reason merely of such purchase.
SECTION 16. Counterparts.
This Agreement may be executed in several counterparts, each of which
shall be deemed an original hereof.
SECTION 17. Captions.
The captions in this Agreement are for convenience of reference only
and shall not define or limit any of the terms of the provisions hereof.
SECTION 18. Severability of Provisions.
Any provision of this Agreement which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof or affecting the validity or enforceability of such provision
in any other jurisdiction.
29
[This space intentionally left blank.]
30
If the foregoing is in accordance with the Agents' understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument along with all counterparts will become a binding agreement
between the Agents, acting severally and not jointly, and the Company in
accordance with its terms.
Very truly yours,
WPS RESOURCES CORPORATION
By:
Name:
Title:
Consented and Agreed
to as of the date
first written above:
[NAME OF AGENT]
By:
Name:
Title:
[NAME OF AGENT]
By:
Name:
Title:
31
LIST OF SCHEDULES AND EXHIBITS
Schedule A - Commissions (See Section 3(a))
Schedule B - Information provided by Agents (See Section 8(b))
Exhibit A - Form of Terms Agreement (See Section 3(b))
Exhibit B - Administrative Procedures (See Section 3(d))
32
SCHEDULE A
As compensation for the services of the Agents hereunder, the Company
shall pay each Agent, in the form of a discount if funds are advanced by such
Agent on behalf of a purchaser, a commission for the sale of each Note by such
Agent equal to the principal amount of such Note multiplied by the appropriate
percentage set forth below:
MATURITY RANGES COMMISSION
1 year to less than 18 months
18 months to less than 2 years
2 years to less than 3 years
3 years to less than 4 years
4 years to less than 5 years
5 years to less than 6 years
6 years to less than 7 years
7 years to less than 10 years
10 years to less than 15 years
15 years to less than 20 years
20 years to 30 years
SCHEDULE B
The information set forth below constitutes information furnished in
writing by or on behalf of the Agent[s] pursuant to Section 8(b) of the
Distribution Agreement expressly for use in the Registration Statement and
Prospectus:
EXHIBIT A to
Distribution Agreement
WPS RESOURCES CORPORATION
Medium-Term Notes
Due One Year or More from the Date of Issue
TERMS AGREEMENT
[Date]
WPS Resources Corporation
000 Xxxxx Xxxxx Xxxxxx
Xxxxx Xxx, Xxxxxxxxx 00000
Attention:
Re: Distribution Agreement, dated ___________ (the "Agreement")
Ladies and Gentlemen:
Subject to the terms and conditions set forth herein, the undersigned
(the "Purchaser") agrees to purchase the following principal amount of
Medium-Term Notes:
$-----------------
The following terms shall apply to the Medium-Term Notes to be
purchased hereunder:
[Complete as applicable]
Interest Payment Dates: and of each year
Record Dates: and of each year
Interest Rate:
If Redeemable:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction:
A-1
Maturity Date:
Purchase Price:
Settlement Date and Time (Original Issue Date):
Provisions applicable to the failure of any Agent (if more than one
Agent) to purchase and pay for the Notes it has agreed to purchase and
pay for hereunder:
Additional Terms:
The Certificates referred to in Section 7(b) of the Agreement, the
opinion referred to in Section 7(c) of the Agreement and the Accountants' Letter
referred to in Section 7(d) of the Agreement will [not] be required. The
Stand-off Agreement pursuant to Section 4(k) will [not] be applicable to this
purchase.
The sale of the Medium-Term Notes to the Purchaser is being made
pursuant to Section 3(b) of the Agreement. The provisions of the Agreement are
hereby incorporated by reference herein and shall be deemed to be part of this
Terms Agreement to the same extent as if such provisions had been set forth in
full herein.
A-2
The information set forth on Attachment A hereto constitutes the
information furnished in writing by or on behalf of the Purchaser pursuant to
Section 8(b) of the Agreement.
[NAME OF PURCHASER]
By: ]
Name:
Title:
[NAME OF PURCHASER]
By:
Name:
Title:
Accepted:
WPS RESOURCES CORPORATION
By:
A-3
ATTACHMENT A
to
Terms Agreement
The information furnished in writing by or on behalf of the Agent[s]
expressly for use in the Registration Statement and Prospectus pursuant to
Section 8(b) of the Distribution Agreement is set forth below:
EXHIBIT B
to
Distribution Agreement
ADMINISTRATIVE PROCEDURES
WPS RESOURCES CORPORATION
ADMINISTRATIVE PROCEDURES
For Fixed Rate Medium-Term Notes
Due One Year or More from the Date of Issue
Medium-term notes in the aggregate principal amount of up to
$______________ are to be offered on a continuing basis by WPS Resources
Corporation (the "Company") through ____________ and ________________ , who, as
agents (each an "Agent" and, collectively, the "Agents"), have agreed to use
their reasonable commercial efforts to solicit offers to purchase the Notes from
the Company. If agreed upon by the Agents and the Company, the Agents may also
purchase Notes as principals for resale.
The Notes are being sold pursuant to a Distribution Agreement between
the Company and the Agents, dated __________, _____ (the "Distribution
Agreement"). The Notes are to be issued as a new series of debt securities under
the Indenture, dated as of October 1, 1999, between the Company and Firstar
Bank, National Association, as trustee (the "Trustee"), as supplemented by the
First Supplemental Indenture, dated __________, _____, to be entered into
between the Company and the Trustee (as so supplemented, the "Indenture"). The
Registration Statement (as defined in the Distribution Agreement) and the
Prospectus (as defined in the Distribution Agreement) with respect to the Notes
have been filed with the Securities and Exchange Commission (the "Commission").
Each pricing supplement, as filed or to be filed with the Commission with
respect to the specific terms of any Notes, is herein referred to as a "Pricing
Supplement."
Purchases by the Agents as principals will be made in accordance with
terms agreed upon by the Agents and the Company in a Terms Agreement executed in
accordance with Section 3(b) of the Distribution Agreement. Only those
provisions in these Administrative Procedures that are applicable to the
particular role to be performed by the related Agent or Agents shall apply to
the offer and sale of the relevant Note. In the event of any conflict between
the terms or procedures set forth in the Distribution Agreement and these
Administrative Procedures, the terms of the Distribution Agreement shall
control.
The Notes will either be issued (a) in book-entry form and represented
by one or more fully registered Notes without coupons (each, a "Book-Entry
Note") delivered to the Trustee, as agent for The Depository Trust Company
("DTC"), and recorded in the book-entry system maintained by DTC, or (b) in
certificated form (each, a "Certificated Note") delivered to the purchaser
thereof or a person designated by such purchaser. Except in the limited
circumstances described in the Prospectus or a Pricing Supplement, owners of
beneficial interests in Notes issued in book-entry form will not be entitled to
physical delivery of Notes in certificated form equal in principal amount to
their respective beneficial interests.
B-1
General procedures relating to the issuance of all Notes are set forth
in Part I hereof. Additionally, Notes issued in book-entry form will be issued
in accordance with the procedures set forth in Part II hereof and Notes issued
in certificated form will be issued in accordance with the procedures set forth
in Part III hereof. Capitalized terms used herein that are not otherwise defined
shall have the meanings given such terms in the Distribution Agreement or the
Notes, as the case may be.
PART I: PROCEDURES OF GENERAL
APPLICABILITY
Date of Issuance/
Authentication: Each Note will be dated as of the date of
its authentication by the Trustee. Each Note
shall also bear an original issue date (the
"Original Issue Date"). The Original Issue
Date shall remain the same for all Notes
subsequently issued upon transfer, exchange
or substitution of an original Note
regardless of their dates of authentication.
Maturities: Each Note will mature on a date selected by
the investor or other purchaser and agreed
to by the Company [one year] or more from
its Original Issue Date.
Registration: Unless otherwise provided in the applicable
Pricing Supplement, Notes will be issued
only in fully registered form.
Denominations: Unless otherwise provided in the applicable
Pricing Supplement, Notes will be issued in
denominations of $1,000 or any integral
multiple thereof.
Redemption: [The Notes will be subject to redemption by
the Company in accordance with the terms of
the Notes, which will be fixed at the time
of sale and set forth in the applicable
Pricing Supplement. If no Initial Redemption
Date is indicated with respect to a Note,
such Note will not be redeemable prior to
its Stated Maturity Date.
Calculation of
Interest: Fixed rate interest (including payments for
partial periods) will be calculated and paid
on the basis of a 360-day year of twelve
30-day months.
Interest: General. Each Note will bear interest in
accordance with its terms. Unless otherwise
provided in an applicable Pricing
Supplement,
B-2
interest on each Note will accrue from and
including the Original Issue Date of such
Note for the first interest period and from
the most recent Interest Payment Date to
which interest has been paid or duly
provided for all subsequent interest
periods. Each payment of interest will
include interest accrued through the day
preceding, as the case may be, the Interest
Payment Date, the Stated Maturity, or any
Redemption Date (each Stated Maturity or
Redemption Date is referred to herein as
"Maturity"). Interest payable at Maturity
will be payable to the Person to whom the
principal of such Note is payable. If an
Interest Payment Date falls on a day that is
not a Business Day, the payment of interest
required to be made on such Interest Payment
Date need not be made on such day, but may
be made on the next succeeding Business Day
with the same force and effect as if made on
such Interest Payment Date and no interest
shall accrue on such payment for the period
from and after such Interest Payment Date.
If the date of Maturity of a Note is not a
Business Day, the payment of principal and
interest due on such day shall be made on
the next succeeding Business Day and no
interest shall accrue on such payment for
the period from and after such Maturity.
Record Dates. Unless otherwise indicated in
an applicable Pricing Supplement, the Record
Date with respect to any Interest Payment
Date for a Note shall be the fifteenth day
(whether or not a Business Day) of the
calendar month immediately preceding such
Interest Payment Date.
Interest Payment Dates. Interest payments
will be made on each Interest Payment Date
commencing with the first Interest Payment
Date following the Original Issue Date;
provided, however, the first payment of
interest on any Note originally issued
between a Regular Record Date and an
Interest Payment Date will occur on the
Interest Payment Date following the next
Record Date. Interest payments on the Notes
will be made semiannually on the dates
specified in the applicable Note and related
Pricing Supplement and at Maturity.
B-3
Acceptance and
Rejection of Offers
from Solicitation
as Agents: If agreed upon by any Agent and the Company,
such Agent acting solely as agent for the
Company and not as principal will solicit
purchases of the Notes. Each Agent will
communicate to the Company, orally or in
writing, each reasonable offer to purchase
Notes solicited by such Agent on an agency
basis, other than those offers rejected by
such Agent. Each Agent has the right, in its
discretion reasonably exercised, to reject
any proposed purchase of Notes through it,
in whole or in part, and any such rejection
is not deemed a breach of such Agent's
agreement contained in the Distribution
Agreement. The Company has the sole right to
accept or reject any proposed purchase of
the Notes, in whole or in part, and any such
rejection is not deemed a breach of the
Company's agreement contained in the
Distribution Agreement. Each Agent has
agreed to make reasonable efforts to assist
the Company in obtaining performance by each
purchaser whose offer to purchase Notes has
been solicited by such Agent and accepted by
the Company.
Preparation of Pricing
Supplement: If any offer to purchase a Note is accepted
by the Company, the Company, with the
approval of the Agent presenting the offer
(the "Offering Agent"), will promptly
prepare and file with the Commission, in
accordance with Rule 424 under the 1933 Act,
a Pricing Supplement reflecting the terms of
such Note and the plan of distribution
thereof. The Offering Agent will cause a
Prospectus, as supplemented by such Pricing
Supplement (as so supplemented, a
"Supplemented Prospectus") to be delivered
to the purchaser of such Notes.
The Company shall deliver a completed
Pricing Supplement, by telecopy or overnight
express (for delivery as soon as practicable
following the trade, but in no event later
than 11:00 a.m. New York City time on the
Business Day following the applicable trade
date) to the Offering Agent, the Agent's
counsel and the Trustee at the following
applicable address:
If to ___________________ to
[Insert Names and Addresses of Agent]
If to Agent's Counsel, to:
[Insert Name and Address of Agent's Counsel]
B-4
If to the Trustee, to:
[Insert Name and Address of Trustee]
In each instance that a Pricing Supplement
is prepared, the Offering Agent will affix
such Pricing Supplement to the Prospectus
prior to use. Outdated Pricing Supplements
and the Prospectuses to which they are
attached (other than those retained for
files) will be destroyed.
Settlement: The receipt of immediately available funds
by the Company in payment for a Note and the
authentication and delivery of such Note
shall, with respect to such Note, constitute
"settlement". Offers accepted by the Company
will be settled on the third Business Days
after the date of such acceptance, or at
such time as the purchaser, the applicable
Agent, the Trustee, and the Company shall
agree, pursuant to the timetable for
settlement set forth in Parts II and III
hereof under "Settlement Procedures" with
respect to Book-Entry Notes and Certificated
Notes, respectively (each such date fixed
for settlement is hereinafter referred to as
a "Settlement Date"). If procedures A and B
of the applicable Settlement Procedures with
respect to a particular offer are not
completed on or before the time set forth
under the applicable "Settlement Procedures
Timetable", such offer shall not be settled
until the Business Day following the
completion of settlement procedures A and B
or such later date as the purchaser and the
Company shall agree.
The foregoing settlement procedures may be
modified, with respect to any purchase of
Notes by an Agent as principal, if so agreed
by the Company and such Agent pursuant to
the applicable Terms Agreement.
[Procedure for Changing
Rates or Other
Variable Terms: When a decision has been reached to change
the interest rate or any other variable term
on any Notes being sold by the Company, the
Company will promptly advise the Agents and
the Trustee by facsimile transmission and
the Agents will forthwith suspend
solicitation of offers to purchase such
Notes. The Agents will telephone the Company
with recommendations as to the changed
interest rates or other variable terms. At
such time as the Company
B-5
advises the Agents and the Trustee by
facsimile transmission of the new interest
rates or other variable terms, the Agents
may resume solicitation of offers to
purchase such Notes. Until such time only
"indications of interest" may be recorded.
Immediately after acceptance by the Company
of an offer to purchase Notes at a new
interest rate or new variable term, the
Company, the Offering Agent and the Trustee
shall follow the procedures set forth under
the applicable "Settlement Procedures."
Suspension of Solicitation;
Amendment or
Supplement: The Company may instruct the Agents to
suspend solicitation of offers to purchase
Notes at any time. Upon receipt of such
instructions, the Agents will forthwith
suspend solicitation of offers to purchase
from the Company until such time as the
Company has advised them that solicitation
of offers to purchase may be resumed. If the
Company decides to amend or supplement the
Registration Statement and Prospectus
(including by filing any documents
incorporated by reference therein), it will
promptly advise the Agents and will furnish
the Agents and/or their counsel with copies
of the proposed amendment or supplement
(including any document proposed to be
incorporated by reference therein). One copy
of such document, along with a copy of any
correspondence relating thereto sent to the
Commission, will be telecopied or delivered
to each of the Agents, their counsel and the
Trustee at their respective addresses set
forth under the heading "Preparation of
Pricing Supplement."
In the event that at the time the
solicitation of offers to purchase from the
Company is suspended [(other than to
establish or change interest rates,
maturities, prices or other similar variable
terms with respect to the Notes)] there
shall be any offers to purchase Notes that
have been accepted by the Company which have
not been settled, the Company will promptly
advise the Agents and the Trustee whether
such offers may be settled and whether
copies of the Prospectus as theretofore
amended and/or supplemented as in effect at
the time of the suspension may be delivered
in connection with the settlement of such
offers. The Company will have the sole
responsibility for such decision and for any
arrangements which may be made in the event
that the Company determines that such offers
may not be settled or that copies of such
Prospectus may not be so delivered.
B-6
Delivery of Supplemented
Prospectus: A copy of the most recent Supplemented
Prospectus must accompany or precede the
earlier of (a) the written confirmation of a
sale sent to an investor or other purchaser
or its agent and (b) the delivery of Notes
to an investor or other purchaser or its
agent.
Authenticity of
Signatures: The Agents will have no obligations or
liability to the Company or the Trustee in
respect of the authenticity of the signature
of any officer, employee or agent of the
Company or the Trustee on any Note.
Documents Incorporated
by Reference: The Company shall supply the Agents with an
adequate supply of all documents
incorporated by reference in the
Registration Statement and Prospectus.
Business Day: As used herein, "Business Day" means, unless
otherwise specified in the applicable
Pricing Supplement, any day that in the City
of New York or the City of Milwaukee is not
a day on which banking institutions are
authorized or required by law or regulation
to close.
PART II: PROCEDURES FOR NOTES ISSUED
IN BOOK-ENTRY FORM
In connection with the qualification of Notes issued in book-entry form
for eligibility in the book-entry system maintained by DTC, the Trustee will
perform the custodial, document control and administrative functions described
below, in accordance with its respective obligations under a Letter of
Representation from the Company and the Trustee to DTC, dated _________, 1999
and a Medium-Term Note Certificate Agreement, dated __________, 1999, between
the Trustee and DTC, as amended (the "Certificate Agreement"), and its
obligations as a participant in DTC, including DTC's Same-Day Funds Settlement
System ("SDFS").
Issuance: All Notes issued in book-entry form having
the same Original Issue Date, Interest Rate,
Default Rate, Interest Payment Dates,
redemption terms, if any, and Stated
Maturity (the "Fixed Rate Terms") will be
represented initially by a single Book-Entry
Note. For other variable terms with respect
to the Notes, see the Prospectus and the
applicable Pricing Supplement.
Except as described in the Prospectus, no
owner of a beneficial interest in a
Book-Entry Note shall be entitled to receive
any Note issued in certificated form with
respect to such beneficial interest.
Identification: The Company has arranged with the CUSIP
Service Bureau of Standard & Poor's
Corporation (the "CUSIP Service Bureau") for
the
B-7
reservation of a series of CUSIP numbers,
consisting of approximately 900 CUSIP
numbers which have been reserved for and
relating to Book-Entry Notes, and the
Company has delivered to the Trustee and DTC
a list of such CUSIP numbers. The Trustee
will assign CUSIP numbers to Book-Entry
Notes as described below under Settlement
Procedure B. DTC will notify the CUSIP
Service Bureau periodically of the CUSIP
numbers that the Trustee has assigned to
Book-Entry Notes. If at any time fewer than
100 of the reserved CUSIP numbers remain
unassigned to Book-Entry Notes, the Company,
if it deems necessary, will reserve and
obtain additional CUSIP numbers for
assignment to Book-Entry Notes. Upon
obtaining such additional CUSIP numbers, the
Company will deliver a list of such
additional numbers to the Trustee and DTC.
Book-Entry Notes having an aggregate
principal amount in excess of $200,000,000
and otherwise required to be represented by
the same Book-Entry Note will instead be
represented by two or more Book- Entry Notes
which shall all be assigned the same CUSIP
number.
Registration: Unless otherwise specified by DTC, each
Book-Entry Note will be registered in the
name of Cede & Co., as nominee for DTC, on
the register maintained by the Trustee under
the Indenture. The beneficial owner of a
Note issued in book-entry form (i.e., an
owner of a beneficial interest in a
Book-Entry Note) (or one or more indirect
participants in DTC designated by such
owner) will designate one or more
participants in DTC (with respect to such
Note issued in book-entry form, the
"Participants") to act as agent for such
beneficial owner in connection with the
book-entry system maintained by DTC, and DTC
will record in book-entry form, in
accordance with the instructions provided by
such Participants, a credit balance with
respect to such Note issued in book-entry
form in the account of such Participants.
The ownership interest of such beneficial
owner in such Note issued in book-entry form
will be recorded through the records of such
Participants or through the separate records
of such Participants and one or more
indirect participants in DTC.
Transfers: Transfers of beneficial ownership interests
in a Book-Entry Note will be accomplished by
book entries made by DTC and, in turn, by
Participants (and in certain cases, one or
more indirect participants in DTC) acting on
behalf of beneficial transferors and
transferees of such Book-Entry Note.
Exchanges: The Trustee may deliver to DTC and the CUSIP
Service Bureau at any time a written notice
specifying (a) the CUSIP numbers of two or
B-8
more Book-Entry Notes outstanding on such
date that represent Book-Entry Notes having
the same Fixed Rate Terms (other than
Original Issue Dates), and for which
interest has been paid to the same date; (b)
a date, occurring at least 30 days after
such written notice is delivered and at
least 30 days before the next Interest
Payment Date for the related Notes issued in
book-entry form, on which such Book-Entry
Notes shall be exchanged for a single
replacement Book-Entry Note; and (c) a new
CUSIP number, obtained from the Company, to
be assigned to such replacement Book-Entry
Note. Upon receipt of such a notice, DTC
will send to its Participants (including the
Trustee) a written reorganization notice to
the effect that such exchange will occur on
such date. Prior to the specified exchange
date, the Trustee will deliver to the CUSIP
Service Bureau written notice setting forth
such exchange date and the new CUSIP number
and stating that, as of such exchange date,
the CUSIP numbers of the Book-Entry Notes to
be exchanged will no longer be valid. On the
specified exchange date, the Trustee will
exchange such Book-Entry Notes for a single
Book-Entry Note bearing the new number, and
the CUSIP numbers of the exchanged
Book-Entry Notes will, in accordance with
CUSIP Service Bureau procedures, be canceled
and not immediately reassigned.
Notwithstanding the foregoing, unless
otherwise permitted by DTC, if the
Book-Entry Notes to be exchanged exceed
$200,000,000 in aggregate principal amount,
one replacement Book-Entry Note will be
authenticated and issued to represent each
$200,000,000 of principal amount of the
exchanged Book-Entry Notes and an additional
Book-Entry Note or Notes will be
authenticated and issued to represent any
remaining principal amount of such
Book-Entry Notes (See "Denominations"
below).
Denominations: Unless otherwise provided in the Pricing
Supplement, Notes issued in book-entry form
will be issued in denominations of $1,000
and integral multiples thereof. Unless
otherwise permitted by DTC, Book-Entry Notes
will not be denominated in principal amounts
in excess of $200,000,000. If one or more
Notes are issued in book- entry form in
excess of $200,000,000 and would, but for
the preceding sentence, be represented by a
single Book-Entry Note, then one Book-Entry
Note will be issued to represent each
$200,000,000 principal amount of such Note
or Notes issued in book-entry form and an
additional Book-Entry Note or Book-Entry
Notes will be issued to represent any
remaining principal amount of such Note or
Notes issued in book-entry form. In such a
case, each of the Book-
B-9
Entry Notes representing such Note or Notes
issued in book-entry form shall be assigned
the same CUSIP number.
Payments of Principal
and Interest: Payments of Interest Only. Promptly after
each Record Date, the Trustee will deliver
to the Company and DTC a written notice
specifying by CUSIP number the amount of
interest to be paid on each Book-Entry Note
on the following Interest Payment Date
(other than an Interest Payment Date
coinciding with Maturity) and the total of
such amounts. DTC will confirm the amount
payable on each Book-Entry Note on such
Interest Payment Date by reference to the
daily bond reports published by Standard &
Poor's Ratings Group. On or prior to such
Interest Payment Date, the Company will pay
to the Trustee in immediately available
funds an amount sufficient to pay the
interest then due and owing on such
Book-Entry Notes, and upon receipt of such
funds from the Company, the Trustee in turn
will pay to DTC such total amount of
interest due (other than at Maturity), at
the times and in the manner set forth below
under "Manner of Payment".
Payments at Maturity. On or about the first
Business Day of each month, the Trustee will
deliver to the Company and DTC (1) a written
list of principal, interest and premium, if
any, to be paid on each Book-Entry Note
maturing either at Stated Maturity or on a
Redemption Date in the following month, and
(2) a written statement indicating the total
principal amount of outstanding Book-Entry
Notes as of the close of business on the
immediately preceding Business Day. The
Trustee, the Company and DTC will confirm
the amounts of such principal, premium, if
any, and interest payments with respect to a
Book-Entry Note on or about the fifth
Business Day preceding the Maturity of such
Book-Entry Note. At or prior to such
Maturity, the Company will pay to the
Trustee in immediately available funds an
amount sufficient to make the required
payments, and upon receipt of such funds the
Trustee in turn will pay to DTC, the
principal amount of such Book-Entry Note,
together with premium, if any, and interest
due at such Maturity, at the times and in
the manner set forth below under "Manner of
Payment". Promptly after payment to DTC of
the principal, interest and premium, if any,
due at the Maturity of such Book-Entry Note,
the Trustee will cancel such Book-Entry Note
and deliver it to the Company with an
appropriate debit advice.
B-10
Manner of Payment. The total amount of any
principal, premium, if any, and interest due
on Book-Entry Notes on any Interest Payment
Date or at Maturity shall be paid by the
Company to the Trustee in funds available
for use by the Trustee no later than 11:00
a.m., New York City time, on such date. The
Company will make such payment on such
Book-Entry Notes to an account specified by
the Trustee. Upon receipt of such funds, the
Trustee will pay by separate wire transfer
(using Fedwire message entry instructions in
a form previously specified by DTC) to an
account at the Federal Reserve Bank of New
York previously specified by DTC, in funds
available for immediate use by DTC, each
payment of interest, principal and premium,
if any, due on a Book-Entry Note on such
date. Thereafter on such date, DTC will pay,
in accordance with its SDFS operating
procedures then in effect, such amounts in
funds available for immediate use to the
respective Participants in whose names such
Notes are recorded in the book-entry system
maintained by DTC. Neither the Company nor
the Trustee shall have any responsibility or
liability for the payment by DTC of the
principal of, premium, if any, or interest
on, the Book-Entry Notes to such
Participants.
Withholding Taxes. The amount of any taxes
required under applicable law to be withheld
from any interest payment on a Note will be
determined and withheld by the Participant,
indirect participant in DTC or other person
responsible for forwarding payments and
materials directly to the beneficial owner
of such Note.
Settlement Procedures: Settlement Procedures with regard to each
Note in book-entry form purchased by each
Agent, as principal, or sold by an Agent, as
agent of the Company, will be as follows:
A. The Offering Agent will advise the
Company by telephone, confirmed by
facsimile, of the following
Settlement Information:
1. Taxpayer identification
number of the purchaser.
2. Principal amount of the Note
3. Interest Rate
4. Interest Payment Dates
5. Price to public.
B-11
6. Trade Date.
7. Settlement Date (Original
Issue Date)
8. Stated Maturity Date.
9. Redemption provisions, if
any, including: Initial
Redemption Date, Initial
Redemption Percentage and
Annual Redemption Reduction
Percentage.
10. Net proceeds to the Company.
11. The Offering Agent's
commission or discount.
12. Whether such Note is being
sold to the Offering Agent
as principal or to an
investor or other purchaser
through the Offering Agent
acting as agent for the
Company.
13. Whether such Note is being
issued with Original Issue
Discount and the terms
thereof.
14. Such other information
specified with respect to
the Notes.
B. The Company will advise the Trustee
by facsimile transmission or other
electronic transmission of the
above settlement information
received from the Offering Agent
and the name of the Offering Agent,
and the Trustee will assign a CUSIP
number to such Note.
C. The Trustee will communicate to DTC
and the Offering Agent through
DTC's Participant Terminal System,
a pending deposit message
specifying thefollowing settlement
information:
1. The information set forth
in the Settlement Procedure
A.
2. Identification numbers of
the participant accounts
maintained by DTC on behalf
of the Trustee and the
Offering Agent.
B-12
3. Initial Interest Payment
Date for such Note, number
of days by which such date
succeeds the related record
date for DTC purposes, and
the amount of interest
payable on such Interest
Payment Date (which amount
shall have been confirmed
by the Trustee).
4. CUSIP number of the Book-
Entry Note representing
such Note.
5. Whether such Book-Entry
Note represents any other
Notes issued or to be
issued in book-entry form.
DTC will arrange for each
pending deposit message
described above to be
transmitted to Standard &
Poor's Corporation, which
will use the information in
the message to include
certain terms of the
related Book-Entry Note in
the appropriate daily bond
report published by
Standard & Poor's
Corporation.
D. The Board of Directors of the
Company or its Executive Committee
or a designee thereof shall approve
the final terms of the Book-Entry
Notes.
E. The Trustee will complete the
Book-Entry Note in a form that has
been approved by the Company, the
Agents and the Trustee, and
authenticate the Book-Entry Note
representing such Note.
F. DTC will credit such Note to the
participant account of the Trustee
maintained by DTC.
G. The Trustee will enter an SDFS
deliver order through DTC's
Participant Terminal System
instructing DTC (i) to debit such
Note to the Trustee's participant
account and credit such Note to the
participant account of the Offering
Agent maintained by DTC and (ii) to
debit the settlement account of the
Offering Agent and credit the
settlement account of the Trustee
maintained by DTC, in an amount
equal to the price of such Note
less such Offering Agent's discount
or underwriting commission, as
applicable. Any entry of such a
deliver order shall be deemed to
constitute a representation and
warranty by the Trustee to DTC that
(i) the Book-Entry Note
representing such Note has been
issued and
B-13
authenticated and (ii) the Trustee
is holding such Book-Entry Note
pursuant to the Certificate
Agreement.
H. In the case of Notes sold through
an Offering Agent, as Agent, the
Offering Agent will enter an SDFS
deliver order through DTC's
Participant Terminal System
instructing DTC to debit such Note
to the Offering Agent's participant
account and credit such Note to the
participant account of such
Participants maintained by DTC and
(ii) to debit the settlement
accounts of such Participants and
credit the settlement account of
the Offering Agent maintained by
DTC in an amount equal to the
initial public offering price of
such Note.
I. Transfers of funds in accordance
with SDFS deliver orders described
in Settlement Procedures G and H
will be settled in accordance with
SDFS operating procedures in effect
on the Settlement Date.
J. Upon receipt, the Trustee will pay
the Company, by wire transfer of
immediately available funds to the
account of the Company at Firstar
Bank Milwaukee, N.A., National
Association, ABA #000000000,
Account #183211520 or to such other
account specified by the Company to
the Trustee from time to time, in
the amount transferred to the
Trustee in accordance with
Settlement Procedure G.
K. The Trustee will send a copy of the
Book-Entry Note to the Company
together with a statement setting
forth the principal amount of Notes
outstanding under the Indenture.
L. If the Note was sold through an
Offering Agent, as agent, the
Offering Agent will confirm the
purchase of such Note to the
purchaser either by transmitting to
the Participant with respect to
such Note a confirmation order
through DTC's Participant Terminal
System or by mailing a written
confirmation to such purchaser.
Settlement Procedures
Timetable: For offers to purchase Notes accepted by the
Company, Settlement Procedures "A" through
"L" set forth above shall be completed as
soon as possible following the trade but not
later than the respective times (New York
City time) set forth below:
B-14
SETTLEMENT
PROCEDURE TIME
A 11:00 a.m. on the trade date or
within one hour following the
trade
B 12:00 noon on the trade date or
within one hour following the
trade
C No later than the close of
business on the trade date
D No later than the Business Day
before Settlement Date
E 9:00 a.m. on Settlement Date
F 10:00 a.m. on Settlement Date
G-H No later than 2:00 p.m. on
Settlement Date
I 4:00 p.m. on Settlement Date
X-X 5:00 p.m. on Settlement Date
Settlement Procedure I is subject to
extension in accordance with any extension
of Fedwire closing deadlines and in the
other events specified in the SDFS operating
procedures in effect on the Settlement Date.
If settlement of a Note issued in book-entry
form is rescheduled or canceled, the Trustee
will deliver to DTC, through DTC's
Participant Terminal System, a cancellation
message to such effect by no later than 2:00
p.m., New York City time, on the Business
Day immediately preceding the scheduled
Settlement Date.
Failure to Settle: If the Trustee fails to enter an SDFS
deliver order with respect to a Note issued
in book-entry form pursuant to Settlement
Procedure G, the Trustee may deliver to DTC,
through DTC's Participant Terminal System,
as soon as practicable a withdrawal message
instructing DTC to debit such Note to the
participant account of the Trustee
maintained at DTC. DTC will process the
withdrawal message, provided that such
participant account contains a principal
amount of the Book-Entry Note representing
such Note that is at least equal to the
principal amount to be debited. If
withdrawal messages are processed with
respect to all the Notes represented by a
Book-Entry Note, the Trustee will mark such
Book-Entry Note "canceled", make appropriate
entries in its records, and send
certification of destruction of such
canceled Book-Entry Note to the Company. The
CUSIP number assigned to such Book-Entry
Note shall, in accordance with
B-15
CUSIP Service Bureau procedures, be canceled
and not immediately reassigned. If
withdrawal messages are processed with
respect to a portion of the Notes
represented by a Book-Entry Note, the
Trustee will exchange such Book-Entry Note
for two Book-Entry Notes, one of which shall
represent the Book-Entry Notes for which
withdrawal messages are processed, and the
other of which shall represent the other
Notes previously represented by the
surrendered Book-Entry Note and shall bear
the CUSIP number of the surrendered Book-
Entry Note.
In the case of any Note sold through the
Offering Agent, as agent, if the purchase
price for any Note in book-entry form is not
timely paid to the Participants with respect
to such Note by the beneficial purchaser
thereof (or a person, including an indirect
participant in DTC, acting on behalf of such
purchaser), such Participants and, in turn,
the related Offering Agent may enter SDFS
deliver orders through DTC's Participant
Terminal System reversing the orders entered
pursuant to Settlement Procedures G and H,
respectively. Thereafter, the Trustee will
deliver the withdrawal message and take the
related actions described in the preceding
paragraph. If such failure shall have
occurred for any reason other than default
by the applicable Offering Agent to perform
its obligations hereunder or under the
Distribution Agreement, the Company will
reimburse such Offering Agent on an
equitable basis for its reasonable loss of
the use of funds during the period when the
funds were credited to the account of the
Company.
Notwithstanding the foregoing, upon any
failure to settle with respect to a Note in
book-entry form, DTC may take any actions in
accordance with its SDFS operating
procedures then in effect. In the event of a
failure to settle with respect to a Note
that was to have been represented by a
Book-Entry Note also representing other
Notes, the Trustee will provide, in
accordance with Settlement Procedure E, for
the authentication and issuance of a
Book-Entry Note representing such remaining
Notes and will make appropriate entries in
its records.
B-16
PART III: PROCEDURES FOR NOTES ISSUED
IN CERTIFICATED FORM
Denominations: The Certificated Notes will be issued in
denominations of $1,000 and integral
multiples thereof.
Payments of Principal
and Interest: Upon presentment and delivery of the
Certificated Note, the Trustee upon receipt
of immediately available funds from the
Company will pay the principal amount of
each Certificated Note at Maturity and the
final installment of interest in immediately
available funds. All interest payments on a
Certificated Note, other than interest due
at Maturity, will be made at the Corporate
Trust office of the Trustee or, at the
option of the Company, may be made by check
mailed to the address of the person entitled
thereto as such address shall appear in the
security Register; provided, however, that
holders of Certificated Notes may, at the
option of the Company, be entitled to
receive payments of interest, other than at
Maturity, by wire transfer of immediately
available funds to an account of a bank
located in the United States if appropriate
wire transfer instructions have been
received in writing by the Trustee not less
than 14 calendar days prior to the
applicable Interest Payment Date.
The Trustee will provide monthly to the
Company a list of the principal, premium, if
any, and interest to be paid on Certificated
Notes maturing in the next succeeding month.
The Trustee will be responsible for
withholding taxes on interest paid as
required by applicable law, but shall be
relieved from any such responsibility if it
acts in good faith and in reliance upon an
opinion of counsel.
Certificated Notes presented to the Trustee
at Maturity for payment will be canceled by
the Trustee. All canceled Certificated Notes
held by the Trustee shall be destroyed, and
the Trustee shall furnish to the Company a
certificate with respect to such
destruction.
Settlement Procedures: Settlement Procedures with regard to each
Certificated Note purchased by any Agent, as
principal, or through any Agent, as agent,
shall be as follows:
A. The Offering Agent will advise the
Company by telephone of the
following settlement information
with regard to each Note:
B-17
1. Exact name in which the
Certificated Note(s) is to be
registered (the "Registered
Owner").
2. Exact address or addresses of
the Registered Owner for
delivery, notices and payments
of principal, premium, if any,
and interest.
3. Taxpayer identification number
of the Registered Owner.
4. Principal amount of the
Certificated Note.
5. Denomination of the
Certificated Note.
6. Interest Rate.
7. Interest Payment Dates.
8. Price to public.
9. Trade Date.
10. Settlement Date (Original
Issue Date).
11. Stated Maturity Date.
12. Net Proceeds to the Company.
13. The Offering Agent's
commission or discount.
14. Whether such Notes are being
sold to the Offering Agent as
principal or to a purchaser
through the Offering Agent
acting as agent for the
Company.
15. Redemption provisions, if any.
16. Default Rate, if any.
17. Whether such Note is being
issued with original issue
discount and the terms
thereof.
18. Such other information
specified with respect to the
Notes (whether by Addendum or
otherwise).
B-18
B. After receiving such settlement
information from the Offering
Agent, the Company will advise the
Trustee of the above settlement
information by facsimile
transmission confirmed by
telephone. The Company will cause
the Trustee to issue, authenticate
and deliver the Certificated Note.
The Company shall also provide to
the Trustee and/or Offering Agent a
copy of the applicable Pricing
Supplement.
C. The Board of Directors of the
Company or its Executive Committee
or the designee thereof shall
approve the final forms of the
Certificated Notes.
D. With respect to each trade, the
Trustee will deliver the
Certificated Notes to the Offering
Agent at the following applicable
address:
If to ______________, to:
[Insert Name and Address of Agent]
If to , to:
[Insert Name and Address of Agent]
The Trustee will keep a copy of such
Certificated Note. The Offering
Agent will acknowledge receipt of
the Certificated Note through a
broker's receipt and will keep a
copy of the Certificated Note.
Delivery of the Certificated Note
will be made only against such
acknowledgment of receipt. Upon
determination that the Certificated
Note has been authorized, delivered
and completed as aforementioned, the
Offering Agent will wire the net
proceeds of the Certificated Note
after deduction of its applicable
commission to the Company pursuant
to the standard wire instructions
given by the Company.
E. In the case of a Certificated Note
sold through an Offering Agent, as
agent, the Offering Agent will
deliver such Certificated Note
(with the confirmation), as well as
a copy of
B-19
the Prospectus and any applicable
Pricing Supplement received from the
Trustee to the purchaser against
payment in immediately available
funds.
F. The Trustee will send a copy of
such Certificated Note to the
Company.
Settlement Procedures
Timetable: For offers to purchase Certified Notes
accepted by the Company, Settlement
Procedures "A" through "F" set forth above
shall be completed as soon as possible but
not later than the respective times (New
York City time) set forth below:
SETTLEMENT
PROCEDURE TIME
A 11:00 a.m. on the trade date
or within one hour following
the trade
B 12:00 noon on the trade date
or within one hour following
the trade
C No later than the Business
Day before Settlement Date
D 2:15 p.m. on Settlement Date
E 3:00 p.m. on Settlement Date
F 5:00 p.m. on Settlement Date
Failure to Settle: In the case of Notes sold through the
Offering Agent, as agent, if a purchaser of
a Certificated Note from the Company shall
either fail to accept delivery of or make
payment for such Certificated Note on the
date fixed for settlement, the Offering
Agent will forthwith notify the Trustee and
the Company by telephone, confirmed in
writing, and return such Certificated Note
to the Trustee.
The Trustee, upon receipt of such
Certificated Note from the Offering Agent,
will immediately advise the Company and the
Company will promptly arrange to credit the
account of the Offering Agent in an amount
of immediately available funds equal to the
amount previously paid to the Company by
such Offering Agent in settlement for such
Certificated Note. Such credits will be made
on the Settlement Date if possible, and in
any event not later than the Business Day
following the Settlement Date; provided that
the Company has received notice on the same
day. If such failure shall have occurred for
any reason other than failure by such
Offering Agent to perform its obligations
hereunder or under the Distribution
B-20
Agreement, the Company will reimburse such
Offering Agent on an equitable basis for its
reasonable loss of the use of funds during
the period when the funds were credited to
the account of the Company. Immediately upon
receipt of such Certificated Note in respect
of which the failure occurred, the Trustee
will cancel and destroy such Certificated
Note, make appropriate entries in its
records to reflect the fact that the Note
was never issued, and accordingly notify in
writing the Company.
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