WISCONSIN ELECTRIC POWER COMPANY
DEBT SECURITIES
UNDERWRITING AGREEMENT
New York, New York
Dated the date set
forth in Schedule B hereto
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To the Underwriters set forth
on Schedule A hereto
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Ladies and Gentlemen:
Wisconsin Electric Power Company, a Wisconsin corporation (the "Company"),
proposes to issue and sell to one or more underwriters (the "Underwriters")
named in Schedule A to this underwriting agreement (this "Agreement") the
aggregate principal amount of one or more new series of its debt securities (the
"Securities") set forth in Schedule B hereto. The Securities will be issued
under an indenture, dated as of December 1, 1995 (the "Indenture"), between the
Company and U.S. Bank National Association (as successor to Firstar Trust
Company), as Trustee (the "Trustee"), in one or more series, which series may
vary as to interest rates, maturities, redemption provisions, selling prices and
other terms, with all such terms for any particular series of the Securities
being determined at the time of sale.
The Company understands that the Underwriters propose to make a public
offering of the Securities as soon as their representative or representatives
identified on Schedule B hereto (the "Representatives") deem advisable after
this Agreement has been executed and delivered.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company represents
and warrants to each Underwriter and agrees with each Underwriter, as follows:
(i) Compliance with Registration Requirements. The Company meets the
requirements for use of Form S-3 under the Securities Act of 1933, as
amended (the "1933 Act"). The Company has filed with the Securities and
Exchange Commission (the "Commission") a registration statement on such
Form (having the number(s) set forth on Schedule B hereto), which has
become effective (including information (if any) deemed to be part of the
registration statement at the time of effectiveness pursuant
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to Rule 430A under the 1933 Act), for the registration under the 1933 Act
of the Securities and the Company's first mortgage bonds (the "First
Mortgage Bonds"). Such registration statement meets the requirements set
forth in Rule 415(a)(1)(x) under the 1933 Act and complies in all other
material respects with said Rule, and as amended at the date of this
Agreement, including the exhibits thereto, is hereinafter called the
"Registration Statement". The form of prospectus included in such
Registration Statement is hereinafter called the "Basic Prospectus"; the
form of prospectus supplement included in such Registration Statement, or,
if the Company files with the Commission a subsequent prospectus supplement
to be used in connection with the issuance and sale of the Securities under
the Prospectus in accordance with Rule 424(b) under the 1933 Act, such
subsequent prospectus supplement, is hereinafter called the "Prospectus
Supplement"; and the Basic Prospectus, as supplemented by the Prospectus
Supplement, in the form in which it shall be filed with the Commission
pursuant to Rule 424(b) is hereinafter called the "Prospectus". Any
preliminary form of the Prospectus which has heretofore been filed pursuant
to Rule 424(b) is hereinafter called the "Preliminary Prospectus". Any
reference herein to the Registration Statement, the Basic Prospectus, any
Preliminary Prospectus 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 Exchange Act of 1934, as
amended (the "1934 Act"), on or before the date of this Agreement, or the
issue date of the Basic Prospectus, any Preliminary Prospectus or the
Prospectus, as the case may be; and any reference herein to the terms
"amend," "amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the filing of any
document under the 1934 Act after the date of this Agreement, or the issue
date of the Basic Prospectus, any Preliminary Prospectus or the Prospectus,
as the case may be, deemed to be incorporated therein by reference.
(ii) No Misstatements or Omissions. As of the date hereof, when the
Prospectus is first filed or transmitted for filing pursuant to Rule 424(b)
under the 1933 Act, when, prior to Closing Time (as hereinafter defined),
any amendment to the Registration Statement becomes effective (including
the filing of any document incorporated by reference in the Registration
Statement), when any supplement to the Prospectus is filed with the
Commission and at the Closing Time, (i) the Registration Statement, as then
amended as of any such time, and the Prospectus, as then amended or
supplemented as of such time, and the Indenture will comply in all material
respects with the applicable requirements of the 1933 Act, the Trust
Indenture Act of 1939, as amended (the "1939 Act"), and the 1934 Act and
the respective rules thereunder, (ii) the Registration Statement, when it
became effective or as then amended as of such time, did not or will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make
the statements therein not
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misleading and (iii) the Prospectus, as then amended or supplemented as of
such time, did not or will not contain any untrue statement of material
fact or omit to state any material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; provided, however, that the Company makes no representations or
warranties as to (i) that part of the Registration Statement which shall
constitute the Statement of Eligibility (Form T-1) under the 1939 Act of
the trustee for the First Mortgage Bonds (the "First Mortgage Bonds Form
T-1") and the Statement of Eligibility (Form T-1) under the 1939 Act of the
Trustee with respect to the Securities (together with the First Mortgage
Bonds Form T-1, the "Form T-1") or (ii) the information contained in or
omitted from the Registration Statement or the Prospectus or any amendment
or supplement thereto in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any Underwriter
through the Representatives specifically for use in the Registration
Statement and the Prospectus.
(iii) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by the Company.
(iv) Authorization of the Indenture. The Indenture has been duly
authorized by the Company and duly qualified under the 1939 Act and
constitutes a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors' rights
generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law).
(v) Authorization of the Securities. The Securities have been duly
authorized and, at the Closing Time, will have been duly executed by the
Company and, when authenticated, issued and delivered in the manner
provided for in the Indenture and delivered against payment of the purchase
price therefor as provided in this Agreement, will constitute valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or similar
laws affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity (regardless
of whether enforcement is considered in a proceeding in equity or at law),
and will be in the form contemplated by, and entitled to the benefits of,
the Indenture.
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(vi) Description of the Securities and the Indenture. The Securities
and the Indenture will conform in all material respects to the respective
statements relating thereto contained in the Prospectus and will be in
substantially the respective forms filed or incorporated by reference, as
the case may be, as exhibits to the Registration Statement.
(vii) Absence of Defaults and Conflicts. The Company is not in
violation of its charter or by-laws or in default in the performance or
observance of any obligation, agreement, covenant or condition contained in
any contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, lease or other agreement or instrument to which the Company is a
party or by which it may be bound or to which any of the property or assets
of the Company is subject (collectively, "Agreements and Instruments")
except for such defaults as would not have a material adverse effect on the
condition, financial or otherwise, or on the earnings, business affairs or
business prospects of the Company and its consolidated subsidiaries, if
any, considered as one enterprise, whether or not arising in the ordinary
course of business (a "Material Adverse Effect"); and the execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated herein and in the Registration Statement
(including the issuance and sale of the Securities and the use of the
proceeds from the sale of the Securities as described in the Prospectus
under the caption "Use of Proceeds") and compliance by the Company with its
obligations hereunder have been duly authorized by all necessary corporate
action and do not and will not, whether with or without the giving of
notice or passage of time or both, conflict with or constitute a breach of,
or default or Repayment Event (as defined below) under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property
or assets of the Company pursuant to, the Agreements and Instruments
(except for such conflicts, breaches, Repayment Events or defaults or
liens, charges or encumbrances that would not result in a Material Adverse
Effect), nor will such action result in any violation of the provisions of
the charter or by-laws of the Company or any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over the
Company or any of its assets, properties or operations. As used herein, a
"Repayment Event" means any event or condition which gives the holder of
any note, debenture or other evidence of indebtedness (or any person acting
on such holder's behalf) the right to require the repurchase, redemption or
repayment (through acceleration or otherwise) of all or a portion of such
indebtedness by the Company.
(viii) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency
is necessary or required for the performance by the Company of its
obligations hereunder, in connection with the offering, issuance or sale
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of the Securities hereunder or the consummation of the transactions
contemplated by this Agreement, except such as have been already obtained
or as may be required under the 1933 Act or the rules and regulations of
the Commission thereunder (the "1933 Act Regulations") or state securities
laws and except for qualification of the Indenture under the 1939 Act.
(ix) Investment Company Act. The Company is not, and upon the issuance
and sale of the Securities as herein contemplated and the application of
the net proceeds therefrom as described in the Prospectus will not be, an
"investment company" or an entity "controlled" by an "investment company"
as such terms are defined in the Investment Company Act of 1940, as amended
(the "1940 Act").
(x) Public Utility Holding Company Act. The Company is, and is a
subsidiary of, an exempt public utility holding company under the Public
Utility Holding Company Act of 1935, as amended (the "1935 Act"), and as
such is exempt from all of the provisions of that act except Section
9(a)(2) thereof.
(xi) Independent Public Accountants. Each of the independent public
accountants who have certified financial statements of the Company included
or incorporated by reference in the Registration Statement and the
Prospectus are (or, in the case of Xxxxxx Xxxxxxxx LLP, were during the
periods covered by their report incorporated by reference in the Prospectus
through the date of such report) independent public accountants as required
by the 1933 Act and the 1933 Act Regulations. Additionally, any statements
required by the 1933 Act and the 1933 Act Regulations have been included or
incorporated by reference in the Prospectus reflecting that the Company
terminated its engagement with Xxxxxx Xxxxxxxx LLP and engaged Deloitte &
Touche LLP, independent public accountants.
(xii) State Regulatory Approvals. The Company has obtained all
requisite approvals of the Public Service Commission of Wisconsin (the
"PSCW") and the Michigan Public Service Commission (the "MPSC"), if any,
for the execution and delivery of the Indenture and the issuance and sale
by the Company of the Securities to the Underwriters under this Agreement.
(b) Officer's Certificates. Any certificate signed by any officer of
the Company delivered to the Representatives or to counsel for the Underwriters
shall be deemed a representation and warranty by the Company to each Underwriter
as to the matters covered thereby.
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SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Securities. On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Company
agrees to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the Company, at
the price and with the terms set forth in Schedule B, the aggregate principal
amount of Securities set forth in Schedule A opposite the name of such
Underwriter, plus any additional amount of Securities which such Underwriter may
become obligated to purchase pursuant to the provisions of Section 10 hereof.
(b) Payment. Payment of the purchase price for, and delivery of
certificates for, the Securities shall be made at the location specified on
Schedule B hereto, or at such other place as shall be agreed upon by the
Representatives and the Company at the Closing Time specified on Schedule B
hereto (unless postponed in accordance with the provisions of Section 10), or
such other time not later than ten business days after such date as shall be
agreed upon by the Representatives and the Company (such time and date of
payment and delivery being herein called "Closing Time").
Payment shall be made to the Company by wire transfer of immediately
available or next day funds as set forth in Schedule B to a bank account(s)
designated by the Company against delivery to or for the account of the
Representatives for the respective accounts of the Underwriters of certificates
for the Securities to be purchased by them. It is understood that each
Underwriter has authorized the Representatives, for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the
Securities which it has agreed to purchase.
(c) Denominations; Registration. Certificates for the Securities shall be
in such principal amounts and registered in such names as the Representatives
may request in writing at least one full business day before Closing Time. The
certificates for the Securities will be made available for examination by the
Representatives not later than 10:00 A.M. (Eastern Time) on the business day
prior to Closing Time.
SECTION 3. Covenants of the Company. The Company covenants with each
Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests.
The Company, subject to Section 3(b), will prepare the Prospectus in a form
approved by the Representatives and file such Prospectus pursuant to Rule
424(b) within the time prescribed under Rule 424(b) or Rule 430(A)(3) as
the case may be and will notify the Representatives immediately, and
confirm the notice in writing, (i) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the
Prospectus or any amended Prospectus shall have been filed, (ii) of the
receipt of any comments from the
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Commission, (iii) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or
for additional information, and (iv) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement
or of any order preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the Securities for
offering or sale in any jurisdiction, or of the initiation or threatening
of any proceedings for any of such purposes. The Company will promptly
effect the filings necessary pursuant to Rule 424(b) (or Rule 430(A)(3), as
the case may be) and will take such steps as it deems necessary to
ascertain promptly whether the form of prospectus transmitted for filing
under Rule 424(b) was received for filing by the Commission and, in the
event that it was not, it will promptly file such prospectus. 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) Filing of Amendments. At any time when a prospectus is required to
be delivered in connection with sales of Securities under the 1933 Act, the
Company will give the Representatives notice of its intention to file or
prepare any amendment to the Registration Statement or any amendment,
supplement or revision to the Prospectus, whether pursuant to the 1933 Act,
the 1934 Act or otherwise, will furnish the Representatives with copies of
any such documents a reasonable amount of time prior to such proposed
filing or use, as the case may be, and will not file or use any such
document to which the Representatives or counsel for the Underwriters shall
reasonably object.
(c) Delivery of Registration Statements. The Company has furnished or
will deliver to the Representatives and counsel for the Underwriters,
without charge, two reproduced copies of an original signed copy of the
Registration Statement as originally filed and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein
and documents incorporated or deemed to be incorporated by reference
therein) and one reproduced copy of an original signed copy of all consents
and certificates of experts, and will also deliver to the Representatives,
without charge, a conformed copy of the Registration Statement as
originally filed and of each amendment thereto (without exhibits) for each
of the Underwriters. The copies of the Registration Statement and each
amendment thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval System
("XXXXX") except to the extent permitted by Regulation S-T under the 1933
Act.
(d) Delivery of Prospectuses. The Company has delivered to each
Underwriter, without charge, as many copies of any Preliminary Prospectus
relating to the
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Securities as such Underwriter reasonably requested, and the Company hereby
consents to the use of such copies for purposes permitted by the 1933 Act.
The Company will furnish to each Underwriter, without charge, during the
period when the Prospectus is required to be delivered under the 1933 Act,
such number of copies of the Prospectus (as amended or supplemented) as
such Underwriter may reasonably request. The Prospectus and any amendments
or supplements thereto furnished to the Underwriters 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.
(e) Continued Compliance with Securities Laws. The Company will comply
with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the
rules and regulations of the Commission thereunder (the "1934 Act
Regulations") so as to permit the completion of the distribution of the
Securities as contemplated in this Agreement and in the Prospectus. If at
any time when a prospectus is required by the 1933 Act to be delivered in
connection with sales of the Securities, any event shall occur or condition
shall exist as a result of which it is necessary, in the opinion of counsel
for the Underwriters or for the Company, to amend the Registration
Statement or amend or supplement the Prospectus in order that the
Prospectus will not include any untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein
not misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the opinion of
such counsel, at any such time to amend the Registration Statement or amend
or supplement the Prospectus in order to comply with the requirements of
the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare
and file with the Commission, subject to Section 3(b), such amendment or
supplement as may be necessary to correct such statement or omission or to
make the Registration Statement or the Prospectus comply with such
requirements, and the Company will furnish to the Underwriters such number
of copies of such amendment or supplement as the Underwriters may
reasonably request.
(f) Blue Sky Qualifications. The Company will use its best efforts, in
cooperation with the Underwriters, to qualify the Securities for offering
and sale under the applicable securities laws of such states and other
jurisdictions (domestic or foreign) as the Representatives may reasonably
designate and to maintain such qualifications in effect for a period of not
less than one year from the date of this Agreement; 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 or as a dealer in
securities in any jurisdiction in which it is not so qualified or to
subject itself to taxation in respect of doing business in any jurisdiction
in which it is not otherwise so subject. In each jurisdiction in which the
Securities have been so qualified, the Company will file such statements
and reports as may be required by the laws of such jurisdiction to continue
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such qualification in effect for a period of not less than one year from
the date of this Agreement.
(g) Rule 158. The Company will timely file such reports pursuant to
the 1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the
purposes of, and to provide the benefits contemplated by, the last
paragraph of Section 11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds received by
it from the sale of the Securities in the manner specified in the
Prospectus under "Use of Proceeds."
(i) Listing. The Company will use its best efforts to effect the
listing of the Securities on any such stock exchange or exchanges as are
set forth in Schedule B hereto.
(j) Restriction on Sale of Securities. Until the business day
following Closing Time, the Company will not, without the prior written
consent of the Representatives, sell or contract to sell or announce the
offering of any debt securities of the Company with characteristics and
terms similar to those of the Securities.
(k) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act,
will file all documents required to be filed with the Commission pursuant
to the 1934 Act within the time periods required by the 1934 Act and the
1934 Act Regulations.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company will pay or cause to be paid all expenses
incident to the performance of its obligations under this Agreement, including
(i) the preparation, printing and filing of the Registration Statement
(including financial statements and exhibits and the Form T-1) as originally
filed and of each amendment thereto, (ii) the preparation, printing,
reproduction and delivery to the Underwriters of this Agreement, any Agreement
among Underwriters, the Indenture and such other documents as may be required in
connection with the offering, purchase, sale, issuance or delivery of the
Securities, (iii) the preparation, issuance and delivery of the certificates for
the Securities to the Underwriters, including any transfer taxes and any stamp
or other duties payable upon the sale, issuance or delivery of the Securities to
the Underwriters, (iv) the fees and disbursements of the Company's counsel,
accountants and other advisors, (v) the qualification of the Securities under
securities laws in accordance with the provisions of Section 3(f) hereof,
including filing fees and the reasonable fees and disbursements of counsel for
the Underwriters in connection therewith and in connection with the preparation,
reproduction and delivery to the Underwriters of any blue sky or
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legal investment survey, (vi) the printing and delivery to the Underwriters of
copies of each Preliminary Prospectus and of the Prospectus and any amendments
or supplements thereto, (vii) the fees and expenses of the Trustee, including
the fees and disbursements of counsel for the Trustee in connection with the
Indenture and the Securities, (viii) any fees payable in connection with the
rating of the Securities and (ix) the fees and expenses incurred in connection
with the listing, if applicable, of the Securities on any such exchange or
exchanges as are listed on Schedule B hereto.
(b) Termination of Agreement. If this Agreement is terminated by the
Representatives in accordance with the provisions of Section 5 or Section
9(a)(i) hereof, the Company shall reimburse the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of the
several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company contained in Section 1(a) hereof
or in certificates of any officer of the Company delivered pursuant to the
provisions hereof, to the performance by the Company of its covenants and other
obligations hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. The Prospectus shall have
been filed with the Commission pursuant to Rule 424(b) within the
applicable time period prescribed for such filing by the 1933 Act
Regulations and in accordance with Section 3(a) hereof; and no stop order
suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the Commission.
(b) Opinion of Counsel for Company. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of
Closing Time, of (i) Xxxxxxx & Xxxxx LLP, counsel for the Company, to the
effect set forth in Exhibit A-1 hereto and (ii) Xxxxx X. Xxxxxxx, Esq., or
A. Xxxxxxx Xxxxx, Esq., counsel for the Company, to the effect set forth in
Exhibit A-2 hereto, each in form and substance satisfactory to the
Representatives and to counsel for the Underwriters, together with signed
or reproduced copies of such letter for each of the other Underwriters and
addressed to the Underwriters and to such further effect as the
Representatives and to counsel to the Underwriters may reasonably request.
In giving such opinion such counsel may rely, as to all matters governed by
the laws of jurisdictions other than the law of the State of Wisconsin and
the federal law of the United States and the General Corporation Law of the
State of Delaware, upon the opinions of counsel satisfactory to the
Representatives. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem proper,
upon certificates of officers of the Company, the Trustee and public
officials. Such counsel may also state that, inso-
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far as such opinion involves matters of Michigan law relating to the
authority to do business and the regulatory approval for the Securities in
Michigan, they have relied upon the opinion of Loomis, Ewert, Parsley,
Xxxxx & Gotting, P.C., Michigan counsel to the Company. In rendering its
opinion, Xxxxxxx & Xxxxx LLP may also rely as to matters of Michigan law
and the exempt status of the Company under the 1935 Act upon the opinion of
Xxxxx X. Xxxxxxx, Esq. or A. Xxxxxxx Xxxxx, Esq.
(c) Opinion of Michigan Counsel for Company. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of
Closing Time, of Loomis, Ewert, Parsley, Xxxxx & Gotting, P.C., Michigan
counsel for the Company, to the effect set forth in Exhibit A-3 hereto, in
form and substance satisfactory to the Representatives and to counsel for
the Underwriters, together with signed or reproduced copies of such letter
for each of the other Underwriters and addressed to the Underwriters and to
such further effect as the Representatives and counsel to the Underwriters
may reasonably request.
(d) Opinion of Counsel for Underwriters. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of
Closing Time, of Xxxxxx Xxxxxx & Xxxxxxx, counsel for the Underwriters,
together with signed or reproduced copies of such letter for each of the
other Underwriters and addressed to the Underwriters with respect to such
matters as the Representatives may reasonably request. In giving such
opinion such counsel may rely, as to all matters governed by the laws of
jurisdictions other than the law of the State of New York and the federal
law of the United States (except as to the 1935 Act, as to which they may
rely on the opinion of Xxxxx X. Xxxxxxx, Esq.) and the General Corporation
Law of the State of Delaware, upon the opinions of counsel for the Company,
including such counsel referred to above in Sections 5(b) and 5(c) hereof,
or other counsel satisfactory to the Representatives. Such counsel may also
state that, insofar as such opinion involves factual matters, they have
relied, to the extent they deem proper, upon certificates of officers of
the Company, the Trustee and public officials.
In addition, such counsel shall state that they have participated in
conferences with officers and other representatives of the Company,
representatives of the Underwriters and representatives of the independent
public accountants for the Company at which conferences the contents of the
Prospectus and the Registration Statement and related matters were
discussed, and that given the limitations inherent in the role of outside
counsel and the character of determinations involved in the preparation of
a Registration Statement, such counsel are not passing upon and do not
assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus and
have made no independent check or verification thereof (except as otherwise
indicated in such letter). Such counsel shall
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further state that, on the basis of the foregoing, no facts have come to
their attention that lead them to believe that the Registration Statement
or any amendment thereto, at the time such Registration Statement or any
such amendment became effective, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or that
the Prospectus, as of its date or as of the Closing Time, contained or
contains an untrue statement of a material fact or omitted 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
(it being understood that such counsel express no comment with respect to
the Form T-1 or the financial statements, including the notes thereto, or
any other financial or statistical data found in or derived from the
internal accounting and other records of the Company set forth or referred
to in the Registration Statement or the Prospectus).
(e) Officers' Certificate. At Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information
is given in the Prospectus, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its consolidated subsidiaries, if any,
considered as one enterprise, whether or not arising in the ordinary course
of business (a "Material Adverse Change"), and the Representatives shall
have received a certificate of the President or a Vice President of the
Company and of the chief financial officer, chief accounting officer or
treasurer of the Company, dated as of Closing Time, to the effect that (i)
there has been no such Material Adverse Change, (ii) the representations
and warranties in Section 1(a) hereof are true and correct in all material
respects, with the same force and effect as though expressly made at and as
of Closing Time, (iii) the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or
prior to Closing Time, and (iv) 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 are, to the knowledge of
such officers, contemplated by the Commission.
(f) Accountant's Comfort Letter. At the time of the execution of this
Agreement, the Representatives shall have received letter(s) dated such
date from the Company's independent public accountants/1/ (other than
Xxxxxx Xxxxxxxx LLP) for the
-----------------------
1 Accountants (other than Xxxxxx Xxxxxxxx) shall provide comfort to the
extent they have provided audit opinions for fiscal years required to be
included in the Prospectus and Prospectus Supplement in accordance with
Regulations S-X.
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periods covered by their respective reports included or incorporated by
reference in the Registration Statement and the Prospectus (and the
applicable interim periods), in form and substance satisfactory to the
Representatives and substantially in the form of Exhibit B hereto (except
for the letter to be delivered by Deloitte & Touche LLP for the year ended
December 31, 2001 and the interim periods through September 30, 2002, which
shall be substantially in the form of Exhibit C hereto) together with
signed or reproduced copies of such letters for each of the other
Underwriters and addressed to the Underwriters containing statements and
information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and
certain financial information contained in the Registration Statement and
the Prospectus.
(g) Bring-down Comfort Letter. At Closing Time, the Representatives
shall have received from the Company's independent public accountants
referred to in subsection (f) of this Section, letters dated as of the
Closing Time, together with signed or reproduced copies of such letters for
each of the other Underwriters and addressed to the Underwriters, to the
effect that they reaffirm the statements made in the letter furnished
pursuant to subsection (f) of this Section, except that the specified date
referred to shall be a date not more than three business days prior to
Closing Time.
(h) Maintenance of Rating. At Closing Time, the Securities shall be
rated by each of Xxxxx'x Investors Service, Inc. and Standard & Poor's
Ratings Group, a division of XxXxxx-Xxxx, Inc., as set forth in Schedule B
hereto. Since the date of this Agreement, there shall not have occurred a
downgrading in the rating assigned to the Securities or any of the
Company's other debt securities by any "nationally recognized statistical
rating agency," as that term is defined by the Commission for purposes of
Rule 436(g)(2) under the 1933 Act, and no such organization shall have
publicly announced that it has under surveillance or review, with possible
negative implications, its rating of the Securities or any of the Company's
other debt securities.
(i) Approval of Listing. At Closing Time, the Securities shall have
been approved for listing on any such exchange or exchanges as are listed
on Schedule B hereto, subject only to official notice of issuance.
(j) Additional Documents. At Closing Time counsel for the Underwriters
shall have been furnished with such documents and opinions as they
reasonably may require for the purpose of enabling them to pass upon the
issuance and sale of the Securities as herein contemplated, or in order to
evidence the accuracy of any of the representations or 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
- 14 -
the Securities as herein contemplated shall be satisfactory in form and
substance to the Representatives and counsel for the Underwriters.
(k) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled,
this Agreement may be terminated by the Representatives by notice to the
Company at any time at or prior to Closing Time and such termination shall
be without liability of any party to any other party except as provided in
Section 4 and except that Sections 6 and 7 shall survive any such
termination and remain in full force and effect.
(l) Chief Financial Officer's Certificate At the time of the execution
of this Agreement and at Closing Time, the Representatives shall have
received a certificate of the chief financial officer, chief accounting
officer or treasurer of the Company substantially in the form of Exhibit D
hereto.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act or 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 thereto), or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact included in any Preliminary
Prospectus or the Prospectus (or any amendment or supplement thereto), or
the omission or alleged omission therefrom of a material fact necessary in
order 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 any 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; provided that
(subject to Section 6(d) below) any such settlement is effected with the
written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including
the reasonable fees and disbursements of counsel chosen by the
Representatives), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation
- 15 -
or proceeding by any governmental agency or body, commenced or threatened,
or any claim whatsoever based upon any such untrue statement or omission,
to the extent that any such expense is not paid under (i) or (ii) above;
provided, however, that (i) 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 any Underwriter through the Representatives expressly for use in the
Registration Statement (or any amendment thereto) or any Preliminary Prospectus
or the Prospectus (or any amendment or supplement thereto) and (ii) such
indemnity with respect to any Preliminary Prospectus or the Prospectus shall not
inure to the benefit of any Underwriter (or any person controlling such
Underwriter) from whom the person asserting any such loss, liability, claim,
damage or expense purchased the Securities which are the subject thereof if such
Underwriter did not send or deliver to such person a copy of the Prospectus (or
the Prospectus, as amended or supplemented), excluding documents incorporated
therein by reference, at or prior to the confirmation of the sale of the
Securities to such person in any case where such delivery is required by the
1933 Act and the untrue statement or omission of a material fact contained in
any Preliminary Prospectus or the Prospectus was corrected in the Prospectus (or
the Prospectus, as amended or supplemented). This indemnity agreement will be in
addition to any liability which the Company may otherwise have.
(b) Indemnification of Company, Directors and Officers. Each Underwriter
severally and not jointly agrees 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 or 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 thereto) or any Preliminary Prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through the Representatives expressly for use in the Registration Statement (or
any amendment thereto) or such Preliminary Prospectus or the Prospectus (or any
amendment or supplement thereto).
(c) Actions Against Parties; Notification. Promptly after receipt by an
indemnified party under this Section 6 of notice of the commencement of any
action, such indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under this Section 6, notify the indemnifying
party in writing of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve it from any liability which it may have to
any indemnified party otherwise than under this Section 6. In case any such
action is brought against any indemnified party, and it notifies the
indemnifying party of the
- 16 -
commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel satisfactory to
such indemnified party; provided, however, that if the defendants (including
impleaded parties) in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it or other indemnified parties
which are different from or additional to those available to the in demnifying
party, the indemnified party or parties shall have the right to select separate
counsel to assert such legal defenses and to otherwise participate in the
defense of such action on behalf of such indemnified party or parties. Upon
receipt of notice from the indemnifying party to such indemnified party of its
election so to assume the defense of such action and approval by the indemnified
party of counsel, the indemnifying party will not be liable to such indemnified
party under this Section 6 for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the next preceding
sentence (it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel (in addition to local
counsel) representing the indemnified parties), (ii) the indemnifying party
shall not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
commencement of the action or (iii) the indemnifying party has authorized the
employment of counsel for the indemnified party at the expense of the
indemnifying party.
(d) Settlement Without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
SECTION 7. Contribution. If the indemnification provided for in Section 6
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other hand from the offering of the Securities
pursuant to this Agreement or (ii) if the allocation provided by clause (i) is
not permitted by applicable law, in such
- 17 -
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and of the Underwriters on the other hand in connection with the statements
or omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the Securities
pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Securities
pursuant to this Agreement (before deducting expenses) received by the Company
and the total underwriting discount received by the Underwriters, in each case
as set forth on the cover of the Prospectus, bear to the aggregate initial
public offering price of the Securities as set forth on such cover.
The relative fault of the Company on the one hand and the Underwriters on
the other hand shall be determined by reference to, among other things, whether
any such untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by the
Company or by an Underwriter in writing through the Representatives and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
- 18 -
For purposes of this Section 7, each person, if any, who controls an
Underwriter 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 Underwriter, 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 or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the principal amount of Securities set forth opposite their
respective names in Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company submitted pursuant hereto shall remain
operative and in full force and effect, regardless of any investigation made by
or on behalf of any Underwriter or controlling person, or by or on behalf of the
Company, and shall survive delivery of the Securities to the Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representatives may terminate this Agreement,
by notice to the Company, at any time at or prior to Closing Time (i) if there
has been, since the time of execution of this Agreement or since the respective
dates as of which information is given in the Prospectus, any Material Adverse
Change, or (ii) if there has occurred any material adverse change in the
financial markets in the United States or the international financial markets,
any outbreak of hostilities or escalation thereof or other calamity or crisis
(including any terrorist activity), the effect of which is such as to make it,
in the judgment of the Representatives, impracticable to market the Securities
or to enforce contracts for the sale of the Securities, or (iii) if trading in
any securities of the Company has been suspended or materially limited by the
Commission or the New York Stock Exchange, or if trading generally on the
American Stock Exchange or the New York Stock Exchange or in the Nasdaq National
Market has been suspended or materially limited (other than to provide for an
orderly market), or minimum or maximum prices for trading have been fixed, or
maximum ranges for prices have been required, by any of said exchanges or by
such system or by order of the Commission, the National Association of
Securities Dealers, Inc. or any other governmental authority, or (iv) if a
banking moratorium has been declared by either Federal or New York authorities
or a material disruption in commercial banking or securities settlement or
clearance services shall have occurred.
(b) Liabilities. If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party
except as provided in
- 19 -
Section 4 hereof, and provided further that Sections 6 and 7 shall survive such
termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more of
the Underwriters shall fail at Closing Time to purchase the Securities which it
or they are obligated to purchase under this Agreement (the "Defaulted
Securities"), the Representatives shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such principal amounts as may be agreed upon and
upon the terms herein set forth; if, however, the Representatives shall not have
completed such arrangements within such 24-hour period, then:
(a) if the aggregate principal amount of the Defaulted Securities does
not exceed 10% of the aggregate principal amount of the Securities to be
purchased on such date, each of the non-defaulting Underwriters shall be
obligated, severally and not jointly, to purchase the full amount thereof
in the proportion that its underwriting obligation hereunder bears to the
underwriting obligations of all non-defaulting Underwriters, or
(b) if the aggregate principal amount of the Defaulted Securities
exceeds 10% of the aggregate principal amount of the Securities to be
purchased on such date, this Agreement shall terminate without liability on
the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement either (i) the Representatives or (ii) the Company
shall have the right to postpone Closing Time for a period not exceeding seven
days in order to effect any required changes in the Registration Statement or
Prospectus or in any other documents or arrangements. As used in this Agreement,
the term "Underwriter" includes any person substituted for an Underwriter under
this Section 10.
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representatives at the address set forth
in Schedule B; notices to the Company shall be directed to it at 000 Xxxx
Xxxxxxxx Xxxxxx, X.X. Xxx 0000, Xxxxxxxxx, Xxxxxxxxx 00000, attention of
Treasurer.
- 20 -
SECTION 12. Parties. This Agreement shall each inure to the benefit of and
be binding upon the Underwriters, 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 Underwriters,
the Company and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 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 Underwriters, the Company 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 Securities from any Underwriter shall be deemed to
be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS
OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings. The Section headings herein are for
convenience only and shall not affect the construction hereof.
SECTION 15. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
S-1
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement between the
Company and the Underwriters.
Very truly yours,
WISCONSIN ELECTRIC POWER COMPANY
By:
----------------------------
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date
specified in Schedule B.
[REPRESENTATIVES]
By: ____________________________
Name:
Title:
[For themselves and the other
Underwriters named in Schedule A
to the foregoing Agreement]
SCHEDULE A
WISCONSIN ELECTRIC POWER COMPANY
Debt Securities
---------------
Underwriter Principal Amount
---------------------------------------------------------- --------------------
[Underwriters] ...................................... $_________________
Total ................... $
=================
SCHEDULE B
WISCONSIN ELECTRIC POWER COMPANY
Debt Securities
Underwriting Agreement dated _____________________, 200_
Registration Statement No(s). 333-_______________
Title and Certain Terms of Securities:
Title: ___________________________________
Principal amount: $___________________
Maturity: ____________________________
Interest Rate: _______%
Interest Payment Dates: ________ and ________, commencing ________, 200__
Sinking Fund: None
Redemption Provisions:
Listing: None
Purchase Price:_____% of principal amount, plus accrued interest, if any,
from ____________, 200__.
Expected Reoffering Price: _____% of principal amount, plus any such
accrued interest, subject to change by the Representatives.
General
Rating: Xxxxx'x Investors Service, Inc.:
Standard & Poor's Ratings Group:
Closing Time and Location:
_________, 200__ 8:30 A.M. (Central Time)
Offices of:
Xxxxxxx & Xxxxx LLP
000 Xxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000-0000
Settlement and Trading: Book-Entry Only via the Depository
Trust Company ("DTC"). The Securities will trade in
DTC's Same Day Funds Settlement System.
Payment Method: Wire transfer of immediately available funds.
Notices: Notices to be given to the Underwriters should be
directed to the Representatives as follows:
Copies to:
[Representatives]
The respective principal amounts of the Securities to be purchased by each of
the Underwriters are set forth opposite their names in Schedule A hereto.
Exhibit A-1
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
Capitalized terms used herein shall have the same definitions as set forth
in the underwriting agreement (the "Underwriting Agreement") to which this
Exhibit A-1 is attached.
(i) The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
(ii) The Indenture has been duly authorized, executed and delivered by the
Company, has been duly qualified under the 1939 Act and (assuming the due
authorization, execution and delivery thereof by the Trustee) constitutes a
valid and binding agreement of the Company, enforceable against the Company in
accordance with its terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
(iii) The Securities are in the form contemplated by the Indenture, have
been duly authorized by the Company and, assuming that the Securities have been
duly authenticated by the Trustee in the manner described in its certificate
delivered to you today (which fact such counsel need not determine by an
inspection of the Securities), the Securities have been duly executed, issued
and delivered by the Company and constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms, subject
to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and fair dealing, and
are entitled to the benefits of the Indenture.
(iv) The Securities and the Indenture conform as to legal matters in all
material respects to the descriptions thereof contained in the Prospectus.
(v) The Registration Statement has been declared effective under the 1933
Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made
in the manner and within the time period required by Rule 424(b); and, to the
best of our knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued under the 1933 Act and no proceedings for
that purpose have been instituted or are pending or threatened by the
Commission.
A-1-1
(vi) The Registration Statement, the Prospectus, excluding the documents
incorporated by reference therein, and each amendment or supplement to the
Registration Statement and Prospectus, excluding the documents incorporated by
reference therein, as of their respective effective or issue dates (other than
the financial statements, including any pro forma financial information and
supporting schedules included therein or omitted therefrom and the Statement of
Eligibility on Form T-1 of the Trustee, as to which we express no opinion),
appeared on their face to comply as to form in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and the 0000 Xxx.
(vii) The documents incorporated by reference in the Prospectus (other than
the financial statements and supporting schedules included therein or omitted
therefrom, as to which we need express no opinion), when they became effective
or were filed with the Commission, as the case may be, appeared on their face to
comply as to form in all material respects with the requirements of the 1933 Act
or the 1934 Act, as applicable, and the rules and regulations of the Commission
thereunder.
(viii) All requisite approvals of the PSCW for the execution and delivery
of the Indenture and the issuance and sale by the Company of the Securities to
the Underwriters under the Underwriting Agreement have been obtained; and the
Securities have been issued and sold to the Underwriters by the Company in
conformity with the order of such commission issued with respect thereto. We
know of no other approvals of regulatory authorities required in connection with
the foregoing matters, other than approvals which may be required under state
securities laws.
(ix) The Company is not an "investment company" or an entity "controlled"
by an "investment company," as such terms are defined in the 1940 Act.
We have participated in conferences with officers and other representatives
of the Company, representatives of the Underwriters and representatives of the
independent public accountants for the Company at which conferences the contents
of the Prospectus and the Registration Statement and related matters were
discussed. Given the limitations inherent in the role of outside counsel and the
character of determinations involved in the preparation of a Registration
Statement, we are not passing upon and do not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus and have made no independent check or
verification thereof (except as otherwise indicated above). On the basis of the
foregoing, no facts have come to our attention that lead us to believe that the
Registration Statement or any amendment thereto, at the time such Registration
Statement or any such amendment became effective, contained an untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or that the
Prospectus, as of its date or as of the date hereof, contained or contains an
untrue statement of a material fact or omitted 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 (it being understood
that we express no comment with respect to the Form T-1 or the financial
statements, including the
A-1-2
notes thereto, or any other financial or statistical data found in or derived
from the internal accounting and other records of the Company set forth or
referred to in the Registration Statement or the Prospectus).
In rendering such opinion, such counsel may rely as to matters of fact (but
not as to legal conclusions), to the extent they deem proper, on certificates of
responsible officers of the Company, representatives of the Trustee and public
officials. In giving such opinion such counsel may rely, as to all matters
governed by the laws of jurisdictions other than the law of the State of
Wisconsin and the federal law of the United States and the General Corporation
Law of the State of Delaware, upon the opinions of counsel satisfactory to the
Representatives, including in the case of Michigan law, upon the opinion of
Loomis, Ewert, Parsley, Xxxxx & Gotting, P.C., Michigan counsel to the Company.
Such counsel may rely on the opinion of Xxxxx X. Xxxxxxx, Esq. or A. Xxxxxxx
Xxxxx, Esq. as to matters of Michigan law and the exempt status of the Company
under the 1935 Act. Such opinion shall not state that it is to be governed or
qualified by, or that it is otherwise subject to, any treatise, written policy
or other document relating to legal opinions, including, without limitation, the
Legal Opinion Accord of the ABA Section of Business Law (1991).
X-0-0
Xxxxxxx X-0
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
Capitalized terms used herein shall have the same definitions as set forth
in the underwriting agreement (the "Underwriting Agreement") to which this
Exhibit A-2 is attached.
(i) The Company has been duly incorporated and is validly existing as a
corporation in active status under the laws of the State of Wisconsin.
(ii) The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under the Agreement.
(iii) The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
(iv) The Indenture has been duly authorized, executed and delivered by the
Company, has been duly qualified under the 1939 Act and (assuming the due
authorization, execution and delivery thereof by the Trustee) constitutes a
valid and binding agreement of the Company, enforceable against the Company in
accordance with its terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
(v) The Securities are in the form contemplated by the Indenture, have been
duly authorized by the Company and, assuming that the Securities have been duly
authenticated by the Trustee in the manner described in its certificate
delivered to you today (which fact such counsel need not determine by an
inspection of the Securities), the Securities have been duly executed, issued
and delivered by the Company and constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms, subject
to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and fair dealing, and
are entitled to the benefits of the Indenture.
(vi) The Securities and the Indenture conform as to legal matters in all
material respects to the descriptions thereof contained in the Prospectus.
A-2-1
(vii) The Registration Statement has been declared effective under the 1933
Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made
in the manner and within the time period required by Rule 424(b); and, to the
best of my knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued under the 1933 Act and no proceedings for
that purpose have been instituted or are pending or threatened by the
Commission.
(viii) The Registration Statement, the Prospectus, excluding the documents
incorporated by reference therein, and each amendment or supplement to the
Registration Statement and Prospectus, excluding the documents incorporated by
reference therein, as of their respective effective or issue dates (other than
the financial statements, including any pro forma financial information and
supporting schedules included therein or omitted therefrom and the Form T-1, as
to which I express no opinion), appeared on their face to comply as to form in
all material respects with the requirements of the 1933 Act and the 1933 Act
Regulations and the 1939 Act.
(ix) The documents incorporated by reference in the Prospectus (other than
the financial statements and supporting schedules included therein or omitted
therefrom, as to which I express no opinion), when they became effective or were
filed with the Commission, as the case may be, appeared on their face to comply
as to form in all material respects with the requirements of the 1933 Act or the
1934 Act, as applicable, and the rules and regulations of the Commission
thereunder.
(x) To the best of my knowledge, there are no statutes or regulations that
are required to be described in the Prospectus that are not described as
required.
(xi) All descriptions in the Registration Statement of written contracts
and other documents to which the Company is a party are accurate in all material
respects; to the best of my knowledge, there are no franchises, contracts,
indentures, mortgages, loan agreements, notes, leases or other instruments
required to be described or referred to in the Registration Statement or to be
filed as exhibits thereto other than those described or referred to therein or
filed or incorporated by reference as exhibits thereto, and the descriptions
thereof or references thereto are correct in all material respects.
(xii) To the best of my knowledge, the Company is not in violation of its
charter or by-laws and no default by the Company exists in the due performance
or observance of any material obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan agreement, note, lease or
other agreement or instrument that is described or referred to in the
Registration Statement or the Prospectus or filed or incorporated by reference
as an exhibit to the Registration Statement.
(xiii) All requisite approvals of the PSCW for the execution and delivery
of the Indenture and the issuance and sale by the Company of the Securities to
the Underwriters under the Underwriting Agreement have been obtained; and the
Securities have been issued and sold to the Underwriters by the Company in
conformity with the order of such commission
A-2-2
issued with respect thereto. I know of no other approvals of regulatory
authorities required in connection with the foregoing matters, other than
approvals which may be required under state securities laws.
(xiv) The execution, delivery and performance of the Underwriting
Agreement, the Indenture and the Securities and the consummation of the
transactions contemplated in the Underwriting Agreement and in the Registration
Statement (including the issuance and sale of the Securities and the use of the
proceeds from the sale of the Securities as described in the Prospectus under
the caption "Use of Proceeds") and compliance by the Company with its
obligations under the Underwriting Agreement, the Indenture and the Securities
do not and will not, whether with or without the giving of notice or lapse of
time or both, conflict with or constitute a breach of or default or similar
event under or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company pursuant to any written
contract, indenture, mortgage, deed of trust, loan or credit agreement, note,
lease or any other agreement or instrument, known to me, to which the Company is
a party or by which it may be bound, or to which any of the property or assets
of the Company is subject (except for such conflicts, breaches, similar events
or defaults or liens, charges or encumbrances that would not have a Material
Adverse Effect), nor will such action result in any violation of the provisions
of the charter or by-laws of the Company, or any applicable law, statute, rule,
regulation, judgment, order, writ or decree, known to me, of any government,
government instrumentality or court, domestic or foreign, having jurisdiction
over the Company or any of its properties, assets or operations.
(xv) The Company is not an "investment company" or an entity "controlled"
by an "investment company," as such terms are defined in the 0000 Xxx.
(xvi) The Company is exempt from the provisions of the 1935 Act, except
Section 9(a)(2) thereof relating to the acquisition of securities of other
public utility companies.
I have participated in conferences with officers and other representatives
of the Company, representatives of the Underwriters and representatives of the
independent public accountants for the Company at which conferences the contents
of the Prospectus and the Registration Statement and related matters were
discussed. Given the character of determinations involved in the preparation of
a Registration Statement, I am not passing upon and do not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus and have made no
independent check or verification thereof (except as otherwise indicated above).
On the basis of the foregoing, no facts have come to my attention that lead me
to believe that the Registration Statement or any amendment thereto, at the time
such Registration Statement or any such amendment became effective, contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
or that the Prospectus, as of its date or as of the date hereof, contained or
contains an untrue statement of a material fact or omitted 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
A-2-3
(it being understood that I express no comment with respect to the Form T-1 or
the financial statements, including the notes thereto, or any other financial or
statistical data found in or derived from the internal accounting and other
records of the Company set forth or referred to in the Registration Statement or
the Prospectus).
In rendering such opinion, such counsel may rely as to matters of fact (but
not as to legal conclusions), to the extent such counsel deems proper, on
certificates of responsible officers of the Company, representatives of the
Trustee and public officials. In giving such opinion such counsel may rely, as
to all matters governed by the laws of jurisdictions other than the law of the
State of Wisconsin and the federal law of the United States and the General
Corporation Law of the State of Delaware, upon the opinions of counsel
satisfactory to the Representatives, including, in the case of Michigan law,
upon the opinion of Loomis, Ewert, Parsley, Xxxxx & Gotting, P.C., Michigan
counsel to the Company. Such opinion shall not state that it is to be governed
or qualified by, or that it is otherwise subject to, any treatise, written
policy or other document relating to legal opinions, including, without
limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
X-0-0
Xxxxxxx X-0
FORM OF OPINION OF COMPANY'S MICHIGAN COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(c)
Capitalized terms used herein have the same definitions as set forth in the
underwriting agreement to which this Exhibit A-3 is attached.
(i) No consent, approval or withholding of objection by the Michigan Public
Service Commission ("Commission") is required for the issuance under the
Indenture and sale by the Company of the Securities to you pursuant to the
Underwriting Agreement. Under the Michigan Utility Securities Xxx 0000 PA 144,
as amended; MCL 460.301 et seq.; MSA 22.101 et seq., the Company formerly would
have been required to file an application with the Commission, and obtain an
order from the Commission approving the issuance and sale of the Securities. The
Michigan Utility Securities Act was repealed in its entirety on December 27,
1995 by 1995 PA 246. With the repeal of the Michigan Utility Securities Act, no
other provision of Michigan law requires Commission consent, approval or
withholding of objection for the issuance of securities. No approvals of the
Commission were required for the execution and delivery of the Indenture under
former current law.
(ii) The Company was validly authorized on December 6, 1977 to transact
business or conduct affairs in the State of Michigan, and holds a valid
certificate of authority to transact business or conduct affairs in the State of
Michigan. As of the date hereof, the Company remains in good standing and is
duly authorized to transact business or conduct affairs in the State of
Michigan.
Such opinion shall state that Xxxxx X. Xxxxxxx, Esq. or A. Xxxxxxx Xxxxx,
Esq.; Xxxxxxx & Xxxxx, LLP; and Xxxxxx Xxxxxx & Xxxxxxx may rely upon such
opinion as to all matters of Michigan law addressed therein as fully as if such
opinion were addressed to them.
A-3-1
Exhibit B
FORM OF ACCOUNTANTS' COMFORT LETTER PURSUANT TO SECTION 5(e)
(1) We are independent certified public accountants with respect to the Company
within the meaning of the 1933 Act and the applicable published 1933 Act
Regulations.
(2) In our opinion, the audited financial statements and the related financial
statement schedules included or incorporated by reference in the
Registration Statement and the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act, the
1934 Act and the related rules and regulations thereunder.
(3) On the basis of procedures (but not an examination in accordance with
generally accepted auditing standards) consisting of a reading of the
unaudited interim financial statements of the Company for the [three month
periods ended March 31, 200_ and 200_, the three and six month periods
ended June 30, 200_ and 200_ and the three and nine month periods ended
September 30, 200_ and 200_] included or incorporated by reference in the
Registration Statement and the Prospectus (collectively, the "10-Q
Financials"), a reading of the latest available unaudited interim financial
statements of the Company, a reading of the minutes of all meetings of the
stockholders and directors of the Company and the Audit Committee of the
Company's Board of Directors since _____________, 200__, inquiries of
certain officials of the Company responsible for financial and accounting
matters, a review of interim financial information in accordance with
standards established by the American Institute of Certified Public
Accountants in Statement on Auditing Standards No. 71, Interim Financial
Information ("SAS 71"), with respect to the description of relevant periods
and such other inquiries and procedures as may be specified in such letter,
nothing came to our attention that caused us to believe that:
(A) the 10-Q Financials incorporated by reference in the
Registration Statement and the Prospectus do not comply as to form in
all material respects with the applicable accounting requirements of
the 1934 Act and the 1934 Act Regulations applicable to unaudited
financial statements included in Form 10-Q or any material
modifications should be made to the 10-Q Financials incorporated by
reference in the Registration Statement and the Prospectus for them to
be in conformity with generally accepted accounting principles; and
(B) with respect to the period from _____, _____ to _____, _____,
there was any change, increase or decrease in the common stock and
other paid-in capital, long-term debt and retained earnings of the
Company and its
B-1
subsidiaries, if any, in each case as compared with amounts shown in
the latest balance sheet included in the Registration Statement,
except in each case for changes, decreases or increases that the
Registration Statement discloses have occurred or may occur,
except ___________;
(4) Based upon the procedures set forth in clause (3) above, a reading of the
unaudited financial statements of the Company for the most recent period
that have not been included in the Registration Statement and a review of
such financial statements in accordance with SAS No. 71, nothing came to
our attention that caused us to believe that the unaudited amounts for net
sales, net earnings or retained earnings of the Company for the most recent
period do not agree with the amounts set forth in the unaudited financial
statements for that period or that such unaudited amounts were not
determined on a basis substantially consistent with that of the
corresponding amounts in the audited financial statements.
(5) [we are unable to and do not express any opinion on the Pro Forma Combining
Statement of Operations (the "Pro Forma Statement") included in
the Registration Statement or on the pro forma adjustments applied to the
historical amounts included in the Pro Forma Statement; however, for
purposes of this letter we have:
(A) read the Pro Forma Statement;
(B) performed a review in accordance with SAS No. 71 of the
financial statements to which the pro forma adjustments were applied;
(C) made inquiries of certain officials of the Company who have
responsibility for financial and accounting matters about the basis
for their determination of the pro forma adjustments and whether the
Pro Forma Statement complies as to form in all material respects with
the applicable accounting requirements of Rule 11-02 of Regulation
S-X; and
(D) proved the arithmetic accuracy of the application of the pro
forma adjustments to the historical amounts in the Pro Forma
Statement;
on the basis of such procedures and such other inquiries and procedures as
specified herein, nothing came to our attention that caused us to believe
that the Pro Forma Statement included in the Registration Statement does
not comply as to form in all material respects with the applicable
requirements of Rule 11-02 of Regulation S-X or that the pro forma
adjustments have not been properly applied to the historical amounts in the
compilation of those statements.]
B-2
(6) In addition to the procedures referred to in clause (3) above, we have
performed other procedures, not constituting an audit, with respect to
certain amounts, percentages, numerical data and financial information
appearing in the Registration Statement, which are specified herein, and
have compared certain of such items with, and have found such items to be
in agreement with, the accounting and financial records of the Company.
B-3
Exhibit C
ALTERNATE FORM OF ACCOUNTANTS' COMFORT LETTER PURSUANT TO
SECTION 5(e)
(1) Since the date of our engagement by the Company on ___________, 2002, we
are independent certified public accountants with respect to the Company
within the meaning of the Act and the applicable rules and regulations
thereunder adopted by the Securities and Exchange Commission (the SEC).
(2) We have not audited any financial statements of the Company as of any date
or for any period. Therefore, we are unable to and do not express any
opinion on the Company's financial position, results of operations or cash
flows as of any date or for any period.
(3) For purposes of this letter, we have read the 2002 minutes of meetings of
the stockholders, the board of directors and the committees of the board of
directors of the Company as set forth in the minutes books at
_____________, 2002, officials of the Company having advised us that the
minutes of all such meetings through that date were set forth therein; we
have carried out other procedures to ______________, 2002, as follows (our
work did not extend to the period from ______________, 2002 to
_______________, 2002, inclusive):
a. With respect to the three month and nine month periods ended
September 30, 2002, we have--
(i) Performed the 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, on the unaudited condensed balance
sheet as of September 30, 2002 and unaudited condensed
statements of income and cash flows for the three month and
nine month periods ended September 30, 2002 included in the
Registration Statement.
(ii) Inquired of certain officials of the Company who have
responsibility for financial and accounting matters whether
the unaudited condensed financial statements referred to in
a (i) comply as to form in all material respects with the
applicable accounting requirements of the Act and the
related rules and regulations adopted by the SEC.
b. With respect to the period from October 1, 2002 to _____________,
2002, we have--
C-1
(i) Read the unaudited financial statements of the Company and
subsidiaries for _______________ of 2002 furnished us by the
Company, officials of the Company having advised us that no such
financial statements as of any date or for any period subsequent
to ________________, 2002 were available.
(ii) Inquired of certain officials of the Company who have
responsibility for financial and accounting matters whether the
unaudited financial statements referred to in b(i) are stated on
a basis substantially consistent with that of the audited
financial statements included in the Registration Statement.
The foregoing procedures do not constitute an audit conducted in accordance with
auditing standards generally accepted in the United States of America. Also,
they would not necessarily reveal matters of significance with respect to the
comments in the following paragraph. Accordingly, we make no representations
regarding the sufficiency of the foregoing procedures for your purposes.
(4) Nothing came to our attention as a result of the foregoing procedures,
however, that caused us to believe that--
a. (i) Any material modifications should be made to the unaudited
condensed financial statements described in (3)a(i) and included in
the Registration Statement for them to be in conformity with
accounting principles generally accepted in the United States of
America.
(ii)The unaudited condensed financial statements described in (3)a(i)
do not comply as to form in all material respects with the applicable
accounting requirements of the Act and the related rules and
regulations adopted by the SEC.
b. (i) At _______________, 2002, there was any change in the common stock
equity, increase in long-term debt or decrease in total assets or
shareholders' equity of the Company as compared with amounts shown in
the September 30, 2002 unaudited condensed balance sheet included in
the Registration Statement, or
(ii)For the period from October 1, 2002 to _____________, 2002, there
were any decreases, as compared to the corresponding period in the
preceding year, in operating income, or in the total or per-share
amounts of income before taxes or of income available for common
shareholders, except in all instances for changes, increases or
decreases that the Registration Statement discloses have occurred or
may occur except ________________.
(5) As mentioned in (3)b, Company officials have advised us that no
financial statements as of any date or for any period subsequent to
_____________, 2002 are available; accordingly, the procedures carried
out by us with respect to changes in
C-2
financial statement items after ______________, 2002, have, of necessity
been even more limited than those with respect to the periods referred to
in (3). We have inquired of certain officials of the Company who have
responsibility for financial and accounting matters whether (a) at
__________________, 2002, there was any change in the common stock equity,
increase in long-term debt or any decrease in total assets or shareholders'
equity of the companies as compared with amounts shown on the September 30,
2002 unaudited condensed balance sheet included in the Registration
Statement or (b) for the period from October 1, 2002 to _________________,
2002, there were any decreases, as compared with the corresponding period
in the preceding year, in operating income or in the total or per-share
amounts of income before taxes or of income available for common
shareholders. On the basis of these inquiries and our reading of the
minutes as described in (3), nothing came to our attention that caused us
to believe that there was any such change, increase or decrease, except in
all instances for changes, increases or decreases that the Registration
Statement discloses have occurred or may occur, except ________________.
(6) In addition to the procedures referred to in clause (3) above, we have
performed other procedures, not constituting an audit, with respect to
certain amounts, percentages, numerical data and financial information
appearing in the Registration Statement, which are specified herein, and
have compared certain of such items with, and have found such items to be
in agreement with, the accounting and financial records of the Company.
C-3
Exhibit D
CERTIFICATE OF CHIEF FINANCIAL OFFICER
I, , of the Company, hereby certify that I
have read each of the items marked on the attached copy of the Prospectus,
dated ___________, _____ and the documents incorporated by reference therein and
have:
1. compared each such item with the corresponding amount, or recomputed
such item based upon amounts or percentages, included in the Company's financial
statements and notes thereto or in schedules or reports derived from the
accounting records of the Company for the applicable periods and found them to
be in agreement; and
2. verified the accuracy of such other amounts, percentages, numerical data
and financial information appearing in the Prospectus as may be reasonably
requested by the Representatives and specifically enumerated in this
certificate.