WISCONSIN ELECTRIC POWER COMPANY DEBT SECURITIES UNDERWRITING AGREEMENT
Exhibit 1.1
WISCONSIN ELECTRIC POWER COMPANY
DEBT SECURITIES
September 14, 2022
To the Underwriters set forth on Schedule A hereto
Ladies and Gentlemen:
Wisconsin Electric Power Company, a Wisconsin corporation (the “Company”), proposes to issue and sell to one or more underwriters (collectively, the “Underwriters”) named in Schedule A to this underwriting agreement (this “Agreement”) $500,000,000 aggregate principal amount of the 4.75% Debentures due September 30, 2032 (the “Securities”). The Securities will be issued under an indenture, dated as of December 1, 1995 (the “Indenture”), between the Company and U.S. Bank Trust Company National Association (as successor to Firstar Trust Company), as Trustee (the “Trustee”).
The Company understands that the Underwriters propose to make a public offering of the Securities as soon as their representatives identified on Schedule A hereto (the “Representatives”) deem advisable after this Agreement has been executed and delivered.
SECTION 1. Representations and Warranties.
(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, as amended, on such Form (File No. 333-254615), which has become effective (including information (if any) deemed to be part of the registration statement at the time of effectiveness pursuant to Rule 430A under the 1933 Act), for the registration under the 1933 Act of the Securities; and no stop order suspending its effectiveness has been issued and no proceeding for that purpose or pursuant to Section 8A of the 1933 Act against the Company or related to the offering has been initiated or, to the best knowledge of the Company, threatened by the Commission. 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, and the information deemed a part thereof pursuant to Rule 430B(f)(1) under the 1933 Act on the date of such registration statement’s effectiveness for purposes of Section 11 of the 1933 Act, as such section applies to the Company and the Underwriters for the Securities pursuant to Rule 430B(f)(2) under the 1933 Act (the “Effective Date”), is hereinafter called the “Registration Statement.” The form of prospectus included in such Registration Statement is hereinafter called the “Basic Prospectus,” and the Basic Prospectus, as supplemented by the preliminary prospectus supplement dated September 14, 2022 relating to the Securities, in the form filed with the Commission pursuant to Rule 424(b) under the 1933 Act (the “Preliminary Prospectus Supplement”), is hereinafter referred to as the “Preliminary Prospectus.” The Basic Prospectus, as amended or supplemented in final form, including by a prospectus supplement relating to the Securities in the form in which it is filed with the Commission pursuant to Rule 424(b) under the 1933 Act (the “Prospectus Supplement”), is hereinafter referred to as the “Prospectus.” The Company will file with the Commission the Prospectus Supplement in accordance with Rule 424(b). As filed, the Prospectus Supplement, together with the Basic Prospectus and any documents incorporated by reference therein, shall contain all information required by the 1933 Act and the rules thereunder, and, except to the extent the Representatives shall agree in writing to a modification, the Prospectus Supplement shall be in all substantive respects in the form furnished to the Representatives prior to the Applicable Time (as defined below) or, to the extent not completed at the Applicable Time, shall contain only such specific additional information and other changes (beyond that contained in the Basic Prospectus and any Preliminary Prospectus) as the Company has advised the Representatives, prior to the Applicable Time, will be included or made therein. 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.
“Applicable Time” shall mean 2:00 p.m. (New York City time) on the date of this Agreement.
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“Disclosure Package” shall mean (i) the Basic Prospectus, (ii) the Preliminary Prospectus used most recently prior to the Applicable Time, (iii) the Issuer Free Writing Prospectuses, if any, identified in Schedule B hereto, and (iv) any other Free Writing Prospectus that the parties hereto shall hereafter expressly agree in writing to treat as part of the Disclosure Package.
“Free Writing Prospectus” shall mean a free writing prospectus, as defined in Rule 405.
“Issuer Free Writing Prospectus” shall mean an issuer free writing prospectus, as defined in Rule 433.
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(x) 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 Disclosure Package and 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”).
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SECTION 2. Sale and Delivery to Underwriters; Closing.
Payment shall be made to the Company by wire transfer of immediately available or next day funds as set forth in Schedule A 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 representing the Securities to be purchased by them. It is understood that each Underwriter has authorized BofA Securities, Inc., 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. The delivery of the Securities shall be made in fully registered form, registered in the name of CEDE & CO., to the offices of The Depository Trust Company in New York, New York or its designee, and the Representatives shall accept such delivery. The certificates representing the Securities will be made available for examination by the Representatives not later than 11:00 A.M. (Central Time) on the business day prior to the Closing Time.
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SECTION 3. Covenants of the Company. The Company covenants with each Underwriter as follows:
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(i) 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 Disclosure Package and the Prospectus under “Use of Proceeds.”
(j) Restriction on Sale of Securities. Until the business day following the 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.
SECTION 4. Payment of Expenses.
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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:
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(c) Opinion and Disclosure Letter of Counsel for Underwriters. At Closing Time, the Representatives shall have received the favorable opinion and disclosure letter, each dated as of Closing Time, of Xxxxxx Xxxxxxx Xxxxx LLP, the counsel for the Underwriters, together with signed or reproduced copies of such opinion and 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, upon the opinions of counsel for the Company, including such counsel referred to above in Section 5(b) 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, and certificates of the Trustee and public officials.
In addition, such counsel shall state in the disclosure letter that they have participated in conferences with officers and other representatives of the Company, representatives of and counsel to the Underwriters and representatives of the independent public accountants for the Company at which conferences the contents of the Prospectus, the Registration Statement and the Disclosure Package 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 such documents, 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, the Disclosure Package or the Prospectus and have made no independent check or verification thereof (except as otherwise indicated in such letter). Such counsel shall 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, as of the date of the Underwriting Agreement, or any subsequent amendment thereto, at the time 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, 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 or the Disclosure Package, taken together as a whole, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (it being understood that such counsel express no comment with respect to the Form T-1, the financial statements, including the notes thereto, or any other financial or statistical data set forth, incorporated by reference or referred to in (or omitted from) the Registration Statement, the Prospectus or the Disclosure Package or the information contained in the Registration Statement under the caption “Certain Terms of the Debentures – Book-Entry Only Issuance – The Depository Trust Company”).
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(h) 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 the Securities as herein contemplated shall be satisfactory in form and substance to the Representatives and counsel for the Underwriters.
(i) 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.
SECTION 6. Indemnification.
(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, the Disclosure Package, the Prospectus or any Issuer Free Writing 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 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;
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provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives expressly for use in the Registration Statement (or any amendment thereto) or any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus (or any amendment or supplement thereto); and provided, further, that the indemnity agreement in this paragraph (a) with respect to the Preliminary Prospectus and other information included in the Disclosure Package shall not inure to the benefit of any Underwriter from whom the person asserting any such losses, claims, damages or other liabilities purchased Securities, or any person controlling such Underwriter, to the extent that (i) prior to the Applicable Time the Company shall have notified such Underwriter that the Preliminary Prospectus or other information included in the Disclosure Package contains an untrue statement of material fact or omits to state therein a material fact required to be stated therein in order to make the statements therein not misleading, (ii) such untrue statement or omission of a material fact was corrected in an amended or supplemented Preliminary Prospectus or, where permitted by law, an Issuer Free Writing Prospectus and such corrected Preliminary Prospectus or Issuer Free Writing Prospectus was provided to such Underwriter and filed with the Commission far enough in advance of the Applicable Time so that such corrected Preliminary Prospectus or Issuer Free Writing Prospectus could have been conveyed to such person prior to the Applicable Time, (iii) such corrected Preliminary Prospectus or Issuer Free Writing Prospectus (excluding any document then incorporated or deemed incorporated therein by reference) was not conveyed to such person at or prior to the Applicable Time, and (iv) such loss, claim, damage or liability would not have occurred had the corrected Preliminary Prospectus or Issuer Free Writing Prospectus (excluding any document then incorporated or deemed incorporated therein by reference) been conveyed to such person prior to the Applicable Time. This indemnity agreement will be in addition to any liability which the Company may otherwise have.
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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 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.
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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.
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 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 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 Financial Industry Regulatory Authority, 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.
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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 reasonably acceptable to the Company, 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 respective 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: BofA Securities, Inc., 0000 Xxxxxxxx, XX0-000-00-00, Xxx Xxxx, Xxx Xxxx 00000, Attention: High Grade Transaction Management/Legal, E-mail: xx.xx_xx_xxxxxxx@xxxx.xxx, Fax: (000) 000-0000; BMO Capital Markets Corp., 000 Xxxx 00xx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000, Attention: Legal Department, Fax: (000) 000-0000; RBC Capital Markets, LLC, Brookfield Place, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: DCM Transaction Management, Fax: (000) 000-0000; and Scotia Capital (USA) Inc., 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Debt Capital Markets, U.S., E-mail: XX.xxxxx@xxxxxxxxxx.xxx and XXX@xxxxxxxxxx.xxx. Notices to the Company shall be directed to it at 000 Xxxx Xxxxxxxx Xxxxxx, X.X. Xxx 0000, Xxxxxxxxx, Xxxxxxxxx 00000, attention of Treasurer, Fax: (000) 000-0000.
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SECTION 12. Parties. This Agreement shall 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; Electronic Signatures. 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.
The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to this Agreement or any document to be signed in connection with this Agreement shall be deemed to include electronic signatures, electronic deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity and enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, and the parties hereto consent to conduct the transactions contemplated hereunder by electronic means.
SECTION 16. Recognition of the U.S. Special Resolution Regimes.
(a) In the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
(b) In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.
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(c) For purposes of this Section 16, (i) the term “BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k); (ii) the term “Covered Entity” means any of the following: (1) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (2) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (3) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b); (iii) the term “Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable; and (iv) the term “U.S Special Resolution Regime” means each of (1) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (2) Title II of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
SECTION 17. Nature of Underwriters’ Obligations. The Company acknowledges that in connection with the offering of the Securities: (a) the Underwriters have acted at arm’s length, are not agents of, and owe no fiduciary duties to, the Company or any other person, (b) the Underwriters owe the Company only those duties and obligations set forth in this Agreement and (c) the Underwriters may have interests that differ from those of the Company. The Company waives to the full extent permitted by applicable law any claims it may have against the Underwriters arising from an alleged breach of fiduciary duty in connection with the offering of the Securities.
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If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this Agreement and your acceptance shall represent a binding agreement between the Company and the Underwriters.
Very truly yours, | ||
WISCONSIN ELECTRIC POWER COMPANY | ||
By: | /s/ Xxxxxxx Xxxxx | |
Name: | Xxxxxxx Xxxxx | |
Title: | Vice President and Treasurer |
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The foregoing Agreement is hereby confirmed and accepted as of the date first above written.
bofa securities, inc. | ||
By: | /s/ Xxx Xxxxx | |
Name: | Xxx Xxxxx | |
Title: | Managing Director | |
BMO Capital Markets Corp. | ||
By: | /s/ Xxxx Xxxxxxxxxx | |
Name: | Xxxx Xxxxxxxxxx | |
Title: | Managing Director | |
RBC Capital Markets, LLC | ||
By: | /s/ Xxxxx X. Xxxxxxxx | |
Name: | Xxxxx X. Xxxxxxxx | |
Title: | Authorized Signatory | |
Scotia Capital (USA) Inc. | ||
By: | /s/ Xxxx Xxxx | |
Name: | Xxxx Xxxx | |
Title: | Managing Director, Transaction Advisory |
For themselves and the other Underwriters named in Schedule A to the foregoing Agreement.
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SCHEDULE A
WISCONSIN ELECTRIC POWER COMPANY
Debt Securities
Underwriter | Aggregate Principal Amount of Securities | |||
BofA Securities, Inc. | $ | 100,000,000 | ||
BMO Capital Markets Corp. | $ | 100,000,000 | ||
RBC Capital Markets, LLC | $ | 100,000,000 | ||
Scotia Capital (USA) Inc. | $ | 100,000,000 | ||
Xxxxxxx Xxxxxxxx Shank & Co., LLC | $ | 60,000,000 | ||
Xxxxxx X. Xxxxxxx & Company, Inc. | $ | 40,000,000 | ||
Total | $ | 500,000,000 |
Representatives: BofA Securities, Inc., BMO Capital Markets Corp., RBC Capital Markets, LLC and Scotia Capital (USA) Inc.
Proceeds to issuer (before offering expenses): $495,720,000.
Sch. A-1
SCHEDULE B
ISSUER FREE WRITING PROSPECTUSES
1. Pricing Term Sheet dated September 22, 2022.
Sch. B-1
Exhibit A-1
FORM OF OPINION AND DISCLOSURE LETTER 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 Securities and the Indenture conform as to legal matters in all material respects to the descriptions thereof contained in the Disclosure Package and the Prospectus.
(ii) 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, (a) no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act and (b) no proceedings for that purpose or pursuant to Section 8A of the 1933 Act against the Company or related to the offering have been instituted or are pending or threatened by the Commission.
(iii) The Registration Statement, as of the date of the Underwriting Agreement, any subsequent amendment thereto, as of its effective date, and the Prospectus, as of its issue date, 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 Exchange Act Documents incorporated by reference in the Prospectus, as of their respective dates of filing with the Commission, 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, except that in each case, we express no opinion as to the financial statements or other financial or statistical data contained, incorporated by reference or referred to in (or omitted from) the Registration Statement, the Prospectus or the documents incorporated by reference in the Registration Statement or the Prospectus and we express no opinion as to the Form T-1 or the information contained in the Registration Statement under the caption “Certain Terms of the Debentures – Book-Entry Only Issuance – The Depository Trust Company”.
(iv) 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 and counsel to the Underwriters and representatives of the independent public accountants for the Company at which conferences the contents of the Prospectus, the Registration Statement and the Disclosure Package 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 such documents, 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, Disclosure Package or the Prospectus and have made no independent check or verification thereof (except as indicated in paragraphs (i) and (iii) above). On the basis of the foregoing, no facts have come to our attention that lead us to believe that the Registration Statement, as of the date of the Underwriting Agreement, or any subsequent amendment thereto, at the time 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, that the Prospectus contained, as of its date, or contains, as of the date hereof, an untrue statement of a material fact or omitted, as of its date, or omits, as of the date hereof, 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 or that the Disclosure Package, taken together as a whole, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (it being understood that we have not been asked to comment and express no opinion or belief with respect to the Form T-1, the financial statements, including the schedules and notes thereto, or any other financial or statistical data set forth, incorporated by reference or referred to in (or omitted from) the Registration Statement, the Prospectus or the Disclosure Package or the information contained in the Registration Statement under the caption “Certain Terms of the Debentures – Book-Entry Only Issuance – The Depository Trust Company”).
Exhibit A-1-1
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 federal law of the United States, upon the opinions of counsel satisfactory to the Representatives. 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).
For purposes of such opinion, “Exchange Act Documents” shall mean the Company’s Annual Report on Form 10-K for the year ended December 31, 2021, the Company’s Quarterly Reports on Form 10-Q for the quarters ended March 31, 2022 and June 30, 2022 and the Company’s Current Reports on Form 8-K dated April 28, 2022 (two reports) and June 23, 2022.
Exhibit X-0-0
Xxxxxxx X-0
FORM OF OPINION AND DISCLOSURE LETTER 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 Disclosure Package and the Prospectus and to enter into and perform its obligations under the Underwriting 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 the Underwriting Agreement provides I 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 (regardless of whether enforcement is 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) To the best of my knowledge, there are no statutes or regulations that are required to be described in the Disclosure Package or the Prospectus that are not described as required.
(vii) 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.
Exhibit A-2-1
(viii) 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 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, the Disclosure Package or the Prospectus or filed or incorporated by reference as an exhibit to the Registration Statement, except for any such default that would not have a Material Adverse Effect.
(ix) All requisite approvals of the PSCW for 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. 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 (as to which I express no opinion).
(x) The execution, delivery and performance by the Company 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, the Disclosure Package and the Prospectus (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Disclosure Package and 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, defaults or similar events 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.
(xi) The Securities and the Indenture conform as to legal matters in all material respects to the descriptions thereof contained in the Disclosure Package and the Prospectus.
I, or members of my staff, have participated in conferences with officers and other representatives of the Company, counsel to and representatives of the Underwriters and representatives of the independent public accountants for the Company at which conferences the contents of the Prospectus, the Registration Statement and the Disclosure Package and related matters were discussed. Given the character of determinations involved in the preparation of such documents, 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, the Disclosure Package 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, as of the date of the Underwriting Agreement, or any subsequent amendment thereto, at the time 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, that the Prospectus contained, as of its date, or contains, as of the date hereof, an untrue statement of a material fact or omitted, as of its date, or omits, as of the date hereof, 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 or that the Disclosure Package, taken together as a whole, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (it being understood that I have not been asked to comment and express no opinion or belief with respect to the Form T-1, the financial statements, including the schedules and notes thereto, or any other financial or statistical data set forth, incorporated by reference or referred to in (or omitted from) the Registration Statement, the Prospectus or the Disclosure Package or the information contained in the Registration Statement under the caption “Certain Terms of the Debentures – Book-Entry Only Issuance – The Depository Trust Company”).
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, upon the opinions of counsel satisfactory to the Representatives. 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).
Exhibit A-2-2