EXHIBIT 10.2
CALIFORNIA WATER SERVICE GROUP
CWS UTILITY SERVICES
SECOND AMENDMENT TO BANK OF AMERICA CREDIT AGREEMENT
This SECOND AMENDMENT AGREEMENT, dated as of September, 23, 2002 (this
"Agreement"), is among the parties to that certain Credit Agreement, dated as of
July 31, 2001 (as amended to date hereof, the "Credit Agreement"), among
CALIFORNIA WATER SERVICE GROUP, a Delaware corporation ("CWSG") and CWS UTILITY
SERVICES, a California corporation ("CUS" -- CWSG and CUS are each a "Borrower"
and are, collectively and severally, the "Borrowers"), each lender from time to
time party hereto (collectively, the "Lenders" and individually, a "Lender"),
and BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender, and L/C
Issuer.
The parties hereto agree as follows:
Section 1. Definitions. Terms defined in the Credit Agreement are used
herein with the same meanings unless otherwise specifically defined herein.
Section 2. Amendment to the Credit Agreement. The Credit Agreement is
hereby amended to:
(a) Add a new defined term to Section 1.01 thereof, to be inserted in
appropriate alphabetical order, as follows:
"Kaanapali Acquisition" means the acquisition by CWSG of the
assets of Kaanapali Water Corporation; provided that the total
consideration for the acquisition does not exceed $8,000,000.
(b) Amend Section 7.03 thereof by changing the period (".") following
clause (d) to "; and" and adding a new clause (e) thereto as follows:
(e) CWSG may consummate the Kaanapali Acquisition.
Section 3. Effect. Except as specifically set forth herein, this
Agreement does not limit, modify, amend, waive, grant any consent with respect
to, or otherwise affect (a) any right, power, or remedy of the Administrative
Agent or any Lender under the Credit Agreement or any other Loan Document or (b)
any provision of the Credit Agreement or any other Loan Document, all of which
shall remain in full force and effect and are hereby ratified and confirmed.
This Agreement does not entitle, or imply any consent or agreement to, any
further or future modification of, amendment to, waiver of, or consent with
respect to any provision of the Credit Agreement or any other Loan Document.
Section 4. Conditions of Effectiveness; Amendment Fee. This Agreement
shall become effective as of the date hereof when the Administrative Agent has
received (a) counterparts hereof signed by the Borrowers and Required Lenders
and (b) payment of a single amendment fee of $10,000 from the Borrowers and
California Water Services Company, with respect to this Agreement and the First
Amendment Agreement, dated as of September 23, 2002, among California Water
Services Company, Lender(s), and Bank of America, N.A., such fee to be allocated
among the Lenders in accordance with their Pro Rata Shares. The Administrative
Agent shall promptly notify Borrowers and Lenders of the effectiveness hereof.
Section 5. Representations and Warranties. Each Borrower represents and
warrants that:
(a) The execution, delivery and performance by the Borrowers of this
Agreement is within each Borrower's powers, have been duly authorized by all
necessary organizational action, and require no action by or in respect of, or
filing with, any governmental body, agency or official, and the execution,
delivery and performance by the Borrowers of this Agreement does not contravene,
or constitute a default under, any provision of applicable law or regulations or
of the Organization Documents of Borrowers or any of their respective
Subsidiaries, or any material agreement, judgment, injunction, order, decree or
other instrument binding upon Borrowers or any of their respective Subsidiaries
or any assets of any
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Borrower or any of its Subsidiaries, or result in the creation or imposition of
any lien on any asset of any Borrower or any of its Subsidiaries.
(b) This Agreement constitutes the valid and binding obligations of
each Borrower, enforceable against each Borrower in accordance with its terms,
except as enforceability may be subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws now or hereafter in effect relating to
creditors' rights, and to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law).
(c) After giving effect to this Agreement, no Default has occurred and
is continuing, and after giving effect to this Agreement, the representations
and warranties of Borrowers contained in the Credit Agreement and the other Loan
Documents delivered pursuant thereto are true and correct in all material
respects as of the date hereof as if made on the date hereof, unless they
specifically relate to an earlier date.
Section 6. Counterparts; Facsimile Signatures. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed to be an original with the same effect as if all the signatures were on
the same instrument. Delivery of an executed counterpart of the signature page
to this Agreement by telecopier shall be effective as delivery of a manually
executed counterpart of this Agreement. Any party delivering an executed
counterpart of the signature page to this Agreement by telecopier shall
thereafter promptly deliver a manually executed counterpart of this Agreement,
but the failure to deliver such manually executed counterpart shall not affect
the validity, enforceability, and binding effect of this Agreement.
Section 7. Governing Law, Submission to Jurisdiction, and Waiver of
Jury Trial. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS OF THE STATE OF CALIFORNIA AND IS SUBJECT TO THE PROVISIONS OF
SECTION 10.17 AND 10.18 OF THE CREDIT AGREEMENT, RELATING TO SUBMISSION TO
JURISDICTION AND WAIVER OF JURY TRIAL/ARBITRATION, THE PROVISIONS OF WHICH ARE
BY THIS REFERENCE HEREBY INCORPORATED HEREIN IN FULL.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective authorized signatories as of the date first above written.
BORROWER: CALIFORNIA WATER SERVICE GROUP
By /s/ Gerald F. Feeney
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Name: Gerald F. Feeney
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Title: Vice President, Chief Financial Officer
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CWS UTILITY SERVICES
By /s/ Gerald F. Feeney
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Name: Gerald F. Feeney
-------------------------------------
Title: Vice President, Chief Financial Officer
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ADMINISTRATIVE AGENT: BANK OF AMERICA, N.A., as Administrative
Agent
By /s/ Dora A. Brown
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Name: Dora A. Brown
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Title: Vice President
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LENDERS: BANK OF AMERICA, N.A., as a Lender,
Issuer and Swing Line Lender
By /s/ John C. Pleque
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Name: John C. Pleque
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Title: Senior Vice President
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WELLS FARGO BANK, NATIONAL
ASSOCIATION, as a Lender
By /s/ Kevin Herr
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Name: Kevin Herr
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Title: Vice President
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