Exhibit 4.25
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CALIFORNIA WATER SERVICE COMPANY
ELEVENTH SUPPLEMENT TO NOTE AGREEMENT
Dated as of November 3, 2003
Re: $20,000,000 5.52% Series M Senior Notes
Due November 1, 2013
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ELEVENTH SUPPLEMENT TO NOTE AGREEMENT
Dated as of
November 3, 2003
To the Purchasers named in
Schedule A hereto
Ladies and Gentlemen:
This Eleventh Supplement to Note Purchase Agreement (the "Eleventh
Supplement") is between California Water Service Company (the "Company") whose
address is 1720 North First Street, San Jose, California 95112 and the
institutional investors named on Schedule A attached hereto (the "Purchasers").
Reference is hereby made to that certain Note Agreement dated as of
March 1, 1999 (the "Note Agreement") between the Company and the purchasers
listed on Schedule I thereto. All capitalized terms not otherwise defined herein
shall have the same meaning as specified in the Note Agreement. Reference is
further made to Section 4.3 thereof which requires that, prior to the delivery
of any Additional Notes, the Company and each Additional Purchaser shall execute
and deliver a Supplement.
The Company hereby agrees with each Purchaser named on Schedule A
hereto as follows:
1. The Company has authorized the issue and sale of $20,000,000
aggregate principal amount of its 5.52% Series M Senior Notes due November 1,
2013 (the "Series M Notes"). The Series M Notes, together with the Series B
Notes initially issued pursuant to the Note Agreement, the Series C Notes issued
pursuant to the First Supplement to Note Agreement dated as of October 1, 2000,
the Series D Notes issued pursuant to the Second Supplement to Note Agreement
dated as of September 1, 2001, the Series E Notes issued pursuant to the Third
Supplement to Note Agreement dated as of May 1, 2002, the Series F Notes issued
pursuant to the Fourth Supplement to Note Agreement dated as of August 15, 2002,
the Series G Notes issued pursuant to the Fifth Supplement to Note Agreement
dated as of November 1, 2002, the Series H Notes issued pursuant to the Sixth
Supplement to Note Agreement dated as of December 1, 2002, the Series I Notes
issued pursuant to the Seventh Supplement to Note Agreement dated as of May 1,
2003, the Series J Notes issued pursuant to the Amended and Restated Eighth
Supplement to Note Agreement dated as of May 1, 2003, the Series K Notes issued
pursuant to the Ninth Supplement to Note Agreement dated as of February 15,
2003, the Series L Notes issued pursuant to the Tenth Supplement to Note
Agreement dated as of February 15, 2003, the Series N Notes issued pursuant to
the Twelfth Supplement to Note Agreement dated as of October 24, 2003 and each
Series of Additional Notes which may from time to time be issued pursuant to the
provisions of Section 1.4 of the Note Agreement, are collectively referred to as
the "Notes" (such term shall also include any such notes issued in
substitution therefor pursuant to Section 9.2 of the Note Agreement). The Series
M Notes shall be substantially in the form set out in Exhibit 1 hereto with such
changes therefrom, if any, as may be approved by the Purchasers and the Company.
2. Subject to the terms and conditions hereof and as set forth in the
Note Agreement and on the basis of the representations and warranties
hereinafter set forth, the Company agrees to issue and sell to the Purchasers,
and each Purchaser agrees to purchase from the Company, Series M Notes in the
principal amount set forth opposite such Purchaser's name on Schedule A hereto
at a price of 100% of the principal amount thereof on the closing date hereafter
mentioned.
3. Delivery of the $20,000,000 in aggregate principal amount of the
Series M Notes will be made at the offices of Chapman and Cutler LLP, 111 West
Monroe Street, Chicago, Illinois 60603-4080 against payment therefor in Federal
Reserve or other funds current and immediately available at the principal office
of Bank of America, ABA No. 121000358, Account No. 14879-00161, Account Name:
California Water Service Company Security Sales, in the amount of the purchase
price at 11:00 A.M., San Francisco, California time, on November 3, 2003 or such
later date (not later than November 10, 2003) as shall mutually be agreed upon
by the Company and the Purchasers of the Series M Notes (the "Closing Date").
4. Prepayment of Notes.
(a) Required Prepayments. No prepayments are required to be made with
respect to the Series M Notes prior to the expressed maturity date thereof other
than prepayments made in connection with an acceleration of the Series M Notes
pursuant to the provisions of Section 6.3 of the Note Agreement.
(b) Optional Prepayment with Premium. Upon compliance with Section 4(d)
below the Company shall have the privilege, at any time and from time to time,
of prepaying the outstanding Notes of any Series, either in whole or in part
(but if in part then in a minimum principal amount of $100,000) by payment of
the principal amount of the Notes of such Series, or portion thereof to be
prepaid, and accrued interest thereon to the date of such prepayment, together
with a premium equal to the Make-Whole Amount, determined as of five Business
Days prior to the date of such prepayment pursuant to this Section 4(b).
(c) Optional Prepayment at Par in the Event of Condemnation. In the
event a Material Condemnation shall have occurred with respect to any property
of the Company or a Restricted Subsidiary, then upon compliance with Section
4(d) below the Company shall have the privilege of applying the proceeds of any
condemnation award received in connection with such Material Condemnation to the
prepayment of the principal amount of the Notes of any Series then outstanding,
or any portion thereof to the extent of such proceeds, together with accrued
interest thereon to the date of such prepayment. Any optional prepayment made
pursuant to this Section 4(c) shall be without premium.
(d) Notice of Optional Prepayments. The Company will give notice of any
prepayment of the Notes pursuant to Section 4(b) or 4(c) to each Holder of Notes
to be prepaid not less than 30 days nor more than 60 days before the date fixed
for such optional prepayment specifying
(a) such date, (b) the Section of this Eleventh Supplement under which the
prepayment is to be made, (c) the principal amount of the Holder's Notes to be
prepaid on such date, (d) whether a premium may be payable, (e) the date when
the premium, if any, will be calculated, (f) the estimated premium, together
with a reasonably detailed computation of such estimated premium, and (g) the
accrued interest applicable to the prepayment. Such notice of prepayment shall
also certify all facts, if any, which are conditions precedent to any such
prepayment. Notice of prepayment having been so given, the aggregate principal
amount of the Notes to be prepaid specified in such notice, together with
accrued interest thereon and the premium, if any, payable with respect thereto
shall become due and payable on the prepayment date specified in said notice.
Not later than two Business Days prior to the prepayment date specified in such
notice, the Company shall provide each Holder of a Note to be prepaid written
notice of the premium, if any, payable in connection with such prepayment and,
whether or not any premium is payable, a reasonably detailed computation of the
Make-Whole Amount.
(e) Application of Prepayments. In the case of each partial prepayment
of the Notes pursuant to the provisions of Section 4(b) or 4(c), the principal
amount of the Notes of the Series to be prepaid shall be allocated among all of
the Notes of such Series at the time outstanding in proportion, as nearly as
practicable, to the respective unpaid principal amounts thereof.
(f) Direct Payment. Notwithstanding anything to the contrary contained
in the Note Agreement, this Eleventh Supplement or the Notes, in the case of any
Note owned by any Holder that is a Purchaser, Additional Purchaser or any other
Institutional Holder which has given written notice to the Company requesting
that the provisions of this Section 4(f) shall apply, the Company will
punctually pay when due the principal thereof, interest thereon and premium, if
any, due with respect to said principal, without any presentment thereof,
directly to such Holder at its address set forth herein or such other address as
such Holder may from time to time designate in writing to the Company or, if a
bank account with a United States bank is so designated for such Holder, the
Company will make such payments in immediately available funds to such bank
account, marked for attention as indicated, or in such other manner or to such
other account in any United States bank as such Holder may from time to time
direct in writing.
(g) Make Whole Amount. The term "Make-Whole Amount" means, with respect
to any Series M Note, an amount equal to the excess, if any, of the Discounted
Value of the Remaining Scheduled Payments with respect to the Called Principal
of such Note over the amount of such Called Principal, provided that the
Make-Whole Amount may in no event be less than zero. For the purposes of
determining the Make-Whole Amount, the following terms have the following
meanings:
"Called Principal" means, with respect to any Series M Note,
the principal of such Note that is to be prepaid pursuant to Section
4(b) or has become or is declared to be immediately due and payable
pursuant to Section 6.3 of the Note Agreement, as the context requires.
"Discounted Value" means, with respect to the Called Principal
of any Series M Note, the amount obtained by discounting all Remaining
Scheduled Payments with respect to such Called Principal from their
respective scheduled due dates to the
Settlement Date with respect to such Called Principal, in accordance
with accepted financial practice and at a discount factor (applied on
the same periodic basis as that on which interest on the Series M Notes
is payable) equal to the Reinvestment Yield with respect to such Called
Principal.
"Reinvestment Yield" means, with respect to the Called
Principal of any Series M Note, 0.50%, plus the yield to maturity
implied by (i) the yields reported, as of 10:00 A.M. (New York City
time) on the fifth Business Day preceding the Settlement Date with
respect to such Called Principal, on the display page of the Bloomberg
Financial Markets Services Screen PX1 or the equivalent screen provided
by Bloomberg Financial Markets Commodities News for actively traded
U.S. Treasury securities having a maturity equal to the Remaining
Average Life of such Called Principal as of such Settlement Date, or
(ii) if such yields are not reported as of such time or the yields
reported as of such time are not ascertainable, the Treasury Constant
Maturity Series Yields reported, for the latest day for which such
yields have been so reported as of the second Business Day preceding
the Settlement Date with respect to such Called Principal, in Federal
Reserve Statistical Release H.15 (519) (or any comparable successor
publication) for actively traded U.S. Treasury securities having a
constant maturity equal to the Remaining Average Life of such Called
Principal as of such Settlement Date. Such implied yield will be
determined, if necessary, by (a) converting U.S. Treasury bill
quotations to bond-equivalent yields in accordance with accepted
financial practice and (b) interpolating linearly between (1) the
actively traded U.S. Treasury security with the maturity closest to and
greater than the Remaining Average Life and (2) the actively traded
U.S. Treasury security with the maturity closest to and less than the
Remaining Average Life.
"Remaining Average Life" means, with respect to any Called
Principal, the number of years (calculated to the nearest one-twelfth
year) obtained by dividing (i) such Called Principal into (ii) the sum
of the products obtained by multiplying (a) the principal component of
each Remaining Scheduled Payment with respect to such Called Principal
by (b) the number of years (calculated to the nearest one-twelfth year)
that will elapse between the Settlement Date with respect to such
Called Principal and the scheduled due date of such Remaining Scheduled
Payment.
"Remaining Scheduled Payments" means, with respect to the
Called Principal of any Series M Note, all payments of such Called
Principal and interest thereon that would be due after the Settlement
Date with respect to such Called Principal if no payment of such Called
Principal were made prior to its scheduled due date, provided that if
such Settlement Date is not a date on which interest payments are due
to be made under the terms of the Series M Notes, then the amount of
the next succeeding scheduled interest payment will be reduced by the
amount of interest accrued to such Settlement Date and required to be
paid on such Settlement Date pursuant to Section 4(b) hereof or Section
6.3 of the Note Agreement.
"Settlement Date" means, with respect to the Called Principal
of any Series M Note, the date on which such Called Principal is to be
prepaid pursuant to Section 4(b)
hereof or has become or is declared to be immediately due and payable
pursuant to Section 6.3 of the Note Agreement, as the context requires.
5. Closing Conditions.
(a) Conditions. The obligation of each Purchaser to purchase the Series
M Notes on the Closing Date shall be subject to the performance by the Company
of its agreements hereunder which by the terms hereof are to be performed at or
prior to the time of delivery of the Series M Notes and to the following further
conditions precedent:
(i) Closing Certificate. Such Purchaser shall have received a
certificate dated the Closing Date, signed by the President or a Vice
President of the Company, the truth and accuracy of which shall be a
condition to such Purchaser's obligation to purchase the Series M Notes
proposed to be sold to such Purchaser and to the effect that (1) the
representations and warranties of the Company set forth in Exhibit 2
hereto are true and correct on and with respect to the Closing Date,
(2) the Company has performed all of its obligations hereunder which
are to be performed on or prior to the Closing Date, and (3) no Default
or Event of Default has occurred and is continuing.
(ii) Compliance Certificate. Such Purchaser shall have
received a certificate dated the Closing Date, signed by the Senior
Financial Officer of the Company stating that such officer has reviewed
the provisions of the Note Agreement and this Eleventh Supplement and
setting forth the information and computation (in sufficient detail)
required in order to establish whether the Company is in compliance
with Section 5.6 of the Note Agreement on the Closing Date.
(iii) Legal Opinions. Such Purchaser shall have received from
Bingham McCutchen LLP, counsel for the Company, and Chapman and Cutler
LLP, special counsel for the Purchasers, their opinions dated the
Closing Date, in form and substance satisfactory to such Purchasers,
and covering the matters set forth respectively in Exhibits 3 and 4
hereto.
(iv) Regulatory Approval. Prior to the Closing Date, the issue
and sale of the Series M Notes shall have been duly authorized or
approved by appropriate order of the Public Utilities Commission of the
State of California (the "Commission"). Such order shall be final and
in full force and effect and not subject to any appeal, hearing,
rehearing or contest. All conditions contained in any such order which
are to be fulfilled on or prior to the issuance of the Series M Notes
shall have been fulfilled. The Company shall have delivered to the
Purchasers and their special counsel a certified copy of such order and
the application therefor.
(v) Related Transactions. The Company shall have consummated
the sale of the entire principal amount of the Series M Notes scheduled
to be sold on the Closing Date pursuant to this Eleventh Supplement.
(vi) Satisfactory Proceedings. All proceedings taken in
connection with the transactions contemplated by this Eleventh
Supplement, and all documents necessary to the consummation thereof,
shall be satisfactory in form and substance to such Purchaser and such
Purchaser's special counsel, and such Purchaser shall have received a
copy (executed or certified as may be appropriate) of all legal
documents or proceedings taken in connection with the consummation of
said transactions.
(vii) Purchase Permitted By Applicable Law. On the Closing
Date, the purchase of Series M Notes shall (a) be permitted by the laws
and regulations of each jurisdiction to which any Purchaser is subject,
without recourse to provisions (such as Section 1405(a)(8) of the New
York Insurance Law) permitting limited investments by insurance
companies without restriction as to the character of the particular
investment, (b) not violate any applicable law or regulation
(including, without limitation, Regulation U, T or X of the Board of
Governors of the Federal Reserve System) and (c) not subject any
Purchaser to any tax, penalty or liability under or pursuant to any
applicable law or regulation, which law or regulation was not in effect
on the date hereof. If requested by any Purchaser, such Purchaser shall
have received an Officer's Certificate certifying as to such matters of
fact as such Purchaser may reasonably specify to enable such Purchaser
to determine whether such purchase is so permitted.
(viii) Payment of Special Counsel Fees. The Company shall have
paid, on or before the Closing Date, the fees, charges and
disbursements of the Purchasers' special counsel referred to in (iii)
above, to the extent reflected in a statement of such counsel rendered
to the Company at least one Business Day prior to the Closing Date.
(ix) Private Placement Number. A Private Placement Number
issued by Standard & Poor's CUSIP Service Bureau (in cooperation with
the Securities Valuation Office of the National Association of
Insurance Commissioners) shall have been obtained for the Series M
Notes.
(b) The obligation of the Company to deliver the Series M Notes
hereunder is subject to the conditions that (i) the Commission shall have
authorized the issuance and sale by the Company of the Series M Notes at the
price herein provided and said authorization shall be in full force and effect
and (ii) the entire principal amount of the Series M Notes scheduled to be sold
on the Closing Date pursuant to this Eleventh Supplement shall have been
tendered by the Purchasers. If the condition specified in this Section 5(b)
shall not have been fulfilled prior to or on the Closing Date, this Eleventh
Supplement and all the obligations of the Company hereunder, except as provided
in Section 9.4 of the Note Agreement, may be cancelled by the Company.
(c) If on the Closing Date the Company fails to tender to any Purchaser
the Series M Notes to be issued to any Purchaser on such date or if the
conditions specified in Section 5(a) have not been fulfilled, such Purchaser may
thereupon elect to be relieved of all further obligations under this Eleventh
Supplement. Without limiting the foregoing, if the conditions specified in
Section 5(a) have not been fulfilled, such Purchaser may waive compliance by the
Company with any such condition to such extent as such Purchaser may in its sole
discretion
determine. Nothing in this Section 5(c) shall operate to relieve the Company of
any of its obligations hereunder or to waive any Purchaser's rights against the
Company.
6. Each Purchaser represents and warrants that the representations and
warranties set forth in Section 3.2 of the Note Agreement are true and correct
on the date hereof with respect to the Series M Notes purchased by such
Purchaser.
7. The Company and each Purchaser agree to be bound by and comply with
the terms and provisions of the Note Agreement as if such Purchaser were an
original signatory to the Note Agreement.
California Water Service Company
Eleventh Supplement
The execution hereof shall constitute a contract between the Company
and the Purchaser(s) for the uses and purposes hereinabove set forth, and this
agreement may be executed in any number of counterparts, each executed
counterpart constituting an original but all together only one agreement.
CALIFORNIA WATER SERVICE COMPANY
By _______________________________________
Name: Richard D. Nye
Title: Vice President, Chief Financial
Officer and Treasurer
California Water Service Company
Eleventh Supplement
Accepted as of November 3, 2003
ALLSTATE LIFE INSURANCE COMPANY
By _______________________________________
Name:
By _______________________________________
Name:
Authorized Signatories
California Water Service Company
Eleventh Supplement
Accepted as of November 3, 2003
NATIONWIDE LIFE INSURANCE COMPANY
NATIONWIDE LIFE AND ANNUITY INSURANCE
COMPANY
NATIONWIDE MUTUAL INSURANCE COMPANY
By _______________________________________
Name:
Title: Authorized Signatory
INFORMATION RELATING TO THE PURCHASERS
PRINCIPAL AMOUNT OF
NAME AND ADDRESS OF PURCHASER SERIES M NOTES TO BE
PURCHASED
ALLSTATE LIFE INSURANCE COMPANY $10,000,000 to be issued
3075 Sanders Road, STE G5D in two Notes as follows:
Northbrook, Illinois 60062-7127
Attention: Private Placements Department one Note for $7,500,000,
Telephone Number: (847) 402-7117 and one Note for $2,500,000
Telecopier Number: (847) 402-3092
Payments
All payments on or in respect of the Notes to be made by Fedwire transfer of
immediately available funds, identifying the name of the Issuer, the Private
Placement Number preceded by "DPP" and the payment as principal, interest or
premium, in the exact format as follows:
BBK = Harris Trust and Savings Bank
ABA #071000288
BNF = Allstate Life Insurance Company
Collection Account #168-117-0
ORG = California Water Service Company
OBI = DPP - PPN: 130789 P# 1
Payment Due Date (MM/DD/YY) - P ______ (Enter "P" and the
amount of principal being remitted, for example,
P5000000.00) - I ______ (Enter "I" and the amount of
interest being remitted, for example, I225000.00)
Notices
All notices of scheduled payments and written confirmation of each such payment,
to be addressed:
Allstate Insurance Company
Investment Operations-Private Placements
3075 Sanders Road, STE G4A
Northbrook, Illinois 60062-7127
Telephone: (847) 402-6672 Private Placements
Telecopy: (847) 326-7032
All financial reports, compliance certificates and all other written
communications, including notice of prepayments to be addressed as first
provided above.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 36-2554642
Schedule A
(to Supplement)
PRINCIPAL AMOUNT OF
NAME AND ADDRESS OF PURCHASER SERIES M NOTES TO BE
PURCHASED
NATIONWIDE LIFE INSURANCE COMPANY $4,000,000
One Nationwide Plaza (1-33-07)
Columbus, Ohio 43215-2220
Attention: Corporate Fixed-Income Securities
Facsimile: (614) 249-4553
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as
"California Water Service Company, 5.52% Series M Senior Notes due November 1,
2013, PPN: 130789 P# 1, principal, premium or interest") to:
The Bank of New York
ABA #021-000-018
BNF: IOC566
F/A/O Nationwide Life Insurance Company
Attention: P&I Department
PPN: 130789 P# 1
Security Description: California Water Service Company Series M Notes
Notices
All notices of payment on or in respect of the Notes and written confirmation of
each such payment to:
Nationwide Life Insurance Company
c/o The Bank of New York
P. O. Box 19266
Newark, New Jersey 07195
Attention: P&I Department
With a copy to:
Nationwide Life Insurance Company
One Nationwide Plaza (1-32-05)
Columbus, Ohio 43215-2220
Attention: Investment Accounting
All notices and communications other than those in respect to payments to be
addressed as first provided above.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 31-4156830
A-2
PRINCIPAL AMOUNT OF
NAME AND ADDRESS OF PURCHASER SERIES M NOTES TO BE
PURCHASED
NATIONWIDE LIFE AND ANNUITY INSURANCE COMPANY $3,000,000
One Nationwide Plaza (1-33-07)
Columbus, Ohio 43215-2220
Attention: Corporate Fixed-Income Securities
Facsimile: (614) 249-4553
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as
"California Water Service Company, 5.52% Series M Senior Notes due November 1,
2013, PPN: 130789 P# 1, principal, premium or interest") to:
The Bank of New York
ABA #021-000-018
BNF: IOC566
F/A/O Nationwide Life and Annuity Insurance Company
Attention: P&I Department
PPN: 130789 P# 1
Security Description: California Water Service Company Series M Notes
Notices
All notices of payment on or in respect of the Notes and written confirmation of
each such payment to:
Nationwide Life and Annuity Insurance Company
c/o The Bank of New York
P. O. Box 19266
Newark, New Jersey 07195
Attention: P&I Department
With a copy to:
Nationwide Life and Annuity Insurance Company
One Nationwide Plaza (1-32-05)
Columbus, Ohio 43215-2220
Attention: Investment Accounting
All notices and communications other than those in respect to payments to be
addressed as first provided above.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 31-1000740
A-3
PRINCIPAL AMOUNT OF
NAME AND ADDRESS OF PURCHASER SERIES M NOTES TO BE
PURCHASED
NATIONWIDE MUTUAL INSURANCE COMPANY $3,000,000
One Nationwide Plaza (1-33-07)
Columbus, Ohio 43215-2220
Attention: Corporate Fixed-Income Securities
Facsimile: (614) 249-4553
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as
"California Water Service Company, 5.52% Series M Senior Notes due November 1,
2013, PPN: 130789 P# 1, principal, premium or interest") to:
The Bank of New York
ABA #021-000-018
BNF: IOC566
F/A/O Nationwide Mutual Insurance Company
Attention: P&I Department
PPN: 130789 P# 1
Security Description: California Water Service Company Series M Notes
Notices
All notices of payment on or in respect of the Notes and written confirmation of
each such payment to:
Nationwide Mutual Insurance Company
c/o The Bank of New York
P. O. Box 19266
Newark, New Jersey 07195
Attention: P&I Department
With a copy to:
Nationwide Mutual Insurance Company
One Nationwide Plaza (1-32-05)
Columbus, Ohio 43215-2220
Attention: Investment Accounting
All notices and communications other than those in respect to payments to be
addressed as first provided above.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 31-4177100
A-4
[FORM OF SERIES M NOTE]
THIS NOTE HAS NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND ANY SALE, TRANSFER, PLEDGE OR
OTHER DISPOSITION THEREOF MAY BE MADE ONLY (1) IN A TRANSACTION REGISTERED UNDER
SAID ACT OR (2) IF AN EXEMPTION FROM REGISTRATION UNDER SAID ACT IS AVAILABLE.
CALIFORNIA WATER SERVICE COMPANY
5.52% Series M Senior Note
Due November 1, 2013
PPN 130789 P# 1
No. November __, 2003
$
California Water Service Company, a California corporation (the
"Company"), for value received, hereby promises to pay to
or registered assigns
on the first day of November, 2013,
the principal amount of
DOLLARS ($____________)
and to pay interest (computed on the basis of a 360-day year of twelve 30-day
months) on the principal amount from time to time remaining unpaid hereon at the
rate of 5.52% per annum from the date hereof until maturity, payable
semiannually on the first day of each May and November in each year (commencing
on the first of such dates after the date hereof) and at maturity. The Company
agrees to pay interest on overdue principal (including any overdue required or
optional prepayment of principal) and premium, if any, and (to the extent
legally enforceable) on any overdue installment of interest, at the rate of
7.52% per annum after the due date, whether by acceleration or otherwise, until
paid. Both the principal hereof and interest hereon are payable at the principal
office of the Company in San Jose, California in coin or currency of the United
States of America which at the time of payment shall be legal tender for the
payment of public and private debts.
This Note is one of a series of Notes (the "Notes") issued pursuant to
the Eleventh Supplement (the "Eleventh Supplement") to the Note Agreement dated
as of March 1, 1999 (as from time to time amended and supplemented, the "Note
Agreement"), between the Company,
EXHIBIT 1
(to Supplement)
the Purchasers named therein and Additional Purchasers of Notes from time to
time issued pursuant to any Supplement to the Note Agreement. This Note and the
holder hereof are entitled equally and ratably with the holders of all other
Notes of all Series from time to time outstanding under the Note Agreement to
all the benefits provided for thereby or referred to therein. Each holder of
this Note will be deemed, by its acceptance hereof, to have made the
representation set forth in Section 3.2 of the Note Agreement, provided that
such holder may (in reliance upon information provided by the Company, which
shall not be unreasonably withheld) make a representation to the effect that the
purchase by such holder of any Note will not constitute a non-exempt prohibited
transaction under Section 406(a) of ERISA.
This Note and the other Notes outstanding under the Note Agreement may
be declared due prior to their expressed maturity dates, all in the events, on
the terms and in the manner and amounts as provided in the Note Agreement.
The Notes are not subject to prepayment or redemption at the option of
the Company prior to their expressed maturity dates except on the terms and
conditions and in the amounts and with the premium, if any, set forth in the
Note Agreement.
This Note is registered on the books of the Company and is transferable
only by surrender thereof at the principal office of the Company duly endorsed
or accompanied by a written instrument of transfer duly executed by the
registered holder of this Note or its attorney duly authorized in writing.
Payment of or on account of principal, premium, if any, and interest on this
Note shall be made only to or upon the order in writing of the registered
holder.
This Note shall be construed and enforced in accordance with, and the
rights of the parties shall be governed by, the law of the State of California
excluding choice-of-law principles of the law of such State that would require
the application of the laws of a jurisdiction other than such State.
CALIFORNIA WATER SERVICE COMPANY
By ________________________________________
Name: _________________________________
Title: _________________________________
E-1-2
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Purchasers that:
1. Corporate Organization, Subsidiaries. The Company is duly organized
and existing and in good standing under and by virtue of the laws of the State
of California and is duly authorized and empowered to own and operate its
properties and to carry on its business, all as and in the places where such
properties are now owned and operated and such business is conducted. The
Company has no Subsidiaries.
2. Corporate Authority. The Company has full corporate power and
corporate authority to sell and issue the Series M Notes. The issuance and sale
of the Series M Notes and the execution and delivery of the Eleventh Supplement
will have been duly authorized by the Board of Directors of the Company and by
the Public Utilities Commission of the State of California (the "Commission")
prior to the Closing Date, and no other action is required to be taken by, and
no consents or approvals are required to be obtained from, the shareholders of
the Company or any public body or bodies, and no other corporate action of the
Company is requisite to such issue and sale.
3. Business and Property. Each Purchaser has heretofore been furnished
with a copy of the Company Information which generally sets forth the principal
properties of the Company and the business conducted and proposed to be
conducted by the Company.
4. Indebtedness. Annex A attached hereto correctly describes all
Current Debt, Funded Debt and Capitalized Leases of the Company outstanding on
September 30, 2003.
5. Financial Statements and Reports. The Company has furnished each
Purchaser with a copy of its audited financial reports for 2000, 2001 and 2002
hereinafter called the "Company Reports," and a copy of Form 10-K filed by
California Water Service Group ("CWSG") hereinafter called the "CWSG 10-K" with
the Securities and Exchange Commission for 2002, together with all reports or
documents required to be filed by CWSG pursuant to Sections 13(a) or 15(d) of
the Securities Exchange Act of 1934, as amended, since the filing of the CWSG
10-K. The Company has also furnished each Purchaser with an unaudited quarterly
financial statement for the Company for the fiscal quarter ended June 30, 2003,
and Forms 10-Q for CWSG for the fiscal quarter ended June 30, 2003 (the
"Quarterly Reports"). The financial statements contained in the foregoing
Company Reports, the CWSG 10-K, the Quarterly Reports and such other reports and
documents were prepared in accordance with generally accepted accounting
principles upon a consistent basis and are complete and correct and the balance
sheets included therein fairly present the financial condition of the Company or
CWSG, as the case may be, as at the respective dates thereof and the Statements
of Income, Common Shareholders' Equity and Cash Flows included therein fairly
present the results of the operations of the Company for the periods covered
thereby, subject in the case of unaudited statements to normal year-end
adjustments.
6. Material Contracts. The Company has no contracts or commitments,
whether contingent or other, which are material to the Company and which were
not made in the ordinary
EXHIBIT 2
(to Supplement)
course of business. Certain material contracts related to water supply are
listed in Annex B hereto. The Company has no contracts or commitments,
contingent or other, which materially and adversely affect or in the future may
(so far as the Company can foresee) materially and adversely affect the Company
or its business, property, assets, operations or condition, financial or other.
As of December 31, 2002, there were no material liabilities of the Company
(other than those under contracts entered into in the normal and ordinary course
of business), actual, contingent or accrued, which were not reflected in the
Company Reports and CWSG 10-K except for (i) liability in respect of uncompleted
construction work under open contracts in connection with the Company's
construction program and (ii) the obligations of the Company to contribute to a
pension plan, an employees' savings plan and a health and welfare plan.
7. No Material Adverse Change. (a) There has been no change in the
condition of the Company, financial or other, from that set forth or reflected
in the Company Information, other than changes which may have occurred in the
ordinary course of business or by reason of ordinary dividends paid or declared
or outstanding First Mortgage Bonds redeemed by the Company in accordance with
their terms, and no such changes in the ordinary course of business have been
material adverse changes.
(b) Since December 31, 2002, neither the business, operations,
properties nor assets of the Company have been adversely affected in any
material way by any casualties such as fire, windstorm, riot, strike, explosion,
accident, flood, earthquake, lockout, sabotage, activities of armed forces, act
of God or the public enemy or condemnation of properties by the United States
government or any municipal governmental agency, authority or body.
8. Title to Properties. The Company is engaged in the business of a
public utility water company serving all or a portion of the California cities
and communities listed in the 2002 Company Report and paragraph 9 hereof. The
Company has good and merchantable title, subject only to the lien of the
Mortgage Indenture and to current tax and assessment liens, rights-of-way,
easements and certain minor liens, encumbrances, clouds or defects in title
which do not materially affect the use thereof, to all the material water
distribution facilities (including, without limitation, transmission and
distribution mains, pump stations, wells, storage tanks and reservoirs) and
other material units of property used in its business except as follows:
(a) some of the offices, but not its principal office, are in
leased premises and some wells, well sites and other minor distribution
facilities are rented; and
(b) several wells are located on property which the Company
does not own but in which it has an easement for the location of such
wells;
and except as to easements and rights-of-way and certain parcels of land (not
exceeding for said parcels of land an aggregate book value of $1,000,000) with
respect to which there is a possibility of reverter if the property ceases to be
used for public utility purposes, and, except that the greater portion of its
transmission and distribution systems is located in public highways and streets
and in rights-of-way owned by the Company over lands of others, the Company's
title thereto is fee simple. Except for parcels of land having an aggregate book
value of not more than $1,000,000, the Company has good and merchantable title
to all its other property and assets
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subject only to the lien of the Mortgage Indenture and the lien of the Dominguez
Mortgage Indenture and to current tax and assessment liens and minor liens and
encumbrances which do not materially affect the use thereof. All of the
properties of the Company are located in the State of California and
substantially all of the properties of the Company used or useful in its public
utility business are subject to the Mortgage Indenture. As used herein, the term
"Dominguez Mortgage Indenture" means the Trust Indenture dated as of August 1,
1954, as supplemented from time to time, between the Company, as successor to
Dominguez Water Company ("Dominguez") and U.S. Bank, as Trustee, which provides
a lien on properties owned by Dominguez immediately prior to the merger
described in paragraph 9 hereof which lien secures $9,000,000 in aggregate
principal amount of Dominguez bonds which were assumed by the Company upon the
merger.
9. Franchises. The Company has, in its judgment, adequate franchises
and permits without burdensome restrictions (other than those typically
contained in franchises and permits of this type) to allow the Company to
conduct the business in which it is engaged.
The Company has two classes of franchises to install and operate water
pipes and mains under public streets and highways:
(a) so-called "constitutional" franchises obtained by virtue
of the provisions of Article XI, Section 19, of the California
Constitution, as in effect prior to 1911; and
(b) franchises granted pursuant to statutory authority.
The Company believes, based on the advice of counsel (which is itself
based upon the assumption of the accuracy of information obtained by the Company
from sources believed to be reliable that the following cities served by the
Company were all incorporated prior to 1911:
Bakersfield Marysville South San Francisco
Chico Oroville Stockton
Dixon Redondo Beach Visalia
Hermosa Beach Salinas Willows
King City San Mateo
Livermore Selma
that water distribution systems were constructed and service furnished to the
inhabitants of each by various predecessors of the Company prior to 1911, and
that there were no public water works owned or controlled by the municipality in
any of them prior to 1911), that the Company has a "constitutional" franchise in
each of the above cities and under such constitutional franchise has a perpetual
right which was not repealed by the repeal of Article XI, Section 19, of the
California Constitution to continue to occupy public streets of each of said
cities with its pipes and mains and to lay down additional pipes and mains in
said streets for the supplying of water, subject to reasonable regulation by the
respective municipalities. The Company also believes, based on the advice of
counsel, that this right is not limited to streets in which pipes or mains were
laid prior to 1911 but extends at least to all streets in the said
municipalities as they existed at the date of repeal of the constitutional
provision in 1911 and probably also extends to territory incorporated
E-2-3
into each respective city after such repeal, although this latter question
remains somewhat in doubt in the absence of a final decision of the courts
thereon. The Company holds either by assignment or as original grantee
franchises granted under statutory authority by the Counties of Kern, Los
Angeles, San Joaquin, Santa Clara and Monterey, the Cities of Montebello,
Torrance, Cupertino, Sunnyvale, Los Altos, Mountain View, Bakersfield, Commerce,
San Carlos, Rolling Hills Estates and Thousand Oaks, and the Towns of Los Altos
Hills and Atherton. Following incorporation of the City of Rancho Palos Verdes
in 1973, the Company made franchise payments to the City and the City accepted
the same as successor in interest to the grantor's rights under the Company's
former franchise from the County of Los Angeles; the City has agreed that the
Company may exercise its rights in the City under its current County franchise
until the expiration of that franchise in 2012. The Company's franchises from
the Cities of Palos Verdes Estates, Menlo Park and Woodside terminated in 1977,
1993 and 1994, respectively. While none of the Cities and the Company have
executed a new franchise agreement, the Company has made and will continue to
make franchise payments to each of the Cities in accordance with the provisions
of the prior franchise. In other areas where the Company has no franchise, the
Company or its predecessors have distributed water for many years and, to the
Company's knowledge, no question has ever been raised as to the right to make
such distribution and to maintain all pipes and mains necessary therefor.
On May 25, 2000, Dominguez Service Corporation was merged into the
Company and subsequently Dominguez and its subsidiaries were also merged into
the Company (collectively, the "merger"). The Company acquired in the Dominguez
merger operations in the following cities, counties, townships or localities
that Dominguez previously served:
Bodfish Kern County Los Angeles County
Carson Kernville Lucerne
Compton Lake Hughes Mountain Shadows
Duncans Mills Lakeland Onyx
Fremont Valley Lancaster Squirrel Valley
Guerneville Leona Valley Torrance
Harbor City Long Beach Wofford Heights
Water distribution systems were constructed and service furnished to the
inhabitants of the localities currently known as Carson, Compton, Harbor City,
Long Beach and Torrance by various predecessors of the Company prior to 1911 and
the Company believes that it has a prior right to operate in these locations
which right was not extinguished by the incorporation of these cities subsequent
to 1911. Except as noted below, Dominguez has no franchises from these cities
and has made no franchise payments to them and, to the Company's knowledge, no
question has ever been raised as to the right to make water distribution and to
maintain all pipes and mains necessary therefor.
As to the remaining localities, Dominguez has received written
franchise agreements which are in full force and effect and has paid all
franchise fees to date, with the exception of Compton, as to which the franchise
expired without renewal in 1994. Dominguez continued to provide water services
to Compton subsequent to the expiration of the franchise, and to pay franchise
fees, and to the Company's knowledge no question has ever been raised as to the
right
E-2-4
to make such distribution and to maintain all pipes and mains necessary
therefor. However, as of May 2003, the County of Los Angeles cancelled its
Dominguez franchise and incorporated the franchise territory into the Company's
Los Angeles County franchise.
10. Condition of Assets. The physical assets of the Company are in
sound operating condition, there are no material arrears in the maintenance of
any such physical assets and the Company believes that its sources of water are
adequate to meet its requirements for the foreseeable future.
11. Pending Litigation, Proceedings. (a) There are no actions, suits or
proceedings pending at law or in equity or before or by any federal, state,
municipal or other governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, or, to the knowledge of the Company,
threatened against or affecting the Company not adequately covered by insurance
or for which reserves adequate in the Company's judgment have not been
established which involve, in the opinion of the Company, a reasonable
possibility of judgments or liabilities exceeding $500,000 in the aggregate net
of insurance, or which may, in the opinion of the Company result in any material
adverse change in the business or properties or in the condition, financial or
other, of the Company, or the ability of the Company to perform its obligations
under the Eleventh Supplement or the Series M Notes.
(b) There are no proceedings pending or, to the knowledge of the
Company, threatened against the Company before or by any federal, state or
municipal commission, board or other administrative agency, which materially and
adversely affect the water rates of the Company presently in effect.
(c) The Company is not in default with respect to any order, writ,
injunction or decree of any court, or any federal, state or municipal
commission, board or other administrative agency and the Company has complied
with all applicable statutes and regulations of the United States of America and
of any state, municipality or agency of any thereof, in respect of the conduct
of its business known or believed by the Company to be applicable thereto, the
failure to comply with which could reasonably be expected to have a material
adverse effect on the Company or its properties.
12. No Condemnation Proceedings. Since January 1, 1995, no elections
have been held or other actions taken authorizing the commencement of
proceedings for condemnation of any of the properties of the Company. However,
from time to time there are expressions of interest made by public bodies,
elected or appointed municipal officials, persons seeking political position or
citizens groups urging acquisition of the Company's facilities in one or more of
the communities served by the Company. The Company does not believe that any
acquisition by a city or municipality of its properties by condemnation or
threat thereof would be adverse to the holders of the Series M Notes.
13. No Burdensome Restrictions. The Company is not subject to any
burdensome corporate restrictions in its Articles of Incorporation, By-Laws or
otherwise, which materially and adversely affect or in the future may (so far as
the Company can foresee) materially and
E-2-5
adversely affect the Company or its business, property, assets, operations or
condition, financial or other.
14. Regulatory Status, Approval. (a) The Company is not a registered
holding company or a subsidiary of a registered holding company and the Company
is not required to register under the Public Utility Holding Company Act of
1935, as amended. The Company is subject to the jurisdiction of the Commission.
(b) No consent of, approval or authorization by, filing or registration
with, or notice to any governmental or public authority or agency is required
for the issuance, sale or delivery of the Series M Notes or the execution,
delivery or performance of the Eleventh Supplement, other than the authorization
of the Commission, which authorization has been duly obtained, is in full force
and effect and is not subject to any appeal, hearing, rehearing or contest. All
conditions contained in any such authorization which were to be fulfilled on or
prior to the issuance of the Series M Notes have been fulfilled. The Company has
furnished to your special counsel true, correct and complete copies of said
authorization and all applications heretofore filed with or submitted to the
Commission in connection with its action to obtain said authorization.
15. No Defaults, Compliance with Other Instruments. The Company is not
in default under any outstanding indentures, contracts or agreements which are
material to the Company including, without limitation, the Mortgage Indenture;
and on the Closing Date there will not exist any condition which would be a
default under any such indenture, contract or agreement. The execution and
delivery of the Eleventh Supplement, the consummation of the transactions
therein provided for and compliance with the provisions of the Eleventh
Supplement and the Series M Notes by the Company will not violate or result in
any breach of the terms, conditions or provisions of, or constitute a default
under, its Articles of Incorporation, By-Laws or any indenture, mortgage, deed
of trust, bank loan or credit agreement, or other material agreement or
instrument to which the Company is a party or by which the Company may be bound,
nor will such acts result in the violation of any applicable law, rule,
regulation or order applicable to the Company of any court or governmental
authority having jurisdiction in the premises or in the creation or imposition
of any lien, charge or encumbrance of any nature whatsoever, upon any property
or assets of the Company.
16. Leases. The Company has the right to, and does, enjoy peaceful and
undisturbed possession under all material leases to which it is a party or under
which it is operating. All such leases are valid, subsisting and in full force
and effect, and the Company is not in default under any thereof and no event has
occurred and is continuing, and no condition exists that, after notice or
passage of time or both could become a material default under any such Lease.
17. Use of Proceeds. The Company will use the gross proceeds derived
from the sale of the Series M Notes under the Eleventh Supplement to refinance
existing Indebtedness and for general corporate purposes. None of the
transactions contemplated in the Eleventh Supplement (including, without
limitation thereof, the use of the proceeds from the sale of the Series M Notes)
will violate or result in a violation of Section 7 of the Securities Exchange
Act of 1934, as amended, or any regulations issued pursuant thereto, including
without limitation, Regulations U, T and X of the Board of Governors of the
Federal Reserve System, 12 C.F.R., Chapter II. The
E-2-6
Company does not own or intend to carry or purchase any "margin stock" within
the meaning of said Regulation U, including margin stock originally issued by
it. None of the proceeds from the sale of the Series M Notes will be used to
purchase or carry (or refinance any borrowing the proceeds of which were used to
purchase or carry) any margin stock.
18. ERISA. (a) The fair market value of all assets under all "employee
pension benefit plans" (as such term is defined in Section 3(2) of ERISA),
maintained by the Company, as from time to time in effect, as of December 31,
2002, the last annual valuation date, was exceeded by the actuarial present
value of all benefits vested under the Plans by $7,050,000.
(b) Neither any of the Plans nor any of the trusts created thereunder,
nor any trustee or administrator thereof, has engaged in a "prohibited
transaction," as such term is defined in Section 4975 of the Code which could
subject the Plans or any of them, any such trust, or any trustee or
administrator thereof, or any disqualified person with respect to the Plans to
the tax or penalty on prohibited transactions imposed by said Section 4975,
except that, with respect to any actions or omissions of administrators,
trustees, other fiduciaries, parties in interest or disqualified persons of or
in respect to the Plans (other than employees of the Company), the Company has
no knowledge that any of such persons has committed a prohibited transaction,
nor has the Company participated knowingly in or knowingly undertaken to conceal
a prohibited transaction with or by any of such persons nor enabled any of them
to commit a prohibited transaction.
(c) Neither any of the Plans subject to Title IV of ERISA nor any
trusts related to such plans have been terminated, nor have there been any
Reportable Events, as that term is defined in Section 4043 of ERISA (as modified
by the regulations thereunder), in respect of those plans since the effective
date of ERISA.
(d) Neither any of the Plans which are subject to Section 302 of ERISA
nor any trusts related to such plans have incurred any "accumulated funding
deficiency," as such term is defined in said Section 302 (whether or not
waived), since the effective date of ERISA.
(e) The consummation of the transactions provided for in the Eleventh
Supplement and compliance by the Company with the provisions thereof and the
Series M Notes issued thereunder will not involve any prohibited transaction
within the meaning of ERISA or Section 4975 of the Code.
19. Taxes. All Federal, state and local taxes and assessments due from
the Company have been (a) fully paid or adequately provided for on the books of
the Company in accordance with generally accepted accounting principles or (b)
are being contested in good faith by the Company. There has been no examination
of the Federal income tax returns of the Company by the Internal Revenue Service
subsequent to the examinations of the returns for tax years 1984-1991.
20. Compliance with Laws. To the best of the Company's knowledge, after
due inquiry, the Company is in compliance with all applicable Federal, state, or
local laws, statutes, rules, regulations or ordinances relating to public
health, safety or the environment, including, without
E-2-7
limitation, relating to releases, discharges, emissions or disposals to air,
water, land or ground water, to the withdrawal or use of ground water, to the
use, handling or disposal of polychlorinated biphenyls (PCB's), asbestos or urea
formaldehyde, to the treatment, storage, disposal or management of hazardous
substances (including, without limitation, petroleum, its derivatives,
by-products or other hydrocarbons), and to exposure to hazardous substances, the
failure to comply with which could reasonably be expected to have a material
adverse effect on the Company or its properties. Except as disclosed in the
"Environmental Matters" section of Item 1 of the CWSG 10-K, the "Environmental
Matters" section of CWSG's 2002 Annual Report and the "Legal Proceedings"
section of Item 3 of the CWSG 10-K with respect to matters in Chico and
Marysville, California, the Company does not know of any liability of the
Company under the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended by the Superfund Amendments and
Reauthorization Act of 1986 (42 U.S.C. Section 9601 et seq.) with respect to any
property now or heretofore owned or leased by the Company.
21. Full Disclosure. The financial statements referred to in the
Eleventh Supplement do not, nor does the Eleventh Supplement, the Company
Information or any written statement (including without limitation the 2002
Company Report and the 2002 CWSG Report) furnished by the Company to you in
connection with the negotiation of the sale of the Series M Notes, contain any
untrue statement of a material fact or, taken together, omit a material fact
necessary to make the statements contained therein or herein not misleading.
There is no fact which the Company has not disclosed to you in writing which
materially affects adversely nor, so far as the Company can now foresee, will
materially affect adversely the properties, business, prospects, profits or
condition (financial or otherwise) of the Company or the ability of the Company
to perform its obligations under the Note Agreement, the Eleventh Supplement or
the Series M Notes.
22. Private Offering. Neither the Company, directly or indirectly, nor
any agent on its behalf has offered or will offer the Series M Notes or any
similar Security or has solicited or will solicit an offer to acquire the Series
M Notes or any similar Security from or has otherwise approached or negotiated
or will approach or negotiate in respect of the Series M Notes or any similar
Security with any Person other than the Purchasers and not more than six (6)
other institutional investors, each of whom was offered a portion of the Series
M Notes at private sale for investment. Neither the Company, directly or
indirectly, nor any agent on its behalf has offered or will offer the Series M
Notes or any similar Security or has solicited or will solicit an offer to
acquire the Series M Notes or any similar Security from any Person so as to
cause the issuance and sale of the Series M Notes not to be exempt from the
provisions of Section 5 of the Securities Act of 1933, as amended.
23. Foreign Assets Control Regulations, Etc. Neither the sale of the
Series M Notes by the Company hereunder nor its use of the proceeds thereof will
violate the Trading with the Enemy Act, as amended, or any of the foreign assets
control regulations of the United States Treasury Department (31 CFR, Subtitle
B, Chapter V, as amended) or any enabling legislation or executive order
relating thereto. Without limiting the foregoing, the Company (a) is not and
will not become a person whose property or interests in property are blocked
pursuant to Section 1 of Executive Order 13224 of September 23, 2001 Blocking
Property and Prohibiting Transactions
E-2-8
With Persons Who Commit, Threaten to Commit, or Support Terrorism (66 Fed. Reg.
49079 (2001)) or (b) does not and will not engage in any Material dealings or
transactions, or is otherwise associated, with any such person.
The Company is in compliance in all material respects with the Uniting
and Strengthening America by Providing Appropriate Tools Required to Intercept
and Obstruct Terrorism (USA Patriot Act of 2001). No part of the proceeds from
the sale of the Series M Notes hereunder will be used, directly or indirectly,
for any payment to any governmental official or employee, political party,
official of a political party, candidate for political office or anyone else
acting in an official capacity, in order to obtain, retain or direct business,
in violation of the United States Foreign Corrupt Practices Act of 1977, as
amended.
E-2-9
CURRENT DEBT, FUNDED DEBT AND CAPITALIZED LEASES
AS OF SEPTEMBER 30, 2003
1. Current Debt
None.
2. Funded Debt
$56,600,000 outstanding under the Company's various series of First
Mortgage Bonds with due dates ranging from 2020 to 2023.
$4,000,000 First Mortgage Bonds, Series J due 2023 (formerly Dominguez
Water Company).
$5,000,000 First Mortgage Bonds, Series K due 2012 (formerly Dominguez
Water Company).
$20,000,000 Series A Senior Notes due November 1, 2025.
$20,000,000 Series B Senior Notes due November 1, 2028.
$20,000,000 Series C Senior Notes due November 1, 2030.
$20,000,000 Series D Senior Notes due November 1, 2031.
$20,000,000 Series E Senior Notes due May 1, 2032.
$20,000,000 Series F Senior Notes due November 1, 2017.
$20,000,000 Series G Senior Notes due November 1, 2022.
$20,000,000 Series H Senior Notes due December 1, 2022.
$10,000,000 Series I Senior Notes due May 1, 2023.
$10,000,000 Series J Senior Notes due May 1, 2018.
$10,000,000 Series K Senior Notes due June 30, 2010.
$10,000,000 Series L Senior Notes due March 1, 2018.
$2,719,000 California Department of Water Resources Loans maturing 2011
to 2032.
$430,000 obligations due on water system acquisitions.
3. Capitalized Leases
None.
ANNEX A
(to Exhibit 2)
MATERIAL WATER SUPPLY CONTRACTS
1. Water Supply Contract between the Company and the County of Butte
relating to the Company's Oroville District.
2. Water Supply Contract between the Company and Kern County Water Agency
relating to the Company's Bakersfield District.
3. Water Supply Contract between the Company and Stockton East Water
District relating to the Company's Stockton District.
4. Amended Contract between the Company and Stockton East Water District
relating to the Company's Stockton District.
5. Settlement Agreement and Master Water Sales Contract between the City
and County of San Francisco and Certain Suburban Purchasers.
6. Supplement to Settlement Agreement and Master Water Sales Contract
between the Company and the City and County of San Francisco relating
to the Company's Bear Gulch District.
7. Supplement to Settlement Agreement and Master Water Sales Contract
between the Company and the City and County of San Francisco relating
to the Company's San Carlos District.
8. Supplement to Settlement Agreement and Master Water Sales Contract
between the Company and the City and County of San Francisco relating
to the Company's San Mateo District.
9. Supplement to Settlement Agreement and Master Water Sales Contract
between the Company and the City and County of San Francisco relating
to the Company's South San Francisco District.
10. Water Supply Contract between the Company and Santa Clara Valley Water
District relating to the Company's Los Altos District.
11. Water Supply Contract between the Company and Pacific Gas and Electric
Company related to the Company's Oroville District.
12. Water Supply Contract between the Company and Alameda County Flood
Control and Water Conservation District related to the Company's
Livermore District.
13. Water Supply Contract between the Company, ARCO Products Company and
West Basin Municipal Water District relating to recycled water.
14. Northeast Bakersfield Water Supply Agreement between the City of
Bakersfield and the Company.
ANNEX B
(to Exhibit 2)
DESCRIPTION OF CLOSING OPINION
OF COUNSEL TO THE COMPANY
The closing opinion of Bingham McCutchen LLP, counsel for the Company,
which is called for by Section 5(a)(iii) of the Eleventh Supplement, shall be
dated the Closing Date and addressed to the Purchasers, shall be satisfactory in
scope and form to the Purchasers and shall be to the effect that:
1. The Company is a corporation duly incorporated, validly
existing and in corporate good standing under the laws of California.
2. The execution and delivery by the Company of the Note
Agreement, the Eleventh Supplement and the Notes, and the performance
by the Company of its obligations under the Note Agreement, the
Eleventh Supplement and the Notes, are within the Company's corporate
powers and have been duly authorized by all requisite corporate action
on the part of the Company. The Company has duly executed and delivered
the Note Agreement, the Eleventh Supplement and the Notes.
3. Each of the Note Agreement, the Eleventh Supplement and the
Notes constitutes a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms. Based on
Section 1646.5 of the California Civil Code, a California state court
and a Federal court which applies the law of the State of California to
the Note Agreement, the Eleventh Supplement and the Notes would
recognize and give effect to the choice of law provisions set forth in
the Note Agreement, the Eleventh Supplement and the Notes.
4. The execution and delivery by the Company of the Note
Documents, and compliance by the Company with the provisions thereof
will not, to the best of our knowledge, result in a breach or default
(or give rise to any right of termination, cancellation or
acceleration) under the Articles of Incorporation or By-Laws of the
Company, or the Mortgage Indenture, the Business Loan Agreement dated
as of February 28, 2003, between the Company and Bank of America as
amended by Amendment No. 1 thereto dated as of June 25, 2003, the
Business Loan Agreement dated as of February 28, 2003, among CWSG, CWS
Utility Services, New Mexico Water Service Company and Bank of America,
or any other agreement or instrument that is listed as a material
contract in CWSG's Annual Report on Form 10-K for the year ended
December 31, 2002 or any agreement or other instrument that is listed
as a material contract in CWSG's Annual Report on Form 10-K for the
year ended December 31, 2002. To the best of our knowledge, no consent
or approval by, or any notification of or filing with, any court,
public body or authority of the State of California is required to be
obtained or effected by the Company in connection with the execution,
delivery and performance by the Company of the Note Documents or the
issuance or sale of the Notes, except for the authorization of the
Commission, which authorization has been duly obtained and is in full
force and effect.
EXHIBIT 3
(to Supplement)
5. Based upon the representations set forth in Section 6 of
the Eleventh Supplement, the accuracy of which we have not
independently verified or investigated, the issuance, sale and delivery
of the Notes under the circumstances contemplated by the Eleventh
Supplement do not, under existing law, require the registration of the
Notes under the Securities Act of 1933, as amended, or the
qualification of the Eleventh Supplement or an indenture under the
Trust Indenture Act of 1939, as amended.
6. Based upon the assumption of the accuracy of information
obtained by the Company from sources believed by the Company to be
reliable (a) that the following cities served by the Company were all
incorporated prior to 1911:
Bakersfield Marysville South San Francisco
Chico Oroville Stockton
Dixon Redondo Beach Visalia
Hermosa Beach Salinas Willows
King City San Mateo
Livermore Selma
(b) that water distribution systems were constructed and service
furnished to the inhabitants of each by various predecessors of the Company
prior to 1911; and
(c) that there were no public water works owned or controlled by the
municipality in any of them prior to 1911;
in our opinion,
(i) the Company has a "constitutional" franchise in each of
the above cities and under such "constitutional" franchise has a
perpetual right which was not repealed by the repeal of Article XI,
Section 19, of the California Constitution to continue to occupy public
streets of each of said cities with pipes and mains and to lay down
additional pipes and mains in said streets for the supplying of water,
subject to reasonable regulation by the respective municipalities;
(ii) this right is not limited to streets in which pipes or
mains were laid prior to 1911 but extends at least to all streets in
the said municipalities as they existed at the date of repeal of the
constitutional provision in 1911; and
(iii) the right probably also extends to territory annexed
into each respective city after such repeal, although this latter
question is not entirely free from doubt in the absence of a final
decision of the courts thereon.
7. Dominguez Services Corporation (along with its
subsidiaries, "Dominguez") was merged into the Company effective May
25, 2000 and Dominguez Water Company was also merged into the Company
effective October 12, 2000. In the Dominguez mergers, the Company
acquired the operations of Dominguez, which to our knowledge included
service to the following cities, counties, townships or localities:
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Bodfish Kernville Mountain Shadows
Carson Lake Hughes Onyx
Compton Lakeland Torrance
Duncans Mills Lancaster Squirrel Valley
Fremont Valley Leona Valley Wofford Heights
Guerneville Long Beach Los Angeles County
Harbor City Lucerne Kern County
8. We note that the Officers' Certificates state that: (a) to
the Company's knowledge, water distribution systems were constructed
and service furnished to the inhabitants of the localities currently
known as Carson, Compton, Harbor City, Long Beach and Torrance by
various predecessors of the Company prior to 1911; (b) the Company
believes that it has a prior right to operate in these locations which
right was not extinguished by the incorporation of these cities
subsequent to 1911; (c) except as noted below, to the Company's
knowledge Dominguez has no franchises from these cities and has made no
franchise payments to them; and (d) to the Company's knowledge, no
question has ever been raised as to the right to make water
distribution and to maintain all pipes and mains necessary therefor.
9. We note that the Officers' Certificates state that: (a) as
to the remaining localities listed in paragraph 7, to the Company's
knowledge, Dominguez has received written franchise agreements which
are in full force and effect and has paid all franchise fees to date,
with the exception of Compton, as to which the franchise expired
without renewal in 1994; (b) to the Company's knowledge, Dominguez
continued to provide water services to Compton subsequent to the
expiration of the franchise, and to pay franchise fees; and (c) to the
Company's knowledge, no question has ever been raised as to the right
to make such distribution and to maintain all pipes and mains necessary
therefor. However, as of May 2003, the County of Los Angeles cancelled
its Dominguez franchise and incorporated the franchise territory into
the Company's Los Angeles County franchise.
The opinion of Bingham McCutchen LLP shall cover such other matters
relating to the sale of the Series M Notes as the Purchasers may reasonably
request and shall provide that Chapman and Cutler LLP in delivering its opinion
under the Note Agreement may rely on the opinion of Bingham McCutchen LLP as to
matters of California law. With respect to matters of fact on which such opinion
is based, such counsel shall be entitled to rely on appropriate certificates of
public officials and officers of the Company.
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DESCRIPTION OF SPECIAL COUNSEL'S CLOSING OPINION
The closing opinion of Chapman and Cutler LLP, special counsel to the
Purchasers, called for by Section 5(a)(iii) of the Eleventh Supplement, shall be
dated the Closing Date and addressed to the Purchasers, shall be satisfactory in
form and substance to the Purchasers and shall be to the effect that:
1. The Company is a corporation, validly existing and in good
standing under the laws of the State of California and has the
corporate power and the corporate authority to execute and deliver the
Eleventh Supplement and to issue the Series M Notes.
2. The Note Agreement and the Eleventh Supplement have been
duly authorized by all necessary corporate action on the part of the
Company, have been duly executed and delivered by the Company and
constitute the legal, valid and binding contract of the Company
enforceable in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent conveyance and similar laws affecting creditors'
rights generally, and general principles of equity (regardless of
whether the application of such principles is considered in a
proceeding in equity or at law).
3. The Series M Notes have been duly authorized by all
necessary corporate action on the part of the Company, have been duly
executed and delivered by the Company and constitute the legal, valid
and binding obligations of the Company enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent conveyance
and similar laws affecting creditors' rights generally, and general
principles of equity (regardless of whether the application of such
principles is considered in a proceeding in equity or at law).
4. The issuance, sale and delivery of the Series M Notes under
the circumstances contemplated by the Eleventh Supplement do not, under
existing law, require the registration of the Series M Notes under the
Securities Act of 1933, as amended, or the qualification of an
indenture under the Trust Indenture Act of 1939, as amended.
The opinion of Chapman and Cutler LLP may rely upon the opinion of
Bingham McCutchen LLP as to matters of California law. The opinion of Chapman
and Cutler LLP shall also state that the opinion of Bingham McCutchen LLP is
satisfactory in scope and form to Chapman and Cutler LLP and that, in their
opinion, the Purchasers are justified in relying thereon.
In rendering the opinion set forth in paragraph 1 above, Chapman and
Cutler LLP may rely, as to matters referred to in paragraph 1, solely upon an
examination of the Articles of Incorporation certified by, and a certificate of
good standing of the Company from, the Secretary of State of the State of
California, the By-laws of the Company and the general business corporation law
of the State of California.
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With respect to matters of fact upon which such opinion is based,
Chapman and Cutler LLP may rely on appropriate certificates of public officials
and officers of the Company and upon representations of the Company and the
Purchasers delivered in connection with the issuance and sale of the Series M
Notes.
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