EXHIBIT 1.01
SOUTHERN CALIFORNIA WATER COMPANY
$50,000,000
7.23% Notes due 2031
UNDERWRITING AGREEMENT
December 6, 2001
UNDERWRITING AGREEMENT
December 6, 2001
UBS WARBURG LLC
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
Ladies and Gentlemen:
Southern California Water Company, a California
corporation (the "Company"), proposes to issue and sell to UBS
Warburg LLC (the "Underwriter") $50,000,000 aggregate principal
amount of its 7.23% Notes due 2031 ("Notes"). The Notes are
described in the Prospectus which is referred to below.
The Notes are to be issued pursuant to a security
resolution adopted by the issuance committee on the date hereof
as provided in the resolution of the Board of Directors adopted
on October 29, 2001 (the "Securities Resolution") as provided
in the Indenture dated as of September 1, 1993, between the
Company and X.X. Xxxxxx Trust Company, National Association
(formerly Chemical Trust Company of California and then Chase
Manhattan Bank and Trust Company, National Association), as
trustee (the "Trustee"). Copies of the Indenture have been
delivered to the Underwriter. Copies of the Securities
Resolution will be delivered by the Company to the Underwriter.
The Company has filed, in accordance with the
provisions of the Securities Act of 1933, as amended, and the
rules and regulations thereunder (collectively called the
"Act"), with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (File No.
333-73378), relating to the Company's debt securities having an
aggregate offering price of $100,000,000, all of which remain
unsold (other than as provided herein), including a preliminary
prospectus, which have been prepared by the Company under the
provisions of the Securities Act of 1933, as amended (the
"Act"), and the rules and regulations (collectively referred to
as the "Rules and Regulations") of the Securities and Exchange
Commission (the "Commission") thereunder. Such registration
statement has been declared effective by the Commission.
Copies of such registration statement have been delivered to
the Underwriter. The term "Registration Statement" means the
registration statement as amended at the time it became
effective, including financial statements and all exhibits
thereto. The term "Prospectus" means the prospectus
constituting a part of the Registration Statement and any
amendments or supplements to such prospectus filed with the
Commission in connection with the proposed sale of the Notes
contemplated by this Agreement (the "Prospectus Supplement"),
through the date of such Prospectus Supplement; provided,
however, that if any revised prospectus or prospectus
supplement, including the Prospectus Supplement, shall be
provided to the Underwriter by the Company for use in
connection with the offering of the Notes that differs from the
Prospectus (whether or not such revised Prospectus or
Prospectus Supplement is required to be filed by the Company
with the Commission pursuant to Rule 424(b) of the Rules and
Regulations), the term "Prospectus" shall refer to such revised
Prospectus or Prospectus Supplement, as the case may be, from
and after the time it is first provided to the Underwriter for
such use. Any reference herein to the Registration Statement
or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12
of Form S-3 which were filed under the Securities Exchange Act
of 1934, as amended (the "Exchange Act") on or before the date
hereof or are so filed hereafter, but excluding the Statement
of Eligibility on Form T-1. Any reference herein to the terms
"amend," "amendment" or "supplement" with respect to the
Registration Statement or the Prospectus shall be deemed to
refer to and include any such document filed or to be filed
under the Exchange Act after the date of the Prospectus and
deemed to be incorporated therein by reference.
The Company and the Underwriter agree as follows:
1. Sale and Purchase: Upon the basis of the warranties and
representations and subject to the terms and conditions herein
set forth, the Company agrees to sell to the Underwriter, and
the Underwriter agrees to purchase from the Company, the
aggregate principal amount of Notes at a purchase price of
99.125% of the principal amount thereof, plus accrued interest,
if any, from December 11, 2001 to the time of purchase (as
hereinafter defined). The Company is advised by you that the
Underwriter intends (i) to make a public offering of the Notes
as soon as in your judgment is advisable and (ii) initially to
offer the Notes upon the terms set forth in the Prospectus.
You may from time to time increase or decrease the public
offering price after the initial public offering to such extent
as you may determine.
2. Payment and Delivery: Payment of the purchase price for
the Notes shall be made to the Company by Federal funds wire
transfer, against delivery of the certificates for the Notes to
you through the facilities of The Depository Trust Company
(DTC) for the account of the Underwriter. Such payment and
delivery shall be made at 10:00 A.M., New York City time, on
December 11, 2001 (unless another time not later than December
11, 2001 shall be agreed to by you and the Company). The time
at which such payment and delivery are actually made is
hereinafter sometimes called the time of purchase. The Notes
will be represented initially by a single global security
registered in the name of Cede & Co., as nominee for DTC, and
will be issued pursuant to the procedures maintained by DTC for
its book-entry system.
3. Representations and Warranties of the Company: The
Company represents and warrants to the Underwriter that:
a. the Registration Statement has been declared effective by
the Commission; the Registration Statement and the
Prospectus, upon the filing by the Company of the
Form 8-K (principally for the purpose of filing Exhibits
1.01, 4.02, 5.02 and 25.02), fully comply in all material
respect with the provisions of
the Act and the Trust Indenture Act of 1939, as amended (the
Trust Indenture Act), and the Registration Statement does not
contain an untrue statement of material fact or omit to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading, and the Prospectus
will not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; any
statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration
Statement have been so described or filed (provided, however,
that the Company makes no warranty or representation with
respect to any statement contained in the Registration
Statement or the Prospectus in reliance upon and in conformity
with information concerning the Underwriter and furnished in
writing by or on behalf of the Underwriter to the Company
expressly for use in the Registration Statement or the
Prospectus); the documents incorporated by reference in the
Prospectus, at the time they were filed with the Commission,
complied in all material respects with the requirements of the
Exchange Act, and do not contain an untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading; and the Company has not distributed any offering
material in connection with the offering or sale of the Notes
other than the Registration Statement, the Prospectus or any
other materials, if any, permitted by the Act;
b. all of the issued and outstanding shares of capital stock
of the Company are owned by American States Water Company
("American States"), have been duly and validly authorized and
issued and are fully paid and non-assessable, have been issued
in compliance with all federal and state securities laws and
were not issued in violation of any preemptive right, resale
right, right of first refusal or similar right; and the capital
stock of the Company conforms, in all material respects, to the
description thereof in the Registration Statement and the
Prospectus;
c. the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of
the State of California, with full corporate power and
authority to own, lease and operate its properties and conduct
its business as described in the Registration Statement and the
Prospectus;
d. the Company is duly qualified to do business as a foreign
corporation for the transaction of business under the laws of
each jurisdiction in which the consequence of a failure to
qualify, individually or in the aggregate, would have a
material adverse effect on the business of the Company, and
complete and correct copies of the articles of incorporation
and of the bylaws of the Company and all amendments thereto
have been filed or incorporated as an exhibit to the Company's
Annual Report on Form 10-K for the year ended December 31,
2000, and no changes therein will be made subsequent to the
date hereof and prior to the Closing Date;
e. the Company is not in breach of, or in default under (nor
has any event occurred which with notice, lapse of time, or
both would result in any breach of, or constitute a default
under) its articles of incorporation or by-laws and has
complied, in all respects material to the Company, with any
law, ordinance, administrative or governmental rule or
regulation applicable to the Company or any court or
governmental agency or body having jurisdiction over the
Company, and is not in default in any material respect in the
performance of any obligation, agreement or condition contained
in any material bond, indenture, mortgage, deed of trust, bank
loan or credit agreement or other evidence of indebtedness, or
any material lease, contract or other agreement or instrument
to which the Company is a party or by which its properties is
bound;
f. the Indenture has been duly authorized, executed and
delivered by the Company and, subject to the filing of the Form
8-K referred to in Section 3(a), duly qualified under the Trust
Indenture Act and constitutes a legal, valid and binding
agreement of the Company enforceable in accordance with its
terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors' rights generally and general
principles of equity;
g. the Notes have been duly authorized by the Company and,
when executed and delivered by the Company, will constitute
legal, valid and binding obligations of the Company enforceable
against the Company in accordance with their terms, except as
the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally and general principles
of equity;
h. this Agreement has been duly authorized, executed and
delivered by the Company and is a legal, valid and binding
agreement of the Company enforceable against the Company in
accordance with its terms except as rights to indemnity and
contribution hereunder may be limited by federal or state
securities laws, and except as limited by bankruptcy,
insolvency, reorganization, moratorium or other laws or
equitable principles;
i. the Notes and the Indenture conform in all material
respects to the descriptions thereof contained in the
Registration Statement and Prospectus;
j. neither the solicitation of offers to purchase the Notes,
the issue and sale of the Notes, nor the execution or
consummation by the Company of this Agreement or the Indenture
(i) requires any consent, approval, authorization or other
order of or registration or filing with, any court, regulatory
body, administrative agency or other governmental body, agency
or official on the part of the Company (except
(a) authorizations and orders of the California Public
Utilities Commission, which have been obtained, are in full
force and effect and are sufficient to authorize the
transactions contemplated hereby and (b) such as may be
required for compliance with the securities or Blue Sky laws of
various jurisdictions) or conflicts or will conflict with or
constitutes or will constitute a breach of, or a default under,
the articles of incorporation or bylaws of the Company or
(ii) conflicts or will conflict with or constitutes or will
constitute a breach of, or a default under, any agreement,
indenture, lease or other instrument to which the Company is a
party or by which it or any of its properties may be bound, or
violates or will violate any statute, law, regulation or filing
or judgment, injunction, order or decree applicable to the
Company or any its properties, or will result in the creation
or imposition of any lien, charge or encumbrance upon any
property or assets of the Company pursuant to the terms of any
agreement or instrument to which it is a party or by which it
may be bound or to which any of its property or assets is
subject;
k. the accountants, Xxxxxx Xxxxxxxx LLP, who have certified
or shall certify the financial statements included or
incorporated by reference in the Registration Statement and the
Prospectus (or any amendment or supplement thereto) are
independent public accountants as required by the Act;
l. the Company has such permits, licenses, franchises and
authorizations of governmental or regulatory authorities
("permits") as are necessary to own its properties and to
conduct its business, in all material respects, in the manner
described in the Prospectus, subject to such qualifications as
may be set forth in the Prospectus; the Company has fulfilled
and performed all its obligations with respect to such permits
where the failure to fulfill or perform would have a material
adverse effect on the business of the Company and has no
knowledge of the occurrence of any event which, pursuant to the
terms thereof, allows, or after notice or lapse of time would
allow, the early revocation or termination thereof or results
in any other material impairment of the rights of the holder of
any such permit, subject in each case to such qualification as
may be set forth in the Prospectus;
m. there are no legal or governmental proceedings pending or,
to the knowledge of the Company, threatened, against the
Company, or to which the Company or any of its properties is
subject, that are required to be described in the Registration
Statement or the Prospectus but are not described as required,
and there are no agreements, contracts, indentures, leases or
other instruments that are required to be described in the
Registration Statement or the Prospectus or to be filed as an
exhibit to the Registration Statement or any incorporation
document that are not described or filed as required by the Act
or the Exchange Act, as applicable, other than the exhibits to
be filed pursuant to the Form 8-K referred to in Section 3(a);
n. the financial statements included or incorporated by
reference in the Registration Statement and the Prospectus
present fairly the financial position of the Company as of the
dates indicated and the consolidated results of operations and
changes in financial position of the Company for the periods
specified on the basis stated in the Registration Statement;
such financial statements and related schedules and notes have
been prepared in conformity with generally accepted accounting
principles applied on a consistent basis during the periods
involved, except as disclosed therein; and the other financial
and statistical information and data included or incorporated
by reference in the Registration Statement and the Prospectus
(and any amendment or supplement thereto for use in connection
with the offering of the Notes) are accurately presented and to
the extent derived therefrom prepared on a basis consistent
with such financial statements and the books and records of the
Company;
o. except as disclosed in the Registration Statement and the
Prospectus, subsequent to the respective dates as of which
information is given in the Registration Statement and the
Prospectus, there has not been (i) any material adverse change,
or any development which, in the Company's reasonable judgment,
is likely to cause a material adverse change, in the business,
properties or assets described or referred to in the
Registration Statement, or the results of operations, condition
(financial or otherwise), business or operations of the Company
taken as a whole, (ii) any transaction which is material to the
Company, except transactions in the ordinary course of
business, (iii) any obligation, direct or contingent, which is
material to the Company taken as a whole, incurred by the
Company, except obligations incurred in the ordinary course of
business, or (iv) any change in the capital stock or any
material increase in the short-term or long-term debt of the
Company. The Company does not have any material contingent
obligation which is not disclosed in the Registration
Statement;
p. the Company has good and marketable title to all property
(real and personal) described in the Prospectus as being owned
by it, free and clear of all liens, claims, security interests
or other encumbrances except such as are described in the
Registration Statement and the Prospectus or in a document
filed as an exhibit to the Registration Statement and except
for liens, claims, security interests or other encumbrances
that would not, individually or in the aggregate, have a
material adverse effect on the business of the Company; and all
the property described in the Prospectus as being held under
lease by the Company is held by it under valid, subsisting and
enforceable leases except in any respect that would not,
individually or in the aggregate, have a material adverse
effect on the business of the Company;
q. no holder of any security of the Company has any right to
require registration of any security of the Company because of
the filing of the registration statement or consummation of the
transactions contemplated by the Agreement; and
r. American States has been granted an exemption by the
Commission from all of the provisions of the Public Utility
Holding Company Act of 1935 ("PUHCA") except Section 9(a)(2)
thereof.
4. Certain Covenants of the Company: The Company hereby
agrees:
a. to furnish such information as may be required and
otherwise to cooperate in qualifying the Notes for offering and
sale under the securities or blue sky laws of such states as
you may designate and to maintain such qualifications in effect
as long as required for the distribution of the Notes, provided
that the Company shall not be required to qualify as a foreign
corporation or to consent to the service of process under the
laws of any such state (except service of process with respect
to the offering and sale of the Notes); and to promptly advise
you of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Notes for
sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose;
b. to make available to the Underwriter in New York City, as
soon as practicable after the Registration Statement becomes
effective, and thereafter from time to time to furnish to the
Underwriter, as many copies of the Prospectus (or of the
Prospectus as amended or supplemented if the Company shall have
made any amendments or supplements thereto after the effective
date of the Registration Statement) as the Underwriter may
request for the purposes contemplated by the Act; in case the
Underwriter is required to deliver a prospectus within the
nine-month period referred to in Section 10(a)(3) of the Act
in connection with the sale of the Notes, the Company will
prepare promptly upon request, but at the expense of the
Underwriter, such amendment or amendments to the Registration
Statement and such prospectuses as may be necessary to permit
compliance with the requirements of Section 10(a)(3) of the
Act;
c. to advise you promptly, confirming such advice in writing,
of any request by the Commission for amendments or supplements
to the Registration Statement or Prospectus or for additional
information with respect thereto, or of notice of institution
of proceedings for or the entry of a stop order suspending the
effectiveness of the Registration Statement and, if the
Commission should enter a stop order suspending the
effectiveness of the Registration Statement, to make every
reasonable effort to obtain the lifting or removal of such
order as soon as possible; so long as the delivery of a
prospectus is required in connection with the offering or sale
of the Notes, to advise you promptly of any proposal to amend
or supplement the Registration Statement or Prospectus
including by filing any documents that would be incorporated
therein by reference and to file no such amendment or
supplement to which you shall object in writing;
d. to file promptly all reports and any definitive proxy or
information statement required to be filed by the Company with
the Commission in order to comply with the Exchange Act
subsequent to the date of the Prospectus and for so long as the
delivery of a prospectus is required in connection with the
offering or sale of the Notes, and to promptly notify you of
such filing;
e. to advise the Underwriter promptly of the happening of any
event known to the Company within the time during which a
Prospectus relating to the Notes is required to be delivered
under the Act which, in the judgment of the Company, would
require the making of any change in the Prospectus then being
used, or in the information incorporated therein by reference,
so that the Prospectus would not include an untrue statement of
a material fact or omit to state a material fact necessary to
make the statements therein, in light of the circumstances
under which they are made, not misleading, and, during such
time, to prepare and furnish, at the Company's expense, to the
Underwriter promptly such amendments or supplements to such
Prospectus as may be necessary to reflect any such change and
to furnish to you a copy of such proposed amendment or
supplement before filing any such amendment or supplement with
the Commission;
f. to make generally available to its security holders an
earnings statement of the Company (which will satisfy the
provisions of Section 11(a) of the Act) covering a period of
twelve months beginning after the effective date of the
Registration Statement (as defined in Rule 158(c) of the Act)
as soon as is reasonably practicable after the termination of
such twelve-month period;
g. to furnish to you two signed copies of the Registration
Statement, as initially filed with the Commission, and of all
amendments thereto (including all exhibits thereto and
documents incorporated by reference therein);
h. to apply the net proceeds from the sale of the Notes in
the manner set forth under the caption "Use of Proceeds" in the
Prospectus;
i. to pay all costs, expenses, fees and taxes (other than any
transfer taxes and fees and disbursements of counsel for the
Underwriter except as set forth under Section 5 hereof and
(iii), (iv) and (vi) below) in connection with (i) the
preparation and filing of the Registration Statement, each
preliminary prospectus, the Prospectus, and, except as
otherwise provided in Section 4(b), any amendments or
supplements thereto, and the printing and furnishing of copies
of each thereof to the Underwriter (including costs of mailing
and shipment), (ii) the preparation, issuance, execution,
authentication and delivery of the Notes, (iii) the
qualification of the Notes for offering and sale under state
laws and the determination of their eligibility for investment
under state law as aforesaid (including the legal fees (not to
exceed $7,500) and filing fees and other disbursements of
counsel for the Underwriter) and the printing and furnishing of
copies of any blue sky surveys to the Underwriter, (iv) any
fees payable to investment rating agencies with respect to the
Notes, (v) any filing for review of the public offering of the
Notes by the NASD, and (vi) the performance of the Company's
other obligations hereunder;
j. to furnish to you, before filing with the Commission
during the period referred to in paragraph (e) above, a copy of
any document proposed to be filed pursuant to Section 13, 14 or
15(d) of the Exchange Act.
5. Reimbursement of Underwriter's Expenses: If the Notes are
not delivered for any reason other than the default by the
Underwriter in its obligations hereunder, the Company shall, in
addition to paying the amounts described in Section 4(j)
hereof, reimburse the Underwriter for all of its out-of-pocket
expenses, including the fees and disbursements of its counsel.
6. Conditions of Underwriter's Obligations: The obligations
of the Underwriter hereunder are subject to the accuracy of the
representations and warranties on the part of the Company on
the date hereof and at the time of purchase, the performance by
the Company of its obligations hereunder and to the following
additional conditions precedent:
a. The Company shall furnish to you at the time of purchase
an opinion of O'Melveny & Xxxxx LLP, counsel for the
Company, addressed to the Underwriter and dated the time
of purchase and in form reasonably satisfactory to Xxxxxx
Xxxxxx & Xxxxxxx, counsel for the Underwriter, stating that:
(1) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the
laws of the State of California, with full corporate
power and corporate authority to own, its properties
and to conduct its business as now being conducted as
described in the Registration Statement and the
Prospectus, including the corporate power to function
as a water and electric utility in the State of
California, and to issue, sell and deliver the
Notes as herein contemplated;
(2) the execution, delivery and performance of this
Agreement have been duly authorized by all necessary
corporate action on the part of the Company, and this
Agreement has been duly executed and delivered by the
Company;
(3) the Indenture has been duly authorized by all
necessary corporate action on the part of the Company;
the Indenture has been duly executed and delivered by
the Company and, assuming due authorization, execution
and delivery by the Trustee, constitutes the legally
valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms,
except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting
creditors' rights generally (including, without
limitation, fraudulent conveyance laws) and by general
principles of equity, including, without limitation,
concepts of materiality, reasonableness, good faith and
fair dealing and the possible unavailability of
specific performance or injunctive relief, regardless
of whether considered in a proceeding in equity or
at law;
(4) the Notes have been duly authorized by all necessary
corporate action on the part of the Company and, when
duly executed, and authenticated by the Trustee in
accordance with the Indenture and upon payment for
and delivery thereof in accordance with the terms of
this Agreement, will be legally valid and binding
obligations of the Company, enforceable against the
Company in accordance with their terms, except as
may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors'
rights generally (including, without limitation,
fraudulent conveyance laws) and by general
principles of equity including without limitation,
concepts of materiality, reasonableness, good faith
and fair dealing and the possible unavailability of
specific performance or injunctive relief, regardless
of whether considered in a proceeding in equity or at
law;
(5) the Registration Statement has been declared effective
under the Act and, to such counsel's knowledge, no stop
order suspending the effectiveness of the Registration
Statement has been issued or threatened by the
Commission; and any required filing of the Prospectus
and any supplement thereto pursuant to Rule 424 under
the Act has been made in the manner and within
the time period required by such Rule 424;
(6) no order, consent, permit or approval of any California
or federal governmental authority is required on the
part of the Company for the issuance and sale of the
Notes as contemplated by this Agreement except (a) such
as have been obtained under the Act and the Trust
Indenture Act, (b) the authorization of the California
Public Utilities Commission, which remains in
full force and effect, and, to the best of our
knowledge is not the subject of any pending or
threatened application for rehearing or petition for
modification, and (c) such as may be required under
applicable Blue Sky or state securities laws;
(7) the Company's execution and delivery of the Notes, this
Agreement and the Indenture and the issuance and sale
of the Notes by the Company hereunder as contemplated
by the Prospectus and this Agreement do not, (a)
violate, breach, or result in a default (or an event
which with notice or lapse of time or both would
constitute a default or event of acceleration) under
any existing obligation of the Company under any
material agreement or instrument known to such
counsel and to which the Company is a party or to
which any of the properties or assets of the Company
is subject, (b) breach or otherwise violate any
existing obligation of the Company under any order,
judgment or decree of any California or federal
court or governmental authority binding on the
Company and known to such counsel, or (c) violate any
California or federal statute or regulation that such
counsel has, in the exercise of customary professional
diligence, recognized as directly applicable to the
Company or to transactions of the type contemplated
by the Notes, the Indenture or this Agreement, except
that such counsel need not express an opinion
regarding any Blue Sky or state securities laws and,
further, such counsel's opinion may be subject to
public considerations, statutes or court decisions
that may limit the rights of a party to obtain
indemnification or contribution for violations of
state or Federal securities laws, or (d) violate the
Company's articles of incorporation or bylaws; such
counsel shall not be required to express any opinion
as to the effect of the Company's performance of its
obligations under this Agreement on the Company's
compliance with the financial covenants in the Other
Agreements;
(8) to such counsel's knowledge, there are no contracts, or
documents which are required by the Act to be described
in the Registration Statement or Prospectus, to be
incorporated by reference therein, or to be filed as
exhibits to the Registration Statement, which are not
described, incorporated or filed as or to the extent
required;
(9) except for the matters disclosed in, or incorporated by
reference into, the Registration Statement, to such
counsel's knowledge, there are no actions, suits,
investigations or proceedings pending or threatened
against the Company in any court or by or before any
arbitrator or governmental authority or agency which
are required by the Act to be disclosed therein;
(10) the Indenture has been duly qualified under the Trust
Indenture Act;
(11) the documents incorporated by reference in the
Prospectus as of the date the Prospectus was filed with
the Commission (other than the financial statements and
schedules and other financial and statistical data
contained therein or incorporated by reference therein,
as to which no opinion is expressed), on the respective
dates on which they were filed, appeared on their face
to comply in all material respects with the
requirements as to form for reports on Form 10-K,
Form 10-Q and Form 8-K, as the case may be, under the
Exchange Act and the related rules and regulations in
effect at the respective dates of their filing;
(12) the statements in the Prospectus under the captions
Description of Debt Securities and Description of
Notes, insofar as they summarize provisions of the
Indenture or the Notes, fairly present the information
required by Form S-3 and the Trust Indenture Act; and
(13) such counsel may state that in connection with its
participation in the preparation of the Registration
Statement and the Prospectus, such counsel has not
independently verified the accuracy, completeness or
fairness of the statements contained or incorporated
therein, and the limitations inherent in the
examination made by such counsel and the knowledge
available to such counsel are such that such counsel is
unable to assume, and does not assume, any
responsibility for the accuracy, completeness or
fairness of the statements contained or incorporated in
the Registration Statement, the Prospectus or the
incorporated documents (except as otherwise
specifically stated in clause (xii) above). Such
counsel also shall state that, however, on the basis of
such counsel's review of the Registration Statement,
the Prospectus and the incorporated documents and its
participation in conferences in connection with the
preparation of the Registration Statement and the
Prospectus and relying as to materiality to the extent
they deem appropriate upon opinions of officers and
other representatives of the Company, such counsel does
not believe that the Registration Statement, on the
date it was declared effective, contained any 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, and that such counsel does not believe
that the Prospectus and the documents incorporated
therein, considered as a whole on the date of the
Prospectus and at the time of purchase, contained
any 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,
in light of the circumstances under which they were
made, not misleading. Such counsel need express no
opinion or belief as to any document filed by the
Company under the Exchange Act, whether prior or
subsequent to the effective date of the Registration
Statement, except to the extent that any such document
is an incorporated document read together with the
Registration Statement or the Prospectus and
considered as a whole, nor any opinion or belief as
to the financial statements and other financial
statistical information included or incorporated by
reference in the Registration Statement, the
Prospectus or the incorporated documents.
Such counsel shall also state that, subject to the
foregoing, they also advise the Underwriter, that, in such
counsel's opinion, the Registration Statement and the
Prospectus (except for the financial statements and other
financial information included or incorporated by reference
therein, as to which such counsel shall express no opinion) as
of the effective date of the Registration Statement and as of
the date the Prospectus with respect to a sale of the Notes,
appeared on their face to comply in all material respects with
the requirements as to form for registration statements on Form
S-3 under the Act and the Trust Indenture Act and the related
rules and regulations in effect at the date of filing.
Such counsel's opinion shall be rendered in respect
of the laws of the State of California and the federal law of
the United States. Such counsel's opinion further may be
limited to laws recognized by such counsel, through its
representation of the Company, as being applicable to the
Company and to the issuance and public sale of securities. For
purposes of the limitation in clauses (vi), (vii), (viii), (ix)
and (xiii) above, such counsel's knowledge may be limited to
the knowledge obtained by them in connection with matters to
which they have given substantive attention as counsel for the
Company.
b. You shall have received from Xxxxxx Xxxxxxxx LLP a
letter dated as of the time of purchase and addressed
to the Underwriter in customary form and in substance
reasonably satisfactory to you.
c. You shall have received at the time of purchase, the
favorable opinion of Xxxxxx Xxxxxx & Xxxxxxx, counsel
for the Underwriters, dated the time of purchase, as
to the matters as you may reasonably request, and
such counsel shall have received such papers and
information as they may reasonable request to enable
them to pass upon such matters.
d. The Prospectus shall have been filed with the
Commission pursuant to Rule 424(b) under the Act,
not later than 5:00 P.M., New York City time, on the
second full business day after the date of this
Agreement; provided, however, that the Company
and you may from time to time agree on a later date.
e. Prior to the time of purchase, (i) no stop order with
respect to the effectiveness of the Registration
Statement shall have been issued under the Act or
proceedings initiated under Section 8(d) or 8(e) of
the Act; (ii) the Registration Statement and all
amendments thereto, or modifications thereof, if any,
shall not contain an untrue statement of a material
fact or omit to state a material fact required to be
stated therein or necessary to make the statements
therein not misleading; and (iii) the Prospectus and
all amendments or supplements thereto, or modifications
thereof, if any, shall not contain an untrue statement
of material fact or omit to state a material fact
required to be stated therein or necessary to make the
statements therein, in the light of the circumstances
under which they are made, not misleading.
f. Between the time of execution of this Agreement and the
time of purchase (i) no material and unfavorable change,
financial or otherwise (other than as referred to in the
Registration Statement and Prospectus), in the business,
condition or prospects of the Company taken as a whole shall
occur or become known and (ii) no transaction which is
material and unfavorable to the Company shall have been
entered into by American States or the Company.
g. The Company will, at the time of purchase, deliver to you
a certificate of two of its executive officers to the
effect that the representations and warranties of the
Company set forth in this Agreement are true and correct
as of such date, that the Company shall perform such of
its obligations under this Agreement as are to be performed
at or before the time of purchase and the conditions set
forth in paragraphs (e) and (f) of this Section 6 have been
met.
h. The Company shall have furnished to you such other
documents and certificates as to the accuracy and
completeness of any statement in the Registration Statement
and the Prospectus as of the time of purchase as you may
reasonably request.
i. Between the time of execution of this Agreement and the
time of purchase, there shall not have occurred any
downgrading, nor shall any notice or announcement have been
given or made of (i) any intended or potential downgrading
or (ii) any review or possible change that does not indicate
an improvement, in the rating accorded any securities of or
guaranteed by the Company by any "nationally recognized
statistical rating organization," as that term is defined in
Rule 436(g)(2) under the Act.
j. Other than the filing of the Form 8-K referred to in
Section 3(a) and the filing of the Prospectus pursuant to
Rule 424(b), no amendment or supplement to the Registration
Statement or Prospectus, including documents deemed to be
incorporated by reference therein, shall be filed during the
period referred to in Section 4(f) to which you object in
writing.
k. Prior to the time of purchase, the Company shall have
filed with the Commission the Form 8-K referred to in
Section 3(a).
7. Termination: The obligations of the Underwriter hereunder
shall be subject to termination in the absolute discretion of
you if, since the time of execution of this Agreement or the
respective dates as of which information is given in the
Registration Statement and Prospectus, (x) there has been any
material adverse and unfavorable change, financial or otherwise
(other than as referred to in the Registration Statement and
Prospectus), in the operations, business, condition or
prospects of the Company taken as a whole, which would, in your
judgment, make it impracticable to market the Notes, or (y)
there shall have occurred any downgrading, or any notice shall
have been given of (i) any intended or potential downgrading or
(ii) any review or possible change that does not indicate an
improvement, in the rating accorded any securities of or
guaranteed by the Company by any "nationally recognized
statistical rating organization," as that term is defined in
Rule 436(g)(2) under the Act or, if, at any time prior to the
time of purchase, trading in securities on the New York Stock
Exchange, the American Stock Exchange or the Nasdaq National
Market shall have been suspended or limitations or minimum
prices shall have been established on the New York Stock
Exchange, the American Stock Exchange or the Nasdaq National
Market, or if a banking moratorium shall have been declared
either by the United States or New York State authorities, or
if the United States shall have declared war in accordance with
its constitutional processes or there shall have occurred any
material outbreak or escalation of hostilities or other
national or international calamity or crisis (including any
terrorist action) of such magnitude in its effect on the
financial markets of the United States as, in your judgment, to
make it impracticable to market the Notes.
If you elect to terminate this Agreement as provided
in this Section 7, the Company shall be notified promptly by
letter or telegram.
If the sale to the Underwriter of the Notes, as
contemplated by this Agreement, is not carried out by the
Underwriter for any reason permitted under this Agreement or if
such sale is not carried out because the Company shall be
unable to comply with any of the terms of this Agreement, the
Company shall not be under any obligation or liability under
this Agreement (except to the extent provided in Sections 4(j),
5 and 8 hereof), and the Underwriter shall be under no
obligation or liability to the Company under this Agreement
(except to the extent provided in Section 8 hereof).
8. Indemnity and Contribution:
a. The Company agrees to indemnify, defend and hold harmless
the Underwriter, its partners, directors and officers, and any
person who controls the Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, and
the successors and assigns of all the foregoing persons from
and against any loss, damage, expense, liability or claim
(including the reasonable cost of investigation) which, jointly
or severally, such Underwriter or person may incur under the
Act, the Exchange Act, the common law or otherwise, insofar as
such loss, damage, expense, liability or claim arises out of or
is based upon any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement (or
in the Registration Statement as amended by any post-effective
amendment thereof by the Company filed during the period
referred to in Section 4(f)) or in a Prospectus (the term
"Prospectus" for the purpose of this Section 8 being deemed
filed during the period referred to in Section 4(f) to include
any preliminary prospectus, the Prospectus and the Prospectus
as amended or supplemented by the Company during the period
referred to in Section 4(f)), or arises out of or is based upon
any omission or alleged omission to state a material fact
required to be stated in either such Registration Statement or
Prospectus or necessary to make the statements made therein not
misleading, except insofar as any such loss, damage, expense,
liability or claim arises out of or is based upon any untrue
statement or alleged untrue statement of a material fact
contained in and in conformity with information furnished in
writing by or on behalf of the Underwriter to the Company
expressly for use with reference to the Underwriter in such
Registration Statement or such Prospectus or arises out of or
is based upon any omission or alleged omission to state a
material fact in connection with such information required to
be stated in such Registration Statement or Prospectus or
necessary to make such information not misleading.
If any action, suit or proceeding (together, a
"Proceeding") is brought against the Underwriter or any such
person in respect of which indemnity may be sought against the
Company pursuant to the foregoing paragraph, such Underwriter
or person shall promptly notify the Company in writing of the
institution of such Proceeding and the Company shall assume the
defense of such Proceeding, including the employment of counsel
reasonably satisfactory to such indemnified party and payment
of all fees and expenses, provided, however, that the omission
to so notify the Company shall not relieve the Company from any
liability which the Company may have to the Underwriter or any
such person or otherwise. Such Underwriter or controlling
person shall have the right to employ its or their own counsel
in any such case, but the fees and expenses of such counsel
shall be at the expense of such Underwriter or controlling
person unless the employment of such counsel shall have been
authorized in writing by the Company in connection with the
defense of such Proceeding or the Company shall not have,
within a reasonable period of time in light of the
circumstances, employed counsel to have charge of the defense
of such Proceeding or such indemnified party or parties shall
have reasonably concluded that there may be defenses available
to it or them which are different from, additional to or in
competition with those available to the Company (in which case
the Company shall not have the right to direct the defense of
such Proceeding on behalf of the indemnified party or parties),
in any of which events such reasonable fees and expenses shall
be borne by the Company and paid as incurred (it being
understood, however, that the Company shall not be liable for
the expenses of more than one separate counsel (in addition to
any local counsel) in any one Proceeding or series of related
Proceedings in the same jurisdiction representing the
indemnified parties who are parties to such Proceeding). The
Company shall not be liable for any settlement of any such
claim or Proceeding effected without its written consent but if
settled with the written consent of the Company, the Company
agrees to indemnify and hold harmless the Underwriter and any
such person from and against any loss or liability by reason of
such settlement. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any
settlement of any pending or threatened Proceeding in respect
of which any indemnified party is or could have been a party
and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all
liability on claims that are the subject matter of such
Proceeding and does not include an admission of fault,
culpability or a failure to act, by or on behalf of such
indemnified party.
b. The Underwriter agrees to indemnify, defend and hold
harmless the Company, its directors and officers and any person
who controls the Company within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act, and the successors
and assigns of all the foregoing persons from and against any
loss, damage, expense, liability or claim (including the
reasonable cost of investigation) which, jointly or severally,
the Company or any such person may incur under the Act, the
Exchange Act, the common law or otherwise, insofar as such
loss, damage, expense, liability or claim arises out of or is
based upon any untrue statement or alleged untrue statement of
a material fact contained in and in conformity with information
furnished in writing by or on behalf of the Underwriter to the
Company expressly for use with reference to the Underwriter in
the Registration Statement (or in the Registration Statement as
amended by any post-effective amendment thereof by the Company
filed during the period referred to in Section 4(f)) or in a
Prospectus, or arises out of or is based upon any omission or
alleged omission to state a material fact in connection with
such information required to be stated in such Registration
Statement or such Prospectus or necessary to make such
information not misleading.
If any Proceeding is brought against the Company or
any such person in respect of which indemnity may be sought
against the Underwriter pursuant to the foregoing paragraph,
the Company or such person shall promptly notify the
Underwriter in writing of the institution of such Proceeding
and the Underwriter shall assume the defense of such
Proceeding, including the employment of counsel reasonably
satisfactory to such indemnified party and payment of all fees
and expenses; provided, however, that the omission to so notify
the Underwriter shall not relieve the Underwriter, from any
liability which the Underwriter may have to the Company or any
such person or otherwise. The Company or such person shall
have the right to employ its own counsel in any such case, but
the fees and expenses of such counsel shall be at the expense
of the Company or such person unless the employment of such
counsel shall have been authorized in writing by the
Underwriter in connection with the defense of such Proceeding
or the Underwriter shall not have, within a reasonable period
of time in light of the circumstances, employed counsel to have
charge of the defense of such Proceeding or such indemnified
party or parties shall have reasonably concluded that there may
be defenses available to it or them which are different from or
additional to or in conflict with those available to the
Underwriter (in which case the Underwriter shall not have the
right to direct the defense of such Proceeding on behalf of the
indemnified party or parties, but the Underwriter may employ
counsel and participate in the defense thereof but the fees and
expenses of such counsel shall be at the expense of the
Underwriter), in any of which events such reasonable fees and
expenses shall be borne by the Underwriter and paid as incurred
(it being understood, however, that the Underwriter shall not
be liable for the expenses of more than one separate counsel in
addition to any local counsel in any one Proceeding or series
of related Proceedings in the same jurisdiction representing
the indemnified parties who are parties to such Proceeding).
Anything in this paragraph to the contrary notwithstanding, the
Underwriter shall not be liable for any settlement of any such
Proceeding effected without the written consent of the
Underwriter but if settled with the written consent of the
Underwriter, the Underwriter agrees to indemnify and hold
harmless the Company and any such person from and against any
loss or liability by reason of such settlement. No
indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or
threatened Proceeding in respect of which any indemnified party
is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such
indemnified party from all liability on claims that are the
subject matter of such Proceeding.
c. If the indemnification provided for in this Section 8
is unavailable to an indemnified party under subsections (a) and
(b) of this Section 8 in respect of any losses, damages,
expenses, liabilities or claims referred to therein, then each
applicable indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses,
damages, expenses, liabilities or claims (i) in such proportion
as is appropriate to reflect the relative benefits received by
the Company on the one hand and the Underwriter on the other
hand from the offering of the Notes or (ii) if the allocation
provided by clause (i) above 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
Underwriter on the other in connection with the statements or
omissions which resulted in such losses, damages, expenses,
liabilities or claims, as well as any other relevant equitable
considerations. The relative benefits received by the Company
on the one hand and the Underwriter on the other shall be
deemed to be in the same respective proportion as the total
proceeds from the offering (net of underwriting discounts and
commissions but before deducting expenses) received by the
Company and the underwriting discounts and commissions received
by the Underwriter. The relative fault of the Company on the
one hand and of the Underwriters on the other shall be
determined by reference to, among other things, whether the
untrue statement or alleged untrue statement of a material fact
or omission or alleged omission relates to information supplied
by the Company or by the Underwriter and the parties' relative
intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The amount paid
or payable by a party as a result of the losses, claims,
damages and liabilities referred to in this subsection shall be
deemed to include any legal or other fees or expenses
reasonably incurred by such party in connection with
investigating, preparing to defend or defending any Proceeding.
d. The Company and the Underwriter agree that it would not be
just and equitable if contribution pursuant to this Section 8
were determined by pro rata allocation or by any other method
of allocation that does not take account of the equitable
considerations referred to in subsection (c) above.
Notwithstanding the provisions of this Section 8, the
Underwriter shall not be required to contribute any amount in
excess of the amount by which the total price at which the
Notes underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damage which
the Underwriter has otherwise been required to pay by reason of
such untrue statement or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
e. The indemnity and contribution agreements contained in
this Section 8 and the covenants, warranties and
representations of the Company contained in this Agreement
shall remain in full force and effect regardless of any
investigation made by or on behalf of the Underwriter, its
partners, directors and officers or any person (including each
partner, officer or director of such person) who controls the
Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, or by or on behalf of the
Company, its directors and officers or any person who controls
the Company within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, and shall survive any
termination of this Agreement or the issuance and delivery of
the Notes. The Company and the Underwriter agree promptly to
notify each other of the commencement of any Proceeding against
it and, in the case of the Company, against any of the
Company's officers or directors, in connection with the
issuance and sale of the Notes, or in connection with the
Registration Statement or Prospectus.
9. Notices: Except as otherwise herein provided, all
statements, requests, notices and agreements shall be in
writing or by telegram and, if to the Underwriter, shall be
sufficient in all respects if delivered or sent to UBS Warburg
LLC, 000 Xxxxxxxxxx Xxxxxxxxx, Xxxxxxxx, XX 00000, Attention:
Syndicate Department and, if to the Company, shall be
sufficient in all respects if delivered to the Company at the
offices of the Company at 000 Xxxx Xxxxxxxx Xxxxxxxxx Xxx
Xxxxx, Xxxxxxxxxx 00000, Attention: Chief Financial Officer.
10. Governing Law; Construction: This Agreement and any
claim, counterclaim or dispute of any kind or nature whatsoever
arising out of or in any way relating to this Agreement
("Claim"), directly or indirectly, shall be governed by, and
construed in accordance with, the laws of the State of New
York. The Section headings in this Agreement have been
inserted as a matter of convenience of reference and are not a
part of this Agreement.
11. Submission to Jurisdiction: Except as set forth below, no
Claim may be commenced, prosecuted or continued in any court
other than the courts of the State of New York located in the
City and County of New York or in the United States District
Court for the Southern District of New York, which courts shall
have jurisdiction over the adjudication of such matters, and
the Company consents to the jurisdiction of such courts and
personal service with respect thereto. The Company hereby
consents to personal jurisdiction, service and venue in any
court in which any Claim arising out of or in any way relating
to this Agreement is brought by any third party against UBS
Warburg LLC or any indemnified party. Each of UBS Warburg LLC
and the Company (on its behalf and, to the extent permitted by
applicable law, on behalf of its stockholders and affiliates)
waives all right to trial by jury in any action, proceeding or
counterclaim (whether based upon contract, tort or otherwise)
in any way arising out of or relating to this Agreement. The
Company agrees that a final judgment in any such action,
proceeding or counterclaim brought in any such court shall be
conclusive and binding upon the Company and may be enforced in
any other courts in the jurisdiction of which the Company is or
may be subject, by suit upon such judgment.
12. Parties at Interest: The Agreement herein set forth has
been and is made solely for the benefit of the Underwriter and
the Company to the extent provided in Section 8 hereof and the
controlling persons, directors and officers referred to in such
section, and their respective successors, assigns, executors
and administrators. No other person, partnership, heirs,
personal representatives and association or corporation
(including a purchaser, as such purchaser, from the
Underwriters) shall acquire or have any right under or by
virtue of this Agreement.
13. Counterparts: This Agreement may be signed by the parties
in one or more counterparts which together shall constitute one
and the same agreement among the parties.
14. Successors and Assigns: This Agreement shall be binding
upon the Underwriter and the Company and their successors and
assigns and any successor or assign of any substantial portion
of the Company's and any of the Underwriter's respective
businesses and/or assets.
If the foregoing correctly sets forth the understanding
between the Company and the Underwriter, please so indicate in
the space provided below for the purpose, whereupon this letter
and your acceptance shall constitute a binding agreement between
the Company and the Underwriter.
Very truly yours,
SOUTHERN CALIFORNIA WATER COMPANY
By: /s/ XxXxxxxxx Xxxxxx III
---------------------------
Title: CFO, VP-Finance,
Treasurer & Secretary
Accepted and agreed to as of
the date first above written,
on behalf of itself
UBS WARBURG LLC
By: /s/ Xxxxxxx Xxxxxxx
----------------------------
Title: Director
By: /s/ Xxxx X. Xxxxx
----------------------------
Title: Executive Director
