Item 1. Business.
General
CE Casecnan Water and Energy Company, Inc. (the “Company” or “CE Casecnan”) is a privately held Philippine corporation formed indirectly by MidAmerican Energy Holdings Company (“MidAmerican”) in September 1994 solely to develop, construct, own and operate a multi-purpose irrigation and hydroelectric power facility with a rated capacity of approximately 150 megawatts (the “Casecnan Project”) located on the island of Luzon in the Republic of the Philippines (the “ROP”).
CE Casecnan’s outstanding debt securities are recourse only to the Company. MidAmerican has not guaranteed directly or indirectly the payment or performance of any Company obligations.
The Company’s principal executive office is located at 24th Floor, 6750 Building, Ayala Avenue, Makati City, Metro Manila, Philippines, and its telephone number is 63 2 892-0276. The Company’s principal operations office is located at Pantabangan in the Province of Nueva Ecija, Philippines.
In this Annual Report, references to “U.S. dollars,” “dollars,” or “$” are to the currency of the United States and references to “pesos” are to the currency of the Philippines. References to kW means kilowatts, MW means megawatts, GW means gigawatts, kWh means kilowatt hours, MWh means megawatt hours, and GWh means gigawatt hours.
The Casecnan Project
The Casecnan Project is located in the central part of the island of Luzon. It consists generally of diversion structures in the Casecnan and Taan rivers that capture and divert excess water in the Casecnan watershed by means of concrete, in-stream diversion weirs, and transfer that water through a transbasin tunnel of approximately 23 kilometers in length. During the water transfer, the elevation differences between the two watersheds allows electrical energy to be generated by an approximately 150 MW rated capacity power plant, which is located in an underground powerhouse cavern at the end of the water tunnel. A tailrace discharge tunnel then delivers water to the existing water storage reservoir at Pantabangan, providing additional water for irrigation and increasing the potential electrical generation at two downstream hydroelectric facilities owned by the Philippine National Power Corporation (“NPC”), the government-owned and controlled corporation that is the primary supplier of electricity in the Philippines. Once in the reservoir at Pantabangan, the water is under the control of the Philippine National Irrigation Administration (“NIA”).
The Company has a contract with the ROP, through NIA (a ROP-owned and controlled corporation), for the development and construction of a hydroelectric power plant and related facilities under a build-own-operate-transfer agreement (“Project Agreement”), as amended by the Supplemental Agreement dated September 29, 2003 (the “Supplemental Agreement”), covering a 20-year cooperation period (“Cooperation Period”) with “take-or-pay” obligations for water and electricity. At the end of the Cooperation Period, the Casecnan Project will be transferred to the ROP at no cost on an “as is” basis. The ROP also signed a Performance Undertaking, which, among others, affirms and guarantees the obligations of NIA under the Project Agreement.
The Performance Undertaking also provides for the resolution of disputes by binding arbitration in Singapore under international arbitration rules. Construction of the Casecnan Project commenced in 1995. CE Casecnan is registered with the Philippine Board of Investments as a new operator of hydroelectric power plant with pioneer status under the Omnibus Investments Code of 1987. Under the terms of its registration, CE Casecnan is entitled to certain incentives which include an income tax holiday for six years from the start of commercial operations. The Casecnan Project Cooperation Period began upon commencement of commercial operations on December 11, 2001. The income tax holiday will expire on December 11, 2007.
Upon the occurrence and during the continuance of certain force majeure events, including those associated with Philippine political action, NIA may be obligated to buy the Casecnan Project from CE Casecnan at a buyout price expected to be in excess of the aggregate principal amount of the outstanding CE Casecnan debt securities, together with accrued but unpaid interest.
CE Casecnan financed a portion of the costs of the Casecnan Project through the issuance of $125.0 million of its 11.45% Senior Secured Series A Notes due 2005 (the “Series A Notes”), $171.5 million of its 11.95% Senior Secured Series B Bonds due 2010 (the “Series B Bonds”) and $75.0 million of its Senior Secured Floating Rate Notes due 2002 (“FRNs”), pursuant to an indenture dated November 27, 1995 (as amended to date, the “Trust Indenture”). During 2002 and 2005, the Company repaid all amounts due under the FRNs and Series A Notes, respectively. At December 31, 2006, the CE Casecnan Series B Bonds were rated BB- with stable outlook by Standard and Poor’s and B2 with stable outlook by Moody’s.
Concentration of Risk
NIA’s payments of obligations under the Project Agreement are substantially denominated in U.S. Dollars and are the Company’s sole source of operating revenue. Because of the Company’s dependence on NIA, any material failure of NIA to fulfill its obligations under the Project Agreement and any material failure of the ROP to fulfill its obligations under the Performance Undertaking would significantly impair the ability of the Company to meet its existing and future obligations. No stockholders, partners or affiliates of the Company, including MidAmerican, and no directors, officers or employees of the Company have guaranteed or will be in any way liable for payment of the Company’s obligations. As a result, payment of the Company’s obligations depends upon the availability of sufficient revenue from the Company’s business after the payment of operating expenses.
Insurance
The Company maintains insurance with respect to the Casecnan Project of a type and in such amounts as are generally carried by companies engaged in similar businesses and owning similar projects that are financed in a similar manner. This coverage includes casualty insurance, including flood and earthquake coverage, business interruption insurance, primary and excess liability insurance, automobile insurance and workers compensation insurance. The proceeds of such insurance may not be adequate to cover reduced revenue, increased expenses or other liabilities arising from the occurrence of catastrophic events. There can be no assurance that such insurance coverage will be available in the future at commercially reasonable rates or that the amounts for which the Company is insured will cover all losses. Nevertheless, the Company will not reduce or cancel the coverage if the insurance consultant determines it is not reasonable to do so and insurance is available on commercially reasonable terms.
Regulatory and Legislative Matters
The Philippine Congress has passed the Electric Power Industry Reform Act of 2001 (“EPIRA”), which is aimed at restructuring the Philippine power industry, privatizing the NPC and introducing a competitive electricity market, among other initiatives. The implementation of EPIRA may have an impact on the Company’s future operations in the Philippines and the Philippine power industry as a whole, the effect of which is not yet determinable or estimable as the changes resulting from EPIRA are ongoing.
On May 24, 2005, President Arroyo signed an amended tax law to raise the corporate income tax rate from 32% to 35% through 2008 (reducing to 30% thereafter) and impose value-added tax of 10% (12% effective February 1, 2006) on certain goods and services. The law and the Project Agreement permit CE Casecnan to invoice NIA for value-added tax on water delivery fees and, if electricity generated from hydro-electric power were to become subject to value-added tax, on energy delivery fees as well. Implementation of the tax law was deferred until legal challenges were resolved. On October 18, 2005, the Philippine Supreme Court upheld the constitutionality of the tax law and implementation became effective November 1, 2005. The tax law did not have a material adverse impact on the Casecnan Project.
On January 27, 2006, CE Casecnan received from the Province of Nueva Vizcaya a franchise tax assessment for the years 2001 to 2004 totaling $1.6 million. On April 25, 2006, CE Casecnan filed an appeal with the Regional Trial Court of Nueva Vizcaya. CE Casecnan believes that franchise tax is a tax imposed on companies which have a secondary or special franchise from the government. CE Casecnan does not have a government franchise. The EPIRA provides that power generation is not a public utility operation and does not require a franchise. On March 30, 2006, CE Casecnan received from the Province of Nueva Vizcaya a franchise tax assessment for the year 2005 totaling $0.3 million. CE Casecnan filed a protest with the treasurer of the Province of Nueva Vizcaya on April 5, 2006. On June 30, 2006, CE Casecnan filed an appeal to the Regional Trial Court of Nueva Vizcaya after the province failed to act on the protest within the period required by law. CE Casecnan moved to consolidate the two cases, which was granted by the court. The consolidated cases are set for pre-trial on March 16 and April 27, 2007. On January 19, 2007, CE Casecnan received from the Province of Nueva Vizcaya a franchise tax assessment for the year 2006 totaling $0.3 million. CE Casecnan will file a protest with the provincial treasurer of the Province of Nueva Vizcaya not later than March 20, 2007.
Employees
At December 31, 2006, the Company had 43 full-time employees.
Item 1A.
Item 1A. Risk Factors.
The Company is subject to numerous business, operating, environmental, political and other risks. The Company’s operations may be significantly affected by these or other factors that are beyond the Company’s control, any of which could materially affect the Company’s financial position, results of operations or cash flows.
The Company is dependent upon a single customer for substantially all of its operating revenue.
NIA’s payment obligations under the Project Agreement are the Company’s sole source of operating revenue. Any material failure of NIA to fulfill its obligations under the Project Agreement and any material failure of the ROP to fulfill its obligations under the Performance Undertaking would materially adversely affect the Company’s financial condition, results of operations and cash flows.
Company assets are subject to significant operating uncertainties.
The Casecnan Project is a complex infrastructure project and power plant. Operation of the Casecnan Project may be adversely affected by a variety of operating factors and is subject to uncertainties, including the breakdown or failure of equipment or processes or the performance of equipment at levels below those originally demonstrated, whether due to ordinary wear and tear, unexpected degradation or other events. Any of the foregoing could increase the cost of operating the Casecnan Project or require substantial capital expenditures, thereby adversely affecting the Company’s financial condition, results of operations and cash flows.
Variability in rainfall and water flows have a significant impact on Company operating revenue.
A significant portion of the Casecnan Project’s revenue is required to be paid by NIA without regard to actual water flows. However, since commencing commercial operations, approximately 21% of the Casecnan Project’s revenue has been variable energy fees that are dependent upon water flow volumes. No assurance can be given that future rainfall levels and water flows will approximate historical results.
Company assets are subject to potentially catastrophic geologic or environmental risks.
Fires, earthquakes, floods, volcanic eruptions or other similar catastrophic events could cause personal injury, loss of life, damage or destruction to the Casecnan Project, or suspension of operations. Although the Company maintains insurance coverage (including business interruption insurance) to protect against certain of these risks, the proceeds of such insurance may not be adequate to cover reduced revenue, increased expenses or other liabilities arising from the occurrence of any of the events described above. Moreover, there can be no assurance that such insurance coverage will be available in the future at commercially reasonable rates or that the amounts for which the Company is insured will cover all losses.
The Company is subject to risk of loss from civil strife, acts of war, terrorist activities, adverse changes in monetary exchange rates, changes in law, policies or regulation, including tax law, or failure to timely obtain necessary approvals or permits and other risks arising from foreign sovereignty over areas in which the Company conducts operations.
The Casecnan Project is located in the Philippines and is therefore subject to political, economic and other uncertainties, including the risks of war, civil strife, guerilla activity, terrorism, expropriation, nationalization, renegotiation or nullification of existing contracts, changes in taxation policies, currency availability and exchange restrictions, changing political conditions and international monetary fluctuations. The government of the Philippines has exercised and continues to exercise a significant influence over the Philippine economy. There can be no assurance that future developments in the Philippines will not impair the Casecnan Project’s operations or the Company’s revenue.
The Company is subject to statutory and regulatory standards, including those related to energy and environmental laws. Business licenses and permits must be renewed annually to continue operating the Casecnan Project. Delay in receipt or failure to obtain these permits or to comply with applicable standards could restrict operation of the Casecnan Project or result in additional costs or taxes. The adoption of new laws, policies and regulations, or changes in the interpretation or application of existing laws, policies and regulations that modify the present regulatory environment could have a material adverse affect on the Company’s ability to operate the Casecnan Project.
Item 1B.
Item 1B. Unresolved Staff Comments.
Not applicable.
Item 2.
Item 2. Properties.
CE Casecnan’s principal property is the approximately 150 MW hydroelectric power facility, located in the central part of the island of Luzon in the ROP.
Item 3.
Item 3. Legal Proceedings.
None.
Item 4.
Item 4. Submission of Matters to a Vote of Security Holders.
Not applicable.
PART II
Item 5.
Item 5. Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities.
Not applicable.
Item 6.
Item 6. Selected Financial Data.
The following table sets forth selected financial data, which should be read in conjunction with Item 7.
Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations.
The following is management’s discussion and analysis of certain significant factors which have affected the financial condition and results of operations of the Company during the periods included in the accompanying financial statements. This discussion should be read in conjunction with Item 6. Selected Financial Data and the Company’s financial statements and the related notes to those statements included in Item 8. Financial Statements and Supplementary Data of this Form 10-K.
Factors Affecting the Results of Operations
Seasonality
The Casecnan Project is dependent upon sufficient rainfall to generate electricity and deliver water. The seasonality of rainfall patterns and the variability of rainfall from year to year, all of which are outside the control of the Company, have a material impact on the amounts of electricity generated and water delivered by the Casecnan Project. Rainfall has historically been highest from June through December and lowest from January through May. The contractual terms for water delivery fees and variable energy fees (described below) can produce significant variability in revenue between reporting periods.
Under the Supplemental Agreement, the water delivery fee is payable in a fixed monthly payment based upon an average annual water delivery of 801.9 million cubic meters, pro-rated to approximately 66.8 million cubic meters per month, multiplied by the applicable per cubic meter rate through December 25, 2008. For each contract year starting from December 25, 2003 and ending on December 25, 2008, a water delivery fee credit (deferred revenue) is computed equal to 801.9 million cubic meters minus the greater of actual water deliveries or 700.0 million cubic meters - the minimum threshold. The water delivery fee credit at the end of each contract year is available to be earned in the succeeding contract year through December 25, 2008. The cumulative water delivery fee credit at December 25, 2008, if any, shall be amortized from December 25, 2008 through December 25, 2013. Accordingly, in recognizing revenue, the water delivery fees are recorded each month pro-rated to approximately 58.3 million cubic meters per month until the minimum threshold has been reached for the current contract year. Subsequent water delivery fees within the contract year are based on actual water delivered.
The Company earns guaranteed energy fees based upon an assumed delivery of 19.0 GWh per month, at a rate of $0.1596 per kWh. The Company earns variable energy fees based upon actual energy delivered in each month in excess of 19.0 GWh, payable at a rate of $0.1509 per kWh. Starting in 2009, the kWh rate for energy deliveries in excess of 19.0 GWh per month is reduced to $0.1132, escalating at 1% per annum thereafter. Any deliveries of energy in excess of 490.0 GWh, but less than 550.0 GWh per year are paid at a rate of 1.3 pesos per kWh, reduced to 0.98 pesos starting 2009 and escalated at 1% per annum thereafter. Deliveries in excess of 550.0 GWh per year are at no cost to NIA. Within each contract year, no variable energy fees are payable until energy in excess of the cumulative 19.0 GWh per month for the contract year to date has been delivered.
Results of Operations for the Years Ended December 31, 2006 and
The following table provides certain operating data of the Casecnan Project for the years ended December 31:
For accounting purposes, the Project Agreement with NIA contains both an operating lease and a service contract, which the Company accounted for pursuant to provisions of Statement of Financial Accounting Standards No. 13, “Accounting for Leases.” Pursuant to the provisions of the Project Agreement, the Company earned water and energy fees as follows (in millions):
Revenue for 2006 increased by $41.5 million to $148.5 million compared with 2005. The increase in water delivery fees was primarily due to the contractual 7.5% annual escalation factor. The higher variable energy fees in 2006 were due to higher generation for the year of 538.5 GWh compared to 406.5 GWh in 2005. Accumulated deferred water delivery fees in prior years were fully earned in 2006 due to high water deliveries which exceeded the 801.9 million cubic meters threshold. The higher generation and water deliveries were the result of above average rainfall in most months of 2006.
Interest expense for 2006 decreased $3.4 million to $21.4 million compared with 2005, due primarily to lower outstanding debt balances resulting from the scheduled repayment of debt.
Interest income for 2006 increased $1.1 million to $3.0 million compared with 2005, due to higher average cash balances and higher average interest rates on investments.
Other, net for 2006 increased $3.7 million to $4.0 million compared with 2005, due primarily to value added tax recoveries exceeding obligations as a result of a change in the value added tax law which became effective on November 1, 2005.
The provision for income tax for 2006 increased $1.2 million to $2.3 million as income not subject to the income tax holiday was higher than in 2005. The income tax holiday is scheduled to expire in December 2007 after which all CE Casecnan income will become subject to income tax at the statutory rate of 35%.
Results of Operations for the Years Ended December 31, 2005 and
The following table provides certain operating data of the Casecnan Project for the years ended December 31:
For accounting purposes, the Project Agreement with NIA contains both an operating lease and a service contract, which the Company accounted for pursuant to provisions of Statement of Financial Accounting Standards No. 13, “Accounting for Leases.” Pursuant to the provisions of the Project Agreement, the Company earned water and energy fees as follows (in millions):
Revenue for 2005 increased by $0.2 illion to $107.0 illion compared with 2004. The increase in water delivery fees and deferred water delivery fees was primarily due to the contractual 7.5% annual escalation factor. Differences between calendar year operations and contract year invoicing resulted in lower variable energy fees in 2005 compared to 2004 despite marginally higher total energy production during the calendar year. The monthly billing cycle runs from the 25th day of a given calendar month to the 25th day of the following month. Within each billing cycle, the Casecnan Project must produce 19.0 GWh of electricity before it can earn variable energy fees. The electricity generated by heavy water flows in the last six days of the December 2005 (the start of the new billing cycle) did not generate any variable energy fees in calendar year 2005.
Operating expenses for 2005 decreased by $2.1 illion to $31.3 illion compared with 2004. Road maintenance was $0.7 million lower in 2005 due to damage caused by typhoons in 2004. Engineering and consulting expenses were $0.7 million lower in 2005 due to plant optimization activities in 2004 and the construction contract arbitration settlement in April 2004. Depreciation expense decreased by $0.5 million in 2005 due to the lower depreciable base resulting from the construction contract arbitration settlement in April 2004.
Interest expense for 2005 decreased $4.7 million to $24.8 million compared with 2004, due primarily to lower outstanding debt balances resulting from the scheduled repayment of debt.
The provision for income tax for 2005 increased by $1.0 million to $1.1 million compared with 2004. In 2005, the Company recorded income tax expense of $0.7 million on interest income earned outside the Philippines.
Liquidity and Capital Resources
CE Casecnan constructed and operates the Casecnan Project, which was developed as an unsolicited proposal under the Philippine build-own-operate-transfer law, pursuant to the terms of the Project Agreement. CE Casecnan is registered with the Philippine Board of Investments as a new operator of hydroelectric power plant with pioneer status under the Omnibus Investments Code of 1987 (Executive Order No. 226). Under the terms of its registration, CE Casecnan is entitled to certain incentives which include an income tax holiday for six years from the start of commercial operations, tax and duty-free importation of capital equipment, tax credits on domestic capital equipment, and exemption from customs duties and national internal revenue taxes for the importation and unrestricted use of the consigned equipment for the development, construction, start-up, testing and operation of the power plant. CE Casecnan developed, financed and constructed the Casecnan Project over the construction period, and owns and operates the Casecnan Project for the term of the Cooperation Period, which commenced on December 11, 2001. During the Cooperation Period, NIA is obligated to accept all deliveries of water and energy, and so long as the Casecnan Project is physically capable of operating and delivering in accordance with agreed levels set forth in the Project Agreement, NIA is obligated to pay CE Casecnan a fixed fee for the delivery of a threshold volume of water and a fixed fee for the delivery of a threshold amount of electricity. In addition, NIA is obligated to pay a fee for all electricity delivered in excess of the threshold amount up to a specified amount and will be obligated to pay a fee for all water delivered in excess of the threshold amount up to a specified amount beginning after December 25, 2008.
The ROP has provided a Performance Undertaking under which NIA’s obligations under the Project Agreement are guaranteed by the full faith and credit of the ROP. The Project Agreement and the Performance Undertaking provide for the resolution of disputes by binding arbitration in Singapore under international arbitration rules.
NIA’s obligations under the Project Agreement are substantially denominated in U.S. Dollars and are the Company’s sole source of operating revenue. Because of the Company’s dependence on NIA, any material failure of NIA to fulfill its obligations under the Project Agreement and any material failure of the ROP to fulfill its obligations under the Performance Undertaking would significantly impair the ability of the Company to meet its existing and future obligations, including obligations pertaining to its outstanding debt. No stockholders, partners or affiliates of the Company, including MidAmerican, and no directors, officers or employees of the Company have guaranteed or will be in any way liable for payment of the Company’s obligations. As a result, payment of the Company’s obligations depends upon the availability of sufficient revenue from the Company’s business after the payment of operating expenses.
The Company’s cash and cash equivalents were $31.9 million and $42.3 million at December 31, 2006 and 2005, respectively.
The Company generated cash flows from operations of $124.8 million and $78.7 million in 2006 and 2005, respectively. The increase in 2006 was primarily due to cash receipts from higher variable energy fees of $19.4 million, higher water delivery fees of $4.0 million due to the 7.5% contractual escalation factor, lower interest paid in 2006 of $6.4 million, reimbursements to the Company of $9.7 million for real property taxes paid in 2005 and value added tax recoveries of $3.4 million.
The Company used $19.6 million and received $10.1 million for investing activities in 2006 and 2005, respectively. Capital expenditures were $1.9 million and $0.5 million in 2006 and 2005, respectively. Restricted cash and investments for debt service obligations and dividends payable increased by $17.7 million in 2006, due primarily to the 15% of 2006 dividends and related interest which is deposited in an escrow account and shown as part of restricted cash and investments in the Balance Sheets. In 2005, restricted cash and investments for debt service obligations and dividends payable decreased by $10.6 million due to lower scheduled principal payments due in 2006.
The Company used $115.6 million and $63.2 million for financing activities for the years ended December 31, 2006 and 2005, respectively. The Company declared dividends totaling $99.5 million in 2006 and $11.0 million in 2005 (of which $14.9 million and $1.7 million respectively, were placed in an escrow account in the name of the Company and shown as restricted cash and investments and dividends payable in the Balance Sheets). The Company repaid $36.0 million and $54.8 million on the balance of the Series A Notes and Series B Bonds in 2006 and 2005, respectively.
The Company’s cash and cash equivalents were $42.3 million and $16.7 million at December 31, 2005 and 2004, respectively.
The Company generated cash flows from operations of $78.7 million and $76.8 million in 2005 and 2004, respectively. The increase in 2005 was primarily due to higher water delivery fees of $3.7 million due to the 7.5% contractual escalation factor, lower interest paid in 2005 of $ 6.5 million and the payment of property taxes of $9.2 million in 2005.
The Company received $10.1 million and used $74.5 million for investing activities for the years ended December 31, 2005 and 2004, respectively. On January 14, 2004, the Company collected the $97.0 million ROP Note receivable obtained in connection with the NIA Arbitration Settlement. On April 14, 2004, the Company received $18.9 million pursuant to an arbitration settlement with the construction contractor. Capital expenditures were $0.5 million and $4.1 million for the years ended December 31, 2005 and 2004, respectively. Restricted cash and investments for debt service obligations decreased by $10.6 million in 2005 due to lower principal payments due in 2006. In 2004, restricted cash and investments for debt service obligations increased by $37.4 million to fully fund the Debt Service Reserve Fund.
The Company used $63.2 million and $139.1 million for financing activities for the years ended December 31, 2005 and 2004, respectively. The Company declared dividends totaling $11.0 million in 2005 and $106.0 million in 2004 (of which $1.7 million and $15.9 million, respectively were set aside in a separate bank account in the name of the Company and shown as restricted cash and investments and dividends payable in the Balance Sheets). The Company repaid $54.8 million and $49.4 million on the balance of the Series A Notes and Series B Bonds in 2005 and 2004, respectively.
NIA Arbitration Settlement
In connection with the NIA Arbitration Settlement on October 15, 2003, NIA delivered to CE Casecnan a $97.0 million ROP Note, which contained a put provision granting CE Casecnan the right to put the ROP Note to the ROP for a price of par plus accrued interest for a 30-day period commencing on January 14, 2004. On January 14, 2004, CE Casecnan exercised its right to put the ROP Note to the ROP and, in accordance with the terms of the put, CE Casecnan received $99.2 million (representing $97.0 million par value plus accrued interest) from the ROP on January 21, 2004.
Casecnan Stockholder Litigation
Pursuant to the share ownership adjustment mechanism in the CE Casecnan stockholder agreement, which is based upon proforma financial projections of the Casecnan Project prepared following commencement of commercial operations, in February 2002, MidAmerican’s indirect wholly owned subsidiary, CE Casecnan Ltd., advised the minority stockholder of the Company, LaPrairie Group Contractors (International) Ltd. (“LPG”), that MidAmerican’s indirect ownership interest in CE Casecnan had increased to 100% effective from commencement of commercial operations. On July 8, 2002, LPG filed a complaint in the Superior Court of the State of California, City and County of San Francisco against CE Casecnan Ltd. and MidAmerican. LPG’s complaint, as amended, seeks compensatory and punitive damages arising out of CE Casecnan Ltd.’s and MidAmerican’s alleged improper calculation of the proforma financial projections and alleged improper settlement of the NIA arbitration. The Company is not a defendant in the action. On January 21, 2004, CE Casecnan Ltd., LPG and the Company entered into a status quo agreement pursuant to which the parties agreed to set aside certain distributions related to the shares subject to the LPG dispute and CE Casecnan agreed not to take any further actions with respect to such distributions without at least 15 days prior notice to LPG. Accordingly, 15% of the dividend declarations in 2006, 2005 and 2004, totaling $32.5 million, was set aside in a separate bank account in the name of the Company and is shown as restricted cash and investments and dividends payable in the accompanying Balance Sheets. On August 4, 2005, the court issued a decision, ruling in favor of LPG on five of the eight disputed issues in the first phase of the litigation. On September 12, 2005, LPG filed a motion seeking the release of the funds which have been set aside pursuant to the status quo agreement referred to above. MidAmerican and CE Casecnan Ltd. filed an opposition to the motion on October 3, 2005, and at the hearing on October 26, 2005, the court denied LPG’s motion. On January 3, 2006, the court entered a judgment in favor of LPG against CE Casecnan Ltd. According to the judgment, LPG would retain its ownership of 15% of the shares of the Company and distributions of the amounts deposited into escrow plus interest at 9% per annum. On February 28, 2006, CE Casecnan Ltd. filed an appeal of this judgment and the August 4, 2005 decision. The appeal is fully briefed, was argued on January 4, 2007 and is expected to be resolved sometime in 2007. The parties are proceeding in the trial court on LPG’s remaining claim against MidAmerican for damages for alleged breach of fiduciary duty. This claim is expected to be resolved sometime in 2007.
In February 2003, San Lorenzo Ruiz Builders and Developers Group, Inc. (“San Lorenzo”), an original shareholder substantially all of whose shares in the Company were purchased by MidAmerican in 1998, threatened to initiate legal action against the Company in the Philippines in connection with certain aspects of its option to repurchase such shares. The Company believes that San Lorenzo has no valid basis for any claim and, if named as a defendant in any action that may be commenced by San Lorenzo, the Company will vigorously defend such action. On July 1, 2005, MidAmerican and CE Casecnan Ltd. commenced an action against San Lorenzo in the District Court of Douglas County, Nebraska, seeking a declaratory judgment as to MidAmerican’s and CE Casecnan Ltd.’s rights vis-à-vis San Lorenzo in respect of such shares. San Lorenzo filed a motion to dismiss on September 19, 2005. Subsequently, San Lorenzo purported to exercise its option to repurchase such shares. On January 30, 2006, San Lorenzo filed a counterclaim against MidAmerican and CE Casecnan Ltd. seeking declaratory relief that it has effectively exercised its option to purchase 15% of the shares of the Company, that it is the rightful owner of such shares and that it is due all dividends paid on such shares. On March 9, 2006, the court granted San Lorenzo’s motion to dismiss, but has since permitted MidAmerican and CE Casecnan Ltd. to file an amended complaint incorporating the purported exercise of the option. The complaint has been amended and the action is proceeding. The matter is currently in the early stages of discovery. The impact, if any, of San Lorenzo’s purported exercise of its option and the Nebraska litigation on the Company cannot be determined at this time.
Obligations and Commitments
The Company has contractual obligations and commercial commitments that may affect its financial condition. Contractual obligations to make future payments arise from long-term debt and notes payable. Material obligations as of December 31, 2006 are as follows (in thousands):
(1)
The maturity date of the note is November 1, 2015. However, CE Casecnan Ltd. can demand payment of the outstanding principal amount at any time prior to the maturity date.
Critical Accounting Policies
Certain accounting policies require management to make estimates and judgments concerning transactions that will be settled in the future. Amounts recognized in the financial statements from such estimates are necessarily based on numerous assumptions involving varying and potentially significant degrees of judgment and uncertainty. Accordingly, the amounts currently reflected in the financial statements will likely increase or decrease in the future as additional information becomes available.
Allowance for Doubtful Accounts
The allowance for doubtful accounts is based on the Company’s assessment of the collectibility of payments from NIA. This assessment requires judgment regarding the outcome of disputes and the ability of the customer to pay the amounts owed to the Company. Any change in the Company’s assessment of the collectibility of accounts receivable that was not previously provided for could significantly impact the calculation of such allowance and the results of operations.
Concentration of Risk
NIA’s payments of obligations under the Project Agreement are substantially denominated in U.S. Dollars and are the Company’s sole source of operating revenues. Because of the Company’s dependence on NIA, any material failure of NIA to fulfill its obligations under the Project Agreement and any material failure of the ROP to fulfill its obligations under the Performance Undertaking would significantly impair the ability of the Company to meet its existing and future obligations. No stockholders, partners or affiliates of the Company, including MidAmerican, and no directors, officers or employees of the Company will guarantee or be in any way liable for payment of the Company’s obligations. As a result, payment of the Company’s obligations depends upon the availability of sufficient revenues from the Company’s business after the payment of operating expenses.
Item 7A.
Item 7A. Quantitative and Qualitative Disclosures About Market Risk.
The following discussion of the Company’s exposure to various market risks contains “forward-looking statements” that involve risks and uncertainties. These projected results have been prepared utilizing certain assumptions considered reasonable in the circumstances and in light of information currently available to the Company. Actual results could differ materially from those projected in the forward-looking information.
Interest Rate Risk
At December 31, 2006, the Company had fixed-rate long-term debt of $106.3 million in principal amount and having a fair value of $113.8 million. At December 31, 2005, the Company had fixed-rate long-term debt of $142.3 million in principal amount and having a fair value of $153.4 million. These instruments are fixed-rate and therefore do not expose the Company to the risk of earnings loss due to changes in market interest rates. However, the fair value of these instruments would decrease by approximately $1.3 million if interest rates were to increase by 10% from their levels at December 31, 2006. In general, such a decrease in fair value would impact earnings and cash flows only if the Company were to reacquire all or a portion of these instruments prior to their maturity.
Credit Risk
NIA’s payments of obligations under the Project Agreement are substantially denominated in U.S. Dollars and are the Company’s sole source of operating revenue. NIA must obtain U.S. Dollars to fund its payment obligations. Because of the Company’s dependence on NIA, any material failure of NIA to obtain U.S. Dollars and fulfill its obligations under the Project Agreement and any material failure of the ROP to fulfill its obligations under the Performance Undertaking would significantly impair the ability of the Company to meet its existing and future obligations. No stockholders, partners or affiliates of the Company, including MidAmerican, and no directors, officers or employees of the Company have guaranteed or will be in any way liable for payment of the Company’s obligations. As a result, payment of the Company’s obligations depends upon the availability of sufficient revenue from the Company’s business after the payment of operating expenses.
Item 8.
Item 8. Financial Statements and Supplementary Data.
Report of Independent Registered Public Accounting Firm
Balance Sheets as of December 31, 2006 and 2005
Statements of Operations for the Years Ended December 31, 2006, 2005 and
Statements of Changes in Stockholders’ Equity for the Years Ended December 31, 2006, 2005 and 2004
Statements of Cash Flows for the Years Ended December 31, 2006, 2005 and
Notes to Financial Statements
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and Stockholders of
CE Casecnan Water and Energy Company, Inc.
We have audited the accompanying balance sheets of CE Casecnan Water and Energy Company, Inc. as of December 31, 2006 and 2005, and the related statements of operations, of changes in stockholders’ equity and of cash flows for each of the three years in the period ended December 31, 2006. These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on these financial statements based on our audits.
We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in all material respects, the financial position of CE Casecnan Water and Energy Company, Inc. as of December 31, 2006 and 2005, and the results of its operations and its cash flows for each of the three years in the period ended December 31, 2006, in conformity with accounting principles generally accepted in the United States of America.
/s/ Isla Lipana & Co.
ISLA LIPANA & CO.
A PricewaterhouseCoopers member firm
Makati City, Philippines
February 8,
CE CASECNAN WATER AND ENERGY COMPANY, INC.
BALANCE SHEETS
(Amounts in thousands, except share data)
The accompanying notes are an integral part of these financial statements.
CE CASECNAN WATER AND ENERGY COMPANY, INC.
STATEMENTS OF OPERATIONS
(Amounts in thousands)
The accompanying notes are an integral part of these financial statements.
CE CASECNAN WATER AND ENERGY COMPANY, INC.
STATEMENTS OF CHANGES IN STOCKHOLDERS’ EQUITY
(Amounts in thousands, except shares)
The accompanying notes are an integral part of these financial statements.
CE CASECNAN WATER AND ENERGY COMPANY, INC.
STATEMENTS OF CASH FLOWS
(Amounts in thousands)
In 2004, the investment in property, plant and equipment was reduced by $23.9 million involving receipt of cash of $18.9 million and reversal of liabilities of $5.0 million pursuant to settlement of the construction contract arbitration (Note 7).
The accompanying notes are an integral part of these financial statements.
CE CASECNAN WATER AND ENERGY COMPANY, INC.
NOTES TO FINANCIAL STATEMENTS
(In U.S. Dollars, unless indicated otherwise)
1. Organization and Operations
CE Casecnan Water and Energy Company, Inc. (the “Company” or “CE Casecnan”) is a privately held Philippine corporation formed indirectly by MidAmerican Energy Holdings Company (“MidAmerican”) and was registered with the Philippine Securities and Exchange Commission on September 21, 1994. The purpose of the Company is to develop, construct, operate and own a hydroelectric power plant and the related facilities for conversion into electricity of water provided by and under contract with the Republic of the Philippines (“ROP”) or any ROP-owned or controlled corporation.
The Company has a contract with the ROP, through the Philippine National Irrigation Administration (“NIA”) (a ROP-owned and controlled corporation), for the development and construction of a hydroelectric power plant and related facilities under a build-own-operate-transfer agreement (“Project Agreement”), as amended by the Supplemental Agreement dated September 29, 2003 (the “Supplemental Agreement”), covering a 20-year cooperation period (“Cooperation Period”) with “take-or-pay” obligations for water and electricity. At the end of the Cooperation Period, the combined irrigation and 150 MW hydroelectric power generation project (the “Casecnan Project”) will be transferred to the ROP at no cost on an “as is” basis. The ROP also signed a Performance Undertaking, which, among others, affirms and guarantees the obligations of NIA under the Project Agreement. Construction of the Casecnan Project commenced in 1995. The Casecnan Project Cooperation Period began upon commencement of commercial operations on December 11, 2001.
The Casecnan Project is dependent upon sufficient rainfall to generate electricity and deliver water. The seasonality of rainfall patterns and the variability of rainfall from year to year, all of which are outside the control of the Company, have a material impact on the amounts of electricity generated and water delivered by the Casecnan Project.
The Company is registered with the Philippine Board of Investments as a new operator of hydroelectric power plant with pioneer status under the Omnibus Investments Code of 1987 (Executive Order No. 226). Under the terms of its registration, the Company is entitled to certain incentives which include an income tax holiday for six years from the start of commercial operations, tax and duty-free importation of capital equipment, tax credits on domestic capital equipment, and exemption from customs duties and national internal revenue taxes for the importation and unrestricted use of the consigned equipment for the development, construction, start-up, testing and operation of the power plant. The registration also requires, among others, the maintenance of a debt-to-equity ratio not exceeding 75:25 during commercial operations. The income tax holiday will expire on December 11, 2007.
In April 2003, CE Casecnan Ltd. assigned a 70% stockholding in the Company to CE Casecnan II, Inc., a Philippine company, in exchange for the latter’s shares of stock. The Company became 70% owned by CE Casecnan II, Inc., and 30% owned by CE Casecnan Ltd. which are both indirectly wholly owned subsidiaries of Midamerican.
References to “U.S. dollars,” “dollars,” or “$” are to the currency of the United States and references to “pesos” are to the currency of the Philippines. References to kW means kilowatts, MW means megawatts, GW means gigawatts, kWh means kilowatt hours, MWh means megawatt hours, and GWh means gigawatt hours.
2. Summary of Significant Accounting Policies
The financial statements are prepared in accordance with accounting principles generally accepted in the United States of America (“GAAP”). The more significant accounting policies and practices of the Company are set forth below:
Basis of Presentation
The functional and reporting currency of the Company is the U.S. dollar. Transactions in foreign currencies (Philippines pesos) are recorded based on the prevailing rates of exchange at transaction dates. Foreign currency denominated monetary assets and liabilities are translated at the exchange rate prevailing at the balance sheet date. The resulting exchange differences from settlements of foreign currency transactions and translations of monetary assets and liabilities are credited or charged to operations.
The Company’s operations are in one reportable segment, the water and electricity generation industry.
Reclassifications
Certain amounts in the 2005 financial statements and supporting note disclosures have been reclassified to conform to the current period presentation, including the reclassification of $0.7 million from accounts payable and other accrued liabilities to payable to affiliates in the Balance Sheets and from operating activities to financing activities in the Statements of Cash Flows. Such reclassification did not impact previously reported net income or retained earnings.
Use of Estimates
The preparation of the financial statements in conformity with GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities at the date of the financial statements and the reported amounts of revenue and expenses during the reporting period. Actual results could differ from these estimates used in preparing the financial statements.
Cash Equivalents
Cash equivalents are short-term, highly liquid investments that are readily convertible to known amounts of cash with maturities of three months or less from the date of acquisition and that are subject to an insignificant risk of change in value.
Restricted Cash and Investments
Restricted cash and investments are composed of debt service funds and undistributed dividends that are contractually restricted as to their use and require the maintenance of specific minimum balances. Since the Company has the positive intent and ability to hold all of its investments to maturity, these are classified as held to maturity and recorded at amortized cost. The carrying amount of investments as of December 31, 2006, approximates their fair value, which is based on quoted market prices as provided by the financial institution holding the investments.
Bond Issue Costs
Bond issue costs consist of costs incurred in the issuance of senior secured notes and bonds and are deferred and amortized over the term of the notes and bonds using the effective interest rate method. Amortization of bond issue costs was capitalized during the construction period and charged to operations, as an interest expense, upon commercial operations of the Casecnan Project.
Property, Plant and Equipment, Net
Property, plant and equipment are stated at historical cost (including capitalized interest costs) less accumulated depreciation. Depreciation is computed on the straight-line method based on the 20-year Cooperation Period for the hydroelectric power plant and office and building structure, and on the estimated useful life of five years for other equipment. Minor expenditures for repairs and maintenance are charged to operations as incurred, while significant improvements are capitalized. Liquidated damages received relative to the Casecnan Project construction are recorded as reduction to the cost of the Project. When an asset is sold or otherwise disposed of, its cost and related accumulated depreciation are removed from the accounts and the resulting gain or loss is credited or charged to operations.
Deferred Income Taxes
Deferred income tax assets and liabilities are based on differences between the financial statements and tax bases of assets and liabilities using the estimated tax rates in effect for the year in which the differences are expected to reverse. Changes in deferred income tax assets and liabilities are included as a component of income tax expense. Valuation allowances have been established for certain deferred income tax assets where management has judged that realization is not likely.
Allowance for Doubtful Accounts
Allowance for doubtful accounts is based on the Company’s assessment of the collectibility of payments from NIA. This assessment requires judgment regarding the outcome of pending disputes and the ability of the customer to pay the amounts owed to the Company. Any change in the Company’s assessment of the collectibility of accounts receivable that was not previously provided for could significantly impact the calculation of such allowance and the results of operations.
Impairment of Long-Lived Assets
The Company evaluates long-lived assets, including property, plant and equipment, when events or changes in circumstances indicate that the carrying value of these assets may not be recoverable or the assets meet the criteria of held for sale. Upon the occurrence of a triggering event, the asset is reviewed to assess whether the estimated undiscounted cash flows expected from the use of the asset plus the residual value from the ultimate disposal exceeds the carrying value of the asset. If the carrying value exceeds the estimated recoverable amounts, the asset is written down to the estimated discounted present value of the expected future cash flows from using the asset. Any resulting impairment loss is reflected in the Statement of Operations.
Revenue
Pursuant to the Project Agreement, the Company bills on a monthly basis for the delivery of water and electricity. The Project Agreement is treated for accounting purposes as an arrangement that contains both an operating lease and a service contract to operate the plant. The Project Agreement was classified as an operating lease due to the significant uncertainties that existed at the inception of the lease regarding both the collection of future amounts and the amount of unreimbursable costs yet to be incurred, mainly due to the existence of political, economic and other uncertainties associated with the Philippines.
The annual water delivery revenue is recorded on the basis of the contractual minimum guaranteed water delivery threshold for the respective contract year. If and when actual cumulative deliveries within a contract year exceed the minimum threshold, additional revenue is recognized and calculated as the product of the water deliveries in excess of the minimum threshold and the applicable unit price up to the maximum contractually allowed water delivery volume. The Company defers revenue on the difference between the actual water delivery fees earned and water delivery fees invoiced pursuant to the Supplemental Agreement. The cumulative deferred water delivery revenue, amounting to $13.8 million as of December 31, 2005, was fully earned in 2006. At December 31, 2006, there was no cumulative deferred water delivery revenue. Water delivery revenues do not include value added taxes.
Revenue from electricity consists of guaranteed energy fees with fixed monthly amounts and is recognized based on the contractually guaranteed energy deliveries. Actual deliveries of energy less than the fixed, monthly contractual amounts will not result in any reduction of the guaranteed energy fee. The variable energy fee is recognized when deliveries of energy exceed the guaranteed energy in any contract year. The variable energy fee will not be recognized until all cumulative electrical energy shortfalls in previous months have been made up. At December 31, 2006, there was no cumulative electrical energy shortfall.
3. New Accounting Pronouncements
In July 2006, the Financial Accounting Standards Board (“FASB”) issued FASB Interpretation No. 48, “Accounting for Uncertainty in Income Taxes - an interpretation of FASB Statement No. 109” (“FIN 48”). FIN 48 clarifies the accounting for uncertainty in income taxes recognized in accordance with Statement of Financial Accounting Standards No. 109, “Accounting for Income Taxes,” and prescribes a recognition threshold and measurement attribute for the financial statement recognition and measurement of a tax position taken or expected to be taken in a return. Guidance is also provided on de-recognition, classification, interest and penalties, accounting in interim periods, disclosure and transition. FIN 48 is effective for fiscal years beginning after December 15, 2006. The Company does not expect that the adoption of the provisions of FIN 48 effective January 1, 2007 will have a material effect on the financial statements.
In September 2006, the FASB issued SFAS No. 157, “Fair Value Measurements” (“SFAS 157”) which will become effective for fiscal years beginning after November 15, 2007, and interim periods within those fiscal years. SFAS 157 defines fair value, establishes a framework for measuring fair value and expands disclosures about fair value measurements. The Company has not yet determined the impact of SFAS No. 157 on its statements of operations, financial position or cash flows.
4. Restricted Cash and Investments
Restricted cash and investments consist of the following (in thousands):
Restricted cash and investments represent various held-to-maturity U.S. dollar investments bearing interest rates of 4.16% to 5.43% (2005 - 2.03% to 4.20%). These restricted cash and investments have an average maturity of 25 days.
5. NIA Settlement Agreement
In connection with the NIA Arbitration Settlement on October 15, 2003, NIA delivered to CE Casecnan a $97.0 million ROP Note, which contained a put provision granting CE Casecnan the right to put the ROP Note to the ROP for a price of par plus accrued interest for a 30-day period commencing on January 14, 2004. On January 14, 2004, CE Casecnan exercised its right to put the ROP Note to the ROP and, in accordance with the terms of the put, CE Casecnan received $99.2 million (representing $97.0 million par value plus accrued interest) from the ROP on January 21, 2004. In addition to providing for the dismissal with prejudice of all claims by CE Casecnan and counterclaims by NIA in the arbitral proceeding, the Supplemental Agreement supplements and amends the Project Agreement in certain respects as summarized below:
Modifications to Water Delivery Fee
Under the Project Agreement, the Water Delivery Rate increased by $0.00043 per cubic meter for each $1.0 million of certain taxes paid by CE Casecnan. The Supplemental Agreement amends the per cubic meter Water Delivery Fee calculation by eliminating the increase for taxes paid. Instead, the Water Delivery Rate remains at $0.029 per cubic meter, escalated at 7.5% annually from January 1, 1994 through the first five years of the Cooperation Period, extending through December 11, 2006. The Company will be reimbursed for certain taxes it pays during the remainder of the Cooperation Period.
Under the Project Agreement, the Water Delivery Fee payable monthly was a fixed monthly payment based on an average water delivery of 801.9 million cubic meters per year, pro-rated to approximately 66.8 million cubic meters per month, multiplied by the per cubic meter rate as described above. Under the Supplemental Agreement the Water Delivery Fee is equal to the Guaranteed Water Delivery Fee plus the Variable Delivered Water Delivery Fee minus the Water Delivery Fee Credit.
Guaranteed Water Delivery Fee. For the sixty-month period from December 25, 2003 through December 25, 2008, the Guaranteed Water Delivery Fee shall equal the Water Delivery Rate, as described above, multiplied by approximately 66.8 million cubic meters (corresponding to the 801.9 million cubic meters per year). For each month beginning after December 25, 2008 through the remainder of the Cooperation Period, the Guaranteed Water Delivery Fee shall equal the Water Delivery Rate multiplied by approximately 58.3 million cubic meters (corresponding to 700.0 million cubic meters per year).
Variable Delivered Water Delivery Fee. Variable Delivered Water Delivery Fees will be earned for months beginning after December 25, 2008. For each month beginning after December 25, 2008 through the end of the Cooperation Period, the Variable Delivered Water Delivery Fee shall be payable only from the date when the cumulative Total Available Water (total delivered water plus the water volume not delivered to NIA as a result of NIA’s failure to accept energy deliveries at a capacity up to 150 MW) for each contract year exceeds 700.0 million cubic meters. Variable Delivered Water Delivery Fees will be earned up to an aggregate maximum of 1,324.7 million cubic meters for the period from December 25, 2008 through the end of the Cooperation Period. No additional variable water delivery fees will be earned over the 1,324.7 million cubic meter threshold.
Water Delivery Fee Credit. The Water Delivery Fee Credit shall be applicable only for each of the sixty-months from December 25, 2008 through December 25, 2013 and shall equal the Water Delivery Rate as of December 25, 2008 multiplied by the sum of each Annual Water Credit divided by sixty. The Annual Water Credit for each contract year starting from December 25, 2003 and ending on December 25, 2008 shall equal 801.9 million cubic meters minus the Total Available Water for each contract year. The Total Available Water in any such year will equal actual deliveries with a minimum threshold of 700.0 million cubic meters.
Modifications to Variable Energy Delivery Fee
Under the Project Agreement, the Variable Energy Delivery Fee was a variable amount based on actual electrical energy delivered in each month in excess of 19.0 GWh, payable at a rate of $0.1509 per kWh. Under the Supplemental Agreement, the kWh rate for energy deliveries in excess of 19 GWh per month has been reduced, commencing in 2009, to $0.1132 (escalating at 1% per annum thereafter). Any deliveries of energy in excess of 490.0 GWh but less than 550.0 GWh per year are paid for at a rate of 1.3 pesos per kWh. Deliveries in excess of 550.0 GWh per year are at no cost to NIA.
For periods after September 28, 2003, the Supplemental Agreement provides that if the Casecnan Project is not dispatched up to 150 MW whenever water is available, NIA will pay for excess energy that could have been generated but was not as a result of such dispatch constraint.
Other Provisions of the Supplemental Agreement
The Company received an opinion from the Philippine Office of Government Corporate Counsel that the Supplemental Agreement has due authorization and is enforceable. The Guaranteed Energy Delivery Fee, Force Majeure, Buyout and Dispute Resolution provisions of the Project Agreement, as well as the Performance Undertaking provided by the ROP, remain in full force and effect under the Supplemental Agreement.
6. Trade Receivable, Net
Trade receivable pertains to the receivable due for lease rentals, service income and recoverable taxes billed pursuant to the provisions of the Project Agreement with NIA, as follows (in thousands):
The water delivery fee includes claims for tax reimbursement from NIA pursuant to the Supplemental Agreement amounting to $3.1 million and $11.5 million as of December 31, 2006 and 2005, respectively. The allowance for doubtful accounts as of December 31, 2006 and 2005 represents the Company’s estimate of the uncollectible portion of the receivable balance. The activity for the Company’s allowance for doubtful accounts was as follows (in thousands):
7. Property, Plant and Equipment, Net
Property, plant and equipment, net at December 31 consists of the following (in thousands):
Construction of the Casecnan Project was completed under a fixed-price, date certain, turnkey engineering, procurement and construction contract (the “Replacement Contract”) dated May 7, 1997 and amended on November 20, 1999. The work under the Replacement Contract was conducted by a consortium consisting of Cooperativa Muratori Cementisti CMC di Ravenna and Impresa Pizzarotti & C. Spa. (collectively, the “Contractor”), working together with Siemens A.G., Sulzer Hydro Ltd., Black & Veatch and Colenco Power Engineering Ltd. On February 12, 2001, the Contractor filed a Request for Arbitration with the International Chamber of Commerce (“ICC”) seeking schedule relief from various alleged force majeure events. On April 7, 2004, the Company entered into an agreement with the Contractor settling the ICC arbitration. Pursuant to the settlement agreement, as amended, the Contractor paid $18.9 million to CE Casecnan on April 14, 2004, and the Contractor and CE Casecnan executed mutual releases and agreed to dismiss the arbitration. A total of $23.9 million (the $18.9 million receipt along with $3.8 million originally recorded for liquidated damages and $1.2 million accrual for the unpaid portion of the Replacement Contract) was recorded as a reduction to property, plant and equipment in 2004.
8. Long-Term Debt
On November 27, 1995, the Company issued $371.5 million of notes and bonds (the “Securities”) to finance the construction of the Casecnan Project. These debts consisted of $75.0 million Senior Secured Floating Rate Notes (“FRNs”) bearing interest at LIBOR plus 3.00%, which were paid in installments through November 15, 2002; $125.0 million Senior Secured Series A Notes (“Series A Notes”) with interest at 11.45% payable, which were paid in semiannual installments through November 15, 2005; and $171.5 million Senior Secured Series B Bonds (“Series B Bonds”) with interest at 11.95% payable in semiannual installments up to 2010. For the year ended December 31, 2006, the Series B Bonds had an effective interest rate of 13.97%, inclusive of bond issue cost amortization.
The repayment schedule of the Series B Bonds as of December 31, 2006 is as follows (in thousands):
The Securities are senior debt of the Company and are secured by an assignment of all revenue that will be received from the Casecnan Project, a collateral assignment of all material contracts, a lien on any accounts and funds on deposit under a Deposit and Disbursement Agreement, a pledge of 100% of the capital stock of the Company and a lien on all other material assets and property interests of the Company. The Securities rank pari passu with and will share the collateral on a pro rata basis with other senior secured debt, if any.
The Series B Bonds are subject to optional redemption by the Company, at any time, in whole or in part, pro rata, at par plus accrued interest to the redemption date plus a premium, calculated to “make whole” to comparable U.S. Treasury Securities plus 150 basis points. The Company also had the option to redeem the securities, in whole or in part, at par plus accrued interest at any time if, as a result of any change in Philippine tax law or in the application or interpretation of Philippine tax law occurring after the date of issuance of the Securities, the Company is required to pay certain additional amounts described in the Trust Indenture. The Securities are subject to mandatory redemption, pro rata, at par plus accrued interest to the redemption date; (a) upon the receipt by the Company of loss proceeds that exceed $15.0 million in respect of certain events of property or casualty loss or similar events, unless the funds are to be utilized by the Company for an Approved Restoration Plan; or (b) upon the receipt by the Company of proceeds realized in connection with a Project Agreement Buyout.
When a Change in Control occurs, each holder of the Securities (“Holder”) will have the right to require the Company to repurchase all or any part of such Holder’s Securities at a cash purchase price equal to 101% of the principal amount thereof, plus accrued interest to the date of repurchase in accordance with the procedures set forth in the Trust Indenture. There is no assurance that upon a Change in Control the Company will have sufficient funds to repurchase the Securities.
The debt covenants contain certain restrictions as to incurrence of additional indebtedness; merger, consolidation, dissolution, or any significant change in corporate structure; non-arm’s length transactions or agreements with affiliates; sale, lease, or transfer of properties material to the Casecnan Project, among others. In connection with the foregoing secured indebtedness, the Company, on November 27, 1995, entered into a Deposit and Disbursement Agreement whereby The Bank of New York Trust Company, NA (formerly known as JPMorgan Chase Bank, N.A. /Chemical Trust Company of California) acts as a depositary and a collateral agent. As a depositary agent, it will hold monies, instruments and Securities pledged by the Company to the collateral agent.
Refer to Note 12 for a discussion of the fair value of the outstanding Securities.
9. Income Taxes
Since commencing commercial operations in December 2001, the Company has not incurred income tax expense on its operating income due to a six year income tax holiday received from the Philippine Board of Investments. During the years ended December 31, 2006, 2005 and 2004, CE Casecnan incurred $2.3 million, $1.1 million and $0.1 million, respectively of income taxes on interest income earned outside the Philippines and on other income resulting from the change in the value-added tax law, both of which are activities not covered by the income tax holiday. The Company’s deferred income tax asset of $5.1 million as of December 31, 2006 and 2005 consists mainly of the difference between the financial reporting basis and the tax reporting basis for development and construction costs.
On May 24, 2005, President Arroyo signed an amended tax law to raise the corporate income tax rate from 32% to 35% through 2008 (reducing to 30% thereafter) and impose value-added tax of 10% (12% effective February 1, 2006) on certain goods and services. The law and the Project Agreement permit CE Casecnan to invoice NIA for value-added tax on water delivery fees and, if electricity generated from hydro-electric power were to become subject to value-added tax, on energy delivery fees as well. Implementation of the tax law was deferred until legal challenges were resolved. On October 18, 2005, the Philippine Supreme Court upheld the constitutionality of the tax law and implementation became effective November 1, 2005. The tax law did not have a material adverse impact on the Casecnan Project.
10. Related Party Transactions
In the normal course of business, the Company transacts with its affiliates in the form of advances for operating expenses. The payable to affiliates was $41.0 million and $36.0 million at December 31, 2006 and 2005, respectively. Costs incurred by the Company in transactions with related parties amounted to $3.3 million, $1.4 million and $1.5 million for the years ended December 31, 2006, 2005 and 2004, respectively, and consist primarily of cost allocations.
As of December 31, 2006 and 2005, the Company had outstanding $51.3 million of unsecured subordinated notes payable to CE Casecnan Ltd., a stockholder. On November 1, 2005, the Company extended the due date of the notes from November 15, 2005 to November 1, 2006 and amended the interest rate to 10% per annum, effective November 1, 2005. On December 6, 2005, the notes’ original maturity date was changed to November 1, 2015 and the interest rate from LIBOR plus 2% to LIBOR plus 5.25%; provided, however, that CE Casecnan Ltd. can demand payment of the outstanding principal amount at any time prior to the maturity date. The interest is payable each May 15 and November 15. Interest expense on the notes was $5.3 million, $2.9 million and $1.8 million for the years ended December 31, 2006, 2005 and 2004, respectively. Any overdue payment of principal or interest payable on the notes shall increase the annual interest by two percentage points. At December 31, 2006, the effective interest rate on the notes was 10.63%. The notes may be prepaid at any time without premium or penalty but with accrued interest, if any. The unsecured subordinated notes and any and all payments, whether of principal, interest or otherwise are subject in all respects to the terms of the Subordination Agreement dated November 15, 2001 and as amended on November 1, 2005 between CE Casecnan Ltd. and the Company in favor of the Trustee, the Collateral Agent, the co-collateral agent, the Depositary, any party that becomes a Permitted Counterparty under an Interest Rate/Currency Protection Agreement, and any party that becomes a working capital facility agent and any other Person that becomes a secured party under the Intercreditor Agreement. The Company intends to repay the notes or convert them to some form of capital prior to maturity.
11. Commitments and Contingencies
Stockholder Litigation
Pursuant to the share ownership adjustment mechanism in the CE Casecnan stockholder agreement, which is based upon proforma financial projections of the Casecnan Project prepared following commencement of commercial operations, in February 2002, MidAmerican’s indirect wholly owned subsidiary, CE Casecnan Ltd., advised the minority stockholder of the Company, LaPrairie Group Contractors (International) Ltd. (“LPG”), that MidAmerican’s indirect ownership interest in CE Casecnan had increased to 100% effective from commencement of commercial operations. On July 8, 2002, LPG filed a complaint in the Superior Court of the State of California, City and County of San Francisco against CE Casecnan Ltd. and MidAmerican. LPG’s complaint, as amended, seeks compensatory and punitive damages arising out of CE Casecnan Ltd.’s and MidAmerican’s alleged improper calculation of the proforma financial projections and alleged improper settlement of the NIA arbitration. The Company is not a defendant in the action. On January 21, 2004, CE Casecnan Ltd., LPG and the Company entered into a status quo agreement pursuant to which the parties agreed to set aside certain distributions related to the shares subject to the LPG dispute and CE Casecnan agreed not to take any further actions with respect to such distributions without at least 15 days prior notice to LPG. Accordingly, 15% of the dividend declarations in 2006, 2005 and 2004, totaling $32.5 million, was set aside in a separate bank account in the name of the Company and is shown as restricted cash and investments and dividends payable in the accompanying Balance Sheets. On August 4, 2005, the court issued a decision, ruling in favor of LPG on five of the eight disputed issues in the first phase of the litigation. On September 12, 2005, LPG filed a motion seeking the release of the funds which have been set aside pursuant to the status quo agreement referred to above. MidAmerican and CE Casecnan Ltd. filed an opposition to the motion on October 3, 2005, and at the hearing on October 26, 2005, the court denied LPG’s motion. On January 3, 2006, the court entered a judgment in favor of LPG against CE Casecnan Ltd. According to the judgment, LPG would retain its ownership of 15% of the shares of the Company and distributions of the amounts deposited into escrow plus interest at 9% per annum. On February 28, 2006, CE Casecnan Ltd. filed an appeal of this judgment and the August 4, 2005 decision. The appeal is fully briefed and is expected to be resolved sometime in 2007. The parties are proceeding in the trial court on LPG’s remaining claim against MidAmerican for damages for alleged breach of fiduciary duty. This claim is expected to be resolved sometime in 2007.
In February 2003, San Lorenzo Ruiz Builders and Developers Group, Inc. (“San Lorenzo”), an original shareholder substantially all of whose shares in the Company were purchased by MidAmerican in 1998, threatened to initiate legal action against the Company in the Philippines in connection with certain aspects of its option to repurchase such shares. The Company believes that San Lorenzo has no valid basis for any claim and, if named as a defendant in any action that may be commenced by San Lorenzo, the Company will vigorously defend such action. On July 1, 2005, MidAmerican and CE Casecnan Ltd. commenced an action against San Lorenzo in the District Court of Douglas County, Nebraska, seeking a declaratory judgment as to MidAmerican’s and CE Casecnan Ltd.’s rights vis-à-vis San Lorenzo in respect of such shares. San Lorenzo filed a motion to dismiss on September 19, 2005. Subsequently, San Lorenzo purported to exercise its option to repurchase such shares. On January 30, 2006, San Lorenzo filed a counterclaim against MidAmerican and CE Casecnan Ltd. seeking declaratory relief that it has effectively exercised its option to purchase 15% of the shares of the Company, that it is the rightful owner of such shares and that it is due all dividends paid on such shares. On March 9, 2006, the court granted San Lorenzo’s motion to dismiss, but has since permitted MidAmerican and CE Casecnan Ltd. to file an amended complaint incorporating the purported exercise of the option. The complaint has been amended and the action is proceeding. The matter is currently in the early stages of discovery. The impact, if any, of San Lorenzo’s purported exercise of its option and the Nebraska litigation on the Company cannot be determined at this time.
Real Property Tax
On July 25, 2005, CE Casecnan paid real property taxes, plus interest and penalties, to the Province of Nueva Vizcaya of $4.5 million and submitted an invoice for reimbursement of such amount to NIA in accordance with the Supplemental Agreement. On January 24, 2006, NIA, the Philippine Department of Finance (the “DOF”) and CE Casecnan agreed that NIA will reimburse CE Casecnan the full amount of the Province of Nueva Vizcaya tax assessment in five installments during 2006. As agreed, NIA has reimbursed CE Casecnan the total amount owed in 2006.
On December 28, 2005, CE Casecnan paid real property taxes of $4.7 million to the Province of Nueva Ecija. CE Casecnan has received letters from NIA and the DOF, respectively, authorizing the payment. As agreed, NIA has reimbursed CE Casecnan the total amount owed in 2006.
Concentration of Risk
NIA’s payments of obligations under the Project Agreement are substantially denominated in U.S. Dollars and are the Company’s sole source of operating revenue. Because of the Company’s dependence on NIA, any material failure of NIA to fulfill its obligations under the Project Agreement and any material failure of the ROP to fulfill its obligations under the Performance Undertaking would significantly impair the ability of the Company to meet its existing and future obligations. No stockholders, partners or affiliates of the Company, including MidAmerican, and no directors, officers or employees of the Company have guaranteed or will be in any way liable for payment of the Company’s obligations. As a result, payment of the Company’s obligations depends upon the availability of sufficient revenue from the Company’s business after the payment of operating expenses.
Regulatory environment
The Philippine Congress has passed the Electric Power Industry Reform Act of 2001 (“EPIRA”), which is aimed at restructuring the Philippine power industry, privatizing the Philippine National Power Corporation and introducing a competitive electricity market, among other initiatives. The implementation of EPIRA may have an impact on the Company’s future operations in the Philippines and the Philippine power industry as a whole, the effect of which is not yet determinable or estimable as the changes resulting from EPIRA are ongoing.
On January 27, 2006, CE Casecnan received from the Province of Nueva Vizcaya a franchise tax assessment for the years 2001 to 2004 totaling $1.6 million. On April 25, 2006, CE Casecnan filed an appeal with the Regional Trial Court of Nueva Vizcaya. CE Casecnan believes that franchise tax is a tax imposed on companies which have a secondary or special franchise from the government. CE Casecnan does not have a government franchise. The EPIRA provides that power generation is not a public utility operation and does not require a franchise. On March 30, 2006, CE Casecnan received from the Province of Nueva Vizcaya a franchise tax assessment for the year 2005 totaling $0.3 million. CE Casecnan filed a protest with the treasurer of the Province of Nueva Vizcaya on April 5, 2006. On June 30, 2006, CE Casecnan filed an appeal to the Regional Trial Court of Nueva Vizcaya after the province failed to act on the protest within the period required by law. CE Casecnan moved to consolidate the two cases, which was granted by the court. The consolidated cases are set for pre-trial on March 16 and April 27, 2007. On January 19, 2007, CE Casecnan received from the Province of Nueva Vizcaya a franchise tax assessment for the year 2006 totaling $0.3 million. CE Casecnan will file a protest with the provincial treasurer of the Province of Nueva Vizcaya not later than March 20, 2007.
12. Fair Value of Financial Instruments
Statement of Financial Accounting Standards No. 107, “Disclosures About Fair Value of Financial Instruments,” defines the fair value of financial instruments as the amount at which the instruments could be exchanged in a current transaction between willing parties. Although management uses its best judgment in estimating the fair value of these financial instruments, there are inherent limitations in any estimation technique. Therefore, the fair value estimates presented herein are not necessarily indicative of the amounts that the Company could realize in a current transaction. The methods and assumptions used to estimate fair value are as follows:
Cash, trade receivable, accounts payable and accrued expenses
The carrying amounts reported in the Balance Sheets approximate fair value due to the liquidity, the short maturity and nature of such items.
Notes payable
The Company has outstanding $51.3 million of unsecured subordinated notes payable to CE Casecnan Ltd., a stockholder, due November 1, 2015 (see Note 10) with interest calculated at LIBOR plus 5.25%. It is not practicable to estimate the fair value of the notes payable for a variety of reasons, including the absence of quoted market prices for the notes and their subordination provisions to the existing senior debt of the Company.
Long-term debt
The fair value of the Company’s long-term debt is estimated based on quoted market prices of similar types of arrangements. At December 31, 2006, the Company had fixed-rate long-term debt of $106.3 million in principal amount and having a fair value of $113.8 million. At December 31, 2005, the Company had fixed-rate long-term debt of $142.3 million in principal amount and having a fair value of $153.4 million. These instruments are fixed-rate and, therefore, do not expose the Company to the risk of earnings loss due to changes in market interest rates. However, the fair value of these instruments would decrease by approximately $1.3 million if interest rates were to increase by 10% from their levels at December 31, 2006. In general, such a decrease in fair value would impact earnings and cash flows only if the Company were to reacquire all or a portion of these instruments prior to their maturity.
13. Operating Lease Rentals and Service Income
The following is the minimum lease rentals and service income in the next five years on the noncancelable operating lease as of December 31, 2006 (in thousands):
The reduction in minimum lease rentals and service income in 2011 reflects the period of time the Casecnan Project is not expected to deliver water and generate electricity due to a scheduled major plant overhaul and tunnel inspection. Variable lease rentals and service income amounted to $41.0 million in 2006, $24.9 million in 2005 and $26.9 million in 2004.
Item 9.
Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure.
None.
Item 9A.
Item 9A. Controls and Procedures.
An evaluation was performed under the supervision and with the participation of the Company’s management, including the respective persons acting as chief executive officer and chief financial officer, regarding the effectiveness of the design and operation of the Company’s disclosure controls and procedures (as defined in Rule 13a-15(e) promulgated under the Securities and Exchange Act of 1934, as amended) as of December 31, 2006. Based on that evaluation, the Company’s management, including the respective persons acting as chief executive officer and chief financial officer, concluded that the Company’s disclosure controls and procedures were effective. There have been no changes during the fourth quarter of 2006 in the Company’s internal control over financial reporting that have materially affected, or are likely to materially affect, the Company’s internal control over financial reporting.
Item 9B.
Item 9B. Other Information.
None.
PART III
Item 10.
Item 10. Directors, Executive Officers and Corporate Governance.
The following table sets forth the names, ages, and positions of the directors and executive officers of the Company:
David L. Sokol
Director and Chairman
Gregory E. Abel
Vice Chairman
Joseph L. Sullivan
Director, President and General Manager
Patrick J. Goodman
Director, Senior Vice President and Chief Financial Officer
Douglas L. Anderson
Director, Senior Vice President, General Counsel and Assistant Secretary
Brian K. Hankel
Vice President and Treasurer
Scott LaPrairie
Director
Mitchell L. Pirnie
Vice President
Linda B. Castillo
Director
Trinity S. Gatuz
Director
Belinda E. Dugan
Director
Suzy Lyn A. Bayona
Director
Pearl T. Liu
Director
Directors of the Company are elected annually and hold office until a successor is elected. Executive officers are chosen from time to time by vote of the Board of Directors. Pursuant to the terms of the Stockholders Agreement, CE Casecnan Ltd. is entitled to elect seven of the directors, and each minority investor is entitled to elect one director.
David L. Sokol. In addition to serving as Director and Chairman of the Company, Mr. Sokol has been Chief Executive Officer of MidAmerican since April 19, 1993 and served as President of MidAmerican from April 19, 1993 until January 21, 1995. Mr. Sokol has been Chairman of the Board of Directors since May 1994 and a director of MidAmerican since March 1991. Formerly, among other positions held in the independent power industry, Mr. Sokol served as the President and Chief Executive Officer of Kiewit Energy Company, which at that time was a wholly owned subsidiary of Peter Kiewit Sons’, Inc. and Ogden Projects, Inc.
Gregory E. Abel. In addition to serving as Vice Chairman of the Company, Mr. Abel is President and Chief Operating Officer of MidAmerican. Mr. Abel joined MidAmerican in 1992 and initially served as Vice President and Controller. Mr. Abel is a Chartered Accountant and from 1984 to 1992 was employed by Price Waterhouse. As a Manager in the San Francisco office of Price Waterhouse, he was responsible for clients in the energy industry. Mr. Abel is a director of PacifiCorp.
Joseph L. Sullivan. In addition to serving as Director, President and General Manager for the Company, Mr. Sullivan is President and General Manager, Philippines for affiliates of the Company. From 2002 to 2004, Mr. Sullivan served as Executive Vice President for Operations of Mirant Philippines. From 2001 to 2002, Mr. Sullivan served as Station Manager of Mirant Sual Power Corporation. Prior to 2001, he held a series of management and engineering positions at Cajun Electric Power Cooperative, Inc. and Alabama Power Company.
Patrick J. Goodman. In addition to serving as Director, Senior Vice President and Chief Financial Officer for the Company, Mr. Goodman is Senior Vice President and Chief Financial Officer of MidAmerican. Mr. Goodman joined MidAmerican in June and served in various financial positions including Chief Accounting Officer. Prior to joining MidAmerican, Mr. Goodman was a financial manager for National Indemnity Company and a senior associate at PricewaterhouseCoopers. Mr. Goodman is a director of PacifiCorp.
Douglas L. Anderson. In addition to serving as Director, Senior Vice President, General Counsel and Assistant Secretary for the Company, Mr. Anderson is Senior Vice President, General Counsel and Corporate Secretary of MidAmerican. Mr. Anderson joined MidAmerican in February 1993 and has served in various legal positions including General Counsel of the Company’s independent power affiliates. Prior to that, Mr. Anderson was a corporate attorney in private practice. Mr. Anderson is a director of PacifiCorp.
Brian K. Hankel. In addition to serving as Vice President and Treasurer for the Company, Mr. Hankel is Vice President and Treasurer for MidAmerican. Mr. Hankel joined MidAmerican in February 1992 as a Treasury Analyst and served in that position until December 1995. Mr. Hankel was appointed Assistant Treasurer in January 1996 and was appointed Treasurer in January 1997. Prior to joining the Company, Mr. Hankel was a Money Position Analyst at FirsTier Bank of Lincoln from 1988 to 1992.
Scott LaPrairie. In addition to serving as a Director of the Company, Mr. LaPrairie is President and Chief Executive Officer of the LaPrairie Group of Companies.
Mitchell L. Pirnie. In addition to serving as Vice President for the Company, Mr. Pirnie also serves as Vice President, General Counsel and Director of CE Generation, LLC, an affiliate of the Company. Mr. Pirnie joined MidAmerican in November 1997. Prior to joining MidAmerican, Mr. Pirnie was an attorney in private practice.
Linda B. Castillo. In addition to serving as a Director of the Company, Ms. Castillo is Vice President and Corporate Counsel for the Company and certain of its affiliates. Ms. Castillo joined CalEnergy International in October 2000 as Director for Corporate Affairs until August 2001 when she was appointed Vice President and Corporate Counsel. Prior to joining the company, Ms. Castillo was Vice President and General Counsel of PhilSteel Holdings Company and its affiliates from 1999 to 2000 and prior to that was a Director and Corporate Counsel of CAR, Inc. from 1996 to 1998.
Trinity S. Gatuz. In addition to serving as a Director of the Company, Ms. Gatuz is Vice President for Finance and Accounting for the Company and its affiliates. Ms. Gatuz joined CalEnergy International in August 1994 and served in various positions including Accounting Manager. Prior to joining CalEnergy International, Ms. Gatuz was Head of General Accounting of EasyCall Communications Philippines, Inc.
Belinda E. Dugan. In addition to serving as a Director of the Company, Ms. Dugan is Legal Counsel for the Company and certain of its affiliates. Ms. Dugan joined CalEnergy International in January 2003. Prior to joining the company, Ms. Dugan was a Senior Tax Manager for Punongbayan & Araullo from 1994 to 2000 and a Legal and Tax Manager for Asea Brown Boveri, Inc. from 2000 to 2002.
Suzy Lyn A. Bayona. In addition to serving as a Director of the Company, Ms. Bayona is Senior Accountant for the Company and certain of its affiliates. Ms. Bayona joined CalEnergy International in January 2000 as Accountant. Prior to joining the company, Ms. Bayona was a senior auditor at Sycip Gorres Velayo & Company.
Pearl T. Liu. In addition to serving as a Director of the Company, Ms.Liu is Corporate Secretary for the Company.
Audit Committee Matters
During the fiscal year ended December 31, 2006 and as of the date of this Report, the Board of Directors had no committees, including any audit committee. The Company is not an issuer as defined in the Sarbanes-Oxley Act of 2002, it does not have a class of securities listed on any securities exchange, and it is not required to have an audit committee.
Code of Ethics
The Company has adopted a code of ethics that applies to its principal executive officer, its principal financial officer and to certain other covered officers. The code of ethics is filed as an exhibit to this Annual Report on Form 10-K.
Item 11.
Item 11. Executive Compensation.
None of the executive officers or directors of the Company receives compensation from the Company for services as officers or directors of the Company. All directors are reimbursed for their expenses in attending board and committee meetings.
Item 12.
Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters.
Description of Capital Stock
As of December 31, 2006, the authorized capital stock of the Company consisted of 2,148,000 shares of common stock, par value 1.00 Philippine peso ($0.038) per share (the “Common Stock”), of which 767,162 shares were outstanding. There is no public trading market for the Common Stock. As of December 31, 2006 there were 11 holders of record of the Common Stock. Holders of Common Stock are entitled to one vote per share on any matter coming before the stockholders for a vote.
The Trust Indenture contains certain restrictions on the payment of dividends with respect to the Common Stock.
Principal Stockholders
The following table sets forth information with respect to all persons who own beneficially more than 5% of the common stock and by all directors and officers of the Company as a group.
* In addition, each director of the Company owns one share in the Company as required by Philippine law.
(1)
In April 2003, CE Casecnan Ltd., a Bermuda registered corporation assigned shares in CE Casecnan to CE Casecnan II, Inc., a Philippine corporation. CE Casecnan Ltd. and CE Casecnan II, Inc. are indirectly owned by MidAmerican.
(2)
Pursuant to the share ownership adjustment mechanism in the CE Casecnan stockholder agreement, which is based upon proforma financial projections of the Casecnan Project prepared following commencement of commercial operations, in February 2002, MidAmerican’s indirect wholly owned subsidiary, CE Casecnan Ltd., advised the minority stockholder of the Company, LaPrairie Group Contractors (International) Ltd. (“LPG”), that MidAmerican’s indirect ownership interest in CE Casecnan had increased to 100% effective from commencement of commercial operations. On July 8, 2002, LPG filed a complaint in the Superior Court of the State of California, City and County of San Francisco against CE Casecnan Ltd. and MidAmerican. LPG’s complaint, as amended, seeks compensatory and punitive damages arising out of CE Casecnan Ltd.’s and MidAmerican’s alleged improper calculation of the proforma financial projections and alleged improper settlement of the NIA arbitration. The Company is not a defendant in the action. On January 21, 2004, CE Casecnan Ltd., LPG and the Company entered into a status quo agreement pursuant to which the parties agreed to set aside certain distributions related to the shares subject to the LPG dispute and CE Casecnan agreed not to take any further actions with respect to such distributions without at least 15 days prior notice to LPG. Accordingly, 15% of the dividend declarations in 2006, 2005 and 2004, totaling $32.5 million, was set aside in a separate bank account in the name of the Company and is shown as restricted cash and investments and dividends payable in the accompanying Balance Sheets. On August 4, 2005, the court issued a decision, ruling in favor of LPG on five of the eight disputed issues in the first phase of the litigation. On September 12, 2005, LPG filed a motion seeking the release of the funds which have been set aside pursuant to the status quo agreement referred to above. MidAmerican and CE Casecnan Ltd. filed an opposition to the motion on October 3, 2005, and at the hearing on October 26, 2005, the court denied LPG’s motion. On January 3, 2006, the court entered a judgment in favor of LPG against CE Casecnan Ltd. According to the judgment, LPG would retain its ownership of 15% of the shares of the Company and distributions of the amounts deposited into escrow plus interest at 9% per annum. On February 28, 2006, CE Casecnan Ltd. filed an appeal of this judgment and the August 4, 2005 decision. The appeal is fully briefed, was argued on January 4, 2007 and is expected to be resolved sometime in 2007. The parties are proceeding in the trial court on LPG’s remaining claim against MidAmerican for damages for alleged breach of fiduciary duty. This claim is expected to be resolved sometime in 2007.
(3)
Includes rights to 115,000 shares, which rights were purchased from San Lorenzo Ruiz Builders and Developers Group, Inc. (“San Lorenzo”) in 1998. The 115,000 shares are subject to the ownership adjustment mechanism in the Stockholders Agreement discussed in Note 11. San Lorenzo retained an option to repurchase the 115,000 shares, if any, remaining after such ownership adjustment.
In February 2003, San Lorenzo Ruiz Builders and Developers Group, Inc. (“San Lorenzo”), an original shareholder substantially all of whose shares in the Company were purchased by MidAmerican in 1998, threatened to initiate legal action against the Company in the Philippines in connection with certain aspects of its option to repurchase such shares. The Company believes that San Lorenzo has no valid basis for any claim and, if named as a defendant in any action that may be commenced by San Lorenzo, the Company will vigorously defend such action. On July 1, 2005, MidAmerican and CE Casecnan Ltd. commenced an action against San Lorenzo in the District Court of Douglas County, Nebraska, seeking a declaratory judgment as to MidAmerican’s and CE Casecnan Ltd.’s rights vis-à-vis San Lorenzo in respect of such shares. San Lorenzo filed a motion to dismiss on September 19, 2005. Subsequently, San Lorenzo purported to exercise its option to repurchase such shares. On January 30, 2006, San Lorenzo filed a counterclaim against MidAmerican and CE Casecnan Ltd. seeking declaratory relief that it has effectively exercised its option to purchase 15% of the shares of the Company, that it is the rightful owner of such shares and that it is due all dividends paid on such shares. On March 9, 2006, the court granted San Lorenzo’s motion to dismiss, but has since permitted MidAmerican and CE Casecnan Ltd. to file an amended complaint incorporating the purported exercise of the option. The complaint has been amended and the action is proceeding. The matter is currently in the early stages of discovery. The impact, if any, of San Lorenzo’s purported exercise of its option and the Nebraska litigation on the Company cannot be determined at this time.
Item 13.
Item 13. Certain Relationships and Related Transactions, and Director Independence.
Not applicable.
Item 14.
Item 14. Principal Accountant Fees and Services.
Aggregate fees billed to CE Casecnan during the fiscal years ended December 31, 2006 and 2005 by its principal accountant, Isla Lipana & Co. formerly Joaquin Cunanan & Co. (A PricewaterhouseCoopers Member Firm) are set forth below (in thousands). The audit committee of MidAmerican has considered whether the provision of the non-audit services described below is compatible with maintaining the principal accountant's independence and concluded that these are not independence impairing services.
(1)
Includes the aggregate fees billed for each of the last two fiscal years for professional services rendered for the audit of the Company’s financial statements included in the Company’s Form 10-K, review of the Company’s financial statements included in the Company’s Form 10-Qs and for services that are normally provided in connection with statutory and regulatory filings or engagements for those fiscal years.
(2)
Includes the aggregate fees billed in each of the last two fiscal years for assurance and related services that are reasonably related to the performance of the audit or review of the Company’s financial statements. Services included in this category include audits of benefit plans, due diligence for possible acquisitions and consultation pertaining to new and proposed accounting and regulatory rules.
(3)
Includes the aggregate fees billed in each of the last two fiscal years for professional services rendered for tax compliance, tax advice, and tax planning.
PART IV
Item 15.
Item 15. Exhibits and Financial Statement Schedules.
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Omaha, State of Nebraska, on February 8, 2007.
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed by the following persons on behalf of the Registrant and in the capacities and on the dates indicated:
Signature
Title
Date
/s/ Joseph L. Sullivan*
Director, President and General Manager
February 8,
Joseph L. Sullivan
(Principal Executive Officer)
/s/ Patrick J. Goodman*
Director, Senior Vice President and Chief Financial Officer
February 8,
Patrick J. Goodman
(Principal Financial Officer)
/s/ David L. Sokol*
Director and Chairman
February 8,
David L. Sokol
/s/ Douglas L. Anderson
Director, Senior Vice President, General Counsel
February 8,
Douglas L. Anderson
and Assistant Secretary
/s/ Linda B. Castillo*
Director
February 8,
Linda B. Castillo
/s/ Trinity S. Gatuz*
Director
February 8,
Trinity S. Gatuz
/s/ Belinda E. Dugan*
Director
February 8,
Belinda E. Dugan
/s/ Suzy Lyn A. Bayona*
Director
February 8,
Suzy Lyn A. Bayona
/s/ Pearl T. Liu*
Director
February 8,
Pearl T. Liu
Scott LaPrairie
Director
February 8,
*By: /s/ Douglas L. Anderson
Douglas L. Anderson
Attorney-in-Fact
EXHIBIT INDEX
Exhibit No.
3.1
Articles of Incorporation of the Company (incorporated by reference to Exhibit 3.1 the Company’s Registration Statement on Form S-4, as amended, dated January 25, 1996 (“Form S-4”)).
3.2
By-laws of the Company (incorporated by reference to Exhibit 3.2 the Company’s Form S-4).
4.1(a)
Trust Indenture, dated as of November 27, 1995, between Chemical Trust Company of California and the Company (incorporated by reference to Exhibit 4.1(a) the Company’s Form S-4).
4.1(b)
First Supplemental Indenture, dated as of April 10, 1996, between Chemical Trust Company of California and the Company (incorporated by reference to Exhibit 4.1(b) to the Company’s Form S-4).
4.2
Exchange and Registration Rights Agreement, dated as of November 27, 1995, by and among CS First Boston Corporation, Bear Stearns & Co. Inc., Lehman Brothers Inc. and the Company (incorporated by reference to Exhibit 4.2 the Company’s Form S-4).
4.3
Collateral Agency and Intercreditor Agreement, dated as of November 27, 1995, by and among Chemical Trust Company of California, Far East Bank & Trust Company and the Company (incorporated by reference to Exhibit 4.3 the Company’s Form S-4).
4.4
Mortgage and Security Agreement, dated as of November 10, 1995, by and among CE Casecnan Ltd., Kiewit Energy International (Bermuda) Ltd., La Prairie Group Contractors (International) Ltd., San Lorenzo Ruiz Builders and Developers Group, Inc., Chemical Trust Company of California, Far East Bank & Trust Company and the Company (incorporated by reference to Exhibit 4.4 the Company’s Form S-4).
4.6
Deposit and Disbursement Agreement, dated as of November 27, 1995, by and among the Company, Chemical Trust Company of California, Kiewit Energy Company and the Company (incorporated by reference to the Company’s Form S-4).
4.7
Consent of NIA, dated as of November 10, 1995, to the assignment of the Amended and Restated Casecnan Project Agreement (incorporated by reference to Exhibit 4.7 to the Company’s Form S-4).
4.8
Consent of the Republic of the Philippines, dated November 10, 1995, to the assignment of the Performance Undertaking and the Amended and Restated Casecnan Project Agreement (incorporated by reference to Exhibit 4.8 to the Company’s Form S-4).
10.1
Amended and Restated Casecnan Project Agreement, dated as of June 26, 1995, between the National Irrigation Administration and the Company (incorporated by reference to Exhibit 10.1 the Company’s Form S-4).
10.2
Performance Undertaking, dated as of July 20, 1995, executed by the Secretary of Finance on behalf of the Republic of the Philippines (incorporated by reference to Exhibit 10.2 to the Company’s Form S-4).
10.8
Supplemental Agreement between CE Casecnan Water and Energy Company, Inc. and the Philippines National Irrigation Administration dated as of September 29, 2003 (incorporated by reference to Exhibit 99.1 to the Company’s Form 8-K dated October 15, 2003).
14.1
CE Casecnan Water and Energy Company, Inc. Code of Ethics for Chief Executive Officer, Chief Financial Officer and Chief Accounting Officer (incorporated by reference to Exhibit 14.1 to the Company’s Form 10-K dated December 31, 2003).
Power of Attorney
31.1
Chief Executive Officer’s Certificate Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
31.2
Chief Financial Officer’s Certificate Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
32.1
Chief Executive Officer’s Certificate Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
32.2
Chief Financial Officer’s Certificate Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.