**Exhibit 10.17.5**

 

AMENDMENTNO. 5

TOAMENDED AND RESTATED CREDIT AGREEMENT

 

THIS AMENDMENT NO. 5 TOAMENDED AND RESTATED CREDIT AGREEMENT (this “Amendment”) is entered into as of July31, 2009, between SouthWest Water Company, a Delaware corporation (“Borrower”),and Bank of America, N.A., as Administrative Agent, with reference to the Amendedand Restated Credit Agreement dated as of February 15, 2008 (as amended, the“Credit Agreement”), among Borrower, the Lenders described therein, and the AdministrativeAgent.  Capitalized terms not otherwisedefined herein are used with the meanings set forth for those terms in theCredit Agreement.

 

The parties hereto enterinto this Amendment with reference to the following facts:

 

A.                                 Pursuant to Amendment No. 3 to Amendedand Restated Credit Agreement dated as of June 17, 2009 (“Amendment No. 3”),between the Borrower and the Administrative Agent (with the consent of theRequired Lenders), Borrower is required to deliver the financial statementsrequired under Sections 6.01(b) and 6.02(a) of the Credit Agreementwith respect to the fiscal quarters ended September 30, 2008, and March 31,2009, on or prior to August 3, 2009.

 

B.                                  Pursuant to Sections 6.01(b) and 6.02(a) ofthe Credit Agreement, the Borrower is required to deliver the financialstatements described therein with respect to the fiscal quarter ended June 30,2009, on or prior to August 15, 2009.

 

C.                                     TheBorrower has informed the Administrative Agent and the Lenders that it will notbe able to deliver the required financial statements with respect to the fiscalquarters ended September 30, 2008, March 31, 2009, and June 30,2009 prior to the applicable deadlines (collectively, the “Anticipated Defaults”).

 

D.                                 Borrower has requested that the Lenders (i) waivethe Anticipated Defaults, (ii) extend the time by which the requiredfinancial statements with respect to the fiscal quarters ended September 30,2008, and March 31, 2009 must be delivered to August 28, 2009, and (iii) extendthe time by which the required financial statements with respect to the fiscalquarter ended June 30, 2009 must be delivered to September 18, 2009.

 

E.                                   The Administrative Agent, acting with theconsent of the Required Lenders pursuant to Section 10.01 of the CreditAgreement, has agreed to waive the Anticipated Defaults and to otherwise amendthe Credit Agreement and the other Loan Documents on the terms set forth inthis Amendment.

 

NOW, THEREFORE, Borrower andAdministrative Agent, acting with the consent of the Required Lenders pursuantto Section 10.01 of the Credit Agreement, agree as follows:

 

1.                                     Representations and Warranties. Borrower represents and warrants to Administrative Agent and the Lendersthat:

 

(a)                               after giving effect to this Amendment, noDefault or Event of Default has occurred and remains continuing;

 

(b)                               after giving effect to this Amendment, exceptfor representations or warranties which are inaccurate as a direct result ofthe correction and restatement of the Subject Financial Statements, and exceptas set forth in the Schedules to the Credit Agreement, each of 

 

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the representations andwarranties set forth in Article V of the Credit Agreement are true andcorrect as of the date of this Agreement (other than those representationswhich relate solely to a prior date, each of which was true as of that date) providedthat Schedules 5.06 and 5.09 are updated in the manner attached to Amendment No. 2to Amended and Restated Credit Agreement dated as of May 28, 2009, betweenthe Borrower and the Administrative Agent; and

 

(c)                               neither Borrower nor any of itsSubsidiaries is in default of any indenture, loan or credit or similaragreement governing Indebtedness in a principal amount which exceeds $1,000,000in any manner which entitles the holder of such Indebtedness, or which wouldentitle the holder of such Indebtedness with the giving of any notice, thepassage of time (including any cure period), or both, to require the payment ofany such Indebtedness prior to the date upon which such Indebtedness wouldotherwise be due and payable.

 

2.                                     Waiver.  In relianceupon the agreements, representations and warranties set forth in thisAmendment, the Lenders hereby waive the Anticipated Defaults.  The Lenders’ waiver of the Anticipated Defaultsconstitutes a one-time waiver of the specific Anticipated Defaults described inthis Amendment, shall not constitute a waiver of any other or future Defaultsor Events of Default, whether or not similar to the Anticipated Defaults, and shallnot be construed as a waiver of the Borrower’s obligation to deliver the financialstatements as set forth in Section 3 of this Amendment.

 

3.                                     Covenant Regarding Financial Statements.

 

(a)                               Notwithstanding any provision to the contraryin the Credit Agreement, Borrower shall have through August 28, 2009, todeliver the financial statements and Compliance Certificates required underSections 6.01(b) and 6.02(a) of the Credit Agreement, respectively,with respect to each of the fiscal quarters ended September 30, 2008, and March 31,2009.

 

(b)                               Notwithstanding any provision to the contraryin the Credit Agreement, Borrower shall have through September 18, 2009,to deliver the financial statements and Compliance Certificate required underSections 6.01(b) and 6.02(a) of the Credit Agreement, respectively,with respect to the fiscal quarter ended June 30, 2009.

 

The Borrower acknowledgesand agrees that each failure by the Borrower to comply with any covenant setforth in this Section 3 shall in each case constitute an immediate Eventof Default under the Credit Agreement with respect to which the AdministrativeAgent and the Lenders shall have all rights and remedies set forth therein andat law.

 

4.                                     Conditions to Effectiveness. The effectiveness of this Amendment shall be subject to the priorsatisfaction of the following conditions precedent, in each case in form andsubstance satisfactory to the Administrative Agent:

 

(a)                               the Administrative Agent shall have received aconsent of the Guarantors in the form of Exhibit A hereto executed by eachof the parties thereto;

 

(b)                               the Administrative Agent shall have received thewritten consent of the Required Lenders as required under Section 10.01 ofthe Credit Agreement in the form of Exhibit B hereto; and

 

(c)                               the Administrative Agent shall have received,for the account of each Lender which has executed a consent hereto prior to 3:00 p.m.(Los Angeles time) on July 31, 

 

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2009 (or any extension of such deadline announcedvia the Intralinks system), an amendment fee in an amount equal to 0.075% ofsuch Lender’s Commitment under the Credit Agreement.

 

5.                                     Effectiveness of the Credit Agreement.  Except as hereby expresslyamended, the Credit Agreement remains in full force and effect, and is herebyratified and confirmed in all respects.

 

6.                                     Counterparts.  This Amendment may be executedin any number of counterparts and all of such counterparts taken together shallbe deemed to constitute one and the same instrument.

 

*[SignaturePage Follows]*

 

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IN WITNESS WHEREOF, theparties hereto have caused this Amendment to be duly executed and delivered asof the date first written above.

 
|   |   | SOUTHWEST WATER COMPANY, a Delaware  corporation, |
|--------|--------|---------------------------------------------------|
|   |   | as Borrower                                       |
|   |   |                                              |
|   |   | By:                                               |   | /s/ Mark Swatek |   |
|   |   | Name:                                             |   | Mark Swatek |   |
|   |   | Title:                                            |   | CEO |   |
|   |   |                                              |
|   |   |                                              |
|   |   | BANK OF AMERICA, N.A.,                            |
|   |   | as Administrative Agent                           |
|   |   |                                              |
|   |   | By:                                               |   | /s/ Ken Puro |   |
|   |   | Name:                                             |   | Ken Puro |   |
|   |   | Title:                                            |   | Vice President |   |
|        |        |                                                   |  |  |  |  |  |  |

 

 

Signature Page

 

 

Exhibit Ato Amendment

 

CONSENT OF GUARANTORS

 

This Consent of Guarantors (this“Consent of Guarantors”) is delivered with reference to (a) the Amendedand Restated Credit Agreement dated as of February 15, 2008 (as heretoforeamended, restated, extended, supplemented, or otherwise modified, the “CreditAgreement”), among SouthWest Water Company, a Delaware corporation (“Borrower”),the lenders from time to time party thereto (collectively, the “Lenders”), andBank of America, N.A., as Administrative Agent (“Administrative Agent”) and (b) theAmended and Restated Continuing Guaranty dated as of February 15, 2008,made by each of the undersigned Guarantors (as heretofore amended, restated,extended, supplemented, or otherwise modified, the “Guaranty”).  Capitalized terms not otherwise definedherein are used with the meanings set forth for those terms in the CreditAgreement.

 

Each of the undersigned Guarantors(i) consents to and approves Borrower’s execution and delivery of theattached Amendment No. 5 to Amended and Restated Credit Agreement (the “Amendment”),(ii) agrees that such Amendment does not and shall not limit or diminishin any manner the obligations of such Guarantor under the Guaranty and thatsuch obligations would not be limited or diminished in any manner even if suchGuarantor had not executed this Consent of Guarantors, (iii) reaffirms theGuaranty, and (iv) agrees that the Guaranty remains in full force andeffect and is hereby ratified and confirmed.

 

Dated as of  ______________, 2009.

 
|   |   | ECO RESOURCES, INC.,            |   |
|--------|--------|---------------------------------|--------|
|   |   | a Texas corporation             |   |
|   |   |                            |   |
|   |   | By:                             |   |   |
|   |   | Name:                           |   |   |
|   |   | Title:                          |   |   |
|   |   |                            |   |
|   |   | OPERATIONS  TECHNOLOGIES, INC., |   |
|   |   | a Georgia corporation           |   |
|   |   |                            |   |
|   |   | By:                             |   |   |
|   |   | Name:                           |   |   |
|   |   | Title:                          |   |   |
|   |   |                            |   |   |
|   |   | SWWC SERVICES, INC.,            |   |
|   |   | a Delaware corporation          |   |
|   |   |                            |   |   |
|   |   | By:                             |   |   |
|   |   | Name:                           |   |   |
|   |   | Title:                          |   |   |

 

 

Exhibit A

 

 
|   |   | METRO-H2O, LTD.,             |
|--------|--------|------------------------------|
|   |   | a Texas limited  partnership |
|   |   |                         |   |
|   |   |                         | By: Metro-H2O  Utilities, Inc. |
|   |   |                         | Its: General Partner |
|   |   |                         |   |
|   |   |                         | By: |   |
|   |   |                         | Name: |   |
|   |   |                         | Title: |   |
|   |   |                         |   |
|   |   |                         |   |
|   |   | METRO-H2O UTILITIES,  INC.,  |   |
|   |   | a Texas corporation          |   |
|   |   |                         |   |   |
|   |   | By:                          |   |   |
|   |   | Name:                        |   |   |
|   |   | Title:                       |   |   |
|   |   |                         |   |   |
|   |   |                         |   |   |
|   |   | SWWC ENTERPRISES, INC.,      |   |
|   |   | a Delaware corporation       |   |
|   |   |                         |   |   |
|   |   | By:                          |   |   |
|   |   | Name:                        |   |   |
|   |   | Title:                       |   |   |
|   |   |                         |   |   |
|   |   | SWWC UTILITIES, INC.,        |   |
|   |   | a Delaware corporation       |   |
|   |   |                         |   |   |
|   |   | By:                          |   |   |
|   |   | Name:                        |   |   |
|   |   | Title:                       |   |   |
|   |   |                         |   |   |
|   |   |                         |   |   |
|   |   | CDC MAINTENANCE, INC.,       |   |
|   |   | a Texas corporation          |   |
|   |   |                         |   |   |
|   |   | By:                          |   |   |
|   |   | Name:                        |   |   |
|   |   | Title:                       |   |   |
|   |   |                         |   |   |
|   |   |                         |   |   |
|   |   | NEW MEXICO UTILITIES,  INC., |   |
|   |   | a New Mexico  corporation,   |   |
|   |   |                         |   |   |
|   |   | By:                          |   |   |
|   |   | Name:                        |   |   |
|   |   | Title:                       |   |   |
|        |        |                              |  |  |  |

 

 

Exhibit A

 

 

Exhibit Bto Amendment

 

**CONSENT OF LENDER**

** **

Reference is hereby made tothe Amended and Restated Credit Agreement dated as of February 15, 2008(as heretofore amended, restated, extended, supplemented, or otherwisemodified, the “Credit Agreement”), among SouthWest Water Company, a Delawarecorporation (“Borrower”), the lenders from time to time party thereto(collectively, the “Lenders”), and Bank of America, N.A., as AdministrativeAgent (“Administrative Agent”).  Capitalized terms not otherwise defined hereinare used with the meanings set forth for those terms in the Credit Agreement.

 

The undersigned Lenderhereby consents to the execution and delivery of an Amendment No. 5 to Amendedand Restated Credit Agreement by Administrative Agent on its behalf,substantially in the form of the most recent draft thereof presented to theundersigned Lender.

 

Dated as of  ______________, 2009.

 
|   |   |             |   |
|--------|--------|------------------|--------|
|   |   | [Name of Lender] |   |
|   |   |             |
|   |   |             |
|   |   | By:              |   |   |
|   |   |             |   |   |
|   |   | Name:            |   |   |
|   |   |             |   |   |
|   |   | Title:           |   |   |
|        |        |                  |        |  |  |