**Exhibit 10.17.6**

 

AMENDMENT NO. 6

TO AMENDED AND RESTATED CREDIT AGREEMENT

 

THISAMENDMENT NO. 6 TO AMENDED AND RESTATED CREDIT AGREEMENT (this “Amendment”) isentered into as of March 2, 2010, between SouthWest Water Company, aDelaware corporation (“Borrower”), and Bank of America, N.A., as AdministrativeAgent, with reference to the Amended and Restated Credit Agreement dated as of February 15,2008 (as heretofore amended, the “Credit Agreement”), among Borrower, theLenders described therein, and the Administrative Agent.  Capitalized terms used but not otherwisedefined herein are used with the meanings set forth for those terms in theCredit Agreement.

 

Theparties hereto enter into this Amendment with reference to the following facts:

 

A.        Borrower has informedthe Administrative Agent and the Lenders of its intention to enter into anAgreement and Plan of Merger concurrently herewith substantially in the formattached hereto as Exhibit A (the “Merger Agreement”).  Upon the consummation of the transactionsdescribed in the Merger Agreement, each issued and outstanding share of theBorrower’s common stock will be converted into the right to receive cash, andthe Borrower will be wholly-owned by the entity identified as the “Parent”under the Merger Agreement.

 

B.         The execution anddelivery of the Merger Agreement contemplated by the Borrower (i) wouldcause a Change of Control to occur under clause (c) of such definition andwould cause an Event of Default to occur under Section 8.01(k) of theCredit Agreement, and (ii) would cause a breach of Section 7.09 ofthe Credit Agreement and would cause an Event of Default to occur under Section 8.01(b) ofthe Credit Agreement (collectively, the “Anticipated Defaults”).  Borrower has requested that the Lenders waivethe Anticipated Defaults that would occur upon execution and delivery of theMerger Agreement.

 

C.         Pursuant to Section 10.01of the Credit Agreement, the Required Lenders have agreed to waive theAnticipated Defaults on the terms set forth in this Amendment.

 

NOW,THEREFORE, Borrower and Administrative Agent, acting with the consent of theRequired Lenders pursuant to Section 10.01 of the Credit Agreement, agreeas follows:

 

1.         Representations and Warranties.  Borrower represents and warrants toAdministrative Agent and the Lenders that:

 

(a)        after giving effect to this Amendment,no Default or Event of Default has occurred and remains continuing;

 

(b)        after giving effect to this Amendment,each of the representations and warranties set forth in Article V of theCredit Agreement are true and correct as of the date of this Amendment (otherthan those representations which relate solely to a prior date, each of whichwas true as of that date), provided that Schedules 5.06 and 5.09 areupdated in the manner attached to Amendment No. 2 to Amended and RestatedCredit Agreement dated as of May 28, 2009, between the Borrower and theAdministrative Agent; and

 

(c)        neither Borrower nor any of itsSubsidiaries is in default of, and the execution and delivery of the MergerAgreement will not cause a default under, any indenture, loan or creditagreement or similar agreement governing Indebtedness in a principal amount whichexceeds $1,000,000, in any manner which entitles the holder of suchIndebtedness, or 

 

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which would entitle theholder of such Indebtedness with the giving of any notice, the passage of time(including any cure period) or both, to require the payment of any suchIndebtedness prior to the date upon which such Indebtedness would otherwise bedue and payable.

 

2.         Waiver of Anticipated Defaults.  Subject to the provisions in this Section 2and in reliance upon the agreements, representations and warranties set forthin this Amendment, the Required Lenders hereby waive the Anticipated Defaultsresulting from the execution and delivery of the Merger Agreement.  The waiver herein constitutes a one-timewaiver of the Anticipated Defaults resulting from the execution and delivery ofthe Merger Agreement, but the waiver herein does not and shall not constitute awaiver of (i) any Default or Event of Default resulting from the Change ofControl that will occur upon the consummation of the merger transactionsdescribed in the Merger Agreement, (ii) any Default or Event of Defaultresulting from the Borrower’s or its Subsidiaries’ (x) performance ornon-performance of their respective obligations under the Merger Agreement or (y) complianceor non-compliance with the terms and provisions of the Merger Agreement, including,without limitation, the covenants set forth in Article V of the MergerAgreement or payment or non-payment of any termination fee or expenses underthe Merger Agreement, or (iii) any other or future Defaults or Events ofDefault, whether or not similar to the Anticipated Defaults.

 

3.         Amendment to Section 5.18 of the Credit Agreement.  Section 5.18(b) of the CreditAgreement is hereby amended to read in full as follows:  “(b) restrictions set forth in futureinstruments, documents and agreements which have been entered into incompliance with Section 7.09, and the restrictions set forth in the MergerAgreement (as defined in Amendment No. 6 to Amended and Restated CreditAgreement dated as of March 2, 2010, by and among the Borrower and theAdministrative Agent.)”

 

4.         CovenantRegarding Amendment to Merger Agreement. Borrower hereby covenants and agrees not to amend, change, supplement,restate or otherwise modify the Merger Agreement in any manner which eitherindividually or in the aggregate (i) increases the termination fees orexpenses payable by the Borrower or its Subsidiaries thereunder or modifies thecircumstances under which or the date or time when such termination fees orexpenses are payable by the Borrower or its Subsidiaries, (ii) restrictsor impairs the ability of the Borrower and its Subsidiaries from conductingtheir respective businesses in all material respects in the ordinary courseconsistent with past practice, or (iii) is materially adverse to theBorrower or its Subsidiaries or the Lenders, in each case without the priorwritten consent of the Required Lenders. The Borrower acknowledges and agrees that each failure by the Borrowerto comply with the covenant set forth in this Section 3 shall in each caseconstitute an immediate Event of Default under the Credit Agreement withrespect to which the Administrative Agent and the Lenders shall have all rightsand remedies set forth therein, in equity and at law.

 

5.         Conditionsto Effectiveness.  The effectiveness ofthis Amendment shall be subject to the prior satisfaction of the followingconditions precedent:

 

(a)        the AdministrativeAgent shall have received a consent of the Guarantors in the form of Exhibit Bhereto executed by each of the parties thereto;

 

(b)        the AdministrativeAgent shall have received the written consent of the Required Lenders asrequired under Section 10.01 of the Credit Agreement in the form of Exhibit Chereto; and

 

(c)        the AdministrativeAgent shall have received an amendment fee in the amount of $100,000 (the “AmendmentFee”), which Amendment Fee shall be for the account of the Lenders which haveexecuted a consent hereto prior to 5:00 p.m. (Los Angeles time) on

 

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March 2,2010 (or any extension of such deadline announced via the Intralinks system)(each a “Consenting Lender”).  EachConsenting Lender shall receive a portion of the Amendment Fee based on thepercentage of all Consenting Lenders’ Commitments under the Credit Agreementrepresented by such Consenting Lender’s Commitment under the Credit Agreement.

 

6.         Effectivenessof the Credit Agreement.  Except as hereby expressly amended, theCredit Agreement remains in full force and effect, and is hereby ratified andconfirmed in all respects.

 

7.         Counterparts.  ThisAmendment may be executed in any number of counterparts and all of suchcounterparts taken together shall be deemed to constitute one and the sameinstrument.  Delivery of an executedcounterpart of a signature page of this Amendment by telecopy or otherelectronic imaging means shall be effective as delivery of a manually executedcounterpart of this Amendment.

 

*[Signature Page Follows]*

 

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INWITNESS WHEREOF, the parties hereto have caused this Amendment to be dulyexecuted and delivered as of the date first written above.

 
|   | SOUTHWEST WATER COMPANY, a  Delaware corporation, |
|--------|---------------------------------------------------|
|   | as  Borrower                                      |
|   |                                              |
|   | By:                                               |   |   |
|   | Name:                                             |   |   |
|   | Title:                                            |   |   |
|   |                                              |
|   |                                              |
|   |                                              |
|   | BANK OF AMERICA, N.A.,                            |
|   | as  Administrative Agent                          |
|   |                                              |
|   | By:                                               |   |   |
|   | Name:                                             |   |   |
|   | Title:                                            |   |   |
|        |                                                   |  |  |  |  |  |  |  |

 

 

SignaturePage

 

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Exhibit A to Amendment

 

MERGER AGREEMENT

 

[See Attached]

 

 

Exhibit A

 

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Exhibit B to Amendment

 

CONSENT OF GUARANTORS

 

ThisConsent of Guarantors (this “Consent of Guarantors”) is delivered withreference to (a) the 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”) and (b) the Amended and Restated ContinuingGuaranty dated as of February 15, 2008, made by each of the undersignedGuarantors (as heretofore amended, restated, extended, supplemented, orotherwise modified, the “Guaranty”). Capitalized terms used but not otherwise defined herein are used withthe meanings set forth for those terms in the Credit Agreement.

 

Eachof the undersigned Guarantors (i) consents to and approves Borrower’sexecution and delivery of the attached Amendment No. 6 to Amended andRestated Credit Agreement (the “Amendment”), (ii) agrees that suchAmendment does not and shall not limit or diminish in any manner theobligations of such Guarantor under the Guaranty and that such obligationswould not be limited or diminished in any manner even if such Guarantor had notexecuted this Consent of Guarantors, (iii) reaffirms the Guaranty, and (iv) agreesthat the Guaranty remains in full force and effect and is hereby ratified andconfirmed.

 
| Dated as of ________________,  2010. |                            |
|--------------------------------------|---------------------------------|
|                                 |                            |
|                                 | 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:                          |   |   |

 

 

ExhibitB

 

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|   | 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:                       |   |   |
|        |                              |  |  |  |  |

 

 

ExhibitB

 

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Exhibit C to Amendment

 

**CONSENT OF LENDER**

** **

Referenceis hereby made to the 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 used but not otherwise defined herein are used withthe meanings set forth for those terms in the Credit Agreement.

 

Theundersigned Lender hereby consents to the execution and delivery of anAmendment No. 6 to Amended and Restated Credit Agreement by AdministrativeAgent on its behalf, substantially in the form of the most recent draft thereofpresented to the undersigned Lender.

 

Dated as of  ________________, 2010.

 

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

 

 

 

 

*[Note to consenting Lender- Please fax or email this consent to:*

 

*Charbel F. Lahoud*

*Sheppard, Mullin Richter &Hampton, LLP*

*333 South Hope Street, 48th Floor*

*Los Angeles, California, 90071*

*clahoud@sheppardmullin.com*

*telecopier: (213) 443-2730*

*telephone (213) 617-4182*

 

*Email submissions will beconfirmed by return email.*

There is no need to submit originalsignatures.]

 

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