Exhibit 10.17.5


 


AMENDMENT
NO. 5


TO
AMENDED AND RESTATED CREDIT AGREEMENT


 


THIS AMENDMENT NO. 5 TO
AMENDED AND RESTATED CREDIT AGREEMENT (this “Amendment”) is entered into as of July
31, 2009, between SouthWest Water Company, a Delaware corporation (“Borrower”),
and Bank of America, N.A., as Administrative Agent, with reference to the Amended
and Restated Credit Agreement dated as of February 15, 2008 (as amended, the
“Credit Agreement”), among Borrower, the Lenders described therein, and the Administrative
Agent.  Capitalized terms not otherwise
defined herein are used with the meanings set forth for those terms in the
Credit Agreement.


 


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


 


A.                                 Pursuant to Amendment No. 3 to Amended
and Restated Credit Agreement dated as of June 17, 2009 (“Amendment No. 3”),
between the Borrower and the Administrative Agent (with the consent of the
Required Lenders), Borrower is required to deliver the financial statements
required under Sections 6.01(b) and 6.02(a) of the Credit Agreement
with 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) of
the Credit Agreement, the Borrower is required to deliver the financial
statements described therein with respect to the fiscal quarter ended June 30,
2009, on or prior to August 15, 2009.


 


C.                                     The
Borrower has informed the Administrative Agent and the Lenders that it will not
be able to deliver the required financial statements with respect to the fiscal
quarters 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) waive
the Anticipated Defaults, (ii) extend the time by which the required
financial statements with respect to the fiscal quarters ended September 30,
2008, and March 31, 2009 must be delivered to August 28, 2009, and (iii) extend
the time by which the required financial statements with respect to the fiscal
quarter ended June 30, 2009 must be delivered to September 18, 2009.


 


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


 


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


 


1.                                     Representations and Warranties. 
Borrower represents and warrants to Administrative 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, except
for representations or warranties which are inaccurate as a direct result of
the correction and restatement of the Subject Financial Statements, and except
as set forth in the Schedules to the Credit Agreement, each of 


 


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


 


(c)                               neither Borrower nor any of its
Subsidiaries is in default of any indenture, loan or credit or similar
agreement governing Indebtedness in a principal amount which exceeds $1,000,000
in any manner which entitles the holder of such Indebtedness, or which would
entitle the holder 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 such Indebtedness prior to the date upon which such Indebtedness would
otherwise be due and payable.


 


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


 


3.                                     Covenant Regarding Financial Statements.


 


(a)                               Notwithstanding any provision to the contrary
in the Credit Agreement, Borrower shall have through August 28, 2009, to
deliver the financial statements and Compliance Certificates required under
Sections 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 contrary
in the Credit Agreement, Borrower shall have through September 18, 2009,
to deliver the financial statements and Compliance Certificate required under
Sections 6.01(b) and 6.02(a) of the Credit Agreement, respectively,
with respect to the fiscal quarter ended June 30, 2009.


 


The Borrower acknowledges
and agrees that each failure by the Borrower to comply with any covenant set
forth in this Section 3 shall in each case constitute an immediate Event
of Default under the Credit Agreement with respect to which the Administrative
Agent and the Lenders shall have all rights and remedies set forth therein and
at law.


 


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


 


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


 


(b)                               the Administrative Agent shall have received the
written consent of the Required Lenders as required under Section 10.01 of
the 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 announced
via the Intralinks system), an amendment fee in an amount equal to 0.075% of
such Lender’s Commitment under the Credit Agreement.


 


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


 


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


 


[Signature
Page Follows]


 


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IN WITNESS WHEREOF, the
parties hereto have caused this Amendment to be duly executed and delivered as
of 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 A
to Amendment


 


CONSENT OF GUARANTORS


 


This Consent of Guarantors (this
“Consent of Guarantors”) is delivered with reference to (a) the Amended
and Restated Credit Agreement dated as of February 15, 2008 (as heretofore
amended, restated, extended, supplemented, or otherwise modified, the “Credit
Agreement”), among SouthWest Water Company, a Delaware corporation (“Borrower”),
the lenders from time to time party thereto (collectively, the “Lenders”), and
Bank of America, N.A., as Administrative Agent (“Administrative Agent”) and (b) the
Amended 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 defined
herein are used with the meanings set forth for those terms in the Credit
Agreement.


 


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


 


CONSENT OF LENDER


 


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


 


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


 


Dated as of  ______________, 2009.


 


	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [Name of Lender]

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title: