Exhibit 10.17.6


 


AMENDMENT NO. 6


TO AMENDED AND RESTATED CREDIT AGREEMENT


 


THIS
AMENDMENT NO. 6 TO AMENDED AND RESTATED CREDIT AGREEMENT (this “Amendment”) is
entered into as of March 2, 2010, 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 heretofore amended, the “Credit Agreement”), among Borrower, the
Lenders described therein, and the Administrative Agent.  Capitalized terms used but 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.        Borrower has informed
the Administrative Agent and the Lenders of its intention to enter into an
Agreement and Plan of Merger concurrently herewith substantially in the form
attached hereto as Exhibit A (the “Merger Agreement”).  Upon the consummation of the transactions
described in the Merger Agreement, each issued and outstanding share of the
Borrower’s common stock will be converted into the right to receive cash, and
the Borrower will be wholly-owned by the entity identified as the “Parent”
under the Merger Agreement.


 


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


 


C.         Pursuant to Section 10.01
of the Credit Agreement, the Required Lenders have agreed to waive the
Anticipated Defaults 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,
each of the representations and warranties set forth in Article V of the
Credit Agreement are true and correct as of the date of this Amendment (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, and the execution and delivery of the Merger
Agreement will not cause a default under, any indenture, loan or credit
agreement 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 


 


-1-

















 


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


 


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


 


4.         Covenant
Regarding 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 either
individually or in the aggregate (i) increases the termination fees or
expenses payable by the Borrower or its Subsidiaries thereunder or modifies the
circumstances under which or the date or time when such termination fees or
expenses are payable by the Borrower or its Subsidiaries, (ii) restricts
or impairs the ability of the Borrower and its Subsidiaries from conducting
their respective businesses in all material respects in the ordinary course
consistent with past practice, or (iii) is materially adverse to the
Borrower or its Subsidiaries or the Lenders, in each case without the prior
written consent of the Required Lenders. 
The Borrower acknowledges and agrees that each failure by the Borrower
to comply with the 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, in equity and at law.


 


5.         Conditions
to Effectiveness.  The effectiveness of
this Amendment shall be subject to the prior satisfaction of the following
conditions precedent:


 


(a)        the Administrative
Agent shall have received a consent of the Guarantors in the form of Exhibit B
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 C
hereto; and


 


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


 


-2-

















 


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


 


6.         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.


 


7.         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.  Delivery of an executed
counterpart of a signature page of this Amendment by telecopy or other
electronic imaging means shall be effective as delivery of a manually executed
counterpart of this Amendment.


 


[Signature Page Follows]


 


-3-

















 


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:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BANK OF AMERICA, N.A.,

  
	
   

  	
  as
  Administrative Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
									



 


 


Signature
Page


 

















 


Exhibit A to Amendment


 


MERGER AGREEMENT


 


[See Attached]


 


 


Exhibit A


 

















 


Exhibit B 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 used but 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. 6 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 ________________,
  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:

  	
   

  	
   

  



 


 


Exhibit
B


 

















 


	
   

  	
  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
B


 

















 


Exhibit C 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 used but 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. 6 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  ________________, 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 be
confirmed by return email.


There is no need to submit original
signatures.]