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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