EXHIBIT 10.12E
FIFTH AMENDMENT TO
CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO CREDIT AGREEMENT (the "Amendment"), dated for
reference purposes only as of November 1, 2002, is entered into between BANK OF
AMERICA, N.A., a national association ("Bank"), and SUBURBAN WATER SYSTEMS, a
California corporation ("Borrower"). The terms of this Amendment shall be
effective for all purposes retroactively to September 30, 2002.
A. Borrower and Bank have previously entered into that certain Credit
Agreement dated as of July 30, 1999, as amended by that certain First Amendment
to Credit Agreement dated as of March 8, 2000, by that certain Second Amendment
to Credit Agreement dated as of September 29, 2000, by that certain Third
Amendment to Credit Agreement dated as of July 13, 2001 and by that certain
Fourth Amendment to Credit Agreement dated as of November 9, 2001 (collectively,
the "Credit Agreement"), pursuant to which Bank has made certain loans and
financial accommodations available to Borrower. Terms used herein without
definition shall have the meanings ascribed to them in the Credit Agreement.
B. Bank and Borrower amend the Credit Agreement under the terms and
conditions set forth in this Amendment. Borrower is entering into this Amendment
with the understanding and agreement that, except as specifically provided
herein, none of Bank's rights or remedies as set forth in the Credit Agreement
is being waived or modified by the terms of this Amendment.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
herein contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. Amendments to Credit Agreement.
(a) The definition of "Maturity Date" set forth in Section 1.01 of
the Credit Agreement is hereby amended and restated in its entirety to read as
follows:
"'Maturity Date': September 30, 2004."
(b) Section 6.02(c) of the Agreement is amended in its entirety to
read as follows:
"(c) Consolidated Tangible Net Worth of Southwest. At any time, permit
Consolidated Tangible Net Worth of Southwest to be less than $54,000,000."
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2. Effectiveness of this Amendment. Bank must have received the following
items, in form and content acceptable to Bank, before this Amendment is
effective and before Bank is required to extend any credit to Borrower as
provided for by this Amendment.
(a) Amendment. This Amendment fully executed in a sufficient number
of counterparts for distribution to Bank and Borrower.
(b) Authorizations. Evidence that the execution, delivery and
performance by Borrower and each guarantor or subordinating creditor of this
Amendment and any instrument or agreement required under this Amendment have
been duly authorized.
(c) Representations and Warranties. The representations and
warranties set forth in the Credit Agreement must be true and correct.
(d) Other Required Documentation. All other documents and legal
matters in connection with the transactions contemplated by this Amendment shall
have been delivered or executed or recorded and shall be in form and substance
satisfactory to Bank.
3. Representations and Warranties. Borrower represents and warrants as
follows:
(a) Authority. Borrower has the requisite corporate power and
authority to execute and deliver this Amendment and to perform its obligations
hereunder and under the Loan Documents (as amended or modified hereby) to which
it is a party. The execution, delivery and performance by the Borrower of this
Amendment and the performance by Borrower of each Loan Document (as amended or
modified hereby) to which it is a party have been duly approved by all necessary
corporate action of Borrower and no other corporate proceedings on the part of
Borrower are necessary to consummate such transactions.
(b) Enforceability. This Amendment has been duly executed and
delivered by Borrower. This Amendment and each Loan Document (as amended or
modified hereby) is the legal, valid and binding obligation of Borrower,
enforceable against Borrower in accordance with its terms, and is in full force
and effect.
(c) Representations and Warranties. The representations and
warranties contained in each Loan Document (other than any such representations
or warranties that, by their terms, are specifically made as of a date other
than the date hereof) are correct on and as of the date hereof as though made on
and as of the date hereof.
(d) No Default. No event has occurred and is continuing that
constitutes an Event of Default.
4. Choice of Law. The validity of this Amendment, its construction,
interpretation and enforcement, the rights of the parties hereunder, shall be
determined under,
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governed by, and construed in accordance with the internal laws of the State of
California governing contracts only to be performed in that State.
5. Counterparts. This Amendment may be executed in any number of
counterparts and by different parties and separate counterparts, each of which
when so executed and delivered, shall be deemed an original, and all of which,
when taken together, shall constitute one and the same instrument. Delivery of
an executed counterpart of a signature page to this Amendment or the Consent by
telefacsimile shall be effective as delivery of a manually executed counterpart
of this Amendment or such Consent.
6. Due Execution. The execution, delivery and performance of this
Amendment are within the power of Borrower, have been duly authorized by
all necessary corporate action, have received all necessary governmental
approval, if any, and do not contravene any law or any contractual restrictions
binding on Borrower.
7. Reference to and Effect on the Loan Documents.
(a) Upon and after the effectiveness of this Amendment, each
reference in the Credit Agreement to "this Agreement", "hereunder", "hereof" or
words of like import referring to the Credit Agreement, and each reference in
the other Loan Documents to "the Credit Agreement", "thereof" or words of like
import referring to the Credit Agreement, shall mean and be a reference to the
Credit Agreement as modified and amended hereby.
(b) Except as specifically amended above, the Credit Agreement and
all other Loan Documents, are and shall continue to be in full force and effect
and are hereby in all respects ratified and confirmed and shall constitute the
legal, valid, binding and enforceable obligations of Borrower to Bank.
(c) The execution, delivery and effectiveness of this Amendment shall
not, except as expressly provided herein, operate as a waiver of any right,
power or remedy of Bank under any of the Loan Documents, nor constitute a waiver
of any provision of any of the Loan Documents.
(d) To the extent that any terms and conditions in any of the Loan
Documents shall contradict or be in conflict with any terms or conditions of the
Credit Agreement, after giving effect to this Amendment, such terms and
conditions are hereby deemed modified or amended accordingly to reflect the
terms and conditions of the Credit Agreement as modified or amended hereby.
8. Ratification. Borrower hereby restates, ratifies and reaffirms each
and every term and condition set forth in the Credit Agreement, as amended
hereby, and the Loan Documents effective as of the date hereof.
9. Estoppel. To induce Bank to enter into this Amendment and to continue
to make advances to Borrower under the Credit Agreement, Borrower hereby
acknowledges and agrees that, after giving effect to this Amendment, as of the
date hereof, there exists no Event of
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Default and no right of offset, defense, counterclaim or objection in favor of
Borrower as against Bank with respect to the Obligations.
IN WITNESS WHEREOF, the parties have entered into this Amendment as of the
date first above written.
"BANK" "BORROWER"
BANK OF AMERICA, N.A. SUBURBAN WATER SYSTEMS,
a national association a California corporation
By: /s/ JAMIE HARNEY By: /s/ DANIEL N. EVANS
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Name: Jamie Harney Name: Daniel N. Evans
Title: Vice President Title: V.P. Finance and CFO
By: /s/ PETER J. MOERBEEK
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Name: Peter J. Moerbeek
Title: Secretary
(Acknowledgement on Next Page)
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ACKNOWLEDGEMENT
Dated as of September 30, 2002
The undersigned SOUTHWEST WATER COMPANY, a Delaware corporation
("Southwest"), in consideration of the continued extension of credit to SUBURBAN
WATER SYSTEMS, a California corporation by BANK OF AMERICA, N.A. ("BofA"),
hereby acknowledges and agrees to the foregoing Fifth Amendment to Credit
Agreement (the "Amendment") and hereby confirms and agrees that its Continuing
Guaranty dated July 30, 1999 (the "Guaranty") in favor of BofA remains in full
force and effect, and restates, ratifies and reaffirms each and every term and
condition set forth in the Guaranty. Although BofA has informed Southwest of the
matters set forth above, and Southwest has acknowledged the same, Southwest
understands and agrees that BofA has no duty under the Credit Agreement, the
Guaranty or any other agreement with Southwest to so notify Southwest or to seek
such an acknowledgement, and nothing contained herein is intended to or shall
create such a duty as to any advances or transaction hereafter.
SOUTHWEST WATER COMPANY,
a Delaware corporation
By: /s/ THOMAS C. TEKULVE
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Name: Thomas C. Tekulve
Title: Vice President - Finance
By: /s/ RICHARD J. SHIELDS
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Name: Richard J. Shields
Title: Chief Financial Officer
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