EXHIBIT 10.13H
EIGHTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS EIGHTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (the
"Agreement"), dated as of September 30, 2002, is entered into between MELLON
1ST BUSINESS BANK, a California corporation ("Bank"), and SOUTHWEST WATER
COMPANY, a Delaware corporation ("Borrower").
RECITALS
A. Borrower and Bank have previously entered into that certain Amended
and Restated Credit Agreement dated as of December 23, 1997, as amended by that
certain First Amendment to Amended and Restated Credit Agreement dated as of
September 1, 1998, that certain Second Amendment to Amended and Restated Credit
Agreement dated as of July 19, 2000, that certain Fourth Amendment to Amended
and Restated Credit Agreement dated as of September 29, 2000, that certain Fifth
Amendment to Amended and Restated Credit Agreement dated as of March 9, 2001,
that certain Sixth Amendment to Amended and Restated Credit Agreement dated as
of July 13, 2001, and that certain Seventh Amendment to Amended and Restated
Credit Agreement dated as of September 30, 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
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': March 31, 2004."
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 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.
3. Representations and Warranties. The Borrower represents and warrants
as follows:
(a) Authority. The 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 the Borrower. The 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, and 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, 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 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 he 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 reaafirms 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
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"
MELLON 1ST BUSINESS BANK, SOUTHWEST WATER COMPANY,
A California Corporation a Delaware Corporation
By: /s/ JOHN CARLSON By: /s/ RICHARD J. SHIELDS
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Name: John Carlson Name: Richard J. Shields
Title: Vice President Title: Chief Financial Officer
By: /s/ F. D. HARE By: /s/ THOMAS C. TEKULVE
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Name: F. D. Hare Name: Thomas C. Tekulve
Name: EVP and CEO Title: Vice President - Finance