Exhibit 10.1
REAFFIRMATION AND FIFTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS REAFFIRMATION FIFTH AMENDMENT TO AMENDED AND RESTATED CREDIT
AGREEMENT (this "AMENDMENT") is dated as of November 28, 2005, and is entered
into by and among ENERGY WEST, INCORPORATED, a Montana corporation (the
"COMPANY"), LASALLE BANK NATIONAL ASSOCIATION, a national banking association
("LASALLE"), in its capacity as the Agent for the "BANKS" party to the Credit
Agreement described below (in such capacity, the "AGENT"), such Banks and each
other Loan Party.
WHEREAS, the Agent, the Banks and the Company have entered into that
certain Amended and Restated Credit Agreement dated as of March 31, 2004 (as
such agreement has been and may hereafter be amended, restated, supplemented or
otherwise modified from time to time, the "CREDIT AGREEMENT"); and
WHEREAS, the Company has requested that the Credit Agreement be amended as
set forth herein and the Agent and the Banks are, subject to the terms hereof,
willing to so amend the Credit Agreement.
NOW THEREFORE, in consideration of the mutual conditions and agreements
set forth in the Credit Agreement and this Amendment, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. DEFINITIONS. Capitalized terms used in this Amendment, unless
otherwise defined herein, shall have the meaning ascribed to such terms in
the Credit Agreement.
2. AMENDMENTS TO CREDIT AGREEMENT. Subject to satisfaction of the
conditions set forth in Section 4 below, the Credit Agreement is hereby
amended, as follows, by:
(a) deleting the definitions of "Base Rate Margin", "Commitment Fee
Rate", "L/C Fee Rate", "Libor Margin" and "Revolving Commitment Amount"
appearing in Section 1.1 of the Credit Agreement and substituting the following
language therefore:
" 'BASE RATE MARGIN' means: (i) with respect to Term Loan A, zero
percent(0.00%) per annum; (ii) with respect to Term Loan B: (A) from the
Restatement Effective Date through June 30,2004, one percent (1.00%) per
annum; (B) from July 1, 2004 through March 31, 2005, two percent (2.00%)
per annum, (C) from April 1, 2005 through June 30, 2005, three percent
(3.00%) per annum and (D)from July 1, 2005 and thereafter, four percent
(4.00%) per annum; and (ill) with respect to Revolving Loans, zero percent
(0.00%) per annum.";
" 'COMMITMENT FEE RATE' means a rate of interest equal to 1/4 of one
percent (0.25%) per annum.";
" 'L/C FEE RATE' means a rate of interest equal to two percent
(2.00%) per annum." ,
" 'LIBOR MARGIN' means: (i) with respect to Term Loan A, three
percent (3.00%) per annum; and (ii) with respect to Revolving Loans, two
percent (2.00%) per annum." And
" 'REVOLVING COMMITMENT AMOUNT' means (i) from the Fifth Amendment
Effective Date through February 28, 2006, $20,000,000.00 and (ii) from
March 1, 2006 and thereafter, $15,000,000.00, in each case, as reduced
from time to time pursuant to Section 6.1."
(b) adding the following definition of "Fifth Amendment Closing
Date" to Section 1.1 of the Credit Agreement in the correct alphabetical order:
" 'FIFTH AMENDMENT CLOSING DATE' means November 28, 2005."
(c) deleting the date of "November 28, 2005" appearing in the
definition of "Revolving Termination Date" in Section 1.1 of the Credit
Agreement and substituting the date "November 27, 2~6" therefore;
(d) deleting the lead-in paragraph of Section 2 of the Credit
Agreement in its entirety and substituting the following language therefore:
" On the Restatement Effective Date, immediately prior to the
effectiveness of this Agreement, the principal amount of "Loans"
outstanding under the Original Credit Agreement is $15.229,304.20, (such
outstanding "Loans" collectively are referred to as the "Existing Loans").
The Company, Agent and the Banks agree that: (i) the principal amount of
$7,229,304.20 outstanding of the Existing Loans shall continue as
Revolving Loans hereunder; (ii) the principal amount of $6,000,000
outstanding of the Existing Loans shall continue as Term Loan A hereunder;
and (iii) the principal amount of $2,000,000 outstanding of the Existing
Loans shall continue as Term Loan B hereunder, in each such case without
in any way causing a novation of any of the Company's obligations under
the Original Credit Agreement. The parties hereto hereby acknowledge and
agree that, immediately upon the effectiveness of this Agreement, the
"Commitment Amount" under the Original Credit Agreement in the amounts set
forth therein shall be permanently and irrevocably reduced to a Revolving
Commitment Amount of $15,000,000 ($20,000,000 from the Fifth Amendment
Effective Date through February 28, 2006) hereunder, and the aggregate
amount of the Banks' Pro Rata Shares of the Revolving Loans hereunder
shall not exceed $15,000,000 ($20,000,000 from the Fifth Amendment
Effective Date through February 28, 2006). All portions of the Commitment
Amount and the aggregate amount of the Banks' Pro Rata Shares of the
Revolving Loans under the Original Agreement, in each case in excess of
$15,000,000, shall be deemed to have permanently and
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irrevocably expired as of the Restatement Effective Date and shall not be
available to the Company for purposes of borrowing Loans hereunder."
(e) deleting Schedule 2.1 to the Credit Agreement in its entirety
and substituting the Schedule 2.1 attached hereto as Exhibit A therefore.
(f) deleting Section 6.1.3 of the Credit Agreement in its entirety
and substituting the following language therefore:
" 6.1.3 ALL REDUCTIONS OF THE REVOLVING COMMITMENT AMOUNT. All
reductions of the Revolving Commitment Amount (including, without
limitation. the reduction of the Revolving Commitment Amount from
$20.000.000.00 to $15,000,000.00 on March 1.2006 in accordance with the
definition of "Revolving Commitment Amount") shall reduce the Revolving
Commitments pro rata among the Banks according to their respective Pro
Rata Shares.
3. RATIFICATION: NO DEFENSES; WAIVER.
(a) OBLIGATIONS. All references in the Loan Documents to the
"Obligations" or any other obligations, liabilities or indebtedness of the
Company or any other Loan Party owing from time to time and at any time to Agent
and the Banks shall be deemed to refer to, without limitation, the "Obligations"
of the 'Obligors under, pursuant to and as defined in the Credit Agreement, as
amended by this Amendment. All references in the Loan Documents to the "Credit
Agreement" shall be deemed to refer to the Credit Agreement, as amended by this
Amendment.
(b) RATIFICATION. In connection with the execution and delivery of
this Amendment, the Company and each Loan Party, as borrower, debtor,grantor,
mortgagor, pledgor, guarantor or assignor, or in any other similar capacities in
which such Person grants Liens or security interests in its Property or
otherwise acts as an accommodation party or guarantor. as the case may be. in
any case under the Loan Documents, hereby (i) acknowledges, ratifies and
reaffirms all of its payment, performance and observance obligations and
liabilities, whether contingent or otherwise. under each of such Loan Documents.
to which it is a party, and (ii) to the extent such Person granted Liens on or
security interests in any of its Property pursuant to any such Loan Documents as
security for the obligations, liabilities and indebtedness of such Person under
or with respect to the Loan Documents (the "LIABILITIES"), ratifies and
reaffirms such grant of security and confirms and agrees that such Liens and
security interests hereafter secure all of the Liabilities of such Person and
the other Loan Parties, as applicable, under the Loan Documents, as amended
hereby, in each case including, without limitation, all additional obligations,
indebtedness and liabilities resulting from this Amendment, and as if each
reference in such Loan Documents, as amended hereby. to the obligations,
indebtedness and liabilities secured thereby are construed hereafter to mean and
refer to such obligations, indebtedness and liabilities under Credit Agreement
and the other Loan Documents, as amended hereby. By executing this Amendment,
the Company and each other Loan Party hereby further ratifies, acknowledges,
affirms and reconfirms that each Loan Document, as amended hereby, constitutes a
legal, valid and binding obligation of such Person enforceable against such
Person in
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accordance with its terms, and that each such Loan Document, as amended hereby,
is in full force and effect.
(c) NO DEFENSES. The Company and each other Loan Party hereby
represent and warrant to, and covenant with the Agent and the Banks that as of
the date hereof: (i) neither Company nor any other Loan Party has any defenses,
offsets or counterclaims of any kind or nature whatsoever against the Agent or
any Bank with respect to any of the loans or other financial accommodations made
under any of the Loan Documents or any of the Loan Documents themselves, or any
action previously taken or not taken by the Agent or any of the Banks with
respect thereto, and (ii) the Agent and the Banks have fully performed all
obligations to the Company and each other Loan Party which they may have had or
have on and of the date hereof.
(d) WAIVER. The Company and each other Loan Party, on its own behalf
and on behalf of its representatives, partners, agents, employees, servants,
officers, directors, shareholders, subsidiaries, affiliated and related
companies, successors and assigns (collectively, the "Obligor Group"), hereby
releases and forever discharges the Agent, the Banks, and their respective
officers, directors, subsidiaries, affiliated and related companies, agents,
servants, employees, shareholders, representatives, successors, assigns,
attorneys, accountants, assets and properties, as the case may be (collectively,
the "LENDER INDEMNIFIED GROUP"), of and from all manner of actions, cause and
causes of action, suits, debts, sums of money, accounts, reckonings, bonds,
bills, specialties, covenants, contracts, controversies, agreements,' promises,
obligations, liabilities, costs, expenses, losses, damages, judgments,
executions, claims and demands of whatsoever kind or nature, in law or in
equity, whether known or unknown, concealed or hidden, foreseen or unforeseen,
contingent or actual, liquidated or unliquidated, arising out of or relating to
the Loan Documents or any of the agreements, documents and instruments executed
and delivered in connection therewith or any related matter, cause or thing or
any transaction contemplated thereby, that any of the Obligor Group, jointly or
severally, has had, now has or hereafter can, shall or may have against the
Lender Indemnified Group, or any member thereof, directly or indirectly, whether
known or unknown, through the date hereof.
4. CONDITIONS. The effectiveness of this Amendment is subject to the
following conditions precedent:
(a) the Company, each other Loan Party and each Bank shall have
executed and delivered this Amendment and such other documents and instruments
as the Agent may reasonably require;
(b) the Company shall have delivered, or caused to be delivered, to
Agent, a certificate of the corporate secretary or assistant corporate secretary
of each Loan Party pursuant to which such secretary or assistant secretary, on
behalf of such Loan Party certifies as to (x) the incumbency and signature of
the Persons executing this Amendment and any other Loan Documents delivered in
connection herewith on behalf of such Loan Party, (y) resolutions, which shall
be attached thereto, authorizing the execution, delivery and performance of this
Amendment and such Loan Documents by such Loan Party, and (z) the fact that the
articles of incorporation, articles of organization, bylaws, limited liability
company agreement or other
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organizational documents of such Loan Party have not been amended, modified or
supplemented since the date on which certified copies thereof previously were
delivered to Agent under the Loan Documents, and remain in full force and
effect;
(c) the Company shall have delivered, or caused to be delivered, to
Agent, with respect to each Loan Party, a recent certificate of good standing
issued by the Secretary of State of such Loan Party's jurisdiction of
incorporation;
(d) the representations and warranties set forth in Section 5 of
this Amendment shall be true and correct;
(e) the Agent shall have received from the Company for the account
of each Bank an upfront, fully-earned and non-refundable administrative fee in
the amount of $81,250; and
(f) all proceedings taken in connection with the transactions
contemplated by this Amendment and all documents, instruments and other legal
matters incident thereto shall be reasonably satisfactory to the Agent and its
legal counsel.
5. REPRESENTATIONS AND WARRANTIES. To induce the Agent and the Banks to
enter into this Amendment, the Company and each other Loan Party hereby
represents and warrants to the Agent and the Banks that:
(a) the Company and each other Loan Party is a corporation validly
existing and in good standing under the laws of its respective state of
incorporation; and the Company and each other Loan Party is duly qualified to do
business in each jurisdiction where, because of the nature of its activities or
properties, such qualification is required, except for such jurisdictions where
the failure to so qualify would not have a Material Adverse Effect;
(b) the Company and each other Loan Party is duly authorized to
execute and deliver this Amendment, the Company is duly authorized to borrow
additional Loans provided for hereunder and each of the Company and each other
Loan Party is duly authorized to perform its obligations under each Loan
Document to which it is a party, as the same are amended hereby. The execution,
delivery and performance by the Company and each other Loan Party of this
Agreement, and the additional borrowings by the Company provided for hereunder,
do not and will not: (i) require any consent or approval of any governmental
agency or authority (other than any consent or approval which has been obtained
and is in full force and effect), (ii) conflict with: (A) any provision of law,
(B) the charter, bylaws or other organizational documents of the Company or any
other Loan Party or (C) any agreement, indenture, instrument or other document,
or any judgment, order or decree, which is binding upon the Company or any other
Loan Party or any of their respective properties or (iii) require, or result in,
the creation or imposition of any Lien on any asset of the Company or any other
Loan Party (other than Liens in favor of the Agent created pursuant to the
Collateral Documents).
(c) (i) the execution, delivery and performance of this Amendment
has been duly authorized by all requisite corporate action on the part of the
Company and each such other Loan Party and this Amendment has been duly executed
and delivered by the Company and each
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other Loan Party and this Amendment and the Credit Agreement, as amended hereby,
constitute valid and binding obligations of each of them, as applicable,
enforceable in accordance with their respective terms, (ii) no Default or Event
of Default has occurred or is continuing under the Credit Agreement or would
result from the execution and delivery of this Amendment, and (iii) each of the
representations and warranties set forth in Section 9 of the Credit Agreement,
as amended hereby, is true and correct in all material respects as of the date
hereof, unless any such representation or warranty is already qualified by
materiality, in which case it shall be true and correct in all respects.
6. NO ADDITIONAL TERM LOAN COMMITMENTS. The Borrower and each other Loan
Party hereby acknowledges and agrees that nothing contained in this Amendment or
any other Loan Document creates any obligation or commitment by Agent or any
Lender to loan or otherwise advance any additional Term Loans to the Borrower,
and the Borrower and each other Loan Party further acknowledges and agrees that
each of the Term Loan A and the Term Loan B were fully funded on the Restatement
Effective Date, and that no commitment on the party of Agent or any Lender to
fund any Term Loan remains outstanding~ whether evidenced by this Amendment, the
Credit Agreement or otherwise.
7. SEVERABILITY. Any provision of this Amendment held by a court of
competent jurisdiction to be invalid or unenforceable shall not impair or
invalidate the remainder of this Amendment and the effect thereof shall be
confined to the provision so held to be invalid or unenforceable.
8. REFERENCES. Any reference to the Credit Agreement contained in any
document, instrument or agreement executed in connection with the Credit
Agreement shall be deemed to be a reference to the Credit Agreement as
modified by this Amendment.
9. COUNTERPARTS. This Amendment may be executed in one or more
counterparts, each of which shall constitute an original, but all of which taken
together shall be one and the same instrument. A counterpart of this Amendment
delivered by facsimile or other electronic means shall for all purposes be as
effective as delivery of an original counterpart.
10. COSTS. The Company agrees to pay on demand all reasonable costs and
expenses incurred by the Agent (including fees and expenses of counsel) incurred
in connection with the negotiation and preparation of this Amendment.
11. GOVERNING LAW. The validity and interpretation of this Amendment and
the terms and conditions set forth herein, shall be governed by and construed in
accordance with the laws of the State of Illinois, without giving effect to any
provisions relating to conflict of laws that would call for the application of
the laws of another jurisdiction.
12. MISCELLANEOUS. This Amendment shall be deemed to be a Loan Document.
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Delivered at Chicago, Illinois, as of the day and year first above written.
THE AGENT AND BANK: OTHER LOAN PARTIES:
LASALLE BANK, NATIONAL ENERGY WEST PROPANE, INC.,
ASSOCIATION,a national banking a Montana corporation
Association, as the Agent and as a Bank
By: /s/ Xxxx X. Xxxxx
By: /s/ Xxxxxxx X. Xxxxxxx Name: Xxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxxxx Title: Vice President
Title: Assistant Vice President
COMPANY:
ENERGY WEST, INCORPORATED, a ENERGY WEST RESOURCES, INC.,
Montana corporation a Montana corporation
By: /s/Xxxxx X. Xxxxxxxx By: /s/ Xxxx X. Xxxxx
Name: Xxxxx Xxxxxxxx Name: Xxxx X. Xxxxx
Title: President & CEO Title: Vice President
ENERGY WEST DEVELOPMENT, INC.,
a Montana corporation
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Vice President
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EXHIBIT A TO REAFFIRMATION AND FIFTH AMENDMENT
BANKS AND PRO RATA SHARES
BANK PRO RATA SHARE AMOUNT OF AMOUNT OF PRO RATA SHARE
OF REVOLVING TERM LOAN A TERM LOAN B
COMMITMENT
AMOUNT
LaSalle Bank 20,000,000.00(1) $6,000,000.00 $2,000,000.00 100.000000000%
National
Association
TOTAL $20,000,000.00(1) $6,000,000.00 $2,000,000.00 100.000000000%
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1 Reduced to $15,000,000.00 beginning March 1, 2006 and thereafter
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