THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
This THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment") is dated as of November 2, 2004, and is entered into by and among
ENERGY WEST, INCORPORATED, a Montana corporation (the "Company"), LASALLE BANK
NATIONAL ASSOCIATION, a national banking association, in its capacity as 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 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. Amendment to Credit Agreement. Subject to satisfaction of the
conditions set forth in Section 4 below, the Credit Agreement is amended as
follows:
(a) by deleting the date of "October 31, 2004" appearing in the
definition of "Revolving Termination Date" in Section 1.1 of the Credit
Agreement and substituting the date "November 30, 2004" therefor; and
(b) by deleting the date of "October 31, 2004" appearing in Section
10.26 of the Credit Agreement and substituting the date "November 30, 2004"
therefor.
3. Ratification; No Defenses; Waiver.
(a) Ratification. The Company and each other Loan Party hereby
ratifies, acknowledges, affirms and reconfirms its rights, interests and
obligations under each Loan Document and agrees to perform each of its
obligations thereunder as and when required. 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
accordance with its terms, and that each such Loan Document, as amended hereby,
is in full force and effect.
(b) No Defenses. The Company and each other Loan Party hereby represent
and warrant to, and covenant with 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 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 Agent or any of the Banks with respect thereto,
and (ii) 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.
(c) The Company and each other Loan Party, on behalf of each such
Person and their respective executors, successors and assigns, hereby waives,
releases and discharges Agent and the Banks and all of the affiliates,
directors, officers, employees, attorneys and agents of Agent and the Banks,
from any and all claims, demands, actions or causes of action arising out of or
in any way relating to the Loan Documents and any documents, agreements,
dealings or other matters connected with the Loan Documents, including, without
limitation, all known and unknown matters, claims, transactions or things
occurring on or before 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 Agent may reasonably require;
(b) the representations and warranties set forth in Section 5 of this
Amendment shall be true and correct; and
(c) 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 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: (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 that this Amendment has been duly executed and delivered by the
Company and each 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 and 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.
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6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. Miscellaneous. This Amendment shall be deemed to be a Loan
Document.
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[Signature Page Follows]
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Delivered at Chicago, Illinois, as of the day and year first above
written.
AGENT AND BANK: OTHER LOAN PARTIES:
LASALLE BANK, NATIONAL ASSOCIATION, a national banking ENERGY WEST PROPANE, INC.,
association, as Agent and as a Bank a Montana corporation
By: /s/ Xxxxxx Xxxxx By: /s/ Xxxx X. Xxxxx
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Name: Xxxxxx Xxxxx Name: Xxxx X. Xxxxx
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Title: First Vice President Title:
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COMPANY:
ENERGY WEST, INCORPORATED, a Montana corporation ENERGY WEST RESOURCES, INC.,
a Montana corporation
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx By: /s/ Xxxx X. Xxxxx
----------------------------------- ---------------------------------------
Title: Senior VP & Secretary Name: Xxxx X. Xxxxx
---------------------------------- ------------------------------------- Title:
Title:
ENERGY WEST DEVELOPMENT, INC.,
a Montana corporation
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
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Title:
