FOURTH AMENDMENT TO CREDIT AGREEMENT AND REVOLVING NOTE
This Fourth Amendment to Credit Agreement and Revolving Note (the "Amendment")
is made as of March 25, 1999, between ENERGY WEST INCORPORATED, a Montana
corporation ("Borrower") and U.S. BANK NATIONAL ASSOCIATION MT, a national
banking association ("Bank").
WHEREAS,
i. Borrower and Bank entered into a Credit Agreement dated as of February 12,
1997, as amended by a First Amendment to Credit Agreement and Revolving
Note dated March 5, 1998, and as amended by a Second Amendment to Credit
Agreement and Revolving Note dated March 16, 1998, and as amended by a
Third Amendment to Credit Agreement and Revolving Note dated January 21,
1999 pursuant to which Bank made available to Borrower a Revolving
Commitment in the amount of $11,000,000 (the "Credit Agreement"); and
ii. Bank's commitment to make loans under the Credit Agreement and Revolving
Note (defined below) expired March 25, 1999; and
iii. Borrower has requested that the Credit Agreement and Revolving Note be
amended to Extend Bank's commitment to make loans under the Revolving
Commitment as described in the Credit Agreement to January 5, 2000, and
iv. Bank is willing to take such action upon and subject to the terms and
conditions in this Amendment.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, Borrower and Bank agree as follows:
1. Definitions. Capitalized terms used herein and in the recitals hereto,
but not defined herein or therein, shall have the meanings given them in the
Credit Agreement.
2. Amendments to Credit Agreement. The Credit Agreement is amended as
follows:
(a) Section 2.1 is amended by changing the date "March 25, 1999"
wherever it appears to the date "January 5, 2000".
(b) Section 2.12 is amended in its entirety as follows:
Letters of Credit. In the event and to the extent Bank issues a letter
of credit (an "L/C") on behalf of Borrower in lieu of an advance under the
Revolving Commitment described in the Credit Agreement, the Commitment
Amount shall be considered utilized by the amount of such L/C. Borrower
shall pay fees for any such L/C at the time of issuance according to the
Bank's schedule of fees relating to letters of credit in effect from time
to time; and Borrower shall execute Bank's then current standard form of
application and agreement for such L/C. Amounts drawn under any such L/C
and honored by the Bank and not immediately reimbursed by Borrower to Bank
shall become
an Advance under the Note in such amount at such time subject to all the
terms of this Agreement, whether or not any Event of Default has occurred.
The maximum amount of L/C's that can be issued under the Revolving
Commitment as described in the Credit Agreement shall not exceed $5,000,000
at any time.
3. Amendment to Revolving Note. A promissory note dated February 12, 1997
in the principal amount of $11,000,000 the "Revolving Note" was executed by
Borrower to evidence the Revolving Commitment as described in the Credit
Agreement. The maturity of the Revolving Note is being extended hereby in
accordance with the extension of the Credit Agreement.
4. Representations and Warranties. Borrower hereby remakes each of the
representations and warranties contained in Article IV of the Credit Agreement
as of the date of this Amendment, as if made in connection with this Amendment
and the Credit Agreement, except that for purposes hereof the references in
Section 4.2 of the Credit Agreement to financial statements dated as of or as at
certain dates shall be deemed to be references to the audited and unaudited
financial statements of Borrower most recently delivered to Bank.
5. Conditions Precedent. The foregoing amendments shall not be effective
and Bank shall have no obligation to renew or extend the Revolving Note and
Credit Agreement until:
(i) Borrower has delivered to Bank this Amendment and such other
documents the Bank may require each duly executed in form
satisfactory to Bank.
The delivery of such documents shall constitute Borrower's representation to
Bank that Borrower is not in default under the Credit Agreement, as amended, and
that no event of default or event which, with the giving of notice or passage of
time or both, would become an event of default, has occurred; and Bank may
request a certificate of an officer of Borrower stating the foregoing.
6. Entire Agreement. This Amendment, the Revolving Note, the Credit
Agreement and the other documents executed in connection herewith or therewith
and the other documents delivered in connection herewith and therewith contain
the entire agreement of the parties concerning the subject matter hereof and
thereof. No promise, representation or understanding which is not expressly set
forth in, or incorporated into, either the Revolving Note, Credit Agreement or
this Amendment or the other documents executed in connection with the Revolving
Note, Credit Agreement or this Amendment shall be enforceable by either party.
7. Effectiveness. The Revolving Commitment as described in the Credit
Agreement shall continue to be governed by and subject to all of the provisions
of the Revolving Note and Credit Agreement as amended hereby and any amounts
presently outstanding under the Revolving Note shall continue to be outstanding.
The Revolving Note and Credit Agreement, as amended hereby, remain in full force
and effect and are hereby ratified and confirmed. Any reference to "this
Agreement" or "the Credit Agreement" in the Credit Agreement or in any
promissory note, guaranty, or other instrument relating to the Credit Agreement
is deemed to be a reference to the Credit Agreement as amended hereby.
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IN WITNESS WHEREOF, Borrower and Bank have caused this Amendment to be executed
the date first set forth above.
ENERGY WEST INCORPORATED
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Title: Chief Financial Officer
U.S. BANK NATIONAL ASSOCIATION MT
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Title: Senior Vice President
The undersigned Guarantors hereby acknowledge and consent to this Fourth
Amendment to Credit Agreement and Revolving Note and hereby ratify and confirm
that the Guaranty Agreement the undersigned executed dated as of February 12,
1997 in connection with the Revolving Note and the Credit Agreement remains in
full force and effect with respect to the Revolving Note and the Credit
Agreement as hereby amended.
GUARANTORS:
ROCKY MOUNTAIN FUELS INC. MONTANA SUN, INC.
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------- --------------------------------
Title: Chief Financial Officer Title: Chief Financial Officer
ENERGY WEST RESOURCES, INC.
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Title: Chief Financial Officer
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