EIGHTH AMENDMENT TO CREDIT AGREEMENT AND REVOLVING NOTE
This Eighth Amendment to Credit Agreement (the "Amendment") is made as of
February 19, 2002, between ENERGY WEST INCORPORATED, a Montana corporation
("Borrower") and U.S. BANK NATIONAL ASSOCIATION (f/k/a First Bank Montana,
National Association and U.S. Bank National Association MT), a national banking
association (the "Bank").
W I T N E S S E T H
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, a Second Amendment to Credit Agreement dated March 16,
1998, a Third Amendment to Credit Agreement dated January 21, 1999, a Fourth
Amendment to Credit Agreement and Revolving Note dated March 25, 1999, and a
Fifth Amendment to Credit Agreement and Revolving Note dated December 6, 1999, a
Sixth Amendment to Credit Agreement and Revolving Note dated March 27, 2000 and
a Seventh Amendment to Credit Agreement and Revolving Note dated March 9, 2001,
pursuant to which Bank made available to Borrower a Revolving Commitment in the
amount of $11,000,000 (the "Credit Agreement"). Bank's commitment to make loans
under the Credit Agreement and Revolving Note (defined below) expired January 5,
2002. 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, 2003. 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. Amendment to Credit Agreement. Section 2.1 is amended by changing the date
"January 5, 2002" wherever it appears to the date "January 5, 2003".
3. 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.
4. Conditions Precedent. The foregoing amendments shall not be effective until
(i) Borrower has delivered to Bank this Amendment and such other documents
a 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.
5. Entire Agreement. This Amendment and 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 Credit Agreement or this
Amendment or the other documents executed in connection with the Credit
Agreement or this Amendment shall be enforceable by either party.
6. Effectiveness. The Revolving Commitment described in the Credit Agreement
shall continue to be governed by and subject to all of the provisions of
the Credit Agreement as amended hereby and any amounts presently
outstanding under the Revolving Commitment shall continue to be
outstanding. The Credit Agreement, as amended hereby, remains in full force
and effect and is 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.
IN WITNESS WHEREOF, Borrower and Bank have caused this Amendment to be
executed the date first set forth above.
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxx Xxxxxxx
---------------------------------------
Title: Assistant Vice President
ENERGY WEST INCORPORATED
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Title: Chief Executive Officer
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CONSENT AND RATIFICATION OF GUARANTORS
The undersigned Guarantors of the Revolving Commitment described in the
Credit Agreement hereby acknowledge and consent to this Eighth Amendment to
Credit Agreement and hereby ratify and confirm that the Guaranty agreement the
undersigned executed dated as of February 12, 1997 in connection with the
Revolving Commitment and the Credit Agreement remains in full force and effect
with respect to the Revolving Commitment and the Credit Agreement as hereby
amended. The Guarantor shall not be deemed exonerated, satisfied or partially
satisfied by this Eighth Amendment to Credit Agreement and Revolving Note or any
prior amendment.
GUARANTORS:
ENERGY WEST PROPANE, INC., f/k/a ENERGY WEST DEVELOPMENT, INC.,
Rocky Mountain Fuels, Inc. f/k/a Montana Sun, Inc.
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------- ---------------------------------
Title: President Title: President
ENERGY WEST RESOURCES, INC.
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Title: President
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