THIRD AMENDMENT TO CREDIT AGREEMENT AND REVOLVING NOTE
This Third Amendment to Credit Agreement and Revolving Note (the "Amendment") is
made as of January 21, 1999, between ENERGY WEST INCORPORATED, a Montana
corporation ("Borrower") and US BANK NATIONAL ASSOCIATION MT, a national banking
association (the "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 Second Amendment to Credit
Agreement dated March 16, 1998, pursuant to which Bank made available to
Borrower a Revolving Commitment in the amount of $11,000,000 (the "Credit
Agreement"):
ii. Borrower has requested that the Credit Agreement and Revolving Note be
amended to extend Bank's commitment to make loans under the Credit
Agreement and Revolving Note (defined below) to March 25, 1999, and
iii. 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:
l. 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 "January 2, 1998"
wherever it appears to the date "March 25, 1999".
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
until:
(i) borrower has delivered to Bank this Amendment and such other
documents as 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 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.
7. 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.
US BANK NATIONAL ASSOCIATION MT
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Title: Senior Vice President
ENERGY WEST INCORPORATED
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Title: Chief Financial Officer
The undersigned Guarantors of the Revolving Commitment described in the Credit
Agreement hereby acknowledge and consent to this Third 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 Commitment and the Credit Agreement remains in full force and
effect with respect to the Revolving Commitment and the Credit Agreement as
hereby amended.
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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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