EXHIBIT 10.1(e)
LIMITED WAIVER UNDER AMENDED AND RESTATED CREDIT AGREEMENT
This LIMITED WAIVER UNDER AMENDED AND RESTATED CREDIT AGREEMENT (this
"LIMITED WAIVER") is dated as of February 14, 2005, 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 failed to comply with: (i) the Interest
Coverage Ratio covenant set forth in Section 10.6.1 of the Credit Agreement for
the Fiscal Quarter ended December 31, 2004 as a result of the additional
interest expense accrued by the Company pursuant to the Inventory Purchase
Agreement referenced in clause (iii) of this paragraph, (ii) the Total Debt to
Capital Ratio covenant set forth in Section 10.6.2 of the Credit Agreement for
the Fiscal Quarter ended December 31, 2004, and (iii) the Indebtedness covenant
set forth in Section 10.7 of the Credit Agreement as a result of the Company's
entry into that certain Agreement dated November 11, 2004 for the purchase of
gas (the "INVENTORY PURCHASE AGREEMENT"; a copy of which has been provided to
Agent) creating not more than $3,580,000 of Indebtedness; and Events of Default
arising under subsection 12.1.5(a) of the Credit Agreement have occurred and are
continuing due to such violations of Sections 10.6.1, 10.6.2 and 10.7 (such
Events of Default are hereinafter referred to at times as the "EXISTING EVENTS
OF Default"); and
WHEREAS, the Company has requested that the Agent and the Lenders waive
the Existing Events of Default.
NOW THEREFORE, in consideration of the mutual conditions and agreements
set forth in the Credit Agreement and this Limited Waiver, 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 Limited Waiver, unless
otherwise defined herein, shall have the meaning ascribed to such terms in the
Credit Agreement.
2. LIMITED WAIVER. Effective upon the satisfaction of each of the
conditions to effectiveness set forth in Section 4 below, and provided further
that: (i) the actual Interest Coverage Ratio for the Fiscal Quarter ended
December 31, 2004 is not less than 1.90 to 1.00, and (ii) the actual ratio of
Total Debt to Capital Ratio for the Fiscal Quarter ended December 31, 2004 is
not greater than 0.76 to 1.00 (the calculations with respect to the foregoing
clauses (i) and (ii) based upon the financial statements being filed on the date
hereof by the Company with the United States Securities and Exchange Commission,
which the Company hereby represents
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and warrants to the Agent and the Banks are true and correct in all material
respects), the Agent and the Banks hereby waive the Existing Events of Default
and agree that, notwithstanding anything contained in the Credit Agreement to
the contrary, the failure of the Company to comply with: (x) the Interest
Coverage Ratio covenant set forth in Section 10.6.1 of the Credit Agreement for
the fiscal quarter ended December 31, 2004, (y) the Total Debt to Capital Ratio
covenant set forth in Section 10.6.2 of the Credit Agreement for the fiscal
quarter ending December 31, 2004 and (z) the Indebtedness covenant set forth in
Section 10.7 of the Credit Agreement shall not give rise to any future Default
or Event of Default under the Credit Agreement. This limited waiver is limited
in scope and shall not constitute or be deemed to constitute a waiver of,
consent to or departure from, any other term of provision of the Credit
Agreement or any other Loan Document, each of which shall continue unmodified
and in full force and effect, nor shall this limited waiver constitute a course
of dealing among the parties.
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 Limited Waiver, 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 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) WAIVER OF AGENT AND BANKS. 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 the
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 Limited Waiver is subject to the
following conditions precedent:
(a) the Company, each other Loan Party and each Bank shall have executed
and delivered this Limited Waiver; and
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(b) the representations and warranties set forth in Section 5 of this
Limited Waiver shall be true and correct.
5. REPRESENTATIONS AND WARRANTIES. To induce the Agent and the Banks to
enter into this Limited Waiver, 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 Limited Waiver has been duly authorized by all
requisite corporate action on the part of the Company and each such other Loan
Party and that this Limited Waiver has been duly executed and delivered by the
Company and each other Loan Party and this Limited Waiver and the Credit
Agreement 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 (other than the Existing Events of Default) has
occurred or is continuing under the Credit Agreement or would result from the
execution and delivery of this Limited Waiver, and (iii) each of the
representations and warranties set forth in Section 9 of the Credit Agreement,
after giving effect to this Limited Waiver, 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. SEVERABILITY. Any provision of this Limited Waiver held by a court of
competent jurisdiction to be invalid or unenforceable shall not impair or
invalidate the remainder of this Limited Waiver 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 Limited Waiver.
8. COUNTERPARTS. This Limited Waiver 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 Limited
Waiver 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 Limited Waiver.
10. GOVERNING LAW. The validity and interpretation of this Limited Waiver
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 Limited Waiver 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.
AGENT AND BANK: OTHER LOAN PARTIES:
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LASALLE BANK, NATIONAL
ASSOCIATION, a national banking ENERGY WEST PROPANE, INC.,
association, as Agent and as a Bank a Montana corporation
By: /s/ Meghan Payne By: /s/ Douglas R. Mann
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Name: Meghan Payne Name: Douglas R. Mann
Title: First Vice President Title: President
COMPANY:
ENERGY WEST, INCORPORATED, a ENERGY WEST RESOURCES, INC.,
Montana corporation a Montana corporation
By: /s/ John C. Allen By: /s/ John C. Allen
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Name: John C. Allen Name: John C. Allen
Title: Senior Vice President Title: Authorized
Representative
ENERGY WEST DEVELOPMENT, INC.,
a Montana corporation
By: /s/ John C. Allen
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Name: John C. Allen
Title: Authorized
Representative
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