SECOND AMENDMENT
THIS SECOND AMENDMENT (this "Second Amendment") dated as of October 31,
2000 is to the Credit Agreement (the "Credit Agreement") dated as of March 8,
1999 among INDIANA GAS COMPANY, INC. (the "Company"), certain lenders (the
"Banks"), ABN AMRO BANK N.V., as Syndication Agent, NATIONAL CITY BANK OF
INDIANA, as Documentation Agent, and BANK ONE, INDIANA, N.A., as Administrative
Agent. Unless otherwise defined herein, terms defined in the Credit Agreement
are used herein as defined therein.
WHEREAS, the parties hereto have entered into the Credit Agreement
which provides for the Banks to make Loans to the Company from time to time; and
WHEREAS, the parties hereto desire to amend the Credit Agreement as set
forth below;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration (the receipt and sufficiency of which are hereby
acknowledged), the parties hereto agree as follows:
SECTION 1 AMENDMENTS. Effective on (and subject to the occurrence of)
the Second Amendment Effective Date (as defined below), the Credit Agreement
shall be amended as follows:
1.1 Article I shall be amended by inserting the following definitions
in the appropriate alphabetical order:
"Designating Lender" - see Section 12.6.
"SPV" - see Section 12.6.
1.2 The definition of the term "Commitment" shall be amended by
deleting the phrase "opposite its signature below" therein and substituting the
phrase "in Schedule 2" therefor.
1.3 The definition of the term "Facility Termination Date" shall be
amended by deleting the date "March 6, 2001" therein and substituting the date
"October 30, 2001" therefor.
1.4 The definition of the term "Parent" shall be amended by deleting
the name "Indiana Energy, Inc." therein and substituting the name "Vectren
Utility Holdings, Inc." therefor.
1.5 The following Section 12.6 shall be added to the Credit Agreement
in the appropriate numeric sequence:
12.6. Designation. (i) Notwithstanding anything to the
contrary contained herein, any Lender (a 'Designating Lender') may
grant to one or more special purpose funding vehicles (each an 'SPV'),
identified as such in writing from time to time by the Designating
Lender to the Administrative Agent, the option to provide to the
Borrowers all or any part of any Loan that such Designating Lender
would otherwise be obligated to make to the Borrowers pursuant to this
Agreement; provided that (a) nothing herein shall constitute a
commitment by any SPV to make any Loan, (b) if an SPV elects not to
exercise such option or otherwise fails to provide all or any part of
such Loan, the Designating Lender shall be obligated to make such Loan
pursuant to the terms hereof, and (c) the Designating Lender shall
remain liable for any indemnity or other payment obligation with
respect to its Commitment hereunder. The making of a Loan by an SPV
hereunder shall utilize the Commitment of the Designating Lender to the
same extent, and as if, such Loan were made by such Designating Lender.
(ii) As to any Loan or portion thereof made by it, each SPV
shall have all the rights that a Lender making such Loan or portion
thereof would have had under this Agreement; provided, however, that
each SPV shall have granted to its Designating Lender an irrevocable
power of attorney to deliver and receive all communication and notices
under this Agreement and any other Loan Documents and to exercise on
such SPV's behalf all of such SPV's voting rights under this Agreement.
No additional Note shall be required to evidence the Loans or portion
thereof made by an SPV; and the related Designating Lender shall be
deemed to hold its Note as agent for such SPV to the extent of each
Loan or portion thereof funded by such SPV. In addition, any payments
for the account of any SPV shall be paid to its Designating Lender as
agent for such SPV.
(iii) Each party hereto hereby agrees that no SPV shall be
liable for any indemnity or payment under this Agreement for which a
Lender would otherwise be liable. In furtherance of the foregoing, each
party hereto hereby agrees (which agreements shall survive the
termination of this Agreement) that, prior to the date that is one year
and one day after the payment in full of all outstanding commercial
paper or other senior indebtedness of any SPV, it will not institute
against, or join any other person in instituting against, such SPV any
bankruptcy, reorganization, arrangement, insolvency or liquidation
proceeding under the laws of the United States or any State thereof.
(iv) In addition, notwithstanding anything to the contrary
contained in this Section 12.6 or otherwise in this Agreement, any SPV
may (a) at any time and without paying any processing fee therefor,
assign or participate all or a portion of is interest in any Loan to
the Designating Lender or to any financial institution providing
liquidity and/or credit support to or for the account of such SPV to
support the funding or maintenance of Loans and (b) disclose on a
confidential basis any non-public information relating to its Loans to
any rating agency, commercial paper dealer or provider of any surety,
guarantee or credit or liquidity enhancement to such SPV. This Section
12.6 may not be amended without the written consent of each Designating
Lender affected thereby.
1.6 The signature pages shall be amended by deleting the following: (i)
the term "Commitments"; (ii) the amount "$35,000,000" opposite the signatures of
BANK ONE, INDIANA, N.A. and ABN AMRO BANK N.V.; (iii) the amount "$30,000,000"
opposite the signature of NATIONAL CITY BANK OF INDIANA; and (iv) "$100,000,000
TOTAL".
1.7 The column entitled "Level II Status" set forth on the Pricing
Schedule shall be amended by deleting the figure "0.20%" therein and
substituting the figure "0.25%" therefor.
1.8 The Commitments of the Lenders on the Second Amendment Effective
Date shall be as set forth on Schedule 2 hereto, and such Schedule 2 is added to
the Credit Agreement as Schedule 2 thereto.
SECTION 2 REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to the Banks that (a) each warranty set forth in Article V of the
Credit Agreement is true and correct as if made on the date hereof, (b) the
execution and delivery by the Company of this Second Amendment and the New Notes
(as defined below) and the performance by the Company of its obligations under
the Credit Agreement as amended hereby (as so amended, the "Amended Credit
Agreement") and the New Notes (i) are within the corporate powers of the
Company, (ii) have been duly authorized by all necessary corporate action, (iii)
have received all necessary governmental approval and (iv) do not and will not
contravene or conflict with any provision of law or of the charter or by-laws of
the Company or any indenture, loan agreement or other material contract, order
or decree which is binding upon the Company, and (c) this Second Amendment, the
Amended Credit Agreement and the New Notes are the legal, valid and binding
obligations of the Company, enforceable against the Company in accordance with
their terms, except as enforceability may be limited by bankruptcy, insolvency
or other similar laws of general application affecting the enforcement of
creditor's rights or by general principles of equity limiting the availability
of equitable remedies.
SECTION 3 EFFECTIVENESS. The amendments set forth in Section 1 shall
become effective, as of the day and year first above written, on the date (the
"Second Amendment Effective Date") that the Administrative Agent shall have
received (i) counterparts of this Second Amendment executed by the parties
hereto, (ii) a new note for each Bank which has requested a note pursuant to
Section 2.13 (iv) of the Credit Agreement, in each case in the amount of the
Commitment of such Bank after giving effect hereto (any such note, a "New
Note"), (iii) certified copies of resolutions of the Board of Directors of the
Company authorizing or ratifying the execution and delivery by the Company of
this Second Amendment and the New Notes and the performance by the company of
its obligations under the Amended Credit Agreement and the New Notes, (iv) a
certificate of the Secretary or an Assistant Secretary of the Company certifying
the names of the officer or officers of the Company authorized to sign this
Second Amendment and the New Notes, together with a sample of the true signature
of each such officer, (v) an opinion of Barnes & Thornburg, counsel to the
Company, satisfactory to the Administrative Agent and the Banks and (vi) all
fees which are then due and payable pursuant to the fee letter dated September
27, 2000.
SECTION 4 MISCELLANEOUS.
4.1 Continuing Effectiveness, etc. As herein amended, the Credit
Agreement shall remain in full force and effect and is hereby ratified and
confirmed in all respects. After the Second Amendment Effective Date, all
references in the Credit Agreement, each other Loan Document and any similar
document to the "Credit Agreement" or similar terms shall refer to the Amended
Credit Agreement.
4.2 Counterparts. This Second Amendment may be executed in any number
of counterparts and by the different parties on separate counterparts, and each
such counterpart shall be deemed to be an original but all such counterparts
shall together constitute one and the same Second Amendment.
4.3 Governing Law. This Second Amendment shall be a contract made under
and governed by the laws of the State of Indiana applicable to contracts made
and to be performed entirely within such State.
4.4 Successors and Assigns. This Second Amendment shall be binding upon
the Company and the Banks and their respective successors and assigns, and shall
inure to the benefit of the Company and the Banks and the successors and assigns
of the Banks.
4.5 Expenses. The Company agrees to pay the reasonable costs and
expenses of the Administrative Agent in connection with the preparation,
execution and delivery of this Second Amendment.
4.6 Waiver. The Required Lenders hereby waive any Default arising under
Section 7.11 of the Credit Agreement due to the merger between Indiana Energy,
Inc. and SIGCORP, Inc. on March 31, 2000.
IN WITNESS WHEREOF, the Company and the Banks have executed this Second
Amendment as of the date first above written.
INDIANA GAS COMPANY, INC.
By: /s/ Timothy L. Burke
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Title: Vice President & Treasurer
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BANK ONE, INDIANA, N.A., individually
and as Administrative Agent
By: /s/ Randall K. Stephens
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Title: Managing Director
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ABN AMRO BANK N.V.
By: /s/ David B. Bryant
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Title: Senior Vice President
& Managing Director
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/s/ Gregory Babaya
Assistant Vice President
NATIONAL CITY BANK OF INDIANA
By: /s/ William E. Kennedy
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Title: V.P.
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THE BANK OF NEW YORK
By: /s/ John Watt
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Title: Vice President
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KEYBANK NATIONAL ASSOCIATION
By: /s/ Sherrie I. Manson
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Title: Vice President
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SCHEDULE 2
Lender Commitment
- ------ ----------
ABN AMRO BANK N.V. $35,000,000
BANK ONE, INDIANA, N.A. $35,000,000
NATIONAL CITY BANK OF INDIANA $35,000,000
KEYBANK NATIONAL ASSOCIATION $25,000,000
THE BANK OF NEW YORK $25,000,000
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TOTAL $155,000,000