CREDIT AGREEMENT

 

 

 

Dated as of May 24, 2002

among

INDIANAPOLIS POWER & LIGHT COMPANY,

THE INSTITUTIONS FROM TIME TO TIME

PARTIES HERETO AS LENDERS

and

THE HUNTINGTON NATIONAL BANK

as Agent

TABLE OF CONTENTS

 

ARTICLE I *
DEFINITIONS *

1.1 Defined Terms *

1.2 Accounting Terms *

1.3 Other Definitional Provisions;Construction *

ARTICLE II *

COMMITMENT OF THE LENDERS *

2.1 Revolving Loans *

2.2 Swing Line Loans *

2.3 Making of Loans *

2.4 Method of Selecting Types andInterest Periods for Conversion and Continuation of Advances *

2.5 Default Rate *

2.6 Method of Payment *

2.7 Notes *

2.8 TelephonicNotices *

2.9 Promise to Pay; Facility Fees;Interest and Fee Basis; Taxes; Loan and Control Accounts *

2.10Notification of Advances,Interest Rates, Prepayments and Aggregate Revolving Loan CommitmentReductions *

2.11 Lending Installations *

2.12 Non-Receipt of Funds by the Agent *

2.13 Maturity Date *

2.14 Replacement of Certain Lenders *

ARTICLE III *

CHANGE IN CIRCUMSTANCES *

3.1 Yield Protection *

3.2 Changes in Capital AdequacyRegulations *

3.3 Availability of Types ofAdvances *

3.4 FundingIndemnification *

3.5 Lender Statements; Survival ofIndemnity *

ARTICLE IV *

CONDITIONS OF BORROWING *

4.1 Loan Documents *

4.2 Capitalization,etc. *

4.3 Governmental Approvals andFilings *

4.4 CorporateProceedings *

4.5 Legal Opinions *

4.6 Officers'Certificates *

4.7 Fees, Expenses,etc. *

4.8 AdditionalMatters *

4.9 Event of Default *

4.10 Adverse Changes *

4.11 Litigation *

4.12 Representations and Warranties *

ARTICLE V *

REPRESENTATIONS AND WARRANTIES *

5.1 Corporate Status *

5.2 Corporate Power andAuthorization *

5.3 Execution and BindingEffect *

5.4 Government Approvals andFilings *

5.5 Absence ofConflicts *

5.6 MarginRegulations *

5.7 Subsidiaries *

5.8 [IntentionallyDeleted] *

5.9 Ownership andControl *

5.10 Litigation *

5.11 Absence of Events of Default *

5.12 Insurance *

5.13 Title to Property *

5.14 Intellectual and Other Property *

5.15 Taxes *

5.16 Employee Benefits *

5.17 Environmental Matters *

5.18 Accuracy of Representations and Warranties *

5.19 No Investment Company *

5.20 Labor Matters *

5.21 Solvency *

5.22 Financial Statements *

5.23 No Material Adverse Change *

5.24 Regulatory Matters *

ARTICLE VI *

NEGATIVE COVENANTS *

6.1 Indebtedness *

6.2 Encumbrances *

6.3 Investments;Acquisitions *

6.4 Transfer; Merger *

6.5 Issuance of Stock *

6.6 Dividends and RelatedDistributions. *

6.7 Change of LegalStatus *

6.8 Transactions withAffiliates *

6.9 ContingentLiabilities *

6.10 Exclusive Service Area *

ARTICLE VII *

AFFIRMATIVE COVENANTS *

7.1 Corporate**Existence *

7.2 Maintain Property *

7.3 MaintainInsurance *

7.4 Tax Liabilities *

7.5 ERISA Liabilities; EmployeePlans *

7.6 FinancialStatements *

7.7 Supplemental FinancialStatements *

7.8 Covenant ComplianceReport *

7.9 Other Reports *

7.10 Notice of Proceedings *

7.11 Notice of Default *

ARTICLE VIII *

FINANCIAL COVENANTS *

8.1 Interest CoverageRatio *

8.2 Total Debt to CapitalizationRatio *

ARTICLE IX *

EVENTS OF DEFAULT *

9.1 Events of Default *

ARTICLE X *

REMEDIES *

10.1 Remedies *

ARTICLE XI *

DEFAULTING LENDERS; WAIVERS; *

11.1 Defaulting Lender *

11.2 Amendments *

11.3 Preservation of Rights *

ARTICLE XII *

THE AGENT *

12.1 Appointment; Nature of Relationship *

12.2 Powers *

12.3 General Immunity *

12.4No Responsibility for Loans, Creditworthiness, Recitals,Etc. *

12.5 Action on Instructions of Lenders *

12.6 Employment of Agent and Counsel *

12.7 Reliance on Documents; Counsel *

12.8The Agent's Reimbursement and Indemnification *

12.9 Rights as a Lender *

12.10 Lender Credit Decision *

12.11 Successor Agent *

12.11 Successor Agent *

ARTICLE XIII *

SETOFF; RATABLE PAYMENTS *

13.1 Setoff *

13.2 Ratable Payments *

13.3 Application of Payments *

13.4 Relations Among Lenders *

ARTICLE XIV *

BENEFIT OF AGREEMENT; ASSIGNMENTS; *

14.1 Successors and Assigns *

14.2 Participations *

14.3 Assignments *

14.4 Confidentiality *

14.5 Dissemination of Information *

ARTICLE XV *

MISCELLANEOUS *

15.1 Survival of Representations *

15.2 Government Regulation *

15.3 Performance of Obligations *

15.4 Headings *

15.5 Entire Agreement *

15.6 Several Obligations; Benefits of this Agreement *

15.7 Expenses; Indemnification *

15.8 Numbers of Documents *

15.9 Amendments; Waivers *

15.10 WAIVER OF DEFENSES *

15.11 Severability of Provisions *

15.12 Nonliability of Lenders *

15.13 GOVERNING LAW *

15.14 CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURYTRIAL *

15.15 Binding Effect *

15.16 Survival of Borrower Representations *

15.17 Extensions of Lender's Commitment and Notes *

15.18 Time of Essence *

15.19 Counterparts *

15.20 Facsimile Signatures *

15.21 Notices *
** 

EXHIBITS AND SCHEDULES

 

Exhibits

EXHIBIT A  Revolving Loan Commitments (Definitions)

EXHIBIT B-1  Form of Revolving Note (Definitions)

EXHIBIT B-2  Form of Swing Line Note (Definitions)

EXHIBIT C  Form of Assignment and Acceptance Agreement(Definitions)

 
**Schedules

SCHEDULE 1.1 IPALCO Debt

SCHEDULE 4.3 Governmental Approvals and Filings

SCHEDULE 5.9 Ownership and Control

SCHEDULE 5.10 Litigation

SCHEDULE 6.1 Existing Indebtedness

SCHEDULE 6.2 Existing Liens

 
**CREDIT AGREEMENT

 

 This CREDIT AGREEMENT dated as of May 24, 2002 (the"Agreement"), is executed by and among INDIANAPOLIS POWER & LIGHT COMPANY,an Indiana corporation (the "Borrower"), whose address is One Monument Circle,Indianapolis, Indiana 46204, the institutions from time to time parties heretoas Lenders, whether by execution of this Agreement or an Assignment Agreementpursuant to Section 14.3, and THE HUNTINGTON NATIONAL BANK, a national bankingassociation, whose address is 201 North Illinois Street, Suite 1800,Indianapolis, Indiana 46204, in its capacity as contractual representative foritself and the other Lenders (the "Agent").

 In consideration of the mutual agreements hereinafter setforth, the parties hereby agree as follows:

ARTICLE I

DEFINITIONS

 1.1 Defined Terms.  For the purposes of thisAgreement, the following capitalized words and phrases shall have the meaningsset forth below.

  "ABN AMRO Line of Credit" means the$30,000,000.00 unsecured line of credit provided by ABN AMRO Bank N.V., asagent, and any replacement, renewal, refinancing or extension thereof.

  "Advances" mean borrowings hereunderconsisting of the aggregate amount of the several Loans made by the Lenders tothe Borrower of the same Type and, in the case of LIBOR Rate Advances, for thesame Interest Period.

  "AES" shall mean The AES Corporation, aDelaware corporation.

  "Affected Lender" shall have the meaning setforth in Section 2.14.

  "Affiliate" of any Person means any otherPerson directly or indirectly controlling, controlled by or under common controlwith such Person. A Person shall be deemed to control another Person if thecontrolling Person is the "beneficial owner" (as defined in Rule 13d-3 under theSecurities Exchange Act of 1934) of greater than ten percent (10%) or more ofany class of voting securities (or other voting interests) of the controlledPerson or possesses, directly or indirectly, the power to direct or cause thedirection of the management or policies of the controlled Person, whetherthrough ownership of equity securities, by contract or otherwise.

  "Agent" means The Huntington National Bank inits capacity as contractual representative for itself and the Lenders pursuantto Article XII hereof and any successor Agent appointed pursuant to Article XIIhereof.

  "Aggregate Revolving Loan Commitment" meansthe aggregate of the Revolving Loan Commitment of all the Lenders, as reducedfrom time to time pursuant to the terms hereof. The initial Aggregate RevolvingLoan Commitment is Forty-Five Million and 00/100 Dollars ($45,000,000.00),provided that the parties contemplate that the Aggregate Revolving LoanCommitment will be increased to Fifty Million and 00/100 Dollars($50,000,000.00).

  "Applicable Facility Fee Percentage" means, atany date of determination, the rate per annum then applicable in thedetermination of the amount payable under Section 2.9(b)(i) hereof determined inaccordance with the provisions of Section 2.9(c)(ii) hereof.

  "Applicable LIBOR Margin" means, at any dateof determination, the rate per annum applicable to LIBOR Loans determined inaccordance with the provisions of Section 2.9(c)(ii) hereof.

  "Applicable Prime Rate Margin" means, at anydate of determination, the rate per annum then applicable to Prime Loans,determined in accordance with the provisions of Section 2.9(c)(ii) hereof.

  "Applicable Utilization Fee Percentage" means,at any date of determination, the rate per annum then applicable in thedetermination of the amount payable under Section 2.9(b)(ii) hereof determinedin accordance with the provisions of Section 2.9(c)(ii) hereof.

  "Assignment Agreement" means an assignment andacceptance agreement entered into in connection with an assignment pursuant toSection 14.3 hereof in substantially the form of Exhibit "C."

  "Authorized Officer" means any of theChairman, President, Vice President and Business Unit Leader - FinancialServices, Treasurer, Secretary, Director of Treasury Operations or SeniorFinancial Analyst of the Borrower, acting singly.

  "Bankruptcy Code" shall mean the United StatesBankruptcy Code, as now existing or hereafter amended.

  "Borrowing Date" means a date on which anAdvance or Swing Line Loan is made hereunder.

  "Business Day" shall mean any day other than aSaturday, Sunday or a legal holiday on which banks are authorized or required tobe closed for the conduct of commercial banking business in Indianapolis,Indiana.

  "Capitalization" shall mean the sum of TotalDebt plus Total Capital.

  "Capital Lease" shall mean, as to any Person,a lease of any interest in any kind of property or asset, whether real, personalor mixed, or tangible or intangible, by such Person as lessee that is, or shouldbe, in accordance with Financial Accounting Standards Board Statement No. 13, asamended from time to time, or, if such statement is not then in effect, suchstatement of GAAP as may be applicable, recorded as a "capital lease" on thebalance sheet of the Borrower prepared in accordance with GAAP.

  "Change of Control" shall mean that at anytime IPALCO shall fail to own all of the common equity securities ofBorrower.

  "Change" shall have the meaning set forth inSection 3.2 hereof.

  "Closing Date" means May 24, 2002.

  "Code" means the Internal Revenue Code of1986, as amended, reformed or otherwise modified from time to time.

  "Communication" shall have the meaning setforth in Section 15.20.

  "Contingent Liability" and "ContingentLiabilities" shall mean, as applied to any Person, any ContractualObligation, contingent or otherwise, of that Person with respect to anyIndebtedness of another or other obligation or liability of another, including,without limitation, any such Indebtedness, obligation or liability of anotherdirectly or indirectly guaranteed, endorsed (otherwise than for collection ordeposit in the ordinary course of business), co-made or discounted or sold withrecourse by that Person, or in respect of which that Person is otherwisedirectly or indirectly liable, including Contractual Obligations (contingent orotherwise) arising through any agreement to purchase, repurchase, or otherwiseacquire such Indebtedness, obligation or liability or any security therefor, orto provide funds for the payment or discharge thereof (whether in the form ofloans, advances, stock purchases, capital contributions or otherwise), or tomaintain solvency, assets, level of income, or other financial condition, or tomake payment other than for value received, provided, however, that the term"Contingent Liability" or "Contingent Liabilities" shall notinclude the debt of IPALCO set forth in Schedule 1.1.

  "Contractual Obligations" shall mean, as toany Person, any provision of any security issued by such Person or of anyagreement, undertaking, contract, indenture, mortgage, deed of trust or otherinstrument to which such Person is a party or by which it or any of its property(now owned or hereafter acquired) is bound.

  "Controlled Group Member" shall mean eachtrade or business (whether or not incorporated) which together with the Borroweris treated as a single employer under Sections 4001(a)(14) or 4001(b)(1) ofERISA or Sections 414(b), (c), (m) or (o) of the Code.

  "Cross-Default Event" shall have the meaningset forth in Section 9.1(e).

  "Cross-Default Obligation" shall have themeaning set forth in Section 9.1(e).

  "Cure Loans" shall have the meaning set forthin Section 11.1(iii).

  "Default Rate" shall mean a per annum rate ofinterest equal to the Prime Loan Rate plus 2% per annum.

  "EBIT" shall mean, for any period, the sum forsuch period of:  (a) Net Income, plus (b) Interest Charges, plus(c) federal and state income taxes as reflected on GAAP financial statements,minus (d) any items of gain which are extraordinary items as defined byGAAP, including, without limitation, that portion of net income arising out ofthe sale of assets outside of the ordinary course of business, minus (e)income or loss attributable to equity in any affiliated corporation, in eachcase to the extent included in determining Net Income for such period,plus any items of charges which are extraordinary items as defined byGAAP.

  "Eligible Investments" means (a)Government Obligations; (b) obligations issued or guaranteed by any personcontrolled or supervised by and acting as an instrumentality of the UnitedStates of America pursuant to authority granted by the Congress of the UnitedStates of America; (c) negotiable or non-negotiable certificates of deposit andtime deposits issued by any bank, trust company or national banking association,including the Agent, having total assets in excess of one (1) billion dollarsand which has combined capital, surplus and undivided profits of at least$25,000,000 in dollars of the United States of America; (d) commercial paper ofthe quality rated on the date of purchase at "A-1" by S&P or"P-1" by Moody's purchased directly or through recognized money marketdealers; (e) municipal obligations the interest on which is excluded from thegross income of the owners thereof for federal tax purposes under Section 103 ofthe Code, if rated on the date of purchase in one of the two highest ratingcategories of either Moody's or S&P; (f) any repurchase agreement secured byany one or more of the foregoing; (g) any repurchase agreement or guaranteedinvestment contract from a bank or insurance company rated on the date ofpurchase in one of the two highest rating categories of either Moody's orS&P and secured by any one or more of the foregoing with collateral equal orgreater than 102% of the principal amount originally invested valued on a weeklybasis; (h) units or shares of a Qualified Regulated Investment Company whichinvests solely in obligations described in (e) above; for purposes of thissubsection (h) a Qualified Regulated Investment Company means a qualifiedregulated investment company as defined by the Internal Revenue Serviceincluding any regulated investment company (as defined in Section 851(a) of theCode) which, (i) for the taxable year, meets the requirements of Section 852(a)of the Code, (ii) has authorized and outstanding only one class of units orshares and (iii) to the extent practicable invests all of its assets in tax-exempt bonds, or of the weighted average value of its assets is represented byinvestments in tax-exempt bonds; (i) money market funds which funds are rated onthe date of purchase in one of the two highest rating categories of eitherMoody's or S&P; and (j) any other new investment provided that such newinvestments do not exceed $5,000,000.00 in the aggregate outstanding at anytime.

  "Employee Plan" includes any pension, stockbonus, employee stock ownership plan, retirement, disability, medical, dental orother health plan, life insurance or other death benefit plan, profit sharing,deferred compensation, stock option, bonus or other incentive plan, vacationbenefit plan, severance plan or other employee benefit plan or arrangement,including, without limitation, those pension, profit-sharing and retirementplans of the Borrower described from time to time in the financial statements ofthe Borrower and any pension plan, welfare plan, Defined Benefit Pension Plans(as defined in ERISA) or any multi-employer plan, maintained or administered bythe Borrower or to which the Borrower is a party or may have any liability or bywhich the Borrower is bound.

  "Environmental Affiliate" shall mean, withrespect to any Person, any other Person whose liability (contingent orotherwise) for any Environmental Claim such Person has retained, assumed orotherwise is liable for (by law, agreement or otherwise).

  "Environmental Approvals" shall mean anyGovernmental Action pursuant to or required under any Environmental Law.

  "Environmental Claim" shall mean, with respectto any Person, any action, suit, proceeding, investigation, notice, claim,complaint, demand, request for information or other communication (written ororal) by any other Person (including but not limited to any GovernmentalAuthority, citizens' group or present or former employee of such Person)alleging, asserting or claiming any actual or potential (a) violation of anyEnvironmental Law, (b) liability under any Environmental Law or (c) liabilityfor investigatory costs, cleanup costs, governmental response costs, naturalresources damages, property damages, personal injuries, fines or penaltiesarising out of, based on or resulting from the presence, or release into theenvironment, of any Hazardous Materials at any location, whether or not owned bysuch Person.

  "Environmental Cleanup Site" shall mean anylocation which is listed or proposed for listing on the National PrioritiesList, on CERCLIS or on any similar state list of sites requiring investigationor cleanup, or which is the subject of any pending or threatened action, suit,proceeding or investigation related to or arising from any alleged violation ofany Environmental Law.

  "Environmental Laws" shall mean all federal,state, district, local and foreign laws, rules, regulations, ordinances, andconsent decrees relating to health, safety, hazardous substances, pollution andenvironmental matters, as now or at any time hereafter in effect, applicable tothe Borrower's business or facilities owned or operated by the Borrower,including laws relating to emissions, discharges, releases or threatenedreleases of pollutants, contamination, chemicals, or hazardous, toxic ordangerous substances, materials or wastes in the environment (including, withoutlimitation, ambient air, surface water, land surface or subsurface strata) orotherwise relating to the generation, manufacture, processing, distribution,use, treatment, storage, disposal, transport or handling of HazardousMaterials.

  "ERISA" shall mean the Employee RetirementIncome Security Act of 1974, as amended from time to time.

  "Event of Default" shall mean any of theevents or conditions set forth in Article IX hereof.

  "Federal Funds Effective Rate" means, for anyday, an interest rate per annum equal to the weighted average of the rates onovernight Federal funds transactions with members of the Federal Reserve Systemarranged by Federal funds brokers on such day, as published for such day (or, ifsuch day is not a Business Day, for the immediately preceding Business Day) bythe Federal Reserve Bank of New York, or, if such rate is not so published forany day which is a Business Day, the average of the quotations at approximately10:00 a.m. (Indianapolis time) on such day on such transactions received by theAgent from three (3) Federal funds brokers of recognized standing selected bythe Agent in its sole discretion.

  "GAAP" shall mean generally acceptedaccounting principles, using the accrual basis of accounting and consistentlyapplied with prior periods, provided, however, that GAAP with respect to anyinterim financial statements or reports shall be deemed subject to fiscal year-end adjustments and footnotes made in accordance with GAAP.

  "Government Action" shall have the meaning setforth in Section 5.4.

  "Governmental Authority" means any nation orgovernment, any federal, state, local or other political subdivision thereof andany entity exercising executive, legislative, judicial, regulatory oradministrative functions of or pertaining to government.

  "Governmental Obligations" means (a)direct obligations of the United States of America or (b) obligationsunconditionally guaranteed as to full and timely payment of principal andinterest by the United States of America.

  "Hazardous Materials" shall mean anyhazardous, toxic or dangerous substance, materials and wastes, including,without limitation, hydrocarbons (including naturally occurring or man-madepetroleum and hydrocarbons), flammable explosives, asbestos, urea formaldehydeinsulation, radioactive materials, biological substances, polychlorinatedbiphenyls, pesticides, herbicides and any other kind and/or type of pollutantsor contaminants (including, without limitation, materials which includehazardous constituents), sewage, sludge, industrial slag, solvents and/or anyother similar substances, materials or wastes that are or become regulated underany Environmental Law (including without limitation, any that are or becomeclassified as hazardous or toxic under any Environmental Law).

  "Indebtedness" shall mean at any time (a) allLiabilities of the Borrower, (b) all Capital Lease obligations of the Borrower,(c) all securitized facilities of the Borrower, (d) indebtedness secured by anyLien existing on property owned by the Borrower whether or not the Indebtednesssecured thereby has been assumed, and (e) all Contingent Liabilities of theBorrower whether or not reflected on its balance sheet.

  "Indemnified Matters" shall have the meaningset forth in Section 15.7(b)(ii).

  "Indemnitees" shall have the meaning set forthin Section 15.7(b).

  "Interest Charges" shall mean, for any period,the sum of:  (a) all interest, charges and related expenses payable with respectto that fiscal period to a lender in connection with borrowed money or thedeferred purchase price of assets that are treated as interest in accordancewith GAAP, plus (b) the portion of rent payable with respect to thatfiscal period under Capital Leases that should be treated as interest inaccordance with GAAP, plus (c) all charges paid or payable (withoutduplication) during that period with respect to any Interest RateAgreements.

  "Interest Period" shall mean, with regard toany LIBOR Loan, successive one, two, three or six month periods as selected fromtime to time by the Borrower by notice given to the Agent not less than threeBusiness Days prior to the first day of each respective Interest Period;provided, however, that: (i) each such Interest Period occurring after theinitial Interest Period of any LIBOR Loan shall commence on the day on which thepreceding Interest Period for such LIBOR Loan expires, (ii) whenever the lastday of any Interest Period would otherwise occur on a day other than a BusinessDay, the last day of such Interest Period shall be extended to occur on the nextsucceeding Business Day, provided, however, that if such extension would causethe last day of such Interest Period to occur in the next following calendarmonth, then the last day of such Interest Period shall occur on the immediatelypreceding Business Day; (iii) whenever the first day of any Interest Periodoccurs on a day of a month for which there is no numerically corresponding dayin the calendar month in which such Interest Period terminates, such InterestPeriod shall end on the last Business Day of such calendar month; and (iv) thefinal Interest Period must be such that its expiration occurs on or before theMaturity Date.

  "Interest Rate Agreements" shall mean anyinterest rate protection agreement, interest rate swap or other interest ratehedge arrangement (other than any interest rate cap or other similar agreementor arrangement pursuant to which the Borrower has no credit exposure to theAgent or Lenders) to or under which the Borrower is a party or beneficiary.

  "IPALCO" shall mean IPALCO Enterprises, Inc.,an Indiana corporation.

  "Lenders" means the lending institutionslisted on the signature pages of this Agreement and their respective successorsand assigns.

  "Lending Installation" means, with respect toa Lender or the Agent, any office, branch, subsidiary or affiliate of suchLender or the Agent.

  "Liabilities" shall mean at all times allliabilities of the Borrower that would be shown as such on a balance sheet ofthe Borrower prepared in accordance with GAAP.

  "LIBOR" shall mean a rate of interest equal tothe per annum rate of interest at which United States dollar deposits in anamount comparable to the approximate amount of the pro rata share of TheHuntington National Bank of the relevant LIBOR Loan and for a period equal tothe relevant Interest Period are offered generally to the Agent (rounded upwardif necessary, to the nearest 1/16 of 1.00%) in the London Interbank Eurodollarmarket at 11:00 a.m. (London time) two Business Days prior to the commencementof each Interest Period less the maximum reserve percentages fordetermining reserves to be maintained by member banks of the Federal ReserveSystem for Eurocurrency liabilities, or, if LIBOR cannot be so determined, asLIBOR is otherwise determined by the Agent in its sole and absolute discretion,such rate to remain fixed for such Interest Period.  The Agent's determinationof LIBOR shall be conclusive, absent manifest error.

  "LIBOR Rate" shall mean a per annum rate ofinterest equal to LIBOR for the relevant Interest Period (rounded upward ifnecessary, to the nearest 1/16 of 1.00%) plus the then Applicable LIBORMargin, which LIBOR Rate shall remain fixed during such Interest Period.

  "LIBOR Rate Advance" means an Advance whichbears interest at the LIBOR Rate.

  "LIBOR Loan" or "LIBOR Loans" shallmean that portion, and collectively those portions, of the aggregate outstandingprincipal balance of the Loans****that will bear interest at the LIBOR Rate,of which at any time and from time to time, the Borrower may identify no morethan six (6) Advances of the Loans****which will bear interest at the LIBORRate, of which each particular LIBOR Rate Advance must be in the amount of OneMillion and 00/100 Dollars ($1,000,000.00) or a higher integral multiple of OneHundred Thousand and 00/100 Dollars ($100,000.00).

  "Lien" shall mean any mortgage, pledge,hypothecation, judgment lien or similar legal process, title retention lien, orother lien or security interest, including, without limitation, the interest ofa vendor under any conditional sale or other title retention agreement and theinterest of a lessor under a lease of any interest in any kind of property orasset, whether real, personal or mixed, or tangible or intangible, by suchPerson as lessee that is, or should be, a Capital Lease on the balance sheet ofthe Borrower prepared in accordance with GAAP.

  "Loan(s)" shall mean, with respect to aLender, such Lender's portion of any Advance made pursuant to Section 2.1hereof, and in the case of the Swing Line Bank, any Swing Line Loan madepursuant to Section 2.2 hereof, and collectively all Revolving Loans and SwingLine Loans, whether made or continued as or converted to Prime Loans or LIBORLoans.

  "Loan Account" shall have the meaning setforth in Section 2.9(e).

  "Loan Documents" shall have the meaning setforth in Section 4.1.

  "Margin Stock" shall have the meaning ascribedto such term in Regulation U.

  "Material Adverse Effect" means a materialadverse effect upon (a) the business, condition (financial or otherwise),operations, performance or properties of the Borrower, (b) the ability of theBorrower to perform its obligations under the Loan Documents in any materialrespect, or (c) the ability of the Lenders or the Agent to enforce in anymaterial respect the Obligations.

  "Maturity Date" shall mean May 23, 2003,unless extended by the Lenders pursuant to any modification, extension orrenewal notes executed by the Borrower and accepted by the Lenders in their soleand absolute discretion in substitution for the Revolving Notes in which eventthe modification, extension or renewal notes shall replace the previously issuedRevolving Notes as of the date of such acceptance and shall specify the newMaturity Date which shall be no greater than 364 days from the date of suchacceptance.

  "Moody's" shall mean Moody's InvestorsService, Inc.

  "Moody's Rating" shall mean the seniorunsecured debt rating of the Borrower established by Moody's.

  "Multiemployer Plan" means a "MultiemployerPlan" as defined in Section 4001(a)(3) of ERISA which is, or within theimmediately preceding six (6) years was, contributed to by either the Borroweror any Controlled Group Member.

  "Net Income" shall mean, with respect to anyperiod, the amount shown opposite the caption "Net Income" or a similar captionon the financial statements of the Borrower, prepared in accordance withGAAP.

  "Non Pro Rata Loan" shall have the meaning setforth in Section 11.1.

  "Notes" shall mean****the Revolving Notesand the Swing Line Note.

  "Notice of Assignment" shall have the meaningset forth in Section 14.3(b).

  "Obligations" shall mean all Loans, Advances,debts, Liabilities, obligations, Indebtedness, covenants and duties owing by theBorrower to the Agent, any Lender, the Swing Line Bank, any Affiliate of theAgent or any Lender, or any Indemnitee, of any kind or nature, present orfuture, arising under this Agreement, the Notes or any other Loan Document,whether or not evidenced by any note, guaranty or other instrument, whether ornot for the payment of money, whether arising by reason of an extension ofcredit, loan, guaranty, indemnification, or in any other manner, whether director indirect (including those acquired by assignment), absolute or contingent,due or to become due, now existing or hereafter arising and however acquired.The term includes, without limitation, all interest, charges, expenses, fees,attorneys' fees and disbursements, paralegals' fees (in each case whether or notallowed), and any other sum chargeable to the Borrower under this Agreement orany other Loan Document.

  "Other Taxes" shall have the meaning set forthin Section 2.9(d)(ii).

  "Participants" shall have the meaning setforth in Section 14.2(a).

  "PBGC" means the Pension Benefit GuarantyCorporation established under Title IV of ERISA or any other governmentalagency, department or instrumentality succeeding to the functions of saidcorporation.

  "Pension-Related Event" shall mean any of thefollowing events or conditions:

 (a) Any action is taken by any Person (i) toterminate, or which would result in the termination of, a Plan, either pursuantto its terms or by operation of law (including, without limitation, anyamendment of a Plan which would result in a termination under Section 4041(e) ofERISA) other than compliance with Section 4041(b) of ERISA, or (ii) to have atrustee appointed for a Plan pursuant to Section 4042 of ERISA;

 (b) PBGC notifies any Person of its determination thatan event described in Section 4042 of ERISA has occurred with respect to a Plan,that a Plan should be terminated, or that a trustee should be appointed for aPlan;

 (c) Any Reportable Event occurs with respect to aPlan;

 (d) Any action occurs or is taken which could resultin Borrower becoming subject to liability for a complete or partial withdrawalby any Person from a Multiemployer Plan (including, without limitation, sellerliability incurred under Section 4204(a)(2) of ERISA), or Borrower or anyControlled Group Member receives from any Person a notice or demand for paymenton account of any such alleged or asserted liability; or

 (e) (i) There occurs any failure to meet the minimumfunding standard under Section 302 of ERISA or Section 412 of the Code withrespect to a Plan, or any tax return is filed showing any tax payable underSection 4971(a) of the Code with respect to any such failure, or Borrower or anyControlled Group Member receives a notice of deficiency from the InternalRevenue Service with respect to any alleged or asserted such failure, or (ii)any request is made by any Person for a variance from the minimum fundingstandard, or an extension of the period for amortizing unfunded liabilities,with respect to a Plan.

  "Permitted Liens" shall have the meaning setforth in Section 6.2.

  "Permitted Refinancing Indebtedness" means anyreplacement, renewal, refinancing or extension of any Indebtedness permitted bythis Agreement that (i) does not exceed the aggregate principal amount (plusaccrued interest and any applicable premium and associated fees and expenses) ofthe Indebtedness being replaced, renewed, refinanced or extended, provided,however, that the aggregate principal amount of the ABN AMRO Line of Credit, maybe increased to an unsecured line of $50,000,000.00, (ii) does not rank at thetime of such replacement, renewal, refinancing or extension senior to theIndebtedness being replaced, renewed, refinanced or extended, provided, however,that this requirement shall not apply to the extent that such replacement,renewal, refinancing or extension is completed to meet environmentalrequirements so long as on a pro forma basis Borrower remains in compliance withthe financial covenants contained in Article VIII, provided, further, that areplacement, renewal, refinancing or extension with a Weighted Average Life toMaturity at the time of such replacement, renewal, refinancing or extension thatis more than the Weighted Average Life to Maturity of the Indebtedness beingreplaced, renewed, refinanced or extended and is otherwise permitted pursuant tothis definition may be secured by the assets of the Borrower, (iii) containsterms reflective of current market conditions, and (iv) with respect to the ABNAMRO Line of Credit, does not contain terms which are materially less favorableto the Borrower or to the Lenders.

  "Person" shall mean any individual,partnership, limited liability company, corporation, trust, joint venture, jointstock company, association, unincorporated organization, government or agency orpolitical subdivision thereof, or other entity.

  "Plan" means an employee benefit plan definedin Section 3(3) of ERISA in respect of which the Borrower or any ControlledGroup Member is, or within the immediately preceding six (6) years was, an"employer" as defined in Section 3(5) of ERISA.

  "Prime Loan" or "Prime Loans" shallmean that portion, and collectively, those portions of the aggregate outstandingprincipal balance of the Loans****that will bear interest at the Prime LoanRate.

  "Prime Loan Rate" shall mean a per annum rateof interest equal to the Prime Rate plus the then Applicable Prime RateMargin.

  "Prime Rate" shall mean the floating per annumrate of interest which at any time, and from time to time, shall be mostrecently announced by the Agent as its Prime Rate, which is not intended to bethe Agent's lowest or most favorable rate of interest at any one time.  Theeffective date of any change in the Prime Rate shall for purposes hereof be thedate the Prime Rate is changed by the Agent.  The Agent shall not be obligatedto give notice of any change in the Prime Rate.

  "Prime Rate Advance" means an Advance whichbears interest at the Prime Loan Rate.

  "Pro Rata Share" means with respect to eachLender, the percentage obtained by dividing (A) such Lender's Revolving LoanCommitment at such time (in each case, as adjusted from time to time inaccordance with the provisions of this Agreement) by (B) the Aggregate RevolvingLoan Commitment at such time; provided, however, if all of theRevolving Loan Commitments are terminated pursuant to the terms of thisAgreement, then "Pro Rata Share" means the percentage obtained by dividing (x)the sum of such Lender's Revolving Loans and, in the case of the Swing LineBank, Swing Lines Loans, by (y) the aggregate amount of all Revolving Loans andSwing Line Loans.

  "Purchasers" shall have the meaning set forthin Section 14.3(a).

  "Register" shall have the meaning set forth inSection 14.3(c).

  "Regulation T" means Regulation T of the Boardof Governors of the Federal Reserve System as from time to time in effect andany successor or other regulation or official interpretation of said Board ofGovernors relating to the extension of credit by and to brokers and dealers ofsecurities for the purpose of purchasing or carrying margin stock (as definedtherein).

  "Regulation U" means Regulation U of the Boardof Governors of the Federal Reserve System as from time to time in effect andany successor or other regulation or official interpretation of said Board ofGovernors relating to the extension of credit by banks for the purpose ofpurchasing or carrying Margin Stock applicable to member banks of the FederalReserve System.

  "Regulation X" means Regulation X of the Boardof Governors of the Federal Reserve System as from time to time in effect andany successor or other regulation or official interpretation of said Board ofGovernors relating to the extension of credit by foreign leaders for the purposeof purchasing or carrying margin stock (as defined therein).

  "Regulatory Change" shall mean theintroduction of, or any change in any applicable law, treaty, rule, regulationor guideline or in the interpretation or administration thereof by anyGovernmental Authority or any central bank or other fiscal, monetary or otherauthority having jurisdiction over the Lenders or their lending offices.

  "Release" means any release, spill, emission,leaking, pumping, injection, deposit, disposal, discharge, dispersal, leachingor migration into the indoor or outdoor environment, including the movement ofHazardous Materials through or in the air, soil, surface water orgroundwater.

  "Replacement Lender" shall have the meaningset forth in Section 2.14.

  Reportable Event" means a reportable event asdefined in Section 4043 of ERISA and the regulations issued under such section,with respect to a Plan, excluding, however, such events as to which the PBGC byregulation waived the requirement of Section 4043(a) of ERISA that it benotified within thirty (30) days after such event occurs, provided,however, that a failure to meet the minimum funding standards of Section412 of the Code and Section 302 of ERISA shall be a Reportable Event regardlessof the issuance of any such waiver of the notice requirement in accordance witheither Section 4043(a) of ERISA or Section 412(d) of the Code.

  "Required Lenders" means Lenders whose ProRata Shares, in the aggregate, are not less than fifty-one percent (51%);provided, however, that, if any of the Lenders shall have failedto fund its Pro Rata Share of any Revolving Loan requested by the Borrower or ofany Swing Line Loan as requested by the Agent, which such Lenders are obligatedto fund under the terms of this Agreement and any such failure has not beencured, then for so long as such failure continues, "Required Lenders" meansLenders (excluding all Lenders whose failure to fund their applicable Pro RataShares of such Revolving Loans or Swing Line Loans has not been so cured) whosePro Rata Share represent not less than fifty-one percent (51%) of the aggregatePro Rata Shares of such Lenders; providedfurther, however,that, if the Revolving Loan Commitments have been terminated pursuant to theterms of this Agreement, "Required Lenders" means Lenders (without regard tosuch Lender's performance of their respective obligations hereunder) whoseaggregate ratable shares (stated as a percentage) of the outstanding principalbalance of all Loans are not less than fifty-one percent (51%).

  "Requirement of Law" shall mean, as to anyPerson, the certificate or articles of incorporation and by-laws or otherorganizational or governmental documents of such Person, and any law, right,privilege, qualification, license or franchise or determination of an arbitratoror a court or other Governmental Authority, in each case applicable or bindingupon such Person or any of its property (nor owned or hereafter acquired) or towhich such Person or any of its property is subject or pertaining to any or allof the transactions contemplated or referred to herein.

  "Revolving Credit Obligations" means, at anyparticular time, the sum of (i) the outstanding principal amount of theRevolving Loans at such time, plus (ii) the outstanding principal amountof the Swing Line Loans.

  "Revolving Interest Rate" shall mean theBorrower's from time to time option of the Prime Loan Rate or the LIBORRate.

  "Revolving Loan" and "Revolving Loans"shall mean, respectively, each direct advance and the aggregate of all suchdirect advances, from time to time in the form of either Prime Loans and/orLIBOR Loans, made by the Lenders to the Borrower under and pursuant to thisAgreement, as set forth in Section 2.1 of this Agreement.

  "Revolving Loan Commitment" shall mean, foreach Lender, the obligation of such Lender to make Revolving Loans and topurchase participations in Swing Line Loans not exceeding the amount set forthon Exhibit "A" to this Agreement opposite its name thereon under the heading"Revolving Loan Commitment" or the signature page of the assignment andacceptance by which it became a Lender, as such amount may be modified from timeto time pursuant to the terms of this Agreement or to give effect to anyapplicable assignment and acceptance.

  "Revolving Note(s)" means a promissory note,in substantially the form of Exhibit "B-1" hereto, duly executed by the Borrowerand payable to the order of a Lender in the amount of its Revolving LoanCommitment, including any modification, extension or renewal of such RevolvingNote in which event the modification, extension or renewal notes shall replacethe previously issued Revolving Notes as of the date of such acceptance andshall specify the new Maturity Date which shall be no greater than 364 days fromthe date of such acceptance.

  "Risk-Based Capital Guidelines" shall have themeaning set forth in Section 3.2.

  "S&P" shall mean Standard & Poor'sRatings Group, a division of McGraw Hill, Inc.

  "S&P Rating" shall mean the seniorunsecured debt rating of the Borrower established by S&P.

  "Solvent" means, when used with respect to anyPerson, that at the time of determination:

 (i) the fair value of its assets (both at fairvaluation and at present fair saleable value) is equal to or in excess of thetotal amount of its liabilities, including, without limitation, ContingentLiabilities; and

 (ii) it is then able and expects to be able to pay itsdebts as they mature; and

 (iii) it has capital sufficient to carry on itsbusiness as conducted and as proposed to be conducted.

With respect to Contingent Liabilities, such liabilitiesshall be computed at the amount which, in light of all the facts andcircumstances existing at the time, represent the amount which can be reasonablyexpected to become an actual or matured liability.

  "Standard Notice" shall mean an irrevocablenotice provided to Agent as the situation requires on a Business Day whichis:

 (a) At least one Business Day in advance in the caseof selection of, conversion to or renewal of a Prime Rate Advance or prepaymentof any Prime Loan;

 (b) At least three Business Days in advance in thecase of selection of, conversion to or renewal of a LIBOR Rate Advance orprepayment of any LIBOR Loan;

 (c) On that Business Day in the case of selection of aSwing Line Loan.

Standard Notice must be provided no later than 12:00 noon(Indianapolis time) on the last day permitted for such notice.

  "Stock Payment" by any Person shall mean anydividend, distribution or payment of any nature (whether in cash, securities, orother property) on account of or in respect of any shares of the capital stock(or warrants, options or rights therefor) of such Person, including, but notlimited to, any payment on account of the purchase, redemption, retirement,defeasance or acquisition of any shares of the capital stock (or warrants,options or rights therefor) of such Person, in each case regardless of whetherrequired by the terms of such capital stock (or warrants, options or rights) orany other agreement or instrument.

  "Swing Line Bank" means The HuntingtonNational Bank or any other Lender as a successor Swing Line Bank.

  "Swing Line Commitment" means the obligationof the Swing Line Bank to make Swing Line Loans up to a maximum principal amountof $5,000,000.00 at any one time outstanding.

  "Swing Line Loan" means a Loan made availableto the Borrower by the Swing Line Bank pursuant to Section 2.2 hereof.

  "Swing Line Note" means a promissory note, insubstantially the form of Exhibit "B-2" hereto, duly executed by the Borrowerand payable to the order of the Swing Line Bank in the amount of its Swing LineCommitment, including any restatement, extension or renewal of such Swing LineNote in which event the modification, extension or renewal notes shall replacethe previously issued Swing Line Note as of the date of such acceptance andshall specify the new Maturity Date which shall be no greater than 364 days fromthe date of such acceptance.

  "Taxes" shall have the meaning set forth inSection 2.9(d)(i).

  "Total Capital" shall mean, with respect toany period, the amount shown opposite the captions "Stockholder's Equity" and"Preferred Stock" or similar captions on the financial statements ofthe Borrower, prepared in accordance with GAAP.

  "Total Debt" shall mean at any time (a) allinterest-bearing Liabilities of the Borrower, (b) all securitized facilities ofthe Borrower, (c) all Capital Lease obligations of the Borrower and (d) allletter of credit obligations of the Borrower; provided, however, that the term"Total Debt" shall not include accounts payable and accruals of theBorrower that would be shown as such on the balance sheet of the Borrowerprepared in accordance with GAAP.

  "Transferee" shall have the meaning set forthin Section 14.5.

  "Type" means, with respect to any Loan, itsnature as a Prime Loan or a LIBOR Loan.

  "Unmatured Event of Default" means an eventwhich, but for the lapse of time or the giving of notice, or both, wouldconstitute an Event of Default.

  "Weighted Average Life to Maturity" means whenapplied to any Indebtedness at any date, the number of years obtained bydividing (i) the sum of the products obtained by multiplying (a) the amount ofeach then remaining installment, sinking fund, serial maturity or other requiredpayments of principal, including payment at final maturity, in respect thereof,by (b) the number of years (calculated to the nearest one-twelfth) that willelapse between such date and the making of such payment, by (ii) the thenoutstanding principal amount of such Indebtedness.  

 1.2 Accounting Terms.  Any accounting termsused in this Agreement which are not specifically defined herein shall have themeanings customarily given them in accordance with GAAP.  Calculations anddeterminations of financial and accounting terms used and not otherwisespecifically defined hereunder and the preparation of financial statements to befurnished pursuant hereto shall be made and prepared, both as to classificationof items and as to amount, in accordance with GAAP as used in the preparation ofthe financial statements of the Borrower on the date of this Agreement.  If anychanges in accounting principles or practices from those used in the preparationof the financial statements are hereafter occasioned by the promulgation ofrules, regulations, pronouncements and opinions by or required by the FinancialAccounting Standards Board or the American Institute of Certified PublicAccountants (or any successor thereto or agencies with similar functions), whichresults in a material change in the method of accounting in the financialstatements required to be furnished hereunder or in the calculation of financialcovenants, standards or terms contained in this Agreement, the parties heretoagree to enter into good faith negotiations to amend such provisions so asequitably to reflect such changes to the end that the criteria for evaluatingthe financial condition and performance of the Borrower will be the same aftersuch changes as they were before such changes; and if the parties fail to agreeon the amendment of such provisions, the Borrower will furnish financialstatements in accordance with such changes but shall provide calculations forall financial covenants, perform all financial covenants and otherwise observeall financial standards and terms in accordance with applicable accountingprinciples and practices in effect immediately prior to such changes.Calculations with respect to financial covenants required to be stated inaccordance with applicable accounting principles and practices in effectimmediately prior to such changes shall be reviewed and certified by theBorrower's accountants.

 1.3 Other Definitional Provisions;Construction.  Whenever the context so requires, the neuter gender includesthe masculine and feminine, the single number includes the plural, and viceversa, and in particular the word "Borrower" shall be so construed.  The words"hereof", "herein" and "hereunder" and words of similar import when used in thisAgreement shall refer to this Agreement as a whole and not to any particularprovision of this Agreement, and references to Article, Section, Subsection,Annex, Schedule, Exhibit and like references are references to this Agreementunless otherwise specified.  An Event of Default shall "continue" or be"continuing" until such Event of Default has been waived in accordance withSection 15.9 hereof.  References in this Agreement to any party shall includesuch party's successors and permitted assigns.  References to any "Section"shall be a reference to such Section of this Agreement unless otherwise stated.To the extent any of the provisions of the other Loan Documents are inconsistentwith the terms of this Agreement, the provisions of this Agreement shallgovern.

ARTICLE II

COMMITMENT OF THE LENDERS

 2.1 Revolving Loans.

 (a) Revolving Loan Commitment.  Subject to theterms and conditions of this Agreement and the other Loan Documents, and inreliance upon the representations and warranties of the Borrower set forthherein and in the other Loan Documents, each Lender agrees to make suchRevolving Loans at such times as the Borrower may from time to time requestuntil, but not including, the Maturity Date, and in such amounts as the Borrowermay from time to time request, provided, however, that the aggregate principalbalance of all Revolving Loans outstanding at any time shall not exceed theAggregate Revolving Loan Commitment.  Revolving Loans made by the Lenders may berepaid and, subject to the terms and conditions hereof, borrowed again up to,but not including the Maturity Date unless the Revolving Loans are otherwiseterminated as provided in this Agreement.  The Revolving Loans shall be used bythe Borrower for the purpose of commercial paper back-up and general corporatepurposes.

 (b) Revolving Loan Interest and Payments.Except as otherwise provided in this Section 2.1(b), the principal amount of theRevolving Loans outstanding from time to time shall bear interest at theRevolving Interest Rate.  Accrued and unpaid interest on the unpaid principalbalance of all Revolving Loans outstanding from time to time which are PrimeLoans, shall be due and payable monthly, in arrears, commencing on June 1, 2002and continuing on the first (1st) day of each calendar month thereafter, and onthe Maturity Date.  Accrued and unpaid interest on the unpaid principal balanceof all Revolving Loans outstanding from time to time which are LIBOR Loans shallbe payable on the last Business Day of each Interest Period, providedthat interest accrued on each LIBOR Loan having an Interest Period longer thanthree months shall also be payable on the last day of each three-month intervalduring such Interest Period, commencing on the first such date to occur afterthe date hereof, on the date of any principal repayment of a LIBOR Loan and onthe Maturity Date.  Any amount of principal or interest on the Revolving Loanswhich is not paid when due, whether at stated maturity, by acceleration orotherwise, shall bear interest payable on demand at the Default Rate.

 (c) Revolving Loan Principal Repayments.

 (i) Mandatory Principal Prepayments.  AllRevolving Loans hereunder shall be repaid by the Borrower on the Maturity Date,unless payable sooner pursuant to the provisions of this Agreement.

 (ii) Optional Prepayments.  The Borrower mayfrom time to time prepay the Revolving Loans which are Prime Loans, in whole orin part, without any prepayment penalty whatsoever, subject to the followingconditions:  (i) each partial prepayment shall be in an amount equal to$10,000.00 or a higher integral multiple of $5,000; and (ii) any prepayment ofthe entire principal balance of the Prime Loans shall include accrued intereston such Prime Loans to the date of such prepayment and payment in full of allother Obligations (other than the LIBOR Loans), then due and payable. LIBORLoans may be voluntarily repaid or prepaid prior to the last day of theapplicable Interest Period, subject to the indemnification provisions containedin Section 3.4, provided that the Borrower may not so prepay LIBOR Loansunless it shall have provided at least three (3) Business Days' written noticeto the Agent of such prepayment.

 2.2 Swing Line Loans.  

 (a) Amount of Swing Line Loans.  Upon thesatisfaction of the conditions precedent set forth in Article IV, from andincluding the date of this Agreement and prior to the Maturity Date, the SwingLine Bank agrees, on the terms and conditions set forth in this Agreement, tomake Swing Line Loans to the Borrower from time to time, in Dollars, in anamount not to exceed the Swing Line Commitment; provided, however,at no time shall the Revolving Credit Obligations exceed the Aggregate RevolvingLoan Commitment. Subject to the terms of this Agreement, the Borrower mayborrow, repay and reborrow Swing Line Loans at any time prior to the MaturityDate.

 (b) Borrowing Notice.  The Borrower shallprovide Standard Notice to the Agent and the Swing Line Bank, specifying (i) theapplicable Borrowing Date (which shall be a Business Day), and (ii) theaggregate amount of the requested Swing Line Loan which shall be an amount notless than $250,000.00 (and in multiples of $10,000.00 if in excess of thatamount). The Swing Line Loans shall at all times be Prime Loans. 

 (c) Making of Swing Line Loans.  Not later than3:00 p.m. (Indianapolis time) on the applicable Borrowing Date, the Swing LineBank shall make available its Swing Line Loan, in funds immediately available inIndianapolis to the Agent at its address specified pursuant to Section 15.21.The Agent will promptly make the funds so received from the Swing Line Bankavailable to the Borrower at the Agent's aforesaid address.

 (d) Repayment of Swing Line Loans.  The SwingLine Loans shall be evidenced by the Swing Line Note, and each Swing Line Loanshall be paid in full by the Borrower on or before the twenty-ninth Business Dayafter the Borrowing Date for such Swing Line Loan. The Borrower may at any timepay, without penalty or premium, all outstanding Swing Line Loans or, in aminimum amount and increments of $100,000.00, any portion of the outstandingSwing Line Loans, upon notice to the Agent and the Swing Line Bank. In addition,the Agent (i) may at any time in its sole discretion with respect to anyoutstanding Swing Line Loan, or (ii) shall on the twenty-ninth Business Dayafter the Borrowing Date of any Swing Line Loan, require each Lender (includingthe Swing Line Bank) to make a Revolving Loan in the amount of such Lender's ProRata Share of such Swing Line Loan, for the purpose of repaying such Swing LineLoan. Not later than 12:00 noon (Indianapolis time) on the date of any noticereceived pursuant to this Section 2.2(d), each Lender shall make available itsrequired Revolving Loan or Revolving Loans, in funds immediately available inIndianapolis to the Agent at its address specified pursuant to Section 15.21.Revolving Loans made pursuant to this Section 2.2(d) shall initially be PrimeLoans and thereafter may be continued as Prime Loans or converted into LIBORLoans in the manner provided in Section 2.4 and subject to the other conditionsand limitations therein set forth and set forth in this Article II. Unless aLender shall have notified the Swing Line Bank, prior to its making any SwingLine Loan, that any applicable condition precedent set forth in Article IV hadnot then been satisfied, such Lender's obligation to make Revolving Loanspursuant to this Section 2.2(d) to repay Swing Line Loans shall beunconditional, continuing, irrevocable and absolute and shall not be affected byany circumstances, including, without limitation, (a) any set-off, counterclaim,recoupment, defense or other right which such Lender may have against the Agent,the Swing Line Bank or any other Person, (b) the occurrence or continuance of anEvent of Default or Unmatured Event of Default, (c) any adverse change in thecondition (financial or otherwise) of the Borrower, or (d) any othercircumstances, happening or event whatsoever. In the event that the Lender failsto make payment to the Agent of any amount due under this Section 2.2(d), theAgent shall be entitled to receive, retain and apply against such obligation theprincipal and interest otherwise payable to such Lender hereunder until theAgent receives such payment from such Lender or such obligation is otherwisefully satisfied. In addition to the foregoing, if for any reason any Lenderfails to make payment to the Agent of any amount due under this Section 2.2(d),such Lender shall be deemed, at the option of the Agent, to have unconditionallyand irrevocably purchased from the Swing Line Bank, without recourse orwarranty, an undivided interest and participation in the applicable Swing LineLoan in the amount of such Revolving Loan, and such interest and participationmay be recovered from such Lender together with such interest thereon at theFederal Funds Effective Rate for each day during the period commencing on thedate of demand and ending on the date such amount is received. On the MaturityDate, the Borrower shall repay in full the outstanding principal balance of theSwing Line Loans.

 2.3 Making of Loans.  Whenever the Borrowerdesires that the Lenders make Revolving Loans, the Borrower shall provideStandard Notice to the Agent (that is, at least one Business Day in advance inthe case of the Prime Loans and at least three Business Days in advance in thecase of the LIBOR Loans) setting forth the following information (a separatenotice being required for each such Type of Loans):

 (a) The applicable Borrowing Date;

 (b) The aggregate principal amount of such proposedLoans, which shall be an integral multiple of $100,000.00 which is not less than$1,000,000.00, provided, however, that any Prime Rate Advance maybe in the amount of the unused Aggregate Revolving Loan Commitment; and

 (c) With respect to each LIBOR Rate Advance of suchproposed Loans, the Interest Period to apply to such LIBOR Rate Advance.

Standard Notice having been so provided, the Agent shallpromptly notify each Lender no later than 12:00 o'clock Noon (Indianapolis time)on the date so provided, of the information contained therein and of the amountof such Lender's Loan. Unless any applicable condition specified in Article IVhereof has not been satisfied, on the date specified in such Standard Noticeeach Lender shall make the proceeds of its Loan available to the Agent at theAgent's Office, no later than 3:00 o'clock p.m. (Indianapolis time), in fundsimmediately available at the Agent's address specified pursuant to Section15.21. Promptly after its receipt thereof, the Agent will make the funds soreceived available to the Borrower in funds immediately available at the Agent'saforesaid address.

 2.4 Method of Selecting Types and Interest Periodsfor Conversion and Continuation of Advances.  

 (a) Automatic Conversion and Continuation.Prime Loans shall continue as Prime Loans unless and until such Prime Loans areconverted into LIBOR Loans. LIBOR Loans shall continue as LIBOR Loans until theend of the then applicable Interest Period therefor, at which time such LIBORLoans shall be automatically converted into Prime Loans unless the Borrowershall have given the Agent notice in accordance with Section 2.4(c) requestingthat, at the end of such Interest Period, such LIBOR Loans continue as a LIBORLoan.

 (b) No Conversion Post-Default or Post-UnmaturedDefault.  Notwithstanding anything to the contrary contained in Section2.4(a), no Loan may be converted into or continued as a LIBOR Loan (except withthe consent of the Required Lenders) when any Event of Default or UnmaturedEvent of Default has occurred and is continuing.

 (c) Conversion/Continuation Notice.  TheBorrower shall provide Standard Notice to the Agent for each conversion of aPrime Loan into a LIBOR Loan or continuation of a LIBOR Loan, specifying: (1)the requested date (which shall be a Business Day) of such conversion orcontinuation; (2) the amount and Type of the Loan to be converted or continued;and (3) the amount of LIBOR Loan(s) into which such Loan is to be converted orcontinued and the duration of the Interest Period applicable thereto.

 2.5 Default Rate.  After the occurrence andduring the continuance of an Event of Default, at the option of the Agent or atthe direction of the Required Lenders, the interest rate(s) applicable to theObligations shall be the Default Rate.  

 2.6 Method of Payment.  All payments ofprincipal, interest, and fees hereunder shall be made without setoff, deductionor counterclaim, in immediately available funds to the Agent at the Agent'saddress specified pursuant to Section 15.21, or at any other LendingInstallation of the Agent specified in writing by the Agent to the Borrower, by2:00 p.m. (Indianapolis time) on the date when due and shall be made ratablyamong the Lenders (unless such amount is not to be shared ratable in accordancewith the terms hereof). Each payment delivered to the Agent for the account ofany Lender shall be delivered promptly by the Agent to such Lender in the sametype of funds which the Agent received at its address specified pursuant toSection 15.21 or at any Lending Installation specified in a notice received bythe Agent from such Lender. 

 

 2.7 Notes.  Each Lender is authorized to recordthe principal amount of each of its Loans and each repayment with respect to itsLoans on the schedule attached to its respective Note; provided,however, that the failure to so record shall not affect the Borrower'sobligations under any such Note.

 2.8 Telephonic Notices.  The Borrowerauthorizes the Lenders and the Agent to extend Advances, effect selections ofTypes of Advances and to transfer funds based on telephonic notices made by anyperson or persons the Agent or any Lender in good faith believes to be acting onbehalf of the Borrower. The Borrower agrees to deliver promptly to the Agent awritten confirmation, signed by the Authorized Officer, if such confirmation isrequested by the Agent or any Lender, of each telephonic notice. If the writtenconfirmation differs in any material respect from the action taken by the Agentand the Lenders, (i) the telephonic notice shall govern absent manifest errorand (ii) the Agent or the Lender, as applicable, shall promptly notify theAuthorized Officer who provided such confirmation of such difference.

 2.9 Promise to Pay; Facility Fees; Interest and FeeBasis; Taxes; Loan and Control Accounts.

 (a) Promise to Pay.  The Borrower unconditionally promises topay when due the principal amount of each Loan and all other Obligationsincurred by it, and to pay all unpaid interest accrued thereon, in accordancewith the terms of this Agreement and the Notes.

 (b) Facility Fees. (i) The Borrower shall payto the Agent, for the account of the Lenders as provided herein below, from andafter the Closing Date until the date on which the Aggregate Revolving LoanCommitment shall be terminated in whole, a facility fee accruing at the rate ofthe then Applicable Facility Fee Percentage, on the Aggregate Revolving LoanCommitment. All such facility fees payable under this clause (b)(i) shall bepayable quarterly in arrears on the last Business Day of each fiscal quarter ofthe Borrower occurring after the Closing Date (with the first such payment beingcalculated for the period from the Closing Date and ending on June 30, 2002),and, in addition, on the date on which the Aggregate Revolving Loan Commitmentshall be terminated in whole. The Agent shall pay to each Lender a pro rataportion of such facility fee based on such Lender's Revolving LoanCommitment.

 (ii) The Borrower shall pay to the Agent, for theaccount of the Lenders as provided herein below, from and after the Closing Dateuntil the date on which the Aggregate Revolving Loan Commitment shall beterminated in whole, a utilization fee accruing at the rate of the thenApplicable Utilization Fee Percentage on the Revolving Credit Obligations at anytime the Revolving Credit Obligations exceed thirty-three percent (33%) of theAggregate Revolving Loan Commitment. All such utilization fees payable underthis clause (b)(ii) shall be payable quarterly in arrears on the last BusinessDay of each fiscal quarter of the Borrower occurring after the Closing Date(with the first such payment being calculated for the period from the ClosingDate and ending on June 30, 2002), and in addition, on the date on which theAggregate Revolving Loan Commitment shall be terminated in whole. The Agentshall pay to each Lender a pro rata portion of such utilization fee based onsuch Lender's Revolving Loan Commitment.

 (iii) The Borrower agrees to pay to the Agent for thesole account of the Agent (unless otherwise agreed between the Agent and anyLender) the fees set forth in the letter agreement between the Agent and theBorrower dated April 4, 2002, payable at the times and in the amounts set forththerein.

 (c) Interest and Fee Basis, Applicable Prime RateMargin, Applicable LIBOR Margin, Applicable Facility Fee Percentage andApplicable Utilization Fee Percentage.

 (i)  Interest on all Obligations and all fees shall becalculated for actual days elapsed on the basis of a 360-day year.Notwithstanding the foregoing, interest on Prime Loans shall be calculated onthe basis of a year consisting of 365 days. Interest shall be payable for theday an Obligation is incurred but not for the day of any payment on the amountpaid if payment is received prior to 2:00 p.m. (Indianapolis time) at the placeof payment. If any payment of principal of or interest on a Loan or any paymentof any other Obligations shall become due on a day which is not a Business Day,such payment shall be made on the immediately preceding Business Day.

 (ii)  The Applicable Prime Rate Margin and ApplicableLIBOR Margin for all Loans, the Applicable Facility Fee Percentage and theApplicable Utilization Fee Percentage shall be determined from time to time byreference to the table set forth below, on the basis of the then applicableS&P Rating and Moody's Rating as described in this Section 2.9(c)(ii).

S&P   Moody's  Applicable Applicable Applicable	    Applicable

Rating   Rating   LIBOR  PrimeRate Facility     Utilization

      Margin  Margin  Fee  Fee 

          Percentage Percentage
Greater than or Greater than or

equal to A-  equal to A3  40 bps  0 bps  10bps      12.5 bps

Greater than or Greater than or

equal to BBB+  equal to Baa1  75 bps  0 bps  12.5bps     12.5 bps

Greater than or Greater than or

equal to BBB  equal to Baa2  85 bps  0 bps  15bps      12.5 bps

Greater than or Greater than or

equal to BBB-  equal to Baa3  105 bps 0 bps  20bps      12.5 bps

Less than or  Less than or

equal to BB+  equal to Ba1  120 bps 0 bps  30bps      25 bps

For purposes of this Section 2.9(c)(ii), "bps" means one-onehundredth of one percent (.01%). In the event that the S&P Rating andMoody's Rating are not at the same Level, the Applicable LIBOR Margin, theApplicable Prime Rate Margin, the Applicable Facility Fee Percentage and theApplicable Utilization Fee Percentage shall be determined on the basis of thehigher of the two ratings unless there is more than one Level differentialbetween such ratings in which event the rating level above the lower of the tworatings shall be used. Any change in the S&P Rating or the Moody's Ratingshall be effective two Business Days after it is announced by S&P orMoody's, respectively.

(d) Taxes.

 (i)  Any and all payments by the Borrower hereundershall be made free and clear of and without deduction for any and all present orfuture taxes, levies, imposts, deductions, charges or withholdings or anyliabilities with respect thereto including those arising after the date hereofas a result of the adoption of or any change in any law, treaty, rule,regulation, guideline or determination of a Governmental Authority or any changein the interpretation or application thereof by a Governmental Authority butexcluding, in the case of each Lender and the Agent, such taxes (includingincome taxes, franchise taxes and branch profit taxes) as are imposed on ormeasured by such Lender's or Agent's, as the case may be, income by the UnitedStates of America or any Governmental Authority of the jurisdiction under thelaws of which such Lender or Agent, as the case may be, is organized ormaintains a Lending Installation (all such non-excluded taxes, levies, imposts,deductions, charges, withholdings, and liabilities which the Agent or a Lenderdetermines to be applicable to this Agreement, the other Loan Documents, theRevolving Loan Commitments or the Loans being hereinafter referred to as"Taxes").****If the Borrower shall be required by law to deduct any Taxesfrom or in respect of any sum payable hereunder or under the other LoanDocuments to any Lender or the Agent, (A) the sum payable shall be increased asmay be necessary so that after making all required deductions (includingdeductions applicable to additional sums payable under this Section 2.9(d)) suchLender or the Agent (as the case may be) receives an amount equal to the sum itwould have received had no such deductions been made, (B) the Borrower shallmake such deductions, and (C) the Borrower shall pay the full amount deducted tothe relevant taxation authority or other authority in accordance with applicablelaw. If a withholding tax of the United States of America or any otherGovernmental Authority shall be or become applicable (y) after the date of thisAgreement, to such payments by the Borrower made to the Lending Installation orany other office that a Lender may claim as its Lending Installation, or (z)after such Lender's selection and designation of any other Lending Installation,to such payments made to such other Lending Installation, such Lender shall usereasonable efforts to make, fund and maintain its Loans through another LendingInstallation of such Lender in another jurisdiction so as to reduce theBorrower's liability hereunder, if the making, funding or maintenance of suchLoans through such other Lending Installation of such Lender does not, in thejudgment of such Lender, otherwise adversely affect such Loans, or obligationsunder the Revolving Loan Commitments of such Lender.

 (ii) In addition, the Borrower agrees to pay anypresent or future stamp or documentary taxes or any other excise or propertytaxes, charges, or similar levies which arise from any payment made hereunder,or from the execution, delivery or registration of, or otherwise with respectto, this Agreement, the other Loan Documents, the Revolving Loan Commitments, orthe Loans (hereinafter referred to as "Other Taxes").
** (iii)  The Borrower indemnifies each Lender and theAgent for the full amount of Taxes and Other Taxes (including, withoutlimitation, any Taxes or Other Taxes imposed by any Governmental Authority onamounts payable under this Section 2.9(d)) paid by such Lender or the Agent (asthe case may be) and any liability (including penalties, interest, and expenses)arising therefrom or with respect thereto, whether or not such Taxes or OtherTaxes were correctly or legally asserted. This indemnification shall be madewithin thirty (30) days after the date such Lender or the Agent (as the case maybe) makes written demand therefor. A certificate as to any additional amountpayable to any Lender or the Agent under this Section 2.9(d) submitted to theBorrower and the Agent (if a Lender is so submitting) by such Lender or theAgent shall show in reasonable detail the amount payable and the calculationsused to determine such amount and shall, absent manifest error, be final,conclusive and binding upon all parties hereto. With respect to such deductionor withholding for or on account of any Taxes and to confirm that all such Taxeshave been paid to the appropriate Governmental Authorities, the Borrower shallpromptly (and in any event not later than thirty (30) days after receipt)furnish to each Lender and the Agent such certificates, receipts and otherdocuments as may be required (in the judgment of such Lender or the Agent) toestablish any tax credit to which such Lender or the Agent may be entitled.

 (iv)  Within thirty (30) days after the date of anypayment of Taxes or Other Taxes by the Borrower, the Borrower shall furnish tothe Agent the original or a certified copy of a receipt evidencing paymentthereof.

 (v)  Without prejudice to the survival of any otheragreement of the Borrower hereunder, the agreements and obligations of theBorrower contained in this Section 2.9(d) shall survive the payment in full ofprincipal and interest hereunder and the termination of this Agreement.

 (vi)  Without limiting the obligations of the Borrowerunder this Section 2.9(d), each Lender that is not created or organized underthe laws of the United States of America or a political subdivision thereofshall deliver to the Borrower and the Agent on or before the Closing Date, or,if later, the date on which such Lender becomes a Lender pursuant to Section14.3, a true and accurate certificate executed in duplicate by a duly authorizedofficer of such Lender, in a form satisfactory to the Borrower and the Agent, tothe effect that such Lender is capable under the provisions of an applicable taxtreaty concluded by the United States of America (in which case the certificateshall be accompanied by two executed copies of Form 1001 of the IRS) or underSection 1442 of the Code (in which case the certificate shall be accompanied bytwo copies of Form 4224 of the IRS, or, if such Lender is not a "bank" withinthe meaning of Section 881(c)(3)(A) of the Code, two completed and signed copiesof IRS Form W-8 or W-9 or the applicable successor form) of receiving paymentsof interest hereunder without deduction or withholding of United States federalincome tax. Each such Lender further agrees to deliver to the Borrower and theAgent from time to time a true and accurate certificate executed in duplicate bya duly authorized officer of such Lender substantially in a form satisfactory tothe Borrower and the Agent, before or promptly upon the occurrence of any eventrequiring a change in the most recent certificate previously delivered by it tothe Borrower and the Agent pursuant to this Section 2.9(d)(vi). Further, eachLender which delivers a certificate accompanied by Form 1001 of the IRScovenants and agrees to deliver to the Borrower and the Agent within fifteen(15) days prior to January 1, 2003, and every third (3rd) anniversary of suchdate thereafter on which this Agreement is still in effect, another suchcertificate and two accurate and complete original signed copies of Form 1001(or any successor form or forms required under the Code or the applicableregulations promulgated thereunder), and each Lender that delivers a Form W-8 orW-9 as prescribed above or a certificate accompanied by Form 4224 of the IRScovenants and agrees to deliver to the Borrower and the Agent within fifteen(15) days prior to the beginning of each subsequent taxable year of such Lenderduring which this Agreement is still in effect, another such Form W-8 or W-9 oranother such certificate and two accurate and complete original signed copies ofIRS Form 4224 (or any successor form or forms required under the Code or theapplicable regulations promulgated thereunder). Each such certificate shallcertify as to one of the following:

 (a)  that such Lender is capable of receiving payments ofinterest hereunder without deduction or withholding of United States of Americafederal income tax;

 (b)  that such Lender is not capable of receivingpayments of interest hereunder without deduction or withholding of United Statesof America federal income tax as specified therein but is capable of recoveringthe full amount of any such deduction or withholding from a source other thanthe Borrower and will not seek any such recovery from the Borrower; or

 (c)  that, as a result of the adoption of or any changein any law, treaty, rule, regulation, guideline or determination of aGovernmental Authority or any change in the interpretation or applicationthereof by a Governmental Authority after the date such Lender became a partyhereto, such Lender is not capable of receiving payments of interest hereunderwithout deduction or withholding of United States of America federal income taxas specified therein and that it is not capable of recovering the full amount ofthe same from a source other than the Borrower.

Each Lender shall promptly furnish to the Borrower and theAgent such additional documents as may be reasonably required by the Borrower orthe Agent to establish any exemption from or reduction of any Taxes or OtherTaxes required to be deducted or withheld and which may be obtained withoutundue expense to such Lender.

(e) Loan Account. Each Lender shall maintain inaccordance with its usual practice an account or accounts (a "Loan Account")evidencing the Obligations of the Borrower to such Lender owing to such Lenderfrom time to time, including the amount of principal and interest payable andpaid to such Lender from time to time hereunder and under the Notes.

(f)  Entries Binding. The entries made in theRegister and each Loan Account shall be conclusive and binding for all purposes,absent manifest error, unless the Borrower objects to information contained inthe Register and each Loan Account within thirty (30) days of the Borrower'sreceipt of such information.

2.10 Notification of Advances, Interest Rates,Prepayments and Aggregate Revolving Loan Commitment Reductions.  Promptlyafter receipt thereof, the Agent will notify each Lender of the contents of eachStandard Notice and repayment notice received by it hereunder. The Agent willnotify each Lender of the interest rate applicable to each LIBOR Loan promptlyupon determination of such interest rate and will give each Lender prompt noticeof each change in the Prime Rate.

2.11 Lending Installations. Each Lender may bookits Loans at any Lending Installation selected by such Lender and may change itsLending Installation from time to time. All terms of this Agreement shall applyto any such Lending Installation and the Notes shall be deemed held by eachLender for the benefit of such Lending Installation. Each Lender may, by writtenor facsimile notice to the Agent and the Borrower, designate a LendingInstallation through which Loans will be made by it and for whose account Loanpayments are to be made.

2.12 Non-Receipt of Funds by the Agent.  Unless theBorrower or a Lender, as the case may be, notifies the Agent prior to the dateon which it is scheduled to make payment to the Agent of (i) in the case of aLender, the proceeds of a Loan or (ii) in the case of the Borrower, a payment ofprincipal, interest or fees to the Agent for the account of the Lenders, that itdoes not intend to make such payment, the Agent may assume that such payment hasbeen made. The Agent may, but shall not be obligated to, make the amount of suchpayment available to the intended recipient in reliance upon such assumption. Ifsuch Lender or the Borrower, as the case may be, has not in fact made suchpayment to the Agent, the recipient of such payment shall, on demand by theAgent, repay to the Agent the amount so made available together with interestthereon in respect of each day during the period commencing on the date suchamount was so made available by the Agent until the date the Agent recovers suchamount at a rate per annum equal to (i) in the case of payment by a Lender, theFederal Funds Effective Rate for such day or (ii) in the case of payment by theBorrower, the interest rate applicable to the relevant Loan.

2.13 Maturity Date.  This Agreement shall beeffective until the Maturity Date. Notwithstanding the termination of thisAgreement on the Maturity Date, until all of the Obligations (other thancontingent indemnity obligations) shall have been fully and indefeasibly paidand satisfied and all financing arrangements among the Borrower and the Lendersshall have been terminated, all of the rights and remedies under this Agreementand the other Loan Documents shall survive.

 2.14 Replacement of Certain Lenders.  In theevent a Lender ("Affected Lender") shall have: (i) failed to fund its applicablePro Rata Share of any Advance requested by the Borrower, or to fund a RevolvingLoan in order to repay Swing Line Loans pursuant to Section 2.2(d), which suchLender is obligated to fund under the terms of this Agreement and which failurehas not been cured, (ii) requested compensation from the Borrower under Sections2.9(d), 3.1 or 3.2 to recover Taxes, Other Taxes or other additional costsincurred by such Lender which are not being incurred generally by the otherLenders, (iii) delivered a notice pursuant to Section 3.3 claiming that suchLender is unable to extend LIBOR Loans to the Borrower for reasons not generallyapplicable to the other Lenders or (iv) has invoked Section 15.2, then, in anysuch case, the Borrower or the Agent may make written demand on such AffectedLender (with a copy to the Agent in the case of a demand by the Borrower and acopy to the Borrower in the case of a demand by the Agent) for the AffectedLender to assign, and such Affected Lender shall use its best efforts to assignpursuant to one or more duly executed Assignment Agreements five (5) BusinessDays after the date of such demand, to one or more financial institutions thatcomply with the provisions of Section 14.3 which the Borrower or the Agent, asthe case may be, shall have engaged for such purpose ("Replacement Lender"), allof such Affected Lender's rights and obligations under this Agreement and theother Loan Documents (including, without limitation, its Revolving LoanCommitment, all Loans owing to it, all of its participation interests inexisting Swing Line Loans, and its obligation to participate in additional SwingLine Loans hereunder) in accordance with Section 14.3. The Agent agrees, uponthe occurrence of such events with respect to an Affected Lender and upon thewritten request of the Borrower, to use its reasonable efforts to obtain thecommitments from one or more financial institutions to act as a ReplacementLender. The Agent is authorized to execute one or more of such AssignmentAgreements as attorney-in-fact for any Affected Lender failing to execute anddeliver the same within five (5) Business Days after the date of such demand.Further, with respect to such assignment the Affected Lender shall haveconcurrently received, in cash, all amounts due and owing to the Affected Lenderhereunder or under any other Loan Document, including, without limitation, theaggregate outstanding principal amount of the Loans owned to such Lender,together with accrued interest thereon through the date of such assignment,amounts payable under Sections 2.9(d), 3.1, or 3.2 with respect to such AffectedLender and compensation payable under Section 2.9(b) in the event of anyreplacement of any Affected Lender under clause (ii) or clause (iii) of thisSection 2.14; provided that upon such Affected Lender's replacement, suchAffected Lender shall cease to be a party hereto but shall continue to beentitled to the benefits of Sections 2.9(d), 3.1, 3.2, 3.4 and 15.7, as well asto any fees accrued for its account hereunder and not yet paid, and shallcontinue to be obligated under Section 12.8. Upon the replacement of anyAffected Lender pursuant to this Section 2.14, the provisions of Section 11.1shall continue to apply with respect to borrowings which are then outstandingwith respect to which the Affected Lender failed to fund its applicable Pro RataShare and which failure has not been cured.

 

ARTICLE III

CHANGE IN CIRCUMSTANCES

 3.1 Yield Protection.  If any law or anygovernmental or quasi-governmental rule, regulation, policy, guideline ordirective (whether or not having the force of law) adopted after the date ofthis Agreement and having general applicability to all banks within thejurisdiction in which such Lender operates (excluding, for the avoidance ofdoubt, the effect of and phasing in of capital requirements or other regulationsor guidelines passed prior to the date of this Agreement), or any interpretationor application thereof by any Governmental Authority charged with theinterpretation or application thereof, or the compliance of any Lendertherewith:

 (i) subjects any Lender or any applicable LendingInstallation to any tax, duty, charge or withholding on or from payments duefrom the Borrower (excluding federal taxation of the overall net income of anyLender or applicable Lending Installation), or changes the basis of taxation ofpayments to any Lender in respect of its Loans or other amounts due ithereunder, or

 (ii) imposes or increases or deems applicable anyreserve, assessment, insurance charge, special deposit or similar requirementagainst assets of, deposits with or for the account of, or credit extended by,any Lender or any applicable Lending Installation (other than reserves andassessments taken into account in determining the interest rate applicable toLIBOR Loans) with respect to its Loans, or

 (iii) imposes any other condition the result of whichis to increase the cost to any Lender or any applicable Lending Installation ofmaking, funding or maintaining the Loans or reduces any amount received by anyLender or any applicable Lending Installation in connection with Loans orrequires any Lender or any applicable Lending Installation to make any paymentcalculated by reference to the amount of Loans held or interest received by it,by an amount deemed material by such Lender,

and the result of any of the foregoing is to increase thecost to that Lender of making, renewing or maintaining its Loans or to reduceany amount received under this Agreement, then, within fifteen (15) days afterreceipt by the Borrower of written demand by such Lender pursuant to Section3.5, the Borrower shall pay such Lender that portion of such increased expenseincurred or reduction in an amount received which such Lender determines isattributable to making, funding and maintaining its Loans and its Revolving LoanCommitment.

 3.2 Changes in Capital Adequacy Regulations.If a Lender determines (i) the amount of capital required or expected to bemaintained by such Lender, any Lending Installation of such Lender or anycorporation controlling such Lender is increased as a result of a Change, and(ii) such increase in capital will result in an increase in the cost to suchLender of maintaining its Loans or its obligation to make Loans hereunder, then,within fifteen (15) days after receipt by the Borrower of written demand by suchLender pursuant to Section 3.5, the Borrower shall pay such Lender the amountnecessary to compensate for any shortfall in the rate of return on the portionof such increased capital which such Lender determines is attributable to thisAgreement, its Loans or its obligation to make Loans hereunder (after takinginto account such Lender's policies as to capital adequacy). "Change" means (i)any change after the date of this Agreement in the Risk-Based Capital Guidelinesexcluding, for the avoidance of doubt, the effect of any phasing in of suchRisk-Based Capital Guidelines or any other capital requirements passed prior tothe date hereof, or (ii) any adoption of or change in any other law,governmental or quasi-governmental rule, regulation, policy, guideline,interpretation, or directive (whether or not having the force of law) after thedate of this Agreement and having general applicability to all banks andfinancial institutions within the jurisdiction in which such Lender operateswhich affects the amount of capital required or expected to be maintained by anyLender or any Lending Installation or any corporation controlling any Lender."Risk-Based Capital Guidelines" means (i) the risk-based capital guidelines ineffect in the United States on the date of this Agreement, including transitionrules, and (ii) the corresponding capital regulations promulgated by regulatoryauthorities outside the United States implementing the July 1988 report of theBasle Committee on Banking Regulation and Supervisory Practices entitled"International Convergence of Capital Measurements and Capital Standards,"including transition rules, and any amendments to such regulations adopted priorto the date of this Agreement.

 3.3 Availability of Types of Advances.  If (i)any Lender determines that maintenance of its LIBOR Loans at a suitable LendingInstallation would violate any applicable law, rule, regulation or directive,whether or not having the force of law, or (ii) the Required Lenders determinethat (x) deposits of a type and maturity appropriate to match fund LIBOR RateAdvances are not available or (y) the interest rate applicable to a Type ofAdvance does not accurately reflect the cost of making or maintaining such anAdvance, then the Agent shall suspend the availability of the affected Type ofAdvance and, in the case of any occurrence set forth in clause (i) require anyAdvances of the affected Type to be repaid.

 3.4 Funding Indemnification.  If any payment ofa LIBOR Rate Advance occurs on a date which is not the last day of theapplicable Interest Period, whether because of acceleration, prepayment,conversion or otherwise, or a LIBOR Rate Advance is not made on the datespecified by the Borrower for any reason other than default by the Lenders, theBorrower indemnifies each Lender for any loss or cost incurred by it resultingtherefrom, including, without limitation, any loss or cost in liquidating oremploying deposits acquired to fund or maintain the LIBOR Rate Advance.

 3.5 Lender Statements; Survival of Indemnity.If reasonably possible, each Lender shall designate an alternate LendingInstallation with respect to its LIBOR Loans to reduce any liability of theBorrower to such Lender under Sections 3.1 and 3.2 or to avoid theunavailability of a Type of Advance under Section 3.3, so long as suchdesignation is not disadvantageous to such Lender. Each Lender requiringcompensation pursuant to Section 2.9(d) or to this Article III shall use itsreasonable efforts to notify the Borrower and the Agent in writing of anyChange, law, policy, rule, guideline or directive giving rise to such demand forcompensation not later than thirty (30) days following the date upon which theresponsible account officer of such Lender knows or should have known of suchChange, law, policy, rule, guideline or directive. Any demand for compensationpursuant to this Article III shall be in writing and shall state the amount due,if any, under Section 3.1, 3.2 or 3.4 and shall set forth in reasonable detailthe calculations upon which such Lender determined such amount. Such writtendemand shall be rebuttably presumed correct for all purposes. Determination ofamounts payable under such Sections in connection with a LIBOR Loan shall becalculated as though each Lender funded its LIBOR Loan through the purchase of adeposit of the type and maturity corresponding to the deposit used as areference in determining the LIBOR Loan applicable to such Loan, whether in factthat is the case or not. The obligations of the Borrower under Section 3.1, 3.2and 3.4 shall survive the payment of the Obligations and termination of thisAgreement.

ARTICLE IV

CONDITIONS OF BORROWING

 Notwithstanding any other provision of this Agreement,the Lenders shall not be required to disburse or make all or any portion of theLoans if any of the following conditions have not occurred.

 4.1 Loan Documents.  The Borrower shall haveexecuted and delivered to the Agent with sufficient copies for the Lenders allof the following Loan Documents (collectively, the "Loan Documents"), all ofwhich must be satisfactory to the Agent, the Lenders, the Agent's counsel andthe Lender's counsel in form, substance and execution:

 

 (a) Loan Agreement.  This Agreement dulyexecuted by the Borrower.

 (b) Revolving Notes.  Revolving Notes dulyexecuted by the Borrower.

 (c) Swing Loan Note.  A Swing Loan Noteduly executed by the Borrower.

 4.2 Capitalization, Etc.  The corporate andcapital structure of Borrower, the certificate or articles of incorporation andby-laws of Borrower, and the terms, conditions, amounts and holders of allequity, debt and other indebtedness, obligations and liabilities of each ofthem, shall be not unsatisfactory to the Lenders.

 4.3 Governmental Approvals and Filings.  TheAgent shall have received, with copies and executed counterparts for eachLender, true and correct copies (in each case certified as to authenticity onsuch date on behalf of the Borrower) of all items referred to in Schedule 4.3hereof which are designated on such Schedule to be receivable on or prior to theClosing Date and such items shall be satisfactory in form and substance to theAgent and shall be in full force and effect.

 4.4 Corporate Proceedings.  The Agent shallhave received, with a counterpart for each Lender, a certificate by theSecretary of Borrower dated as of the Closing Date as to (i) true copies of thecertificate or articles of incorporation and by-laws of Borrower in effect onsuch date, (ii) true copies of all corporate action taken by Borrower relativeto this Agreement and the other Loan Documents and (iii) the incumbency andsignature of the officers of Borrower executing this Agreement and the otherLoan Documents, together with satisfactory evidence of the incumbency of suchSecretary. The Agent shall have received, with a copy for each Lender,certificates from the appropriate Secretaries of State or other applicableGovernmental Authorities dated not more than thirty (30) days before the ClosingDate showing the existence of Borrower in its state of incorporation.

 4.5 Legal Opinions.  The Agent shall havereceived, with an executed counterpart for each Lender, opinions addressed tothe Agent and each Lender, dated the Closing Date, of Barnes & Thornburg, asto such matters as may be requested by Agent and in form and substancesatisfactory to Agent.

 4.6 Officers' Certificates.  The Agent shallhave received, with an executed counterpart for each Lender, certificates fromsuch officers of Borrower as to such matters as Agent or any Lender may request,including, without limitation, a certificate from an Authorized Officer ofBorrower certifying that the Borrower is Solvent.

 4.7 Fees, Expenses, Etc.  All reasonable feesand other compensation required to be paid to the Agent and the Lenders pursuanthereto or pursuant to any other written agreement on or prior to the ClosingDate shall have been paid or received.

 4.8 Additional Matters.  The Agent shall havereceived such other certificates, opinions, documents and instruments as may berequested by any Lender. All corporate and other proceedings, and all documents,instruments and other matters in connection with the transactions contemplatedby this Agreement and the other Loan Documents shall be satisfactory in form andsubstance to Agent and each Lender.

 4.9 Event of Default.  No Event of Default orUnmatured Event of Default shall have occurred and be continuing on such date orafter giving effect to the Loans requested to be made on such date.

 4.10 Adverse Changes.  No material adversechange in the financial condition or affairs of the Borrower, as determined inany Lender's sole and complete discretion, shall have occurred, with respect tothe initial disbursements since December 31, 2001.

 4.11 Litigation.  No litigation or governmentalproceeding shall have been instituted against the Borrower or any of itsofficers or shareholders which in the discretion of the any Lender reasonablyexercised, materially adversely affects the financial condition or continuedoperation of the Borrower.

 4.12 Representations and Warranties.  Each ofthe representations and warranties made by the Borrower in Article V hereofshall be true and correct in all material respects on and as of such date as ifmade on and as of such date, both before and after giving effect to the Loansrequested to be made on such date.  

ARTICLE V

REPRESENTATIONS AND WARRANTIES

 Borrower hereby represents and warrants to each Lender asfollows:

 5.1 Corporate Status.  Borrower is acorporation duly organized and validly existing under the laws of the State ofIndiana. Borrower has corporate power and authority to own its property and totransact the business in which it is engaged or presently proposes to engage.Borrower is duly qualified to do business as a foreign corporation and is ingood standing in all jurisdictions in which the ownership of its properties orthe nature of its activities or both makes such qualification necessary oradvisable except where the failure to so qualify could not have a MaterialAdverse Effect.

 5.2 Corporate Power and Authorization.Borrower has corporate power and authority to execute, deliver, perform, andtake all actions contemplated by each Loan Document, and all such action hasbeen duly and validly authorized by all necessary corporate proceedings on itspart. Without limitation of the foregoing, the Borrower has the corporate powerand authority to borrow pursuant to the Loan Documents to be fullest extentpermitted hereby and thereby from time to time, and has taken all necessarycorporate action to authorize such borrowings and requests.

 5.3 Execution and Binding Effect.  ThisAgreement and each other Loan Document which is required to be delivered on orbefore the Closing Date pursuant to Section 4.1 hereof has been duly and validlyexecuted and delivered by Borrower. This Agreement constitutes, and each otherLoan Document when executed and delivered by Borrower will constitute, thelegal, valid, and binding obligation of the Borrower enforceable in accordancewith its terms, except as the enforceability thereof may be limited bybankruptcy, insolvency or other similar laws of general application affectingthe enforcement of creditors' rights or by general principles of equity limitingthe availability of equitable remedies. 

 5.4 Government Approvals and Filings.  Noapproval, order, consent, authorization, certificate, license, permit orvalidation of, or exemption or other action by, or filing, recording orregistration with, or notice to, any Governmental Authority (collectively,"Government Action") is or will be necessary in connection with execution anddelivery of any Loan Document by Borrower or consummation by Borrower of thefinancing transaction herein or therein contemplated or payment by the Borrowerof the Loans, except for matters set forth in Schedule 4.3 hereof, and noGovernment Action, except for matters set forth in Schedule 4.3 hereof, is orwill be necessary in connection with the Loans at any time prior to thetermination of this Agreement.  

 5.5 Absence of Conflicts.  Neither theexecution and delivery of any Loan Document by Borrower, nor consummation byBorrower of the transactions herein or therein contemplated, nor performance ofor compliance with the terms and conditions hereof or thereof by Borrower doesor will:

 (a) violate or conflict with any Requirement of Law,or

 (b) violate, conflict with or result in a breach ofany term or condition of, or constitute a default under, or resultin (or give rise to any right, contingent or otherwise of any Person to cause)any termination, cancellation, prepayment or acceleration of performance of,or result in the creation or imposition of (or give rise to anyobligation, contingent or otherwise, to create or impose) any Lien upon any ofthe property of Borrower pursuant to, or otherwise result in (or giverise to any right, contingent or otherwise, of any Person to cause) any changein any right, power, privilege, duty or obligation of Borrower under or inconnection with,

 (i)  the certificate or articles of incorporation or by-laws of Borrower,

 (ii)  any Contractual Obligations creating, evidencing orsecuring any Indebtedness to which Borrower is a party or by which it or any ofits properties (now owned or hereafter acquired) may be subject or bound, or

 (iii)  any other Contractual Obligations of Borrower,

which could reasonably be expected to have a Material AdverseEffect on Borrower.

5.6 Margin Regulations.  No part of the proceeds ofany Loan hereunder will be used for the purpose of buying or carrying MarginStock, or to extend credit to others for the purpose of buying or carrying anyMargin Stock. Borrower is not engaged in the business of extending credit toothers for the purpose of buying or carrying Margin Stock. Borrower does not ownany Margin Stock. Neither the making of any Loan nor any use of proceeds of anysuch Loan will violate or conflict with the provisions of Regulation T, U or Xof the Board of Governors of the Federal Reserve System, as amended from time totime.

5.7 Subsidiaries.  The Borrower has nosubsidiaries, except for IPL Funding Corporation.

5.8 [Intentionally Deleted]

5.9 Ownership and Control.  The outstanding sharesof capital stock of Borrower have been duly authorized and validly issued andare fully paid and nonassessable. IPALCO owns all of the common equitysecurities of Borrower. There are no options, warrants, calls, subscriptions,conversion rights, exchange rights, preemptive rights or other rights,agreements or arrangements (contingent or otherwise) which may in anycircumstances now or hereafter obligate Borrower to issue any shares of itscapital stock or any other securities, except for matters set forth in Schedule5.9 hereof and except for matters which are permitted by the terms hereof andnotice of which is provided by the Borrower to the Agent. Schedule 5.9 hereofdescribes as of the date hereof all options, rights, purchase agreements, buy-sell agreements, restrictions on transfer, pledges, proxies, voting trusts,powers of attorney, voting agreements and other agreements, instruments orarrangements to which Borrower is a party or is subject or bound, or to whichany record or beneficial owner of common stock of Borrower is a party or issubject or bound, which pertain to any shares of common stock (now or hereafteroutstanding) of Borrower, including any matter which may affect beneficial orrecord ownership thereof or transferability thereof or voting rights withrespect thereto.

5.10 Litigation.  Except as set forth in Schedule5.10 hereof, there is no pending or, to the Borrower's knowledge, threatenedaction, suit, claim, proceeding or investigation by or before any GovernmentalAuthority against or affecting Borrower which could, if adversely determined,have a Material Adverse Effect.

5.11 Absence of Events of Default.  No event hasoccurred and is continuing and no condition exists which constitutes an Event ofDefault or an Unmatured Event of Default.

5.12 Insurance.  Borrower maintains withfinancially sound and reputable insurers the insurance required by Section 7.3hereof.

5.13 Title to Property.  Borrower has good andmarketable title in fee simple to all real property owned or purported to beowned by it and good title to all other property of whatever nature owned orpurported to be owned by it, in each case free and clear of all Liens, otherthan Permitted Liens. 

5.14 Intellectual and Other Property.  Borrowerowns, or is licensed or otherwise has the right to use, all the patents,trademarks, service marks, names (trade, service, fictitious or otherwise),copyrights, technology, processes, data bases and other rights, free fromburdensome restrictions, necessary to own and operate its properties and tocarry on its business as presently conducted and presently planned to beconducted without conflict with the rights of others in any materialrespect.

5.15 Taxes.  All tax and information returnsrequired to be filed by or on behalf of Borrower have been properly prepared,executed and filed, except when the failure to do so could not have a MaterialAdverse Effect. All taxes, assessments, fees and other governmental charges uponBorrower or upon any of its properties, incomes, sales or franchises which aredue and payable have been paid other than those not yet delinquent and payablewithout premium or penalty, and except for those being diligently contested ingood faith by appropriate proceedings, and in each case adequate reserves andprovisions for taxes have been made on the books of Borrower. The reserves andprovisions for taxes on the books of Borrower are adequate for all open yearsand for its current fiscal period. Borrower does not know of any proposedadditional assessment or basis for any material assessment for additional taxesagainst Borrower (whether or not reserved against) except assessments or basistherefor which could not have a Material Adverse Effect.

5.16 Employee Benefits.  On the date of thisAgreement and the Closing Date, Borrower has no material liability (contingentor otherwise) for or in connection with, and none of its properties is subjectto a Lien in connection with, any Pension-Related Event.

5.17 Environmental Matters.  

 (a) Borrower is and has been in compliance with allapplicable Environmental Laws, except where the failure to so comply,individually or in the aggregate, could not have a Material Adverse Effect. ToBorrower's knowledge, there are no circumstances that may prevent or interferewith such compliance by Borrower in the future.

 (b) All Environmental Approvals necessary for theownership and operation of Borrower's properties, facilities and businesses aspresently owned and operated and as presently proposed to be owned and operatedhave been obtained and are in full force and effect, unless such failure couldnot reasonably be expected to have a Material Adverse Effect on Borrower.

 (c) Except as set forth on Schedule 5.10, there is noEnvironmental Claim pending or, to the knowledge of Borrower, threatened, andthere are no past or present acts, omissions, events or circumstances (includingbut not limited to any dumping, leaching, deposition, removal, abandonment,escape, emission, discharge or release of any Hazardous Material at, on or underany facility or property now or previously owned, operated or leased by Borroweror, to the knowledge of Borrower, any of its Environmental Affiliates) thatcould form the basis of any Environmental Claim, against Borrower or any of itsEnvironmental Affiliates, except matters which, individually or in theaggregate, could not reasonably be expected to have a Material AdverseEffect.

 (d) No facility or property now or previously owned,operated or leased by Borrower is an Environmental Cleanup Site. NeitherBorrower nor, to the knowledge of Borrower, any of its Environmental Affiliateshas directly transported or directly arranged for the transportation of anymaterial quantities of Hazardous Materials to any Environmental Cleanup Site,except matters which, individually or in the aggregate, could not reasonably beexpected to have a Material Adverse Effect. To Borrower's knowledge, no Lienexists, and no condition exists which could result in the filing of a Lien,against any property of Borrower or any of its Environmental Affiliates, underany Environmental Law.

 5.18 Accuracy of Representations andWarranties.  None of Borrower's representations or warranties set forth inthis Agreement or in any document or certificate taken together with any relateddocument or certificate furnished pursuant to this Agreement or in connectionwith the transactions contemplated hereby contains or will contain any untruestatement of a material fact or omits or will omit to state a material factnecessary to make any statement of fact contained herein or therein, in light ofthe circumstances under which it was made, not misleading; except that unlessprovided otherwise any such document or certificate which is dated speaks as ofthe date stated and not the present.

 5.19 No Investment Company.  Borrower is not an"investment company" or a company "controlled" by an "investment company" assuch terms are defined in the Investment Company Act of 1940, as amended, whichis required to register thereunder.

 5.20 Labor Matters.  As of the Closing Date, nolabor disputes, strikes or walkouts affecting the operations of the Borrower ispending, or, to the Borrower's knowledge, threatened, planned or contemplatedthat could reasonably be expected to have a Material Adverse Effect on theBorrower. 

 5.21 Solvency.  After giving effect to the (i)Loans to be made on the Closing Date or such other date as Loans requestedhereunder are made and the consummation of the other transactions contemplatedby this Agreement and (ii) the payment and accrual of all fees, costs andexpenses payable by the Borrower in connection with the execution, delivery andperformance of the Loan Documents, the Borrower is Solvent. 

 5.22 Financial Statements.  Complete andaccurate copies of the following financial statements and the following relatedinformation have been delivered to the Agent:  the balance sheet of the Borroweras at December 31, 2001, and the related combined statements of income, changesin stockholders' equity and cash flows of the Borrower for the fiscal year thenended, and the audit report related thereto. Such financial statements reflectall Liabilities of the Borrower as of such date. 

 5.23 No Material Adverse Change. Since December31, 2001 up to the Closing Date, there has occurred no material adverse changein the business, financial condition, operations or prospects of the Borrower orany other event which has had or could reasonably be expected to result in aMaterial Adverse Effect.

 5.24 Regulatory Matters.  Borrower is a publicutility regulated by the Indiana Utility Regulatory Commission ("IURC") and theFederal Energy Regulatory Commission ("FERC"). Borrower has the sole right tofurnish retail electric service to its present and future customers within theboundaries of its exclusive service area, and no other electricity supplier mayrender or extend retail electric service within Borrower's exclusive servicearea. Except for matters set forth in Schedule 4.3 hereof, no action or approvalby the IURC or FERC is or will be necessary in connection with execution anddelivery of any Loan Document by Borrower or consummation by Borrower of thefinancing transaction herein or therein contemplated or payment by the Borrowerof the Loans.

ARTICLE VI

NEGATIVE COVENANTS

 6.1 Indebtedness.  The Borrower shall not,either directly or indirectly, create, assume, incur or have outstanding anyIndebtedness (including purchase money indebtedness), or become liable, whetheras endorser, guarantor, surety or otherwise, for any debt or obligation of anyother Person, except:

 (a) the Obligations;

 (b) endorsement for collection or deposit of anycommercial paper secured in the ordinary course of business;

 (c) obligations of the Borrower for taxes,assessments, municipal or other governmental charges;

 (d) obligations of the Borrower for accounts payable,other than for money borrowed, and customer security deposits, incurred in theordinary course of business; 

 (e) secured or unsecured purchase money Indebtednessincurred by the Borrower to finance the acquisition of fixed assets, if (1) atthe time of such incurrence no Event of Default or Unmatured Event of Defaulthas occurred and is continuing or would result from such incurrence, (2) suchIndebtedness has a scheduled maturity and is not due on demand, (3) suchIndebtedness does not exceed the lower of the fair market value or the cost ofthe applicable fixed assets on the date acquired, (4) such Indebtedness does notexceed $5,000,000 in the aggregate outstanding at any time, and (5) any Liensecuring such Indebtedness is permitted under Section 6.2;

 (f) obligations existing on the date hereof which aredisclosed in Schedule 6.1 hereof; 

 (g) indebtedness incurred to meet environmentalrequirements so long as on a pro forma basis Borrower remains in compliance withthe financial covenants contained in Article VIII; and

 (h) any Permitted Refinancing Indebtedness.

 6.2 Encumbrances.  The Borrower shall not,either directly or indirectly, create, assume, incur or suffer or permit toexist any Lien or charge of any kind or character upon any asset of theBorrower, whether owned at the date hereof or hereafter acquired, except for thefollowing ("Permitted Liens"):

 

 (a) Liens for taxes, assessments or other governmentalcharges not yet due or which are being contested in good faith by appropriateproceedings in such a manner as not to make the property forfeitable;

 (b) Liens or charges incurred in the ordinary courseof the business of the Borrower which were not incurred in connection with theborrowing of money or the obtaining of an advance or credit, and which do not inthe aggregate materially detract from the value of its property or assets ormaterially impair the use thereof in the operation of its business;

 (c) Liens arising out of judgments or awards againstthe Borrower with respect to which it shall concurrently therewith beprosecuting a timely appeal or proceeding for review and with respect to whichit shall have secured a stay of execution pending such appeal or proceedings forreview;

 (d) pledges or deposits to secure obligations underworker's compensation laws or similar legislation;

 (e) good faith deposits in connection with lendingcontracts or leases to which the Borrower is a party;

 (f) purchase money Liens; provided that suchLiens shall not apply to any property of Borrower other than that purchased andthat such Liens in the aggregate shall not exceed $5,000,000.00;

 (g) deposits to secure public or statutory obligationsof the Borrower; 

 (h) Liens existing on the date hereof and disclosed inSchedule 6.2 hereof; --

 (i) Liens issued in connection with PermittedRefinancing Indebtedness; and

 (j) Liens issued in connection with Indebtednesspermitted pursuant to Section 6.1(g).

 6.3 Investments; Acquisitions.  The Borrowershall not, either directly or indirectly, make or have outstanding any newinvestments (whether through purchase of stocks, obligations or otherwise) in,or loans or advances to, any other Person, or acquire all or any substantialpart of the assets, business, stock or other evidence of beneficial ownership ofany other Person except Eligible Investments.

 6.4 Transfer; Merger.  The Borrower shall not,either directly or indirectly, merge, consolidate, sell, transfer, license,lease, encumber or otherwise dispose of all or substantially all of its assets.The Borrower shall not, either directly or indirectly, sell, transfer, license,lease, encumber or otherwise dispose of any core utility operating asset, asreasonably determined by the parties, unless such sales, transfers, licenses,leases, encumbrances and other dispositions do not exceed $25,000,000.00 in theaggregate at any time.

 6.5 Issuance of Stock.  The Borrower shall not,either directly or indirectly, issue or distribute any additional capitalstock**or other equity securities of the Borrower.

 6.6 Dividends and Related Distributions.Borrower shall not declare or make any Stock Payment, or agree, become or remainliable (contingently or otherwise) to do any of the foregoing, except thatBorrower may pay dividends or make distributions so long as Borrower is not inviolation of the financial covenants set forth in Article VIII as a result ofsuch dividend or distribution.

 6.7 Change of Legal Status.  The Borrower shallnot change its name, its type of organization, its jurisdiction of organizationor other legal structure.

 6.8 Transactions with Affiliates.  The Borrowershall not directly or indirectly enter into or permit to exist any transaction(including, without limitation, the purchase, sale, lease or exchange of anyproperty or the rendering of any service) with any Affiliate of the Borrower, onterms that are less favorable to the Borrower than those that might be obtainedin an arm's length transaction at the time from Persons who are not anAffiliate.

 6.9 Contingent Liabilities.  Without the priorwritten consent of the Required Lenders, the Borrower shall not be or becomesubject to or bound by any additional Contingent Liability other than ContingentLiabilities with respect to vendor guaranties which do not exceed $25,000,000.00in the aggregate at any time.

 6.10 Exclusive Service Area.  The Borrowershall not consent to any other electricity supplier providing retail electricservice within Borrower's exclusive service area that would have a MaterialAdverse Effect. 

ARTICLE VII

AFFIRMATIVE COVENANTS

 7.1 Corporate**Existence.  The Borrowershall at all times preserve and maintain its corporate existence, rights,franchises and privileges, and shall at all times maintain its exclusive servicearea and continue as a going concern in the business which the Borrower ispresently conducting.  

 7.2 Maintain Property.  The Borrower shall atall times maintain, preserve and keep its plants, properties and equipment, ingood repair, working order and condition, and shall from time to time make allneedful and proper repairs, renewals, replacements, and additions thereto sothat at all times the efficiency thereof shall be fully preserved and maintainedexcept when Borrower reasonably determines that it is not in its best interestto do so and such determination could not reasonably be expected to have aMaterial Adverse Effect on Borrower.  The Borrower shall permit the Agent toexamine and inspect such plants, properties and equipment at all reasonabletimes.

 7.3 Maintain Insurance.  The Borrower shall atall times insure and keep insured in insurance companies acceptable to theAgent, all insurable property owned by it which is of a character usuallyinsured by companies similarly situated and operating like properties, againstloss or damage from fire and such other hazards or risks as are customarilyinsured against by companies similarly situated and operating like properties;and shall similarly insure employers', public and professional liability risks.Prior to the Closing Date, the Borrower shall deliver to the Agent a certificatesetting forth in summary form the nature and extent of the insurance maintainedby the Borrower pursuant to this Article VII.  

 7.4 Tax Liabilities.  The Borrower shall at alltimes pay and discharge all property and other taxes, assessments andgovernmental charges upon, and all claims (including claims for labor, materialsand supplies) against the Borrower or any of its properties or equipment beforethe same shall become delinquent and before penalties accrue thereon, except forsuch items which are being contested in good faith and have been reserved for inaccordance with GAAP.

 7.5 ERISA Liabilities; Employee Plans.  TheBorrower shall (i) keep in full force and effect any and all Employee Planswhich are presently in existence or may, from time to time, come into existenceunder ERISA, and not withdraw from any such Employee Plans, unless suchwithdrawal can be effected or such Employee Plans can be terminated withoutliability to the Borrower; (ii) make contributions to all of such Employee Plansin a timely manner and in a sufficient amount to comply with the standards ofERISA; including the minimum funding standards of ERISA; (iii) comply with allmaterial requirements of ERISA which relate to such Employee Plans; (iv) notifythe Agent immediately upon receipt by the Borrower of any notice concerning theimposition of any withdrawal liability or of the institution of any proceedingor other action which may result in the termination of any such Employee Plansor the appointment of a trustee to administer such Employee Plans; (v) promptlyadvise the Agent of the occurrence of any Reportable Event or "ProhibitedTransaction" (as such term is defined in ERISA), with respect to any suchEmployee Plans; and (vi) amend any Employee Plan that is intended to bequalified within the meaning of Section 401 of the Internal Revenue Code of 1986to the extent necessary to keep the Employee Plan qualified, and to cause theEmployee Plan to be administered and operated in a manner that does not causethe Employee Plan to lose its qualified status.

 7.6 Financial Statements.  The Borrower shallat all times maintain a standard and modern system of accounting, on the accrualbasis of accounting and in all respects in accordance with GAAP, and shallfurnish to the Lenders or their authorized representatives such informationregarding the business affairs, operations and financial condition of theBorrower, including, but not limited to:

 (a) as soon as available, and in any event, within onehundred twenty (120) days after the close of each of its fiscal years, a copy ofthe annual audited****financial statements of the Borrower, includingbalance sheet, statement of income and retained earnings, statement of cashflows for the fiscal year then ended and such other information as the Lendersmay reasonably request, certified by an independent certified public accountantacceptable to the Lenders; 

 (b) as soon as available, and in any event, withinforty five (45) days following the end of each fiscal quarter, a copy of thefinancial statements of the Borrower regarding such fiscal quarter, includingbalance sheet, statement of income and retained earnings, statement of cashflows for the fiscal quarter then ended and such other information as theLenders may reasonably request, in reasonable detail, prepared and certified asaccurate by the Borrower;

 (c) as soon as available, and in any event, within onehundred twenty (120) days after the close of each of its fiscal years, a copy ofthe annual audited financial statements of IPALCO, including balance sheet,statement of income and retained earnings, statement of cash flows for thefiscal year then ended and such other information as the Lenders may reasonablyrequest, in reasonable detail, certified by an independent certified publicaccountant acceptable to the Lenders;

 (d) as soon as available, and in any event, withinforty-five (45) days following the end of each fiscal quarter, a copy of thefinancial statements of IPALCO regarding such fiscal quarter, including balancesheet, statement of income and retained earnings, statement of cash flows forthe fiscal quarter then ended and such other information as the Lenders mayreasonably request, in reasonable detail, prepared and certified as accurate bythe Borrower;

 (e) as soon as available, and in any event, within onehundred twenty (120) days after the close of each of its fiscal years, a copy ofthe annual report and 10K statement of AES; and

 (f) as soon as available, and in any event, withinforty-five (45) days following the end of each fiscal quarter, a copy of the 10Qstatement of AES.

 No change with respect to such accounting principlesshall be made by the Borrower without giving prior notification to the Lenders.The Borrower represents and warrants to the Lenders that the financialstatements delivered to the Lenders at or prior to the execution and delivery ofthis Agreement and to be delivered at all times thereafter accurately reflectand will accurately reflect the financial condition of the Borrower.  TheLenders shall have the right at all times during business hours to inspect thebooks and records of the Borrower and make extracts therefrom.  The Borroweragrees to advise the Lenders immediately of any material adverse change in thefinancial condition, the operations or any other status of the Borrower.

 7.7 Supplemental Financial Statements.  TheBorrower shall immediately upon receipt thereof, provide to the Lenders copiesof interim and supplemental reports if any, submitted to the Borrower byindependent accountants in connection with any interim audit or review of thebooks of the Borrower.

 7.8 Covenant Compliance Report.  The Borrowershall, within forty-five (45) days after the end of each fiscal quarter, deliverto the Lenders a computation in such detail as the Lenders shall specify,showing compliance by the Borrower with the financial covenants set forth inArticle VIII, and certified as accurate by the Borrower.

 7.9 Other Reports.  The Borrower shall, withinsuch period of time as the Lenders may specify, deliver to the Lenders suchother schedules and reports as the Lenders may reasonably require.

 7.10 Notice of Proceedings.  The Borrowershall, immediately after knowledge thereof shall have come to the attention ofany officer of the Borrower, give written notice to the Lenders of allthreatened or pending actions, suits, and proceedings before any court orgovernmental department, commission, board or other administrative agency,whether filed against or on behalf of Borrower, which may reasonably be expectedto have a Material Adverse Effect.

 7.11 Notice of Default.  The Borrower shall,immediately after the commencement thereof, give notice to the Lenders inwriting of the occurrence of an Event of Default or of any Unmatured Event ofDefault hereunder.

ARTICLE VIII

FINANCIAL COVENANTS

 8.1 Interest Coverage Ratio.  At all times****the Borrower shall maintain a ratio of EBIT to Interest Charges which shallnot exceed 2.50 to 1.00.

 8.2 Total Debt to Capitalization Ratio.  At alltimes the Borrower shall maintain a ratio of Total Debt to Capitalization whichshall not exceed .60 to 1.00.

   ARTICLE IX

EVENTS OF DEFAULT

 9.1 Events of Default.  The Borrower, withoutnotice or demand of any kind, shall be in default under this Agreement upon theoccurrence of any of the following events (each an "Event of Default").

 (a) The Borrower shall fail to pay when due principalof any Loan.

 (b) Borrower shall fail to pay within ten (10) days ofthe date when due interest on any Loan, any fees, indemnity or expenses, or anyother amount due hereunder or under any other Loan Document.

 (c) Any representation or warranty made by Borrower inor pursuant to or in connection with any Loan Document, or deemed made byBorrower in or pursuant to any Loan Document, or any statement made by Borrowerin any financial statement, certificate, report (excluding projections) orexhibit furnished by Borrower to Agent or any Lender pursuant to or inconnection with any Loan Document, shall prove to have been false or misleadingin any material respect as of the time when made or deemed made (including byomission of material information necessary to make such representation, warrantyor statement not misleading).

 (d) The Borrower shall default in the performance orobservance of any covenant, agreement or duty under this Agreement or any LoanDocument and such default shall continue unremedied (i) in the case of anycovenant, agreement or duty contained in Section 7.6 or Section 7.8 for ten (10)Business Days, or (ii) in the case of any other covenant, agreement or duty forthirty (30) days.

 (e) Any Cross-Default Event shall occur with respectto any Cross-Default Obligation; provided, that if a Cross-Default Eventwould have occurred with respect to a Cross-Default Obligation but for the grantof a waiver or similar indulgence, a Cross-Default Event shall nevertheless bedeemed to have occurred if Borrower gave or agreed to give any fee or othermonetary compensation for such waiver or indulgence; provided,further, that Borrower shall provide to Agent written notice of any eventthat would be a Cross-Default Event but for the grant of a waiver or similarindulgence. As used herein, "Cross-Default Obligation" shall mean anyIndebtedness of Borrower or any Affiliate, or commitment of any Person to make aloan or loans to Borrower or any Affiliate, which is in excess of the aggregateamount of $5,000,000.00. As used herein, "Cross-Default Event" with respect to aCross-Default Obligation shall mean the occurrence of any default, event orcondition which causes or which would permit any Person or Persons to cause orwhich would, with the giving of notice or the passage of time or both, permitany Person or Persons to cause all or any part of such Cross-Default Obligationto become due (by acceleration, mandatory prepayment or repurchase, orotherwise) before its otherwise stated maturity or to terminate its commitmentto make loans to Borrower, or failure to pay all or any part of such Cross-Default Obligation at its stated maturity.

 (f) One or more judgments for the payment of moneyshall have been entered against the Borrower, which judgment or judgments exceed$5,000,000.00 in the aggregate, and such judgment or judgments shall haveremained undischarged and unstayed for a period of forty-five (45) consecutivedays.

 (g) One or more writs or warrants of attachment,garnishment, execution, distraint or similar process exceeding in value theaggregate amount of $5,000,000.00 shall have been issued against the Borrower orany of its properties and shall have remained undischarged for a period offorty-five (45) consecutive days.

 (h) Any Loan Document shall cease to be in full forceand effect, or Borrower shall, or shall purport to, terminate, repudiate,declare voidable or void or otherwise contest, any Loan Document or anyobligation or liability of Borrower thereunder.

 (i) The ABN AMRO Line of Credit shall contain termsthat are materially less favorable to the Borrower than those applicable to thisLoan.

 (j) Any one or more Pension-Related Events referred toin subsections (a)(ii) or (b) of the definition of "Pension-Related Event" shallhave occurred; any one or more Pension-Related Events referred to in subsection(e)(i) of the definition of "Pension-Related Event" shall have occurred and suchevent shall not have been cured within fifteen (15) days after the occurrencethereof; or any one or more other Pension-Related Events shall have occurred andthe Required Lenders shall determine in good faith (which determination shall beconclusive) that such other Pension-Related Events, individually or in theaggregate, could reasonably be expected to have a Material Adverse Effect.  

 (k) Any one or more of the events or conditions setforth in the following clauses (i) or (ii) shall have occurred in respect ofBorrower or any of its Environmental Affiliates, and the Required Lenders shalldetermine in good faith that such events or conditions, individually or in theaggregate, could reasonably be expected to have a Material Adverse Effect:  (i)any past or present violation of any Environmental Law by such Person, or (ii)existence of any pending or threatened Environmental Claim against any suchPerson, or existence of any past or present acts, omissions, events orcircumstances that could form the basis of any Environmental Claim against anysuch Person.

 (l) A Change of Control shall have occurred, unlesssuch Change of Control has been approved by the IURC and evidence of suchapproval satisfactory to the Agent has been delivered to the Agent.

 (m) A proceeding shall have been instituted in respectof the Borrower:

 (i)  seeking to have an order for relief entered inrespect of the Borrower, or seeking a declaration or entailing a finding thatthe Borrower is insolvent or a similar declaration or finding, or seekingdissolution, winding-up, charter revocation or forfeiture, liquidation,reorganization, arrangement, adjustment, composition or other similar reliefwith respect to the Borrower, its assets or its debts under any law relating tobankruptcy, insolvency, relief of debtors or protection of creditors,termination of legal entities or any other similar law now or hereafter ineffect, or

 (ii)  seeking appointment of a receiver, trustee,liquidator, assignee, sequestrator or other custodian for the Borrower or forall or any substantial part of its property

and such proceeding shall result in the entry, making orgrant of any such order for relief, declaration, finding, relief or appointment,or such proceeding shall remain undismissed, undischarged and unstayed for aperiod of sixty (60) days.

 (n) The Borrower shall become insolvent; shall fail topay, become unable to pay, or state that it is or will be unable to pay, itsdebts as they become due; shall voluntarily suspend transaction of its business;shall make a general assignment for the benefit of creditors; shall institute(or fail to controvert in a timely and appropriate manner) a proceedingdescribed in Section 9.1(m)(i) hereof, or (whether or not any such proceedinghas been instituted) shall consent to or acquiesce in any such order for relief,declaration, finding or relief described therein; shall institute or takecorporate action authorizing the institution of (or fail to controvert in atimely and appropriate manner) a proceeding described in Section 9.1(m)(ii)hereof, or (whether or not any such proceeding has been instituted) shallconsent to or acquiesce in any such appointment or to the taking of possessionby any such custodian of all or any substantial part of its property; shalldissolve, wind-up, revoke or forfeit its charter (or other constituentdocuments) or liquidate itself or any substantial part of its property.

 (o) Any failure of the Borrower to comply with anylaws, rules or regulations imposed upon Borrower by IURC or FERC that couldreasonably be expected to have a Material Adverse Effect on Borrower.

ARTICLE X

REMEDIES

10.1 Remedies.

(a) If an Event of Default under Section 9.1 hereof (otherthan an Event of Default specified in subsection (m) or (n) thereof) shall occuror shall exist, then, in addition to all other rights and remedies which Agentor any Lender may have hereunder or under any other Loan Document, at law, inequity or otherwise, the Lenders shall be under no further obligation to makeLoans, and the Agent shall, upon the written request of the Required Lenders, bynotice to the Borrower, from time to time do any or all of the following:

 (i)  Declare the Revolving Loan Commitments terminated,whereupon the Revolving Loan Commitments will terminate and any fees hereundershall be immediately due and payable without presentment, demand, protest orfurther notice of any kind, all of which are hereby waived, and an actiontherefor shall immediately accrue.

 (ii) Declare the unpaid principal amount of any or allof the Loans, interest accrued thereon and all other Obligations to beimmediately due and payable without presentment, demand, protest or furthernotice of any kind, all of which are hereby waived, and an action therefor shallimmediately accrue.

 (b) If an Event of Default specified in subsection (m)or (n) of Section 9.1 hereof shall occur or exist, then, in addition to allother rights and remedies which Agent or any Lender may have hereunder or underany other Loan Document, at law, in equity or otherwise, the Revolving LoanCommitments shall automatically terminate and the Lenders shall be under nofurther obligation to make Loans, and the unpaid principal amount of the Loans,interest accrued thereon and all other Obligations shall become immediately dueand payable without presentment, demand, protest or notice of any kind, all ofwhich are hereby waived, and an action therefor shall immediately accrue.

ARTICLE XI

DEFAULTING LENDERS; WAIVERS 

AND AMENDMENTS

 11.1 Defaulting Lender.  In the event that anyLender fails to fund its applicable Pro Rata Share of any Advance requested ordeemed requested by the Borrower (or requested by the Swing Line Bank inconnection with the participation in Swing Line Loans), which such Lender isobligated to fund under the terms of this Agreement (the funded portion of suchAdvance being hereinafter referred to as a "Non Pro Rata Loan"), until theearlier of such Lender's cure of such failure and the termination of theRevolving Loan Commitments, the proceeds of all amounts thereafter repaid to theAgent by the Borrower and otherwise required to be applied to such Lender'sshare of all other Obligations pursuant to the terms of this Agreement shall beadvanced to the Borrower (or Swing Line Bank) by the Agent on behalf of suchLender to cure, in full or in part, such failure by such Lender, but shallnevertheless be deemed to have been paid to such Lender in satisfaction of suchother Obligations. Notwithstanding anything in this Agreement to thecontrary:

 (i) the foregoing provisions of this Section 11.1shall apply only with respect to the proceeds of payments of Obligations andshall not affect the conversion or continuation of Loans pursuant to Section2.4(c);

 (ii) any such Lender shall be deemed to have cured itsfailure to fund its applicable Pro Rata Share of any Advance at such time as anamount equal to such Lender's original applicable Pro Rata Share of therequested principal portion of such Advance is fully funded to the Borrower (orSwing Line Bank), whether made by such Lender itself or by operation of theterms of this Section 11.1, and whether or not the Non Pro Rata Loan withrespect thereto has been repaid, converted or continued;

 (iii) amounts advanced to the Borrower to cure, infull or in part, any such Lender's failure to fund its applicable Pro Rata Shareof any Advance ("Cure Loans") shall bear interest at the rate applicable toPrime Loans in effect from time to time, and for all other purposes of thisAgreement shall be treated as if they were Prime Loans;

 (iv) regardless of whether or not an Event of Defaulthas occurred or is continuing, and notwithstanding the instructions of theBorrower as to its desired application, all repayments of principal which, inaccordance with the other terms of this Agreement, would be applied to theoutstanding Prime Loans shall be applied first, ratably to all PrimeLoans constituting Non Pro Rata Loans, second, ratably to Prime Loansother than those constituting Non Pro Rata Loans or Cure Loans and,third, ratably to Prime Loans constituting Cure Loans;

 (v) for so long as and until the earlier of any suchLender's cure of the failure to fund its applicable Pro Rata Share of anyAdvance and the termination of the Revolving Loan Commitments, the term"Required Lenders" for purposes of this Agreement shall mean Lenders (excludingall Lenders whose failure to fund their respective Pro Rata Shares of suchAdvance have not been so cured) whose applicable Pro Rata Shares representgreater than fifty percent (50%) of the aggregate Pro Rata Shares of suchLenders; and

 (vi) for so long as and until any such Lender'sfailure to fund its Pro Rata Share of any Advance is cured in accordance withSection 11.1(ii), such Lender shall not be entitled to any facility fees orutilization fees with respect to its Revolving Loan Commitment, which facilityfees and utilization fees shall accrue in favor of the Lenders which have fundedtheir respective applicable Pro Rata Share of such requested Advance, shall beallocated among such performing Lenders ratably based upon their relativeRevolving Loan Commitments, and shall be calculated based upon the averageamount by which the aggregate Revolving Loan Commitments of such performingLenders exceeds the sum of (A) the outstanding principal amount of the Loansowing to such performing Lenders, plus (B) the aggregate participationinterests of such performing Lenders arising with respect to Swing LineLoans.

11.2 Amendments.  Subject to the provisions ofArticle XI, the Required Lenders (or the Agent with the consent in writing ofthe Required Lenders) and the Borrower may enter into agreements supplementalhereto for the purpose of adding or modifying any provisions to the LoanDocuments or changing in any manner the rights of the Lenders or the Borrowerhereunder or waiving any Event of Default hereunder; provided,however, that no such supplemental agreement shall, without the consentof each Lender affected thereby:

(i) Postpone or extend the Maturity Date or any other datefixed for the payment of principal of, or interest on, the Loans or any fees orother amounts payable to such Lender (except with respect to (a) anymodifications of the provisions relating to prepayments of Loans and otherObligations and (b) a waiver of the application of the Default Rate).

(ii) Reduce the principal amount of any Loans, or reducethe rate or extend the time of payment of interest or fees thereon.

(iii) Reduce the percentage specified in the definition ofRequired Lenders or any other percentage of Lenders specified to be theapplicable percentage in this Agreement to act on specified matters.

(iv) Increase the amount of the Revolving Loan Commitmentof any Lender hereunder.

(v) Permit the Borrower to assign its rights under thisAgreement.

(vi) Amend this Section 11.2.

No amendment of any provision of this Agreement relating to(a) the Agent shall be effective without the written consent of the Agent, and(b) Swing Line Loans shall be effective without the written consent of the SwingLine Bank. The Agent may waive payment of the fee required under Section 14.3(b)without obtaining the consent of any of the Lenders.

 11.3 Preservation of Rights.  No delay oromission of the Lenders or the Agent to exercise any right under the LoanDocuments shall impair such right or be construed to be a waiver of any Event ofDefault or an acquiescence therein, and the making of a Loan notwithstanding theexistence of an Event of Default or the inability of the Borrower to satisfy theconditions precedent to such Loan shall not constitute any waiver oracquiescence. Any single or partial exercise of any such right shall notpreclude other or further exercise thereof or the exercise of any other right,and no waiver, amendment or other variation of the terms, conditions orprovisions of the Loan Documents whatsoever shall be valid unless in writingsigned by the Lenders required pursuant to Section 11.2, and then only to theextent in such writing specifically set forth. All remedies contained in theLoan Documents or by law afforded shall be cumulative and all shall be availableto the Agent and the Lenders until the Obligations have been paid in full.

  ARTICLE XII

THE AGENT

12.1 Appointment; Nature of Relationship. ****The Huntington National Bank is appointed by the Lenders as the Agenthereunder and under each other Loan Document, and each of the Lendersirrevocably authorizes the Agent to act as the contractual representative ofsuch Lender with the rights and duties expressly set forth herein and in theother Loan Documents. The Agent agrees to act as such contractual representativeupon the express conditions contained in this Article XII. Notwithstanding theuse of the defined term "Agent," it is expressly understood and agreed that theAgent shall not have any fiduciary responsibilities to any Lender by reason ofthis Agreement and that the Agent is merely acting as the representative of theLenders with only those duties as are expressly set forth in this Agreement andthe other Loan Documents. In its capacity as the Lenders' contractualrepresentative, the Agent (i) does not assume any fiduciary duties to any of theLenders, and (ii) is acting as an independent contractor, the rights and dutiesof which are limited to those expressly set forth in this Agreement and theother Loan Documents. Each of the Lenders agrees to assert no claim against theAgent on any agency theory or any other theory of liability for breach offiduciary duty, all of which claims each Lender waives.

12.2 Powers.  The Agent shall have and may exercisesuch powers under the Loan Documents as are specifically delegated to the Agentby the terms of each thereof, together with such powers as are reasonablyincidental thereto. The Agent shall have no implied duties or fiduciary dutiesto the Lenders, or any obligation to the Lenders to take any action hereunder orunder any of the other Loan Documents except any action specifically provided bythe Loan Documents required to be taken by the Agent.

12.3 General Immunity.  Neither the Agent nor anyof its directors, officers, agents or employees shall be liable to the Borrower,the Lenders or any Lender for any action taken or omitted to be taken by it orthem hereunder or under any other Loan Document or in connection herewith ortherewith except to the extent such action or inaction is found in a finaljudgment by a court of competent jurisdiction to have arisen solely from thegross negligence or willful misconduct of such Person.

 12.4 No Responsibility for Loans, Creditworthiness,Recitals, Etc.  Neither the Agent nor any of its directors, officers, agentsor employees shall be responsible for or have any duty to ascertain, inquireinto, or verify (i) any statement, warranty or representation made in connectionwith any Loan Document or any borrowing hereunder, (ii) the performance orobservance of any of the covenants or agreements of any obligor under any LoanDocument; (iii) the satisfaction of any condition specified in Article IV,except receipt of items required to be delivered solely to the Agent, (iv) theexistence or possible existence of any Event of Default or Unmatured Event ofDefault or (v) the validity, effectiveness or genuineness of**any LoanDocument, or any other instrument or writing furnished in connection therewith.The Agent shall not be responsible to any Lender for any recitals, statements,representations or warranties herein or in any of the other Loan Documents, orfor the execution, effectiveness, genuineness, validity, legality,enforceability, collectibility, or sufficiency of**this Agreement or anyof the other Loan Documents or the transactions contemplated thereby, or for thefinancial condition of the Borrower.
** **
 12.5 Action on Instructions of Lenders.The Agent shall in all cases be fully protected in acting, or in refraining fromacting, hereunder and under any other Loan Document in accordance with writteninstructions signed by the Required Lenders, and such instructions and anyaction taken or failure to act pursuant thereto shall be binding on all of theLenders and on all holders of Notes. The Agent shall be fully justified infailing or refusing to take any action hereunder and under any other LoanDocument unless it shall first be indemnified to its satisfaction by the Lenderspro rata against any and all liability, cost and expense that it may incur byreason of taking or continuing to take any such action.

12.6 Employment of Agent and Counsel.  The Agentmay execute any of its duties as the Agent hereunder and under any other LoanDocument by or through employees, agents, and attorneys-in-fact and shall not beanswerable to the Lenders, except as to money or securities received by it orits authorized agents, for the default or misconduct of any such agents orattorneys-in-fact selected by it with reasonable care. The Agent shall beentitled to advice of counsel concerning the contractual arrangement between theAgent and the Lenders and all matters pertaining to the Agent's duties hereunderand under any other Loan Document.

12.7 Reliance on Documents; Counsel.  The Agentshall be entitled to rely upon any Note, notice, consent, certificate,affidavit, letter, telegram, statement, paper or document believed by it to begenuine and correct and to have been signed or sent by the proper person orpersons, and, in respect to legal matters, upon the opinion of counsel selectedby the Agent, which counsel may be employees of the Agent.

12.8 The Agent's Reimbursement and Indemnification.The Lenders agree to reimburse and indemnify the Agent ratably in proportion totheir respective Revolving Loan Commitments (i) for any amounts, which are notunreasonable or excessive, not reimbursed by the Borrower for which the Agent isentitled to reimbursement by the Borrower under the Loan Documents, (ii) for anyother reasonable expenses incurred by the Agent on behalf of the Lenders, inconnection with the preparation, execution, delivery, administration andenforcement of the Loan Documents and (iii) for any liabilities, obligations,losses, damages, penalties, actions, judgments, suits, or any reasonable costs,expenses or disbursements of any kind and nature whatsoever which may be imposedon, incurred by or asserted against the Agent in any way relating to or arisingout of the Loan Documents or any other document delivered in connectiontherewith or the transactions contemplated thereby, or the enforcement of any ofthe terms thereof or of any such other documents, provided that no Lender shallbe liable for any of the foregoing to the extent any of the foregoing is foundin a final non-appealable judgment by a court of competent jurisdiction to havearisen solely from the gross negligence or willful misconduct of the Agent.

12.9 Rights as a Lender.  With respect to itsRevolving Loan Commitment, Loans made by it and the Notes issued to it, theAgent shall have the same rights and powers hereunder and under any other LoanDocument as any Lender and may exercise the same as though it were not theAgent, and the term "Lender" or "Lenders" shall, unless the context otherwiseindicates, include the Agent in its individual capacity. The Agent may acceptdeposits from, lend money to, and generally engage in any kind of trust, debt,equity or other transaction, in addition to those contemplated by this Agreementor any other Loan Document, with the Borrower in which such Person is notprohibited hereby from engaging with any other Person.

12.10 Lender Credit Decision.  Each Lenderacknowledges that it has, independently and without reliance upon the Agent orany other Lender and based on the financial statements prepared by the Borrowerand such other documents and information as it has deemed appropriate, made itsown credit analysis and decision to enter into this Agreement and the other LoanDocuments. Each Lender also acknowledges that it will, independently and withoutreliance upon the Agent or any other Lender and based on such documents andinformation as it shall deem appropriate at the time, continue to make its owncredit decisions in taking or not taking action under this Agreement and theother Loan Documents.

12.11 Successor Agent.  The Agent may resign at anytime by giving written notice thereof to the Lenders and the Borrower. Upon anysuch resignation, the Required Lenders shall have the right to appoint, onbehalf of the Borrower and the Lenders, a successor Agent. If no successor Agentshall have been so appointed by the Required Lenders and shall have acceptedsuch appointment within thirty days after the retiring Agent's giving notice ofresignation, then the retiring Agent may appoint, on behalf of the Borrower andthe Lenders, a successor Agent. Notwithstanding anything herein to the contrary,so long as no Event of Default has occurred and is continuing, each suchsuccessor Agent shall be subject to approval by the Borrower, which approvalshall not be unreasonably withheld. Such successor Agent shall be a commercialbank having capital and retained earnings of at least $500,000,000. Upon theacceptance of any appointment as the Agent hereunder by a successor Agent, suchsuccessor Agent shall thereupon succeed to and become vested with all therights, powers, privileges and duties of the retiring Agent, and the retiringAgent shall be discharged from its duties and obligations hereunder and underthe other Loan Documents. After any retiring Agent's resignation hereunder asAgent, the provisions of this Article XII shall continue in effect for itsbenefit in respect of any actions taken or omitted to be taken by it while itwas acting as the Agent hereunder and under the other Loan Documents.

ARTICLE XIII

SETOFF; RATABLE PAYMENTS

 13.1 Setoff.  In addition to, and withoutlimitation of, any rights of the Lenders under applicable law, if any Event ofDefault occurs, any indebtedness from any Lender to the Borrower (including allaccount balances, whether provisional or final and whether or not collected oravailable) may be offset and applied toward the payment of the Obligations owingto such Lender, whether or not the Obligations, or any part hereof, shall thenbe due.

 13.2 Ratable Payments.  If any Lender, whetherby setoff or otherwise, has payment made to it upon its Loans (other thanpayments received pursuant to Sections 3.1, 3.2 or 3.4) in a greater proportionthan that received by any other Lender, such Lender agrees, promptly upondemand, to purchase a portion of the Loans held by the other Lenders so thatafter such purchase each Lender will hold its ratable proportion of Loans. Ifany Lender, whether in connection with setoff or amounts which might be subjectto setoff or otherwise, receives collateral or other protection for itsObligation or such amounts which may be subject to setoff, such Lender agrees,promptly upon demand, to take such action necessary such that all Lenders sharein the benefits of such collateral ratably in proportion to the obligationsowing to them. In case any such payment is disturbed by legal process, orotherwise, appropriate further adjustments shall be made.

13.3 Application of Payments.  Subject to theprovisions of Section 11.1, the Agent shall, unless otherwise specified at thedirection of the Required Lenders which direction shall be consistent with thelast sentence of this Section 13.3, apply all payments and prepayments inrespect of any Obligations in the following order:

 (a) first, to pay interest on and then principal ofany portion of the Loans which the Agent may have advanced on behalf of anyLender for which the Agent has not then been reimbursed by such Lender or theBorrower;

 (b) second, to pay interest on and then principal ofany advance made under Section 15.3 for which the Agent has not then been paidby the Borrower or reimbursed by the Lenders;

 (c) third, to pay Obligations in respect of any fees,expense reimbursements or indemnities then due to the Agent;

 (d) fourth, to pay Obligations in respect of any fees,expenses, reimbursements or indemnities then due to the Lenders;

 (e) fifth,****to pay interest due in respect ofSwing Line Loans;

 (f) sixth, to pay interest due in respect of Loans(other than Swing Line Loans);

 (g) seventh, to the ratable payment or prepayment ofprincipal outstanding on Swing Line Loans,

 (h) eighth, to the ratable payment or prepayment ofprincipal outstanding on Loans (other than Swing Line Loans) in such order asthe Agent may determine in its sole discretion; and

 (i) ninth, to the ratable payment of all otherObligations.

Unless otherwise designated (which designation shall only beapplicable prior to the occurrence of an Event of Default) by the Borrower, allprincipal payments in respect of Loans (other than Swing Line Loans) shall beapplied first, to repay outstanding Prime Loans, and then to repayoutstanding LIBOR Loans with those LIBOR Loans which have earlier expiringInterest Periods being repaid or prepaid prior to those which have laterexpiring Interest Periods. The order of priority set forth in this Section 13.3and the related provisions of this Agreement are set forth solely to determinethe rights and priorities of the Agent, the Lenders and the Swing Line Bank asamong themselves. The order of priority set forth in clauses (d) through (i) ofthis Section 13.3 may at any time and from time to time be changed by theRequired Lenders without necessity of notice to or consent of or approval by theBorrower, or any other Person; provided, that the order of priority ofpayments in respect of Swing Line Loans may be changed only with the priorwritten consent of the Swing Line Bank. The order of priority set forth inclauses (a) through (c) of this Section 13.3. may be changed only with the priorwritten consent of the Agent.

 13.4 Relations Among Lenders.

 (a) Except with respect to the exercise of set-offrights of any Lender in accordance with Section 13.1, the proceeds of which areapplied in accordance with this Agreement, and each Lender agrees that it willnot take any action, nor institute any actions or proceedings, against theBorrower or any other obligor hereunder or with respect to any Loan Document,without the prior written consent of the Required Lenders or, as may be providedin this Agreement or the other Loan Documents, at the direction of theAgent.

 (b) The Lenders are not partners or co-venturers, andno Lender shall be liable for the acts or omissions of, or (except as otherwiseset forth herein in case of the Agent) authorized to act for, any other Lender.The Agent shall have the exclusive right on behalf of the Lenders to enforce onthe payment of the principal of and interest on any Loan after the date suchprincipal or interest has become due and payable pursuant to the terms of thisAgreement.

ARTICLE XIV

BENEFIT OF AGREEMENT; ASSIGNMENTS;

PARTICIPATIONS

14.1 Successors and Assigns.  The terms andprovisions of the Loan Documents shall be binding upon and inure to the benefitof the Borrower and the Lenders and their respective successors and assigns,except that (i) the Borrower shall not have the right to assign its rights orobligations under the Loan Documents and (ii) any assignment by any Lender mustbe made in compliance with Section 14.3 hereof. Notwithstanding clause (ii) ofthis Section 14.1, any Lender may at any time, without the consent of theBorrower or the Agent, assign all or any portion of its rights under thisAgreement and its Notes to a Federal Reserve Bank; provided,however, that no such assignment shall release the transferor Lender fromits obligations hereunder. The Agent may treat the payee of any Note as theowner thereof for all purposes hereof unless and until such payee complies withSection 14.3 hereof in the case of an assignment thereof or, in the case of anyother transfer, a written notice of the transfer is filed with the Agent. Anyassignee or transferee of a Note agrees by acceptance thereof to be bound by allthe terms and provisions of the Loan Documents. Any request, authority orconsent of any Person, who at the time of making such request or giving suchauthority or consent is the holder of any Note, shall be conclusive and bindingon any subsequent holder, transferee or assignee of such Note or of any Note orNotes issued in exchange therefor.

14.2 Participations.

(a) Permitted Participants, Effect.  Subject to theterms set forth in this Section 14.2, any Lender may, in the ordinary course ofits business and in accordance with applicable law, at any time sell to one ormore banks or other entities ("Participants")****participating****interests in any Loan owing to such Lender, any Note held by such Lender,any Revolving Loan Commitment of such Lender or any other interest of suchLender under the Loan Documents on a pro rata or non-pro rata basis. Notice ofsuch participation to the Borrower and the Agent shall be required prior to anyparticipation becoming effective with respect to a Participant which is not aLender or an Affiliate thereof. In the event of any such sale by a Lender ofparticipating interests to a Participant, such Lender's obligations under theLoan Documents shall remain unchanged, such Lender shall remain solelyresponsible to the other parties hereto for the performance of such obligations,such Lender shall remain the holder of any such Note for all purposes under theLoan Documents, all amounts payable by the Borrower under this Agreement shallbe determined as if such Lender had not sold such participating interests, andthe Borrower and the Agent shall continue to deal solely and directly with suchLender in connection with such Lender's rights and obligations under the LoanDocuments except that, for purposes of Article III hereof, the Participantsshall be entitled to the same rights as if they were Lenders.

(b) Voting Rights. Each Lender shall retain thesole right to approve, without the consent of any Participant, any amendment,modification or waiver of any provision of the Loan Documents other than anyamendment, modification or waiver with respect to any Loan or Revolving LoanCommitment in which such Participant has an interest which forgives principal,interest or fees or reduces the interest rate or fees payable pursuant to theterms of this Agreement with respect to any such Loan or Revolving LoanCommitment, postpones any date fixed for any regularly-scheduled payment ofprincipal of, or interest or fees on, any such Loan or Revolving LoanCommitment.

(c) Benefit of Setoff. The Borrower agrees thateach Participant shall be deemed to have the right of setoff provided in Section13.1 hereof in respect to its participating interest in amounts owing under theLoan Documents to the same extent as if the amount of its participating interestwere owing directly to it as a Lender under the Loan Documents, providedthat each Lender shall retain the right of setoff provided in Section 13.1hereof with respect to the amount of participating interests sold to eachParticipant except to the extent such Participant exercises its right of setoff.The Lenders agree to share with each Participant, and each Participant, byexercising the right of setoff provided in Section 13.1 hereof, agrees to sharewith each Lender, any amount received pursuant to the exercise of its right ofsetoff, such amounts to be shared in accordance with Section 13.2 as if eachParticipant were a Lender.

14.3 Assignments.

 

(a) Permitted Assignments.  Any Lender may, in theordinary course of its business and in accordance with applicable law, at anytime assign to one or more banks or other entities****("Purchasers") all ora portion of its rights and obligations under this Agreement (including, withoutlimitation, its Revolving Loan Commitment and all Loans owing to it) inaccordance with the provisions of this Section 14.3. Each assignment shall be ofa constant, and not a varying, ratable percentage of all of the assigningLender's rights and obligations under this Agreement. Such assignment shall besubstantially in the form of Exhibit "C" hereto and shall not be permittedhereunder unless such assignment is either for all of such Lender's rights andobligations under the Loan Documents or, without the prior written consent ofthe Agent, involves loans and commitments in an aggregate amount of at least$5,000,000 (which minimum amount may be waived by the Required Lenders after theoccurrence of an Event of Default or Unmatured Event of Default). The consent ofthe Agent and, prior to the occurrence of an Event of Default or Unmatured Eventof Default, the Borrower (which consent, in each such case, shall not beunreasonably withheld), shall be required prior to an assignment becomingeffective with respect to a Purchaser which is not a Lender or an Affiliatethereof.

(b) Effect; Effective Date.  Upon (i) delivery tothe Agent of a notice of assignment, substantially in the form attached asAppendix I to Exhibit "C" hereto (a "Notice of Assignment"),****togetherwith any consent required by Section 14.3 (a)hereof, and (ii), in thecase of an assignment to a Purchaser which is not a Lender or an Affiliatethereof, payment of a $5,000 fee to the Agent for processing such assignment,such assignment shall become effective on the effective date specified in suchNotice of Assignment. The Notice of Assignment shall contain a representation bythe Purchaser to the effect that none of the consideration used to make thepurchase of the Revolving Loan Commitment and Loans under the applicableassignment agreement are "plan assets" as defined under ERISA and that therights and interests of the Purchaser in and under the Loan Documents will****not be "plan assets" under ERISA. On and after the effective date of suchassignment, such Purchaser, if not already a Lender, shall for all purposes be aLender party to this Agreement and any other Loan Documents executed by theLenders and shall have all the rights and obligations of a Lender under the LoanDocuments, to the same extent as if it were an original party hereto, and nofurther consent or action by the Borrower, the Lenders or the Agent shall berequired to release the transferor Lender with respect to the percentage of theAggregate Revolving Loan Commitment and Loans participations assigned to suchPurchaser. Upon the consummation of any assignment to a Purchaser pursuant tothis Section 14.3(b), the transferor Lender, the Agent and the Borrower shallmake appropriate arrangements so that replacement Notes are issued to suchtransferor Lender and new Notes or, as appropriate, replacement Notes, areissued to such Purchaser, in each case in principal amounts reflecting theirRevolving Loan Commitment, as adjusted pursuant to such assignment.

(c) The Register.  The Agent shall maintain at itsaddress referred to in Section 15.21 a copy of each assignment delivered to andaccepted by it pursuant to this Section 14.3 and a register (the "Register") forthe recordation of the names and addresses of the Lenders and the Revolving LoanCommitment of and principal amount of the Loans owing to, each Lender from timeto time and whether such Lender is an original Lender or the assignee of anotherLender pursuant to an assignment under this Section 14.3. The entries in theRegister shall be conclusive and binding for all purposes, absent manifesterror, and the Borrower, the Agent and the Lenders may treat each Person whosename is recorded in the Register as a Lender hereunder for all purposes of thisAgreement. The Register shall be available for inspection by the Borrower or anyLender at any reasonable time and from time to time upon reasonable priornotice.

14.4 Confidentiality.  Subject to Section 14.5, theAgent and the Lenders shall hold all nonpublic information obtained pursuant tothe requirements of this Agreement and identified as such by the Borrower inaccordance with such Person's customary procedures for handling confidentialinformation of this nature and in accordance with safe and sound bankingpractices and in any event may make disclosure reasonably required by aprospective Transferee in connection with the contemplated participation orassignment or as required or requested by any Governmental Authority orrepresentative thereof or pursuant to legal process and shall require any suchTransferee to agree (and require any of its Transferees to agree) to comply withthis Section 14.4. In no event shall the Agent or any Lender be obligated orrequired to return any materials furnished by the Borrower; provided,however, each prospective Transferee shall be required to agree that ifit does not become a participant or assignee it shall return all materialsfurnished to it by or on behalf of the Borrower in connection with thisAgreement.

 14.5 Dissemination of Information.  The Borrowerauthorizes each Lender to disclose to any Participant or Purchaser or any otherPerson acquiring an interest in the Loan Documents by operation of law (each a"Transferee") and any prospective Transferee any and all information in suchLender's possession concerning the Borrower, provided that prior to anysuch disclosure, such prospective Transferee shall agree to preserve inaccordance with Section 14.4 the confidentiality of any confidential informationdescribed therein.

  ARTICLE XV

MISCELLANEOUS

 15.1 Survival of Representations.  Allrepresentations and warranties of the Borrower contained in this Agreement shallsurvive delivery of the Notes and the making of the Loans hereincontemplated.

 15.2 Government Regulation.  Anything containedin this Agreement to the contrary notwithstanding, no Lender shall be obligatedto extend credit to the Borrower in violation of any limitation or prohibitionprovided by any applicable statute or regulation.

 15.3 Performance of Obligations.  The Borroweragrees that the Agent may, but shall have no obligation, after the occurrenceand during the continuance of an Event of Default, to make any other payment orperform any act required of the Borrower under any Loan Document. The Agentshall use its reasonable efforts to give the Borrower notice of any action takenunder this Section 15.3 prior to the taking of such action or promptlythereafter provided the failure to give such notice shall not affect theBorrower's obligations in respect thereof. The Borrower agrees to pay the Agent,upon demand, the principal amount of all funds advanced by the Agent under thisSection 15.3, together with interest thereon at the rate from time to timeapplicable to Revolving Loans that are Prime Loans from the date of such advanceuntil the outstanding principal balance thereof is paid in full. If the Borrowerfails to make payment in respect of any such advance under this Section 15.3within one (1) Business Day after the date the Borrower receives written demandtherefor from the Agent, the Agent shall promptly notify each Lender, and eachLender agrees that it shall thereupon make available to the Agent, inimmediately available funds, the amount equal to such Lender's Pro Rata Share ofsuch advance. If such funds are not made available to the Agent by such Lenderwithin one (1) Business Day after the Agent's demand therefor, the Agent will beentitled to recover any such amount from such Lender together with interestthereon at the Federal Funds Effective Rate for each day during the periodcommencing on the date of such demand and ending on the date such amount isreceived. The failure of any Lender to make available to the Agent its Pro RataShare of any such unreimbursed advance under this Section 15.3 shall neitherrelieve any other Lender of its obligation hereunder to make available to theAgent such other Lender's Pro Rata Share of such advance on the date suchpayment is to be made nor increase the obligation of any other Lender to makesuch payment to the Agent. All outstanding principal of, and interest on,advances made under this Section 15.3 shall constitute Obligations.

 15.4 Headings.  Section headings in the LoanDocuments are for convenience of reference only, and shall not govern theinterpretation of any of the provisions of the Loan Documents.

 15.5 Entire Agreement.  This Agreement (i) isvalid, binding and enforceable against the Borrower, the Agent and the Lendersin accordance with its provisions and no conditions exist as to its legaleffectiveness; (ii) constitutes the entire agreement between the parties; and(iii) is the final expression of the intentions of the Borrower, the Agent andthe Lenders.  No promises, either expressed or implied, exist between theBorrower, the Agent and the Lenders, unless contained herein.  This Agreementsupersedes all negotiations, representations, warranties, commitments, offers,contracts (of any kind or nature, whether oral or written) prior to orcontemporaneous with the execution hereof.

 15.6 Several Obligations; Benefits of thisAgreement.  The respective obligations of the Lenders hereunder are severaland not joint and no Lender shall be the partner or agent of any other Lender(except to the extent to which the Agent is authorized to act as such). Thefailure of any Lender to perform any of its obligations hereunder shall notrelieve any other Lender from any of its obligations hereunder. This Agreementshall not be construed so as to confer any right or benefit upon any Personother than the parties to this Agreement and their respective successors andassigns.

  15.7 Expenses; Indemnification. 

 (a) Expenses.  The Borrower shall reimburse theAgent for any reasonable costs, charges for external legal services and out-of-pocket expenses (including attorneys' and paralegals' fees and time charges ofattorneys and paralegals for the Agent ) paid or incurred by the Agent inconnection with the preparation, negotiation, execution, delivery, syndication,review, amendment, modification, and administration of the Loan Documents. TheBorrower also agrees to reimburse the Agent and the Lenders for any costs,external charges and out-of-pocket expenses (including attorneys' andparalegals' fees and time charges of attorneys and paralegals for the Agent andthe Lenders ) paid or incurred by the Agent or any Lender in connection with thecollection of the Obligations and enforcement of the Loan Documents. Agent shallprovide the Borrower with a detailed statement of all reimbursements requestedunder this Section 15.7(a).

 (b) Indemnity.  The Borrower further agrees todefend, protect, indemnity, and hold harmless the Agent, and each and all of theLenders and each of their respective Affiliates, and each of such Agent's,Lender's, or Affiliate's respective officers, directors, employees, attorneysand agents (including, without limitation, those retained in connection with thesatisfaction or attempted satisfaction of any of the conditions set forth inArticle IV) (collectively, the "Indemnitees") from and against any and allliabilities, obligations, losses, damages, penalties, actions, judgments, suits,claims, costs, expenses of any kind or nature whatsoever (including, withoutlimitation, the fees and disbursements of counsel for such Indemnitees inconnection with any investigative, administrative or judicial proceeding,whether or not such Indemnitees shall be designated a party thereto), imposedon, incurred by, or asserted against such Indemnitees in any manner relating toor arising out of:

 (i)  this Agreement, the other Loan Documents, or anyact, event or transaction related or attendant thereto or to the making of theLoans, the management of such Loans, the use or intended use of the proceeds ofthe Loans hereunder, or any of the other transactions contemplated by the LoanDocuments; or

 (ii)  any liabilities, obligations, responsibilities,losses, damages, personal injury, death, punitive damages, economic damages,consequential damages, treble damages, intentional, willful or wanton injury,damage or threat to the environment, natural resources or public health orwelfare, costs and expenses (including, without limitation, attorney, expert andconsulting fees and costs of investigation, feasibility or remedial actionstudies), fines, penalties and monetary sanctions, interest, direct or indirect,known or unknown, absolute or contingent, past, present or future relating toviolation of any Requirements of Law arising from or in connection with thepast, present or future operations of the Borrower, or any of its predecessorsin interest, or, the past, present or future environmental, health or safetycondition of any respective property of the Borrower, the presence of asbestos-containing materials at any respective property of the Borrower or the Releaseor threatened Release of any Hazardous Materials into the environment(collectively, the "Indemnified Matters");

provided, however, the Borrower shall have noobligation to an Indemnitee hereunder with respect to Indemnified Matters causedsolely by or resulting solely from the willful misconduct or gross negligence ofsuch Indemnitee, as determined by the final non-appealed judgment of a court ofcompetent jurisdiction. If the undertaking to indemnity, pay and hold harmlessset forth in the preceding sentence may be unenforceable because it is violativeof any law or public policy, the Borrower shall contribute the maximum portionwhich it is permitted to pay and satisfy under applicable law, to the paymentand satisfaction of all Indemnified Matters incurred by the Indemnitees.

 (c) Waiver of Certain Claims; Settlement ofClaims.  The Borrower further agrees not to assert claims against any of theIndemnitees on any theory of liability for consequential, special, indirect,exemplary or punitive damages. No settlement shall be entered into by theBorrower with respect to any claim, litigation, arbitration or other proceedingrelating to or arising out of the transactions evidenced by this Agreement orthe other Loan Documents (whether or not the Agent or any Lender or anyIndemnitee is a party thereto) unless such settlement releases all Indemniteesfrom any and all liability with respect thereto.

 (d) Survival of Agreements.  The obligationsand agreements of the Borrower under this Section 15.7 shall survive thetermination of this Agreement.

15.8 Numbers of Documents.  All statements,notices, closing documents, and requests hereunder shall be furnished to theAgent with sufficient counterparts so that the Agent may furnish one to each ofthe Lenders.

 15.9 Amendments; Waivers.  No amendment,modification, termination, discharge or waiver of any provision of thisAgreement or of the Loan Documents, or consent to any departure by the Borrowertherefrom, shall in any event be effective unless the same shall be in writingand signed by the Agent or the Required Lenders, and then such waiver or consentshall be effective only for the specific purpose for which given.

 15.10 WAIVER OF DEFENSES.  THE BORROWER WAIVESEVERY PRESENT AND FUTURE DEFENSE, CAUSE OF ACTION, COUNTERCLAIM OR SETOFF WHICHTHE BORROWER MAY NOW HAVE OR HEREAFTER MAY HAVE TO ANY ACTION BY THE AGENT ORTHE LENDERS IN ENFORCING THIS AGREEMENT.  THE BORROWER WAIVES ANY IMPLIEDCOVENANT OF GOOD FAITH AND RATIFIES AND CONFIRMS WHATEVER THE AGENT OR THELENDERS MAY DO PURSUANT TO THE TERMS OF THIS AGREEMENT.  THIS PROVISION IS AMATERIAL INDUCEMENT FOR THE LENDERS GRANTING ANY FINANCIAL ACCOMMODATION TO THEBORROWER.

 15.11 Severability of Provisions.  Anyprovision in any Loan Document that is held to be inoperative, unenforceable, orinvalid in any jurisdiction shall, as to that jurisdiction, be inoperative,unenforceable, or invalid without affecting the remaining provisions in thatjurisdiction or the operation, enforceability, or validity of that provision inany other jurisdiction, and to this end the provisions of all Loan Documents aredeclared to be severable.

 15.12 Nonliability of Lenders.  Therelationship between the Borrower and the Lenders and the Agent shall be solelythat of borrower and lender. Neither the Agent nor any Lender shall have anyfiduciary responsibilities to the Borrower. Neither the Agent nor any Lenderundertakes any responsibility to the Borrower to review or inform the Borrowerof any matter in connection with any phase of the Borrower's business oroperations.

 15.13 GOVERNING LAW.  **ANY DISPUTE BETWEENTHE BORROWER AND THE AGENT OR ANY LENDER ARISING OUT OF, CONNECTED WITH, RELATEDTO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTIONWITH, THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS, AND WHETHER ARISING INCONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED IN ACCORDANCE WITH THEINTERNAL LAWS (WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS) OF THE STATEOF INDIANA.
 15.14 CONSENT TO JURISDICTION; SERVICE OFPROCESS; JURY TRIAL.

 (a) JURISDICTION. EXCEPT AS PROVIDED INSUBSECTION (b),EACH OF THE PARTIES HERETO AGREES THAT ALL DISPUTES AMONGTHEM ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THERELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH, THIS AGREEMENT OR ANY OFTHE OTHER LOAN DOCUMENTS WHETHER ARISING IN CONTRACT, TORT, EQUITY, OROTHERWISE, MAY BE RESOLVED EXCLUSIVELY BY STATE OR FEDERAL COURTS LOCATED ININDIANAPOLIS, INDIANA, BUT THE PARTIES HERETO ACKNOWLEDGE THAT ANY APPEALS FROMTHOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF INDIANAPOLIS,INDIANA. EACH OF THE PARTIES HERETO WAIVES IN ALL DISPUTES BROUGHT PURSUANT TOTHIS SUBSECTION (a)ANY OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THECOURT CONSIDERING THE DISPUTE.

 (b) OTHER JURISDICTIONS.  THE BORROWER AGREESTHAT THE AGENT, OR ANY LENDER, SHALL HAVE THE RIGHT TO PROCEED AGAINST THEBORROWER OR ITS PROPERTY IN A COURT IN ANY LOCATION TO ENABLE SUCH PERSON TO (1)OBTAIN PERSONAL JURISDICTION OVER THE BORROWER OR (2) TO ENFORCE A JUDGMENT OROTHER COURT ORDER ENTERED IN FAVOR OF SUCH PERSON. THE BORROWER AGREES THAT ITWILL NOT ASSERT ANY PERMISSIVE COUNTERCLAIMS IN ANY PROCEEDING BROUGHT BY SUCHPERSON TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF SUCH PERSON THEBORROWER WAIVES ANY OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT INWHICH SUCH PERSON HAS COMMENCED A PROCEEDING DESCRIBED IN THIS SUBSECTION(b).

 (c) VENUE.  THE BORROWER IRREVOCABLY WAIVES ANYOBJECTION (INCLUDING, WITHOUT LIMITATION, ANY OBJECTION OF THE LAYING OF VENUEOR BASED ON THE GROUNDS OF FORUM NON CONVENIENS) WHICH IT MAY NOW ORHEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING WITH RESPECT TOTHIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED ORDELIVERED IN CONNECTION HEREWITH IN ANY JURISDICTION SET FORTH ABOVE.

 (d) WAIVER OF JURY TRIAL.  **EACH OF THEPARTIES HERETO IRREVOCABLY WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE INRESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE, ARISINGOUT OF, CONNECTED WITH, RELATED TO OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHEDAMONG THEM IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENTOR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH. EACH OF THE PARTIESHERETO AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OFACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT ANY PARTY HERETOMAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS AGREEMENT WITH ANY COURT ASWRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIRRIGHT TO TRIAL BY JURY.
 (e) WAIVER OF BOND.  BORROWER WAIVES THEPOSTING OF ANY BOND OTHERWISE REQUIRED OF ANY PARTY HERETO IN CONNECTION WITHANY JUDICIAL PROCESS OR PROCEEDING TO ENFORCE ANY JUDGMENT OR OTHER COURT ORDERENTERED IN FAVOR OF SUCH PARTY, OR TO ENFORCE BY SPECIFIC PERFORMANCE, TEMPORARYRESTRAINING ORDER, PRELIMINARY OR PERMANENT INJUNCTION, THIS AGREEMENT OR ANYOTHER LOAN DOCUMENT.

 (f) ADVICE OF COUNSEL.  EACH OF THE PARTIESREPRESENTS TO EACH OTHER PARTY HERETO THAT IT HAS DISCUSSED THIS AGREEMENT AND,SPECIFICALLY, THE PROVISIONS OF THIS SECTION 15.14, WITH ITS COUNSEL.

 15.15 Binding Effect.  This Agreement shallbecome effective upon execution by the Borrower, the Agent and the Lenders.  Ifthis Agreement is not dated or contains any blanks when executed by theBorrower, the Agent is hereby authorized, without notice to the Borrower, todate this Agreement as of the date when it was executed by the Borrower, and tocomplete any such blanks according to the terms upon which this Agreement isexecuted.

 15.16 Survival of Borrower Representations.All covenants, agreements, representations and warranties made by the Borrowerherein shall, notwithstanding any investigation by the Agent, be deemed materialand relied upon by the Agent and shall survive the making and execution of thisAgreement and the Loan Documents and the issuance of the Notes, and shall bedeemed to be continuing representations and warranties until such time as theBorrower has fulfilled all of its Obligations to the Lenders, and the Lendershave been paid in full.  The Lenders, in extending financial accommodations tothe Borrower, are expressly acting and relying on the aforesaid representationsand warranties.

 15.17 Extensions of Lender's Commitment andNotes.  This Agreement shall govern the terms of any extensions or renewalsof the Lenders' commitment hereunder and the Notes pursuant to the execution ofany modification, extension or renewal notes executed by the Borrower andaccepted by the Lenders in their sole and absolute discretion in substitutionfor the Notes.

 15.18 Time of Essence.  Time is of the essencein making payments of all amounts due the Lenders under this Agreement and inthe performance and observance by the Borrower of each covenant, agreement,provision and term of this Agreement.

 15.19 Counterparts.  This Agreement may beexecuted in any number of counterparts and by different parties hereto inseparate counterparts, each of which when so executed and delivered shall bedeemed to be an original and all of which taken together shall constitute oneand the same instrument.

 15.20 Facsimile Signatures.  The Agent ishereby authorized to rely upon and accept as an original any Loan Documents orother communication which is sent to the Agent by facsimile, telegraphic orother electronic transmission (each, a "Communication") which the Agent in goodfaith believes has been signed by Borrower and has been delivered to the Agentby a properly authorized representative of the Borrower, whether or not that isin fact the case. Notwithstanding the foregoing, the Agent shall not beobligated to accept any such Communication as an original and may in anyinstance require that an original document be submitted to the Agent in lieu of,or in addition to, any such Communication.

 

 15.21 Notices.  Except as otherwise providedherein, the Borrower waives all notices and demands in connection with theenforcement of the Agent's and Lenders' rights hereunder.  All notices,requests, demands and other communications provided for hereunder shall be inwriting, sent by certified or registered mail, postage prepaid, by facsimile,telegram or delivered in person, and addressed at such party's address set forthbelow its signature hereto, or, as to each party, at such address as shall bedesignated by such party in a written notice to each other party complying as todelivery with the terms of this subsection. No notice to or demand on theBorrower in any case shall entitle the Borrower to any other or further noticeor demand in similar or other circumstances.

 IN WITNESS WHEREOF, the Borrower, the Lenders and theAgent have executed this Agreement as of the date first above written.

      INDIANAPOLIS POWER & LIGHT

      COMPANY, an Indiana corporation

 

      By:________________________________

      Name:______________________________

      Title:________________________________

      Address: One Monument Circle

        Indianapolis, Indiana46204

        Attention:____________________

        Telephone No.:317_____________

        Facsimile No.:317______________

 

 

      THE HUNTINGTON NATIONAL BANK, a

      national banking association, asAgent, as

      Lender, and as the Swing LineBank

 

      By:_________________________________

       Angela M. Cecil, VicePresident

      Address: 201 North IllinoisStreet, Suite 1800

        Indianapolis, Indiana46204

        Attention:  Angela M.Cecil

        Telephone No.:  317-237-2580

        Facsimile No.:  317-237-2505

      U.S. BANK NATIONAL ASSOCIATION, a       national banking association, as Lender

      By:_________________________________

       Scott A. Dvornik, VicePresident

 

      Address: 3815 RivercrossingParkway, 

        Suite 100

        Indianapolis, Indiana46240

        Attention:  Scott Dvornik

        Telephone No.:  317-566-2145

        Facsimile No.:  317-566-2069

      FIFTH THIRD BANK, INDIANA, a national       banking association, as Lender

      By:_________________________________

       Andrew M. Cardimen, VicePresident

      Address: 251 North IllinoisStreet, Ste. 1000

        Indianapolis, Indiana46204

        Attention:  Andrew M.Cardimen

        Telephone No.:  317-383-2440

        Facsimile No.:  317-383-2764
**EXHIBIT A

TO

CREDIT AGREEMENT

Revolving Loan Commitments

 **
  

Lenders
Revolving Loan Commitment
The Huntington National Bank

U.S. Bank National Association

Fifth Third Bank, Indiana

 

 

 

 
$20,000,000.00

$15,000,000.00

$10,000,000.00
 

SCHEDULE 1.1

TO

CREDIT AGREEMENT

IPALCO Debt

SCHEDULE 4.3

TO

CREDIT AGREEMENT

Governmental Approvals and Filings

SCHEDULE 5.9

TO

CREDIT AGREEMENT

 

Ownership and Control

SCHEDULE 5.10

TO

CREDIT AGREEMENT

 

Litigation

SCHEDULE 6.1

TO

CREDIT AGREEMENT

 

Existing Indebtedness

SCHEDULE 6.2

TO

CREDIT AGREEMENT

 

Existing Liens************