Exhibit 10.9
REVOLVING SUBORDINATED PROMISSORY NOTE
December 20, 1996
FOR VALUE RECEIVED, IPL Funding Corporation, an Indiana corporation
("Borrower"), hereby promises to pay to the order of Indianapolis Power & Light
Company, an Indianapolis corporation ("Lender"), at the principal office of
Lender at One Monument Circle, Indiananpolis, Indiana, or at such other place as
Lender may designate from time to time, the unpaid principal amount hereof,
together with accrued interest thereon at a rate per annum equal to the floating
commercial loan rate of interest for United States dollar denominated loans
announced from time to time by ABN AMRO Bank N.V., changing when and as said
commercial loan rate changes (which rate shall not exceed the maximum rate
permitted by applicable law), in lawful money of the United States of America
and in immediately available funds, on the sixtieth (60th) day after the
"Termination Date" described in the Receivables Purchase Agreement referred to
below or, if such sixtieth (60th) day is not a Business Day, on the first
Business Day thereafter (such sixtieth (60th) day or later Business Day being
referred to as the "Maturity Date"), together with costs of collection and
reasonable attorney's fees incurred by Lender in the collection of the
indebtedness evidenced hereby all without relief from valuation and appraisement
laws. Except as otherwise defined herein, capitalized terms used herein and
defined in the Receivables Purchase Agreement dated as of December 20, 1996
between Borrower and the Lender (as amended, modified or supplemented from time
to time the "Receivables Purchase Agreement") shall be used herein as so
defined. This note is the "Subordinated Note" referred to in the Subordination
Agreement. Interest shall be computed hereunder for the actual number of days
elapsed on the basis of a year consisting of three hundred sixty five (365)
days.
All accrued interest on the principal amount of this Note will be due and
payable on the twentieth day of each month or, if such twentieth day is not a
Business Day, the next succeeding Business Day, with interest accrued thereon
until such next succeeding Business Day, beginning on January 20, 1997;
provided, however, that on or prior to the Maturity Date, unless Lender
instructs Borrower otherwise, such interest may be paid by means of an increase
in the amount of the unpaid principal amount hereof by an amount equal to the
interest being so paid.
The principal amount of this Note shall be initially established and
thereafter adjusted from time to time in accordance with the terms and
conditions of the Receivables Purchase Agreement (the terms and conditions of
which are hereby incorporated in this Note by this reference) and the terms of
this Note. Lender shall record the initial principal amount of this Note, all
adjustments thereto and all payments thereof on Schedule 1 annexed hereto and
made a part hereof, or on a continuation thereof which shall be attached hereto
and made a part hereof, and any such recordation shall, absent manifest error,
constitute prima facie evidence of the information so recorded; provided,
however, that the failure to so record shall not limit the obligations of
Borrower hereunder or under the Receivables Purchase Agreement.
Borrower and, by its acceptance of this Note, Lender hereby acknowledge and
agree that any and all payments made in respect of this Note are and shall
remain subordinate and junior in right of payment to the Senior Debt, as that
term is defined in the Subordination Agreement, dated as of December 20, 1996
(the "Subordination Agreement") by and among the Agent, the Borrower and the
Lender to the extent provided therein. Borrower shall, subject to the terms of
the Subordination Agreement, have the right to pay all or any part of the unpaid
principal amount of this Note without premium or penalty at any time; provided,
that interest shall be paid on the amount repaid to and including the date of
repayment.
Borrower hereby waives presentment, diligence, notice of dishonor, payment,
demand, protest, notice of protest, notice of nonpayment and all other demands
and notices of every kind in connection with the delivery, acceptance,
performance and enforcement of this Note and, to the full extent permitted by
law, the right to plead any statute of limitations as a defense to any demands
hereunder. Borrower and, by its acceptance of this Note, Lender also assent to
extension of the time of payment, forbearance or other indulgence without
notice.
This Note applies to, inures to the benefit of, and binds the successors
and assigns of, Borrower and Lender. Lender may not assign any duties or
obligations hereunder without the prior written consent of Borrower. THIS NOTE
IS MADE UNDER, AND ALL QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY AND
INTERPRETATION OF THIS NOTE SHALL BE GOVERNED BY, THE INTERNAL LAWS OF THE STATE
OF INDIANA.
On the first Business Day after the Maturity Date at the close of business
of which all principal and accrued interest owing on this Note have been paid in
full, this Note will be surrendered to Borrower for cancellation.
IN WITNESS WHEREOF, Borrower has executed and delivered this Note by its
duly authorized officer as of the day hereof.
IPL FUNDING CORPORATION
By /s/ Steven L. Meyer
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Name: Steven L. Meyer
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Title: Treasurer
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SCHEDULE 1
TO REVOLVING PROMISSORY NOTE
UNPAID
INCREASE IN DECREASE IN PRINCIPAL
PRINCIPAL PRINCIPAL AMOUNT AFTER REASON FOR NOTATION
DATE AMOUNT AMOUNT ADJUSTMENT ADJUSTMENT* MADE BY
$ Initial Balance
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* Describe or use appropriate code specified below:
A = increase in lieu of cash payment of interest
B = increase/decrease pursuant to Section 1.2 of the Receivables Purchase
Agreement
C = decrease due to payment of principal