GREAT PLAINS ENERGY
INCORPORATED
THE BANK OF NEW YORK MELLON TRUST
COMPANY, N.A.,
SUPPLEMENTAL INDENTURE NO.
1
THIS SUPPLEMENTAL
INDENTURE NO. 1, dated as of May 18, 2009 (the “
Supplemental Indenture No. 1 ”), between GREAT PLAINS
ENERGY INCORPORATED, a Missouri corporation (the “
Company ”), and THE BANK OF NEW YORK MELLON TRUST
COMPANY, N.A., a national banking association, as trustee (the
“ Trustee ”), amending and supplementing the
Subordinated Indenture, dated as of May 18, 2009 between the
Company and the Trustee, governing the issuance of debt securities
(the “ Base Indenture ”). The Base Indenture, as
amended and supplemented by this Supplemental Indenture No. 1,
shall be referred to herein as the “ Indenture
.”
WHEREAS, the
Company executed and delivered the Base Indenture to the Trustee to
provide for the future issuance of the Company’s unsecured
subordinated debentures, notes or other evidences of indebtedness
(the “ Securities ”), to be issued from time to
time in one or more series as might be determined by the Company
under the Base Indenture;
WHEREAS,
Section 13.01(a)(3) of the Base Indenture provides for the
Company and the Trustee to enter into an indenture supplemental to
the Base Indenture to establish the form or terms of Securities of
any series as permitted by Section 2.01 and Section 2.05
of the Base Indenture;
WHEREAS, pursuant
to Section 2.05 of the Base Indenture, the Company wishes to
provide for the issuance of a new series of Securities to be known
as its 10.00% Subordinated Notes due 2042 (the “Notes
”), the form and terms of such Notes and the terms,
provisions and conditions thereof to be set forth as provided in
this Supplemental Indenture No. 1; and
WHEREAS, the
Company has requested that the Trustee execute and deliver this
Supplemental Indenture No. 1, and all requirements necessary
to make this Supplemental Indenture No. 1 a valid, binding and
enforceable instrument in accordance with its terms, and to make
the Notes, when executed by the Company and authenticated and
delivered by the Trustee, the valid, binding and enforceable
obligations of the Company, have been done and performed, and the
execution and delivery of this Supplemental Indenture No. 1
has been duly authorized in all respects.
NOW, THEREFORE, in
consideration of the covenants and agreements set forth herein and
for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
Section 1.01 . Relation to Base Indenture. This
Supplemental Indenture No. 1 constitutes an integral part of
the Base Indenture, and supplements and amends the Base Indenture
solely with respect to the Notes.
Section 1.02 . Definition of Terms. For all purposes of
this Supplemental Indenture No. 1:
(a) a term
not defined herein that is defined in the Base Indenture has the
same meaning when used in this Supplemental Indenture
No. 1;
(b) the
definition of any term in this Supplemental Indenture No. 1
that is also defined in the Base Indenture shall supersede the
definition of such term in the Base Indenture;
(c) a term
not defined herein or in the Base Indenture shall have the meaning
set forth in the Purchase Contract and Pledge Agreement;
(d) a term
defined anywhere in this Supplemental Indenture No. 1 has the
same meaning throughout;
(e) the
singular includes the plural and vice versa;
(f) headings
are for convenience of reference only and do not affect
interpretation;
(g) the
following terms have the meanings given to them in this
Section 1.02(g):
“Accounting Event ” means the receipt by the
audit committee of the Company’s board of directors of a
written report in accordance with Statement on Auditing Standards
(“ SAS ”) No. 97, “Amendment to SAS
No. 50—Reports on the Application of Accounting
Principles,” from the Company’s independent registered
public accounting firm, provided at the request of management of
the Company, to the effect that, as a result of a change in
accounting rules after the date of original issuance of the Notes,
the Company must either (a) account for the Purchase Contracts
as derivatives under SFAS 133 (or otherwise mark-to-market or
measure the fair value of all or any portion of the Purchase
Contracts with changes appearing in the Company’s income
statement) or (b) account for the Units using the if-converted
method under SFAS 128, and that such accounting treatment shall
cease to apply upon redemption of the Notes.
“Additional Notes ” means the notes of the
Company, with the terms set forth in Section 2.06(g) and
issued pursuant to Section 2.06(e) or
Section 2.06(f).
“Annual
Interest Payment Date ” has the meaning set forth in
Section 2.05(b)(ii).
2
“Applicable Ownership Interest in Notes ” has
the meaning set forth in the Purchase Contract and Pledge
Agreement.
“Applicable Principal Amount ” has the meaning
set forth in the Purchase Contract and Pledge Agreement.
“Applicable Remarketing Period ” has the meaning
set forth in the Purchase Contract and Pledge Agreement.
“Beneficial Owner ” has the meaning set forth in
the Purchase Contract and Pledge Agreement.
“Business Day ” has the meaning set forth in the
Purchase Contract and Pledge Agreement.
“Capital
Stock ” of any Person means any and all shares,
interests, rights to purchase, warrants, options, participations or
other equivalents of or interests in (however designated) shares
issued by that Person.
“Cash
Settlement ” has the meaning set forth in the Purchase
Contract and Pledge Agreement.
“Collateral Account ” has the meaning set forth
in the Purchase Contract and Pledge Agreement.
“Collateral Agent ” has the meaning set forth in
the Purchase Contract and Pledge Agreement.
“Collateral Substitution ” has the meaning set
forth in the Purchase Contract and Pledge Agreement.
“Corporate Unit ” has the meaning set forth in
the Purchase Contract and Pledge Agreement.
“Coupon
Rate ” has the meaning set forth in
Section 2.05.
“Custodial Agent ” has the meaning set forth in
the Purchase Contract and Pledge Agreement.
“Deferral Period ” means the period beginning on
the Interest Payment Date for which the Company has elected to
defer the Interest Payment in accordance with Section 2.06(a)
and ending on the earlier of (a) the next Interest Payment
Date on which the Company has paid all accrued and unpaid interest
on the Notes, (b) the third anniversary of the Interest
Payment Date on which the Interest Payment was originally scheduled
to be paid and (c) June 15, 2014.
“Deferred Period End Date ” means the earlier of
the Purchase Contract Settlement Date and the Reset Effective Date
that is applicable to a period in which there is Deferred Interest
not paid in full.
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“Deferred Interest ” has the meaning set forth
in Section 2.06(a).
“Depositary ” means a clearing agency registered
under Section 17A of the Exchange Act that is designated to
act as depositary for the Global Notes as contemplated by
Section 2.04.
“Depositary Participant ” has the meaning set
forth in the Purchase Contract and Pledge Agreement.
“Early
Remarketing ” has the meaning set forth in the Purchase
Contract and Pledge Agreement.
“Early
Remarketing Period ” has the meaning set forth in the
Purchase Contract and Pledge Agreement.
“Early
Settlement ” has the meaning set forth in the Purchase
Contract and Pledge Agreement.
“Employment Benefit Plan ” means any written
purchase, savings, option, bonus, appreciation, profit sharing,
thrift, incentive, pension or similar plan or arrangement or any
written compensatory contract or arrangement.
“Failed
Early Remarketing ” has the meaning set forth in the
Purchase Contract and Pledge Agreement.
“Failed
Final Remarketing ” has the meaning set forth in the
Purchase Contract and Pledge Agreement.
“Failed
Remarketing ” has the meaning set forth in the Purchase
Contract and Pledge Agreement.
“Final
Remarketing ” has the meaning set forth in the Purchase
Contract and Pledge Agreement.
“Final
Remarketing Period ” has the meaning set forth in the
Purchase Contract and Pledge Agreement.
“Fundamental Change Early Settlement ” has the
meaning set forth in the Purchase Contract and Pledge
Agreement.
“Global
Note ” has the meaning set forth in
Section 2.04.
“Holder ” means (a) with respect to the
Corporate Units or the Treasury Units, such term as defined in the
Purchase Contract and Pledge Agreement and (b) with respect to
the Notes, the Person in whose name at the time a particular Note
is registered on the books of the Trustee kept for that
purpose.
“Increased Principal Amount ” has the meaning
set forth in Section 2.09.
4
“Interest Payment ” means, with respect to any
Interest Payment Date, the interest payment on the Notes due on
such Interest Payment Date.
“Interest Payment Date ” means a Quarterly
Interest Payment Date or a Annual Interest Payment Date, as
applicable.
“Interest Period ” means, with respect to any
Interest Payment Date, the period from and including the
immediately preceding Interest Payment Date (or if none, the date
hereof) to, but excluding, such Interest Payment Date.
“Optional Redemption ” means the redemption of
the Notes pursuant to the terms of Section 3.02.
“Optional Redemption Date ” has the meaning set
forth in Section 3.02.
“Person ” means a legal person, including any
individual, corporation, estate, partnership, joint venture,
association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or
political subdivision thereof or any other entity of whatever
nature.
“Pledged
Applicable Ownership Interests in Notes ” has the meaning
set forth in the Purchase Contract and Pledge Agreement.
“Pledged
Note ” has the meaning set forth in
Section 2.09.
“Purchase Contract ” has the meaning set forth
in the Purchase Contract and Pledge Agreement.
“Purchase Contract Agent ” has the meaning set
forth in the Purchase Contract and Pledge Agreement.
“Purchase Contract and Pledge Agreement ” means
the Purchase Contract and Pledge Agreement, dated as of
May 18, 2009, among the Company, The Bank of New York Mellon
Trust Company, N.A., as Purchase Contract Agent and
attorney-in-fact for Holders of the Purchase Contracts, and The
Bank of New York Mellon Trust Company, N.A., as Collateral Agent,
Custodial Agent and Securities Intermediary, as amended from time
to time.
“Purchase Contract Settlement Date ” has the
meaning set forth in the Purchase Contract and Pledge
Agreement.
“Put
Price ” has the meaning set forth in
Section 8.05(a).
“Put
Right ” has the meaning set forth in
Section 8.05(a).
“Quarterly Interest Payment Date ” has the
meaning set forth in Section 2.05(b)(i).
“Quotation Agent ” means any primary U.S.
government securities dealer in New York City selected by the
Company.
5
“Redemption ” means either a Special Event
Redemption or an Optional Redemption.
“Redemption Amount ” means, for each Note, the
product of the principal amount of such Note and a fraction, the
numerator of which is the Special Event Treasury Portfolio Purchase
Price, and the denominator of which is the Applicable Principal
Amount; provided that in no event shall the Redemption
Amount for any Note be less than the principal amount of such
Note.
“Redemption Date ” means any Optional Redemption
Date or and Special Event Redemption Date.
“Redemption Price ” means, for any Note
(a) in the case of a Special Event Redemption, the Redemption
Amount for such Note, plus accrued and unpaid interest to, but
excluding, the Special Event Redemption Date and (b) in the
case of an Optional Redemption, the principal amount of such Note,
plus accrued and unpaid interest to, but excluding, the Optional
Redemption Date.
“Reduced
Principal Amount ” has the meaning set forth in
Section 2.09.
“Regular
Record Date ” means, with respect to any Interest Payment
Date for the Notes, the first day of the calendar month in which
such Interest Payment Date falls regardless of whether such day is
a Business Day.
“Released Note ” has the meaning set forth in
Section 2.09.
“Remarketed Notes ” means, with respect to all
Remarketings during any Applicable Remarketing Period, the
aggregate principal amount of Notes underlying the Pledged
Applicable Ownership Interests in Notes and the Separate Notes, if
any, subject to Remarketing as identified to the Remarketing Agent
by the Purchase Contract Agent and the Custodial Agent,
respectively, in each case by 11:00 a.m., New York City time,
in the case of an Early Remarketing, or promptly after 4:00 p.m.,
New York City time, in the case of a Final Remarketing, on the
Business Day prior to the first day of the Applicable Remarketing
Period in accordance with the Purchase Contract and Pledge
Agreement and shall include: (a) the Notes underlying the
Pledged Applicable Ownership Interests in Notes of the Holders of
Corporate Units who have not effected a Collateral Substitution,
Early Settlement or a Fundamental Change Early Settlement prior to
the second Business Day preceding such Applicable Remarketing
Period, and, in the case of a Final Remarketing, Holders of
Corporate Units who have not notified the Purchase Contract Agent
prior to 4:00 p.m., New York City time, on the seventh Business Day
immediately preceding the Purchase Contract Settlement Date of
their intention to effect a Cash Settlement of the related Purchase
Contracts pursuant to the terms of the Purchase Contract and Pledge
Agreement or who have so notified the Purchase Contract Agent but
failed to make the required cash payment prior to 11:00 a.m.,
New York City time, on the sixth Business Day immediately preceding
the Purchase Contract Settlement Date, and (b) the Separate
Notes of the Holders of Separate Notes, if any, who have elected to
have their Separate Notes remarketed in such Remarketing pursuant
to the terms of the Purchase Contract and Pledge
Agreement.
6
“Remarketing ” has the meaning set forth in the
Purchase Contract and Pledge Agreement.
“Remarketing Agent(s) ” means any Remarketing
Agent(s) appointed by the Company, pursuant to the Remarketing
Agreement.
“Remarketing Agreement ” means the Remarketing
Agreement to be entered into among the Company and the Remarketing
Agent(s) and The Bank of New York Mellon Trust Company, N.A., as
Purchase Contract Agent, substantially in the form attached to the
Purchase Contract and Pledge Agreement as Exhibit P, as
amended from time to time in accordance with its terms.
“Remarketing Date ” has the meaning set forth in
the Purchase Contract and Pledge Agreement.
“Remarketing Price ” has the meaning set forth
in the Purchase Contract and Pledge Agreement.
“Remarketing Settlement Date ” has the meaning
set forth in the Purchase Contract and Pledge Agreement.
“Reset
Effective Date ” has the meaning set forth in the
Purchase Contract and Pledge Agreement.
“Reset
Rate ” has the meaning set forth in the Purchase Contract
and Pledge Agreement.
“Semiannual Interest Payment Date ” has the
meaning set forth in Section 2.05(b)(ii)
“Separate Notes ” has the meaning set forth in
the Purchase Contract and Pledge Agreement.
“Special
Event ” means either an Accounting Event or a Tax
Event.
“Special
Event Redemption ” means the redemption of the Notes
following the occurrence of a Special Event pursuant to
Section 3.01.
“Special
Event Redemption Date ” shall have the meaning set forth
in Section 3.01.
“Special
Event Treasury Portfolio ” has the meaning set forth in
the Purchase Contract and Pledge Agreement.
“Special
Event Treasury Portfolio Purchase Price ” has the meaning
set forth in the Purchase Contract and Pledge Agreement.
“Stated
Maturity ” has the meaning set forth in
Section 2.02.
“Subjected Note ” has the meaning set forth in
Section 2.09.
7
“Successful Early Remarketing ” has the meaning
set forth in the Purchase Contract and Pledge Agreement.
“Successful Remarketing ” has the meaning set
forth in the Purchase Contract and Pledge Agreement.
“Tax
Event ” means the receipt by the Company of an opinion of
counsel, rendered by a law firm having a recognized national tax
practice, to the effect that, as a result of any amendment to,
change in or announced proposed change in the laws (or any
regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein, or as a result
of any official administrative decision, pronouncement, judicial
decision or action interpreting or applying such laws or
regulations, which amendment or change is effective or which
proposed change, pronouncement, action or decision is announced on
or after the date of the original issuance of the Notes, there is
more than an insubstantial increase in the risk that interest
payable by the Company on the Notes is not, or within 90 days
of the date of such opinion, will not be, deductible by the
Company, in whole or in part, for United States federal income tax
purposes.
“Termination Event ” has the meaning set forth
in the Purchase Contract and Pledge Agreement.
“Treasury Unit ” has the meaning set forth in
the Purchase Contract and Pledge Agreement.
The terms “
Company ,” “ Trustee ,” “
Indenture ,” “ Base Indenture ,”
“ Securities ” and “ Notes ”
shall have the respective meanings set forth in the recitals and
the paragraph preceding the recitals to this Supplemental Indenture
No. 1.
ARTICLE 2
General Terms and Conditions
of the Notes
Section 2.01.
Designation and Principal Amount. There is hereby authorized
a series of Securities designated as 10.00% Subordinated Notes due
2042 limited in aggregate principal amount to $287,500,000;
provided , however , that the Company, without notice
to or consent of the Holders, may issue additional Securities of
this series and thereby increase such principal amount in the
future, on the same terms and conditions (except for the issue date
and, if applicable, the date from which interest accrues and the
first Interest Payment Date) as the Securities of this series. The
Notes may be issued from time to time upon written order of the
Company for the authentication and delivery of Notes pursuant to
Section 2.05 of the Base Indenture.
Section 2.02.
Maturity. Unless a Redemption occurs prior to the Stated
Maturity (defined below), the date upon which the Notes shall
become due and payable at final maturity, together with any accrued
and unpaid interest (other than Deferred Interest and compounded
interest thereon, which will be due and payable at the end of the
Deferral Period described in
8
Section 2.06), is, initially, June 15,
2042; provided, however, such date may be changed as set
forth in Section 8.06(a) hereto (such applicable date, the
“ Stated Maturity ”).
Section 2.03.
Form, Payment and Appointment. Except as provided in
Section 2.04, the Notes shall be issued in fully registered,
certificated form, bearing identical terms. Notes corresponding to
Applicable Ownership Interests in Notes that are components of
Corporate Units shall be registered in the name of the Purchase
Contract Agent. Principal of and interest on the Notes will be
payable, the transfer of such Notes will be registrable, and such
Notes will be exchangeable for Notes of a like aggregate principal
amount bearing identical terms and provisions, at the office or
agency of the Company maintained for such purpose in the Borough of
Manhattan, The City of New York, which shall initially be the
Corporate Trust Office of the Trustee in The City of New York,
which is located at 101 Barclay Street, New York, New York, 10286;
provided , however , that payment of interest may be
made at the option of the Company by check mailed to the Person
entitled thereto at such address as shall appear in the Notes
register or by wire transfer to an account appropriately designated
by the Person entitled to payment at least 10 Business Days prior
to the applicable Interest Payment Date. Payments with respect to
any Global Note will be made by wire transfer to the
Depositary.
No service charge
shall be made for any registration of transfer or exchange of the
Notes, but the Company may require payment from the Holder of a sum
sufficient to cover any tax or other governmental charge that may
be imposed in connection therewith.
The paying agent
and the registrar for the Notes shall initially be the
Trustee.
The Notes shall be
issuable in minimum denominations of $1,000 and integral multiples
of $1,000 in excess thereof; provided , however ,
that upon the release by the Collateral Agent of Notes underlying
the Pledged Applicable Ownership Interests in Notes in accordance
with Section 3.15 of the Purchase Contract and Pledge
Agreement (other than any release of Notes underlying Pledged
Applicable Ownership Interests in Notes in connection with
(i) the creation of Treasury Units by Collateral Substitution,
(ii) a Successful Remarketing, (iii) Fundamental Change
Early Settlement, (iv) Early Settlement with separate cash or
(v) Cash Settlement, in accordance with Section 3.13,
Section 5.02, Section 5.03(b), Section 5.05(b),
Section 5.08 or Section 5.03(a) of the Purchase Contract
and Pledge Agreement, as the case may be), the Notes shall be
issuable in denominations of $50 and integral multiples of $50 in
excess thereof.
Section 2.04.
Global Notes. Notes corresponding to Applicable Ownership
Interests in Notes that are no longer a component of the Corporate
Units and are released from the Collateral Account will be issued
in permanent global form (a “ Global Note ”),
and if issued as one or more Global Notes, the Depositary shall be
The Depository Trust Company or such other depositary as any
officer of the Company may from time to time designate. On the date
on which the Notes registered in the name of the Purchase Contract
Agent pursuant to Section 2.03 are issued, the Company shall
also issue one or more Global Notes, registered in the name of the
Depositary or its nominee, each having a zero principal balance.
Upon the creation of Treasury Units, or the recreation of Corporate
Units or in any other case where the Collateral Agent releases
Notes underlying the Pledged Applicable Ownership Interests in
Notes, an appropriate annotation shall be made on the Schedule of
Increases or Decreases in Note on the Global Notes held by the
Depositary and on the Pledged Note held by the Collateral Agent.
Notes represented by the
9
Global Notes
will be exchangeable for Notes in certificated form only
(x) if the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary for the Global Notes
or if at any time the Depositary ceases to be a clearing agency
registered under the Exchange Act, and the Company has not
appointed a successor Depositary within 90 days of that notice
or of its becoming aware of such cessation; or at the request of
any Holder of Notes if an Event of Default has occurred and is
continuing with respect to the Notes or (y) upon recreation of
Corporate Units; provided, subject to Section 2.03,
that the Notes in certificated form so issued in exchange for the
Global Notes shall be in denominations of $1,000 or any whole
multiple of $1,000 above that amount and be of like aggregate
principal amount and tenor as the portion of the Global Note to be
exchanged. Except as provided above, owners of beneficial interest
in a Global Note will not be entitled to receive physical delivery
of Notes in certificated form and will not be considered the
Holders thereof for any purpose under the Indenture. Unless and
until such Global Note is exchanged for Notes in certificated form,
Global Notes may be transferred, in whole but not in part, and any
payments on the Notes shall be made, only to the Depositary or a
nominee of the Depositary, or to a successor Depositary selected or
approved by the Company or to a nominee of such successor
Depositary. Any Global Note that is exchangeable pursuant to clause
(x) of the fourth sentence of this Section 2.04 shall be
exchangeable for Notes in certificated form registered in such
names as the Depositary shall direct.
Section 2.05.
Interest. (a) The Notes will bear interest initially at
the rate of 10.00% per year (the “ Coupon Rate
”) from and including May 18, 2009 to, but excluding,
the Stated Maturity, or in the event of a Successful Remarketing,
the Reset Effective Date. In the event of a Successful Remarketing
of the Notes, the Coupon Rate for all Notes (regardless of whether
such Notes are Remarketed Notes) will be reset by the Remarketing
Agents to the Reset Rate with effect from the Reset Effective Date,
as set forth in Section 8.03; provided, however , that
the interest rate on Additional Notes shall not be reset. If the
Coupon Rate is so reset, the Notes will bear interest at the Reset
Rate from, and including, the Reset Effective Date to, but
excluding, the Stated Maturity. The Notes shall bear interest, to
the extent permitted by law, on any overdue principal and interest
at the Coupon Rate, unless a Successful Remarketing shall have
occurred, in which case interest on such amounts shall accrue at
the Reset Rate from and including the Reset Effective Date
compounded annually thereafter (unless the Company elects to pay
interest on a semi-annual basis, in which case interest will
compound semi-annually thereafter), in each case, in accordance
with this Section 2.05.
(b) (i) Prior
to and, if such date falls on a Quarterly Interest Payment Date
(defined below), on the Remarketing Settlement Date (or, in the
event no Successful Remarketing occurs, prior to and on the Stated
Maturity), interest on the Notes shall be payable quarterly in
arrears on March 15, June 15, September 15 and
December 15 of each year (each, a “ Quarterly
Interest Payment Date ”), commencing September 15,
2009, to the Person in whose name the relevant Notes are registered
at the close of business on the Regular Record Date for such
Interest Payment Date except that interest payable at the Stated
Maturity of the Notes shall be paid to the Person to whom principal
is payable.
(ii) From, and
including, the Reset Effective Date, if any, interest on the Notes
shall be payable annually on December 31 of each year (the
“ Annual Interest Payment Date ”), unless the
Company elects to pay interest semi-annually on June 15
and
10
December 15 of each year (the “
Semiannual Interest Payment Date ”). Such election
shall be evidenced by an Officers’ Certificate delivered to
the Trustee no later than the Reset Effective Date. In either case,
such Interest Payments shall be made to the Person in whose name
the relevant Notes are registered at the close of business on the
Regular Record Date for such Interest Payment Date except that
interest payable at the Stated Maturity of the Notes shall be paid
to the Person to whom principal is payable.
(c) The
amount of interest payable on the Notes for any period will be
computed (i) for any full quarterly, semi-annual or annual
period on the basis of a 360-day year of twelve 30-day months,
(ii) for any period shorter than a full quarterly, semi-annual
or annual period, on the basis of a 30-day month and (iii) for
any period less than a month, on the basis of the actual number of
days elapsed per 30-day month. In the event that any scheduled
Interest Payment Date falls on a day that is not a Business Day,
then payment of interest payable on such Interest Payment Date will
be made on the next succeeding day that is a Business Day (and
without any interest or other payment in respect of any such delay)
with the same force and effect as if made on such originally
scheduled Interest Payment Date; provided , however ,
if such payment on the next Business Day would cause the Interest
Payment Date to occur in the next calendar year, then such payment
will be made on the immediately preceding Business Day, in each
case with the same force and effect as if made on the applicable
Interest Payment Date.
Section 2.06.
Deferral of Interest.
(a) Prior to
June 15, 2012, in accordance with Section 2.06(c) below
and subject to the restrictions set forth in Section 9.02, the
Company may elect at one or more times to defer payment of interest
on the Notes (such unpaid interest, the “ Deferred
Interest ”) for one or more consecutive Interest Periods;
provided that each deferred Interest Payment may only be
deferred until the earlier of (i) the third anniversary of the
Interest Payment Date on which the original Interest Payment was
scheduled to be paid and (ii) June 15, 2014. For the
avoidance of doubt, the Company shall have paid all Deferred
Interest in full, the Company may again defer Interest Payments
subject to and in accordance with the terms of this
Section 2.06.
(b) Deferred
Interest on the Notes will bear interest at the Coupon Rate or the
Reset Rate, as applicable, and such interest will be compounded on
each Interest Payment Date unless paid on the applicable Interest
Payment Date, in each case in accordance with the fourth sentence
of Section 2.05(a).
(c) In the
event that the Company elects to defer any Interest Payment, the
Company shall notify the Trustee and the Holders in writing of such
election at least one Business Day prior to the Regular Record Date
for the Interest Payment Date on which the Company intends to begin
a Deferral Period; provided , however , that the
Company’s failure to pay the interest owed on a particular
Interest Payment Date shall also constitute the commencement of a
Deferral Period, unless such interest is paid within five
(5) Business Days after such Interest Payment Date, whether or
not the Company provides a notice of deferral.
(d) The
Company may pay Deferred Interest (including compounded interest
thereon) in cash on any scheduled Interest Payment Date occurring
on or prior to June 15, 2014. Deferred Interest paid on any
Interest Payment Date shall be payable to the Person in whose name
the
11
Notes are
registered at the closing of business on the Regular Record Date
next preceding such Interest Payment Date.
(e) In
connection with any Successful Remarketing of the Notes, all
then-outstanding Deferred Interest (including compounded interest
thereon) shall be paid to the Holders of Notes that participated in
the Remarketing on the immediately following scheduled Interest
Payment Date from the proceeds of the Successful Remarketing. As of
the Reset Effective Date for any Successful Remarketing, solely
with respect to Separate Notes that were not remarketed in such
remarketing, all then-outstanding Deferred Interest (including
compounded interest thereon) will be paid to the Holders of such
Separate Notes on the immediately following scheduled Interest
Payment Date, at the Company’s election (as evidenced to the
Trustee by an Officers’ Certificate delivered to the Trustee
promptly after such determination), in cash or by issuing
Additional Notes to the Holders of such Separate Notes in principal
amount and denominations equal to the amount of such Deferred
Interest (including compounded interest thereon).
(f) On a
Special Event Redemption Date, if any, all then-outstanding accrued
and unpaid Deferred Interest (including compounded interest
thereon) will be paid to the Holders of Corporate Units or Separate
Notes, at the Company’s election (as evidenced to the Trustee
by an Officers’ Certificate delivered to the Trustee promptly
after such determination), in cash or by issuing Additional Notes
to the Holders of such Corporate Units or Separate Notes in
principal amount and denominations equal to the amount of such
Deferred Interest (including compounded interest
thereon).
(g) Any
Additional Notes shall be issued by the Company upon Company Order
and in compliance with Section 2.05(c) of the Base Indenture,
and shall include the following terms:
(i) such
Additional Notes will have a maturity date of June 15,
2014;
(ii) such
Additional Notes shall bear interest at an annual rate that is
equal to the then market rate of interest for similar instruments
(not to exceed 15.00%), as determined by a nationally-recognized
investment banking firm selected by the Company and evidenced to
the Trustee by an Officers’ Certificate delivered to the
Trustee promptly after such determination;
(iii) such
Additional Notes shall be subordinate and junior in right of
payment to all of the Company’s then existing and future
Senior Indebtedness and such Additional Notes shall be pari
passu with the Notes (prior to any modification to the terms of
the Notes in connection with any Successful
Remarketing);
(iv) such
Additional Notes shall be redeemable at the Company’s option
at any time for a price equal to their principal amount, plus
accrued and unpaid interest due thereon to, but excluding, the date
of redemption; and
(v) such
Additional Notes shall be a separate series of Securities from the
Notes, but shall have the same Interest Payment Date and Regular
Record Date and shall be issued in the same form (either Global
Notes or certificated Notes) as the Notes.
12
Section 2.07.
Defeasance and Discharge. For the avoidance of doubt, after
the Purchase Contract Settlement Date, if the Company deposits, in
trust, with the Trustee, money or U.S. Government Obligations that
will provide money, in an amount sufficient, without reinvestment,
to pay all the principal of, and interest on, the Notes on the
dates payments are due, the Company may elect to (a) defease
and be discharged, or (b) be released, from its obligations,
in each case as, and subject to the conditions, described in
Article V of the Base Indenture.
Section 2.08.
No Sinking Fund or Repayment at Option of the Holder. The
Notes are not entitled to the benefit of any sinking fund and
Article IV of the Base Indenture shall not apply to the
Notes.
Section 2.09.
Increase and Decrease. In the event that any Notes
underlying Pledged Applicable Ownership Interests in Notes are to
be released from the Pledge following a Termination Event,
Collateral Substitution, Cash Settlement, Successful Remarketing,
Early Settlement or Fundamental Change Early Settlement pursuant to
the Purchase Contract and Pledge Agreement (a “Released
Note ”), such release and delivery shall be evidenced by
an endorsement by the Collateral Agent on the Note held by the
Collateral Agent (the “ Pledged Note ”)
reflecting a reduction in the principal amount of such Pledged Note
equal in amount (the “ Reduced Principal Amount
”) to the principal amount of the Released Note. The
Collateral Agent shall confirm any such Reduced Principal Amount by
telecopying or otherwi
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