_______________________
__________________
INDIANAPOLIS POWER & LIGHT
COMPANY
TO
THE BANK OF NEW YORK TRUST COMPANY, N.A.,
as successor in interest to
AMERICAN NATIONAL BANK AND TRUST
COMPANY OF CHICAGO
Trustee
________
Fifty-Third Supplemental
Indenture
________
Dated as of
October 1, 2006
ESTABLISHING FIRST MORTGAGE
BONDS,
6.05% Series, Due 2036
__________________________________________________________
TABLE OF CONTENTS*
of
FIFTY-THIRD SUPPLEMENTAL
INDENTURE
of
INDIANAPOLIS POWER & LIGHT
COMPANY
Page
PARTIES
1
RECITALS
1
SECTION 1
Granting clauses
3
Part I Electric Distributing Systems 3
Part II Reserved 3
Part III Indeterminate Permits and Franchises 4
Part IV Other Property
4
SECTION 2
Definitions
5
SECTION 3
Designation and Authentication of 2036 Bonds
7
SECTION 4
Optional Redemption
9
SECTION 5
Registration, Transfer and Exchange
10
SECTION 6
Restrictions on Transfer and Exchange
13
SECTION 7
Temporary Offshore Global Bond 15
SECTION 8
Form of fully registered bond
15
Form of Trustee's certificate on bonds
16
SECTION 9
Temporary Bonds
21
SECTION 10
Annual Payments for Maintenance and Improvement Fund
21
SECTION 11
Compliance with Section 47 of Original Mortgage with
respect to dividend
restrictions
21
-------------------
*Table of Contents is not part of
this Fifty-Third Supplemental Indenture and should not be
considered such. It is included herein only for purposes of
convenient reference.
Page
SECTION 12 Rule 144A Information
Request 21
SECTION 13 Acceptance of trusts
by Trustee and conditions of Acceptance
22
SECTION
14
Successors and assigns 22
SECTION
15
Limitation of rights hereunder
22
SECTION
16
Compliance with terms, provisions and conditions of Mortgage
22
SECTION
17
Execution in counterparts 22
SIGNATURES AND SEALS
23
ACKNOWLEDGEMENTS 25
EXHIBITS
EXHIBIT A
Certificate of Beneficial Ownership
EXHIBIT B
DTC Legend
EXHIBIT C
Regulation S Certificate
EXHIBIT D
Restricted Legend
EXHIBIT E
Rule 144A Certificate
EXHIBIT F
Temporary Offshore DTC Legend
THIS FIFTY-THIRD SUPPLEMENTAL
INDENTURE, dated as of
October 1, 2006, between INDIANAPOLIS POWER & LIGHT COMPANY, a
corporation of the State of Indiana, hereinafter sometimes called
the "Company," party of the first part, and THE BANK OF NEW YORK
TRUST COMPANY, N.A., as successor in interest to AMERICAN NATIONAL
BANK AND TRUST COMPANY OF CHICAGO, a national banking association,
as Trustee, hereinafter sometimes called the "Trustee," party of
the second part;
WHEREAS, the Company by a Mortgage and Deed of Trust (hereinafter
sometimes called the "Original Mortgage" when referred to as
existing prior to any supplement thereto or modification thereof,
and the "Mortgage" when referred to as now or heretofore
supplemented and modified) dated as of May 1, 1940, made to said
American National Bank and Trust Company of Chicago, as Trustee, to
secure the payment of the bonds issued from time to time under the
Mortgage for the purposes of and subject to the limitations
specified in the Mortgage, and to secure the performance of the
covenants therein contained, conveyed to the Trustee thereunder
upon certain trusts, terms and conditions, and with and subject to
certain provisos and covenants therein contained, all and singular
the property, rights and franchises which the Company then owned or
should thereafter acquire, excepting the property expressly
excepted by the terms of the Original Mortgage or any indenture
supplemental thereto, to which Mortgage reference is hereby made
for greater certainty; and
WHEREAS, the Original Mortgage has been supplemented and modified
by supplemental indentures dated as of May 1, 1942, as of February
1, 1948, as of April 1, 1949, as of October 1, 1949 (two), as of
February 1, 1951, as of March 1, 1953, as of June 1, 1956, as of
March 1, 1958, as of October 1, 1960, as of August 1, 1964, as of
April 1, 1966, as of May 1, 1967, as of May 1, 1968, as of October
1, 1970, as of March 1, 1972, as of March 15, 1973, as of February
15, 1974, as of August 15, 1974, as of September 15, 1975, as of
June 1, 1976, as of July 1, 1976, as of August 1, 1977, as of
September 1, 1978, as of August 1, 1981 (two), as of November 1,
1983, as of November 1, 1984, as of December 1, 1984, as of
September 1, 1985, as of October 1, 1986, as of June 1, 1989, as of
August 1, 1989, as of October 15, 1991, as of August 1, 1992, as of
April 1, 1993, as of October 1, 1993 (two), as of February 1, 1994
(two), as of January 15, 1995, as of October 1, 1995, as of August
1, 2001 (four), as of August 1, 2003, as of January 1, 2004, as of
April 1, 2005 (two) and as of September 1, 2006 (two);
and
WHEREAS, Section 8 of the Original Mortgage provides, among other
things, that the form of each series of bonds (other than the
initial issue of bonds) issued thereunder shall be established by
an indenture supplemental thereto authorized by resolution of the
Board of Directors of the Company, and that the form of each
series, as established by the Board of Directors, shall specify the
descriptive title of the bonds and various other terms thereof, and
may also contain such other provisions as the Board of Directors
may, in its discretion, cause to be inserted therein expressing or
referring to the terms and conditions upon which such bonds are to
be issued and secured under the Original Mortgage or any indenture
supplemental thereto or in modification thereof; and
WHEREAS, the Company now desires to provide for the establishment,
execution, authentication and delivery under the Mortgage of bonds
of a series to be known as its "First Mortgage Bonds, 6.05% Series,
Due 2036" (the bonds of said series being hereinafter sometimes
referred to as the "2036 Bonds"), limited to the aggregate
principal amount of One Hundred Fifty-Eight Million Eight Hundred
Thousand Dollars ($158,800,000); and
WHEREAS, all things necessary to make the 2036 Bonds hereinafter
described, when duly executed by the Company and authenticated and
delivered by the Trustee, a valid, binding and legal obligation of
the Company, and to make this Fifty-Third Supplemental Indenture a
valid and binding agreement supplemental to the Original Mortgage,
have been done and performed; and
WHEREAS, the execution and delivery by the Company of this
Fifty-Third Supplemental Indenture, and the terms of the 2036
Bonds, have been duly authorized by the Board of Directors of the
Company by appropriate resolutions of said Board; and
WHEREAS, it is provided in and by the Original Mortgage that the
Company will execute and deliver such further instruments and do
such further acts as may be necessary or proper to carry out more
effectively the purposes of the Mortgage, and to make subject to
the lien thereof any property thereafter acquired and intended to
be subject to the lien thereof; and
WHEREAS, the Company has, since the date of execution and delivery
of the Original Mortgage, purchased and acquired property and
desires by this Fifty-Third Supplemental Indenture specifically to
convey to the Trustee such property for the better protection and
security of the bonds issued and to be issued under the Original
Mortgage, or any indenture supplemental thereof;
NOW, THEREFORE, THIS INDENTURE WITNESSETH that, in consideration of
the premises and of the acceptance or purchase of the 2036 Bonds by
the registered owners thereof, and of the sum of one dollar, lawful
money of the United States of America, to the Company duly paid by
the Trustee at or before the execution and delivery of this
Fifty-Third Supplemental Indenture, the receipt whereof is hereby
acknowledged, the Company and the Trustee, respectively, have
entered into, executed and delivered this Fifty-Third Supplemental
Indenture, for the uses and purposes hereinafter expressed, that is
to say:
SECTION 1. The Company has granted, bargained, sold, released,
conveyed, assigned, transferred, mortgaged, pledged, set over and
confirmed, and by these presents does grant, bargain, sell,
release, convey, assign, transfer, mortgage, pledge, set over and
confirm (subject, however, to excepted encumbrances as defined in
the Mortgage), unto said The Bank of New York Trust Company, N.A.,
as successor in interest to American National Bank and Trust
Company of Chicago, as Trustee, as herein provided, and its
successors in the trusts declared in the Original Mortgage and
herein, all of the property, real, personal and mixed, tangible and
intangible, of every kind, character and description which the
Company has acquired since the execution and delivery of the
Original Mortgage and now owns (except property, rights and assets
of a character similar to that excluded from the lien and operation
of the Mortgage by the Granting Clauses of the Original Mortgage,
which property, rights and assets are excluded from the lien and
operation of the Mortgage only to the extent provided therein),
including, but without otherwise limiting the generality of the
foregoing, the following described property situated within the
State of Indiana:
PART I.
ELECTRIC DISTRIBUTING SYSTEMS.
All electric distributing systems of the Company acquired by it
after May 1, 1940, the date of the Original Mortgage, and located
in the Counties of Bartholomew, Boone, Daviess, Gibson, Greene,
Hamilton, Hancock, Hendricks, Johnson, Knox, Madison, Marion,
Monroe, Morgan, Owen, Pike, Putnam, Shelby, Sullivan and
Switzerland, State of Indiana; and any additions to or extensions
of any such systems, together with the buildings, erections,
structures, transmission lines, power stations, sub-stations,
engines, boilers, condensers, pumps, turbines, machinery, tools,
conduits, manholes, insulators, dynamos, motors, lamps, cables,
wires, poles, towers, cross-arms, piers, abutments, switchboard
equipment, meters, appliances, instruments, apparatus,
appurtenances, maps, records, ledgers, contracts, facilities and
other property or equipment used or provided for use in connection
with the construction, maintenance, repair and operation thereof;
together also with all of the rights, privileges, rights-of-way,
franchises, licenses, grants, liberties, immunities, ordinances,
permits and easements of the Company in respect of the
construction, maintenance, repair and operation of said
systems.
PART II.
[Reserved]
PART III.
INDETERMINATE PERMITS AND FRANCHISES.
All indeterminate permits, franchises, ordinances, licenses, and
other authorizations by or from any state, county, municipality, or
other governmental authority, acquired by the Company after May 1,
1940, the date of the Original Mortgage, including particularly,
but not limited to, any indeterminate permits under the Public
Service Commission Act of the State of Indiana, and all Acts
amendatory thereof and supplemental thereto, and all right, title
and interest therein now owned by the Company, and all renewals,
extensions and modifications of said indeterminate permits,
franchises, ordinances, licenses, and other authorizations, and of
the indeterminate permits, franchises, ordinances, licenses, and
other authorizations referred to in Part VII of the Granting
Clauses of the Original Mortgage.
PART IV.
OTHER PROPERTY.
All other property, whether real, personal or mixed (except any in
the Mortgage expressly excepted), now owned by the Company and
wheresoever situated, including (without in anywise limiting or
impairing by the enumeration of the same the scope and intent of
the foregoing or of any general description contained in the
Mortgage) all lands, flowage rights, water rights, flumes,
raceways, dams, rights-of-way and roads; all plants for the
generation of electricity by water, steam and/or other power, power
houses, telephone systems, water systems, power plants, hot water
plants, sub-stations, transmission lines, distribution systems,
bridges, culverts and tracts; all offices, buildings and structures
and the equipment thereof; all machinery, engines, boilers,
dynamos, machines, regulators, meters, transformers, generators and
motors; all appliances whether electrical, gas or mechanical,
conduits, cables and lines; all pipes whether for water, and power,
or other purposes; all mains and pipes, service pipes, fittings,
valves and connections, poles, wires, tools, implements, apparatus,
furniture and chattels; all municipal franchises, indeterminate
permits, and other permits; all lines for the transportation,
transmission and/or distribution of electric current, and power or
water for any purpose, including towers, poles, wires, cables,
pipes, conduits and all apparatus for use in connection therewith;
all real estate, lands, leases, leaseholds; all contracts, whether
heat, light, power, water or street lighting contracts; all
easements, servitudes, licenses, permits, rights, powers,
franchises, privileges, rights-of-way and other rights in or
relating to real estate or the occupancy of the same and (except as
hereinafter or in the Mortgage expressly excepted) all the right,
title and interest of the Company in and to all other property of
any kind or nature appertaining to and/or used and/or occupied
and/or enjoyed in connection with any property hereinbefore
described or referred to;
Together with all and singular the tenements, hereditaments and
appurtenances belonging or in anywise appertaining to the aforesaid
property or any part thereof, with the reversion and reversions,
remainder and remainders and (subject to the provisions of Section
64 of the Original Mortgage), the tolls, rents, revenues, issues,
earnings, income, product and profits thereof, and all the estate,
right, title and interest and claim whatsoever, at law as well as
in equity, which the Company now has or may hereafter acquire in
and to the aforesaid property, indeterminate permits, franchises,
ordinances, licenses and other authorizations and every part and
parcel thereof.
SECTION 2. Capitalized terms not otherwise defined in this
Fifty-Third Supplemental Indenture shall have the following
meanings:
"Agent Member" means a member of, or a participant in, the
Depositary.
"Certificate of Beneficial Ownership" means a certificate
substantially in the form of Exhibit A.
"Certificated Bond" means a 2036 Bond in registered individual form
without interest coupons.
"Clearstream" means Clearstream Banking SA and its
successors.
"Depositary" means the depositary of each Global Bond, which will
initially be DTC.
"DTC" means The Depository Trust Company, a New York Corporation,
and its successors.
"DTC Legend" means the legend set forth in Exhibit B.
"Euroclear" means Euroclear Bank S.A./N.V., and its successors and
assigns, as operator of the Euroclear System.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Global Bond" means a 2036 Bond in registered global form without
interest coupons.
"Initial Purchasers" means the initial purchasers party to a
purchase agreement with the Company relating to the sale of the
2036 Bonds by the Company.
"Officer's Certificate" means a certificate signed in the name of
the Company (i) by the chairman of the Board of Directors, the
president or chief executive officer or a vice president and (ii)
by the chief financial officer, the treasurer or any assistant
treasurer or the secretary or any assistant secretary.
"Offshore Global Bond" means a Global Bond representing 2036 Bonds
issued and sold pursuant to Regulation S.
"Permanent Offshore Global Bond" means an Offshore Global Bond that
does not bear the Temporary Offshore DTC Legend.
"Regulation S" means Regulations S under the Securities
Act.
"Regulation S Certificate" means a certificate substantially in the
form of Exhibit C hereto.
"Restricted Period" means the relevant 40-day distribution
compliance period as defined in Regulation S.
"Restricted Legend" means the legend set forth in Exhibit
D.
"Rule 144A" means Rule 144A under the Securities Act.
"Rule 144A Certificate" means (i) a certificate substantially in
the form of Exhibit E hereto or (ii) a written certification
addressed to the Company and the Trustee to the effect that the
person making such certification (x) is acquiring such 2036 Bond
(or beneficial interest) for its own account or one or more
accounts with respect to which it exercises sole investment
discretion and that it and each such account is a qualified
institutional buyer within the meaning of Rule 144A, (y) is aware
that the transfer to it or exchange, as applicable, is being made
in reliance upon the exemption from the provisions of Section 5 of
the Securities Act provided by Rule 144A, and (z) acknowledges that
it has received such information regarding the Company as it has
requested pursuant to Rule 144A(d)(4) or has determined not to
request such information.
"Securities Act" means the Securities Act of 1933, as
amended.
"Temporary Offshore Global Bond" means an Offshore Global Bond that
bears the Temporary Offshore DTC Legend.
"Temporary Offshore DTC Legend" means the legend set forth in
Exhibit F.
"U.S. Global Bond" means a Global Bond that bears the Restricted
Legend representing 2036 Bonds issued and sold pursuant to Rule
144A.
SECTION 3. (a) There shall be and is hereby established a series of
bonds, limited in aggregate principal amount to One Hundred
Fifty-Eight Million Eight Hundred Thousand Dollars ($158,800,000)
to be issued under and secured by the Mortgage, to be designated
``6.05% Series, Due 2036'', each of which shall also bear the
descriptive title ``First Mortgage Bonds''; said 2036 Bonds shall
mature on October 1, 2036, and shall be issued only as fully
registered bonds without coupons in the denomination of one
thousand dollars and any larger denomination which is a whole
multiple of one thousand dollars; said 2036 Bonds shall accrue
interest from and including the most recent date to which interest
has been paid or, if no interest has been paid, from the date of
issuance of the 2036 Bonds through but excluding the date on which
interest is paid, at the rate per annum designated in the title
thereof; interest shall be payable in arrears semi-annually, on
October 1 and April 1 of each year commencing April 1, 2007, or if
such day shall be a legal holiday or a day on which banking
institutions are authorized by law to close in the City of Chicago,
Illinois, the day next succeeding such day which shall not be a
legal holiday or a day on which such institutions are authorized to
close; and the principal of, premium, if any, and interest on said
bond shall be payable in lawful money of the United States of
America at the office or agency of the Company in the City of
Chicago, Illinois. The person in whose name any such 2036 Bond is
registered at the close of business on any record date (as
hereinafter defined) with respect to any interest payment date
shall be entitled to receive the interest payable on such interest
payment date, except if and to the extent the Company shall default
in the payment of the interest due on such interest payment date,
in which case such defaulted interest shall be paid to the person
in whose name such 2036 Bond is registered on the date of payment
of such defaulted interest or on a subsequent record date for such
payment if one shall have been established as hereinafter provided.
A subsequent record date with respect to payment of interest in
default may be established by or on behalf of the Company by notice
mailed to the holders of the 2036 Bonds not less than ten (10) days
preceding such record date, which record date shall not be more
than thirty (30) days prior to the subsequent interest payment
date. The term "record date" as used in this Section with respect
to any regular interest payment date shall mean the tenth day next
preceding such interest payment date.
(b)
The Bank of New York Trust Company, N.A. is hereby designated and
appointed the office and agency of the Company for the payment of
the principal of, premium, if any, and interest on the 2036 Bonds.
All reference herein to the office or agency of the Company for the
payment of the principal of, premium, if any, and interest on the
2036 Bonds shall be to The Bank of New York Trust Company, N.A.. In
the event of the resignation or inability to act of The Bank of New
York Trust Company, N.A., then a successor paying agent for all
such purposes shall be appointed by the Board of Directors of the
Company. The Bank of New York Trust Company, N.A. is hereby
designated and appointed the office and agency of the Company for
the registration, transfer and exchange of such bonds. All
reference herein to the office or agency of the Company for the
registration, transfer or exchange of the 2036 Bonds shall be to
The Bank of New York Trust Company, N.A.. In the event of the
resignation or inability to act of The Bank of New York Trust
Company, N.A., then a successor agent for the registration,
transfer and exchange of the 2036 Bonds shall be appointed by the
Board of Directors of the Company.
(c)
The 2036 Bonds shall be dated as of the date of authentication
thereof, except as otherwise provided in Section 10 of the Original
Mortgage.
(d)
The 2036 Bonds shall be limited to an aggregate principal amount of
One Hundred Fifty-Eight Million Eight Hundred Thousand Dollars
($158,800,000) and shall be issued under the provisions of Article
VII of the Original Mortgage.
(e)
(1)
Except as otherwise provided in paragraph (f), Section 6 (b)(3) or
(c), or Section 5(b)(4), each 2036 Bond (other than a Permanent
Offshore Bond) will bear the Restricted Legend.
(2)
Each Global Bond will bear the DTC Legend.
(3)
Each Temporary Offshore Global Bond will bear the Temporary
Offshore DTC Legend.
(4)
2036 Bonds initially offered and sold in reliance on Regulation S
will be issued as provided in Section 7(a).
(f)
If the Company determines (upon the advice of counsel and such
other certifications and evidence as the Company may reasonably
require) that a 2036 Bond is eligible for resale pursuant to Rule
144 under the Securities Act (or a successor provision) and that
the Restricted Legend is no longer necessary or appropriate in
order to ensure that subsequent transfers of the 2036 Bond (or a
beneficial interest therein) are effected in compliance with the
Securities Act, the Company may instruct the Trustee to cancel such
2036 Bond and issue to the holder thereof (or to its transferee) a
new 2036 Bond of like tenor and amount, registered in the name of
the holder thereof (or its transferee), that does not bear the
Restricted Legend, and the Trustee will comply with such
instruction.
(g)
By its acceptance of any 2036 Bond bearing the Restricted Legend
(or any beneficial interest in such a 2036 Bond), each holder
thereof and each owner of a beneficial interest therein
acknowledges the restrictions on transfer of such 2036 Bond (and
any such beneficial interest) set forth in this Fifty-Third
Supplemental Indenture and in the Restricted Legend and agrees that
it will transfer such 2036 Bond (and any such beneficial interest)
only in accordance with the Mortgage, as supplemented by this
Fifty-Third Supplemental Indenture, and such legend.
(h)
A 2036 Bond will not be valid until the Trustee manually signs the
certificate of authentication on the 2036 Bond, with the signature
conclusive evidence that the 2036 Bond has been authenticated under
this Fifty-Third Supplemental Indenture.
(i)
At any time and from time to time after the execution and delivery
of this Fifty-Third Supplemental Indenture, the Company may deliver
2036 Bonds executed by the Company to the Trustee for
authentication. The Trustee will authenticate and deliver 2036
Bonds for original issue in the aggregate principal amount not to
exceed One Hundred Fifty-Eight Million Eight Hundred Thousand
Dollars ($158,800,000).
SECTION 4. Except as provided in this Section 4, the 2036 Bonds
shall not be redeemable.
Upon the notice and in the manner and with the effect provided in
the Mortgage and in this Section 4, the 2036 Bonds shall be
redeemable by the Company prior to the maturity thereof out of
monies deposited with the Trustee representing the proceeds of
mortgaged and pledged property taken by the exercise of the power
of eminent domain or otherwise as provided in paragraph B of
Section 69 of the Mortgage, at the principal amount of the 2036
Bonds as to be redeemed and accrued interest to the date of
redemption.
Upon the notice and in
the manner and with the effect provided in this Section 4, the 2036
Bonds shall be redeemable prior to the maturity thereof, as a whole
or in part at any time, at the option of the Company, at a
redemption price, together with accrued interest to the date of
redemption, equal to the greater of (i) 100% of the principal
amount of the 2036 Bonds being redeemed; and (ii) the sum of the
present values of the principal amount of the 2036 Bonds to be
redeemed and the remaining scheduled payments of interest on the
2036 Bonds from the redemption date to October 1, 2036, discounted
from their respective scheduled payment dates to the redemption
date semi-annually, assuming a 360-day year consisting of twelve
30-day months at a discount rate equal to the Treasury Yield plus
twenty (20) basis points.
"Treasury Yield" means, with respect to any redemption date, the
annual rate equal to the semi-annual equivalent yield to maturity
of the Comparable Treasury Issue, assuming a price for the
Comparable Treasury Issue expressed as a percentage of its
principal amount equal to the Comparable Treasury Price for such
redemption date.
"Comparable Treasury Issue" means the United States treasury
security selected by an independent investment banker as having a
maturity comparable to the remaining term of the 2036 Bonds to be
redeemed that would be utilized, at the time of selection and in
accordance with customary financial practice, in pricing new issues
of corporate debt securities of comparable maturity to the
remaining term of the 2036 Bonds.
"Comparable Treasury Price" means, with respect to any date of
redemption, (i) the average of the bid and asked prices for the
Comparable Treasury Issue, expressed in each case as a percentage
of its principal amount, on the third business day preceding the
redemption date, as set forth in the daily statistical release
published by the Federal Reserve Bank of New York and designated
"Composite 3:30 p.m. Quotations for U.S. Government Securities," or
(ii) if this release is not published or does not contain such
prices on the business day in question, the Reference Treasury
Dealer Quotation for the redemption date.
"Reference Treasury Dealer Quotation" means, with respect to the
Reference Treasury Dealer and redemption date, the average, as
determined by the Company, of the bid and asked prices for the
Comparable Treasury Issue expressed in each case as a percentage of
its principal amount and quoted in writing to the Company by the
Reference Treasury Dealer at 5:00 p.m. on the third business day
preceding the redemption date.
"Reference Treasury Dealer" means a primary United States
government securities dealer in New York City appointed by the
Company and reasonably acceptable to the Trustee.
The notice required for the
redemption of the 2036 Bonds shall be as provided in Section 59 of
the Mortgage.
If fewer than all the 2036 Bonds are to be redeemed, selection of
2036 Bonds for redemption will be made by the Trustee in the manner
specified in the Mortgage.
Unless the Company defaults in payment of the redemption price,
from and after the date of redemption, the 2036 Bonds or portions
thereof called for redemption will cease to bear interest, and the
holders of the 2036 Bonds will have no right in respect of the 2036
Bonds except the right to receive the redemption price.
No sinking fund is provided for the 2036 Bonds.
SECTION 5. (a) The 2036 Bonds
will be issued in registered form only, without coupons, and except
under the circumstances described in subsection (b)(2) or (b)(4) of
this Section 5, the 2036 Bonds will be issued in global form only.
The Company shall cause the agent for the registration, transfer
and exchange named in Section 3(b) (the "Transfer Agent") to
maintain a register (the "Register") of the 2036 Bonds, for
registering the record ownership of 2036 Bonds by the holders
thereof and transfers and exchanges of 2036 Bonds.
(b)
(1)
Each Global Bond will be registered in the name of the Depositary
or its nominee and, so long as DTC is serving as the Depositary
thereon will bear the DTC Legend.
(2)
Each Global Bond will be delivered to the Transfer Agent as
custodian for the Depositary. Transfers of a Global Bond (but not a
beneficial interest therein) will be limited to transfers thereof
in whole, but not in part, to the Depositary, its successors or
their respective nominees, except (i) as set forth in Section
5(b)(4) and (ii) transfers of portions thereof in the form of
Certificated Bonds may be made upon request of an Agent Member (for
itself or on behalf of a beneficial owner) by written notice given
to the Transfer Agent by or on behalf of the Depositary in
accordance with customary procedures of the Depositary and in
compliance with this Section and Section 6.
(3)
Agent Members will have no rights under the Mortgage or this Fifty-
Third Supplemental Indenture with respect to any Global Bond held
on their behalf by the Depositary, and the Depositary may be
treated by the Company, the Trustee and any agent of the Company or
the Trustee as the absolute owner and holder of such Global Bond
for all purposes whatsoever. Notwithstanding the foregoing, the
Depositary or its nominee may grant proxies and otherwise authorize
any person (including any Agent Member and any person that holds a
beneficial interest in a Global Bond through an Agent Member) to
take any action which a holder is entitled to take under the
Mortgage or this Fifty-Third Supplemental Indenture or the 2036
Bonds, and nothing herein will impair, as between the Depositary
and its Agent Members, the operation of customary practices
governing the exercise of the rights of a holder of any
security.
(4)
If (x) the Depositary notifies the Company that it is unwilling or
unable to cont
