Exhibit 4.1
CONFORMED COPY
AVISTA CORPORATION
TO
CITIBANK, N.A.
As Successor Trustee
under
Mortgage and Deed of
Trust,
dated as of June 1,
1939
Fifty-second Supplemental
Indenture
Providing certain amendments to
said
Mortgage and Deed of
Trust
Dated as of August 1,
2011
CONFORMED COPY
FIFTY-SECOND SUPPLEMENTAL
INDENTURE
THIS INDENTURE
, dated as of the 1
st day of August, 2011, between AVISTA CORPORATION
(formerly known as The Washington Water Power Company), a
corporation of the State of Washington, whose post office address
is 1411 East Mission Avenue, Spokane, Washington 99202 (the
“Company”), and CITIBANK, N.A., formerly First National
City Bank (successor by merger to First National City Trust
Company, formerly City Bank Farmers Trust Company), a national
banking association incorporated and existing under the laws of the
United States of America, whose post office address is 388
Greenwich Street, 14 th Floor, New York, New York 10013 (the
“Trustee”), as Trustee under the Mortgage and Deed of
Trust, dated as of June 1, 1939 (the “Original
Mortgage”), executed and delivered by the Company to secure
the payment of bonds issued or to be issued under and in accordance
with the provisions thereof, this indenture (the
“Fifty-second Supplemental Indenture”) being
supplemental to the Original Mortgage, as heretofore supplemented
and amended.
WHEREAS pursuant to a written
request of the Company made in accordance with Section 103 of
the Original Mortgage, Francis M. Pitt (then Individual Trustee
under the Mortgage, as supplemented) ceased to be a trustee
thereunder on July 23, 1969, and all of his powers as
Individual Trustee have devolved upon the Trustee and its
successors alone; and
WHEREAS by the Original Mortgage the
Company covenanted that it would execute and deliver such further
instruments and do such further acts as might be necessary or
proper to carry out more effectually the purposes of the Original
Mortgage and to make subject to the lien of the Original Mortgage
any property thereafter acquired intended to be subject to the lien
thereof; and
WHEREAS the Company has heretofore
executed and delivered, in addition to the Original Mortgage, the
indentures supplemental thereto, and has issued the series of
bonds, set forth in Exhibit A hereto (the Original Mortgage, as
supplemented and amended by the First through Fifty-first
Supplemental Indentures, being herein sometimes called the
“Mortgage”); and
WHEREAS the Original Mortgage and
the First through Forty-seventh Supplemental Indentures have been
appropriately filed or recorded in various official records in the
States of Washington, Idaho, Montana and Oregon, as set forth in
the First through Forty-eighth Supplemental Indentures and the
Instrument of Further Assurance, dated December 15, 2001,
hereinafter referred to; and
WHEREAS the Forty-eighth
Supplemental Indenture, the Forty-ninth Supplemental Indenture, the
Fiftieth Supplemental Indenture, each dated as of December 1,
2010, and the Fifty-first Supplemental Indenture, dated as of
February 1, 2011, have been appropriately filed or recorded in
the States of Washington, Idaho, Montana and Oregon, as set forth
in Exhibit B hereto; and
2
CONFORMED COPY
WHEREAS for the purpose of
confirming or perfecting the lien of the Mortgage on certain of its
properties, the Company has heretofore executed and delivered a
Short Form Mortgage and Security Agreement, in multiple
counterparts dated as of various dates in 1992, and such instrument
has been appropriately filed or recorded in the various official
records in the States of Montana and Oregon; and
WHEREAS for the purpose of
confirming or perfecting the lien of the Mortgage on certain of its
properties, the Company has heretofore executed and delivered an
Instrument of Further Assurance, dated as of December 15,
2001, and such instrument has been appropriately filed or recorded
in the various official records in the States of Washington, Idaho,
Montana and Oregon; and
WHEREAS in addition to the property
described in the Mortgage the Company has acquired certain other
property, rights and interests in property; and
WHEREAS Section 120 of the
Original Mortgage, as heretofore amended, provides that, without
the consent of any holders of bonds, the Company and the Trustee,
at any time and from time to time, may enter into indentures
supplemental to the Original Mortgage for various purposes set
forth therein, including, without limitation, to cure ambiguities
or correct defective or inconsistent provisions or to make other
changes therein that shall not adversely affect the interests of
the holders of bonds of any series in any material respect or to
establish the form or terms of bonds of any series as contemplated
by Article II; and
WHEREAS the Company now desires to
amend Section 25 of the Original Mortgage, as heretofore
amended, to reduce the bonding ratio set forth therein from seventy
per centum (70%) to sixty-six and two-thirds per centum
(66-2/3%) and to make corresponding changes, all as set forth on
Exhibit D hereto; and
WHEREAS the execution and delivery
by the Company of this Fifty-second Supplemental Indenture has been
duly authorized by the Board of Directors of the Company by
appropriate Resolutions of said Board of Directors; and all things
necessary to make this Fifty-second Supplemental Indenture a valid,
binding and legal instrument have been performed;
3
CONFORMED COPY
NOW, THEREFORE, THIS INDENTURE
WITNESSETH: That the Company, in consideration of the premises and
of other good and valuable consideration, the receipt and
sufficiency whereof are hereby acknowledged, hereby confirms the
estate, title and rights of the Trustee (including, without
limitation, the lien of the Mortgage on the property of the Company
subjected thereto, whether now owned or hereafter acquired) held as
security for the payment of both the principal of and interest and
premium, if any, on the bonds from time to time issued under the
Mortgage according to their tenor and effect and the performance of
all the provisions of the Mortgage and of such bonds, and, without
limiting the generality of the foregoing, hereby confirms the
grant, bargain, sale, release, conveyance, assignment, transfer,
mortgage, pledge, setting over and confirmation unto the Trustee,
contained in the Mortgage, of all the following described
properties of the Company, whether now owned or hereafter acquired,
namely:
All of the property, real, personal
and mixed, of every character and wheresoever situated (except any
hereinafter or in the Mortgage expressly excepted) which the
Company now owns or, subject to the provisions of Section 87
of the Original Mortgage, may hereafter acquire prior to the
satisfaction and discharge of the Mortgage, as fully and completely
as if herein or in the Mortgage specifically described, and
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 Mortgage) all lands, real
estate, easements, servitudes, rights of way and leasehold and
other interests in real estate; all rights to the use or
appropriation of water, flowage rights, water storage rights,
flooding rights, and other rights in respect of or relating to
water; all plants for the generation of electricity, power houses,
dams, dam sites, reservoirs, flumes, raceways, diversion works,
head works, waterways, water works, water systems, gas plants,
steam heat plants, hot water plants, ice or refrigeration plants,
stations, substations, offices, buildings and other works and
structures and the equipment thereof and all improvements,
extensions and additions thereto; all generators, machinery,
engines, turbines, boilers, dynamos, transformers, motors, electric
machines, switchboards, regulators, meters, electrical and
mechanical appliances, conduits, cables, pipes and mains; all lines
and systems for the transmission and distribution of electric
current, gas, steam heat or water for any purpose; all towers,
mains, pipes, poles, pole lines, conduits, cables, wires, switch
racks, insulators, compressors, pumps, fittings, valves and
connections; all motor vehicles and automobiles; all tools,
implements, apparatus, furniture, stores, supplies and equipment;
all franchises (except the Company’s franchise to be a
corporation), licenses, permits, rights, powers and privileges; 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.
The property so conveyed or intended
to be so conveyed under the Mortgage shall include, but shall not
be limited to, the property set forth in Exhibit C hereto, the
particular description of which is intended only to aid in the
identification thereof and shall not be construed as limiting the
force, effect and scope of the foregoing.
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 57 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
and franchises and every part and parcel thereof.
4
CONFORMED COPY
THE COMPANY HEREBY CONFIRMS that,
subject to the provisions of Section 87 of the Original
Mortgage, all the property, rights, and franchises acquired by the
Company after the date thereof (except any hereinbefore or
hereinafter or in the Mortgage expressly excepted) are and shall be
as fully embraced within the lien of the Mortgage as if such
property, rights and franchises had been owned by the Company at
the date of the Original Mortgage and had been specifically
described therein.
PROVIDED THAT the following were not
and were not intended to be then or now or hereafter granted,
bargained, sold, released, conveyed, assigned, transferred,
mortgaged, pledged, set over or confirmed under the Mortgage and
were, are and shall be expressly excepted from the lien and
operation of the Mortgage namely: (l) cash, shares of stock
and obligations (including bonds, notes and other securities) not
hereafter specifically pledged, paid, deposited or delivered under
the Mortgage or covenanted so to be; (2) merchandise,
equipment, materials or supplies held for the purpose of sale in
the usual course of business or for consumption in the operation of
any properties of the Company; (3) bills, notes and accounts
receivable, and all contracts, leases and operating agreements not
specifically pledged under the Mortgage or covenanted so to be;
(4) electric energy and other materials or products generated,
manufactured, produced or purchased by the Company for sale,
distribution or use in the ordinary course of its business; and
(5) any property heretofore released pursuant to any
provisions of the Mortgage and not heretofore disposed of by the
Company; provided, however, that the property and rights expressly
excepted from the lien and operation of the Mortgage in the above
subdivisions (2) and (3) shall (to the extent permitted
by law) cease to be so excepted in the event that the Trustee or a
receiver or trustee shall enter upon and take possession of the
Mortgaged and Pledged Property in the manner provided in Article
XII of the Original Mortgage by reason of the occurrence of a
Completed Default as defined in said Article XII.
TO HAVE AND TO HOLD all such
properties, real, personal and mixed, granted, bargained, sold,
released, conveyed, assigned, transferred, mortgaged, pledged, set
over or confirmed by the Company in the Mortgage as aforesaid, or
intended so to be, unto the Trustee, and its successors, heirs and
assigns forever.
IN TRUST NEVERTHELESS, for the same
purposes and upon the same terms, trusts and conditions and subject
to and with the same provisos and covenants as set forth in the
Mortgage, this Fifty-second Supplemental Indenture being
supplemental to the Mortgage.
5
CONFORMED COPY
AND IT IS HEREBY FURTHER CONFIRMED
by the Company that all the terms, conditions, provisos, covenants
and provisions contained in the Mortgage shall affect and apply to
the property in the Mortgage described and conveyed, and to the
estates, rights, obligations and duties of the Company and the
Trustee and the beneficiaries of the trust with respect to said
property, and to the Trustee and its successors in the trust, in
the same manner and with the same effect as if the said property
had been owned by the Company at the time of the execution of the
Original Mortgage, and had been specifically and at length
described in and conveyed to said Trustee by the Original Mortgage
as a part of the property therein stated to be conveyed.
The Company further covenants and
agrees to and with the Trustee and its successor or successors in
such trust under the Mortgage, as follows:
ARTICLE I
Amendments to Original
Mortgage
(as heretofore
amended)
SECTION 1. The Original Mortgage, as
heretofore amended, is hereby further amended as set forth on
Exhibit D hereto.
ARTICLE II
Miscellaneous
Provisions
SECTION 1. The terms defined in the
Original Mortgage shall, for all purposes of this Fifty-second
Supplemental Indenture, have the meanings specified in the Original
Mortgage.
SECTION 2. The Trustee hereby
confirms its acceptance of the trusts in the Original Mortgage
declared, provided, created or supplemented and agrees to perform
the same upon the terms and conditions in the Original Mortgage set
forth, including the following:
The Trustee shall not be responsible
in any manner whatsoever for or in respect of the validity or
sufficiency of this Fifty-second Supplemental Indenture or for or
in respect of the recitals contained herein, all of which recitals
are made by the Company solely. Each and every term and condition
contained in Article XVI of the Original Mortgage shall apply to
and form part of this Fifty-second Supplemental Indenture with the
same force and effect as if the same were herein set forth in full,
with such omissions, variations and insertions, if any, as may be
appropriate to make the same conform to the provisions of this
Fifty-second Supplemental Indenture.
SECTION 3. Whenever in this
Fifty-second Supplemental Indenture either of the parties hereto is
named or referred to, this shall, subject to the provisions of
Articles XV and XVI of the Original Mortgage be deemed to include
the successors and assigns of such party, and all the covenants and
agreements in this Fifty-second Supplemental Indenture contained by
or on behalf of the Company, or by or on behalf of the Trustee, or
either of them, shall, subject as aforesaid, bind and inure to the
respective benefits of the respective successors and assigns of
such parties, whether so expressed or not.
6
CONFORMED COPY
SECTION 4. Nothing in this
Fifty-second Supplemental Indenture, expressed or implied, is
intended, or shall be construed, to confer upon, or to give to, any
person, firm or corporation, other than the parties hereto and the
holders of the bonds and coupons Outstanding under the Mortgage,
any right, remedy or claim under or by reason of this Fifty-second
Supplemental Indenture or any covenant, condition, stipulation,
promise or agreement hereof, and all the covenants, conditions,
stipulations, promises and agreements in this Fifty-second
Supplemental Indenture contained by or on behalf of the Company
shall be for the sole and exclusive benefit of the parties hereto,
and of the holders of the bonds and of the coupons Outstanding
under the Mortgage.
SECTION 5. This Fifty-second
Supplemental Indenture shall be executed in several counterparts,
each of which shall be an original and all of which shall
constitute but one and the same instrument.
SECTION 6. The titles of the several
Articles of this Fifty-second Supplemental Indenture shall not be
deemed to be any part thereof.
7
CONFORMED COPY
IN WITNESS WHEREOF, on the 16
th day of August, 2011, AVISTA CORPORATION has
caused its corporate name to be hereunto affixed, and this
instrument to be signed and sealed by its President or one of its
Vice Presidents, and its corporate seal to be attested by its
Corporate Secretary or one of its Assistant Corporate Secretaries
for and in its behalf, all in The City of Spokane, Washington, as
of the day and year first above written; and on the 16
th day of August, 2011, CITIBANK, N.A., has caused
its corporate name to be hereunto affixed, and this instrument to
be signed and sealed by its President or one of its Vice Presidents
or one of its Senior Trust Officers or one of its Trust Officers
and its corporate seal to be attested by one of its Vice Presidents
or one of its Trust Officers, all in The City of New York, New
York, as of the day and year first above written.
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AVISTA
CORPORATION
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By:
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/s/ Mark T. Thies
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Name: Mark T.
Thies
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Title: Senior
Vice President and Chief Financial Officer
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Attest:
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Name: Susan Y. Fleming
Title: Assistant Corporate
Secretary
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Executed, sealed and
delivered
by AVISTA
CORPORATION
in the
presence of:
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Name: Ryan L. Krasselt
Title: Director of
Finance
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Name: Damien T. Lysiak
Title: Treasury Analyst
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8
CONFORMED COPY
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CITIBANK, N.A., AS TRUSTEE
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By:
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Name: Wafaa Orfy
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Title: Vice President
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Attest:
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Name: Louis Piscitelli
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Title: Vice President
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Executed,
sealed and delivered
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by
CITIBANK, N.A.,
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CITI BANK
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as
trustee, in the presence of:
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Name: John
Hannon
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Name: Cirino
Emanuele
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9
CONFORMED COPY
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STATE OF
WASHINGTON
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)
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)
ss.:
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COUNTY OF
SPOKANE
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)
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On the 16 th day of August, 2011, before me personally
appeared Mark T. Thies, to me known to be a Senior Vice President
and the Chief Financial Officer of AVISTA CORPORATION, one of the
corporations that executed the within and foregoing instrument, and
acknowledged said instrument to be the free and voluntary act and
deed of said Corporation for the uses and purposes therein
mentioned and on oath stated that he was authorized to execute said
instrument and that the seal affixed is the corporate seal of said
Corporation.
On the 16 th day of August, 2011, before me, a Notary Public
in and for the State and County aforesaid, personally appeared Mark
T. Thies, known to me to be a Senior Vice President and the Chief
Financial Officer of AVISTA CORPORATION, one of the corporations
that executed the within and foregoing instrument and acknowledged
to me that such Corporation executed the same.
IN WITNESS WHEREOF, I have hereunto
set my hand and affixed my official seal the day and year first
above written.
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RAE AN CORNELL
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Notary Public
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State Of Washington
Commission Expires January 29,
2014
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10
CONFORMED COPY
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STATE OF NEW
YORK
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)
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)
ss.:
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COUNTY OF NEW
YORK
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)
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On the 10 th day of August, 2011, before me personally
appeared Wafaa Orfy, to me known to be a Vice President of
CITIBANK, N.A., one of the corporations that executed the within
and foregoing instrument, and acknowledged said instrument to be
the free and voluntary act and deed of said Corporation for the
uses and purposes therein mentioned and on oath stated that he was
authorized to execute said instrument and that the seal affixed is
the corporate seal of said Corporation.
On the 10 th day of August, 2011, before me, a Notary Public
in and for the State and County aforesaid, personally appeared
Wafaa Orfy, known to me to be a Vice President of CITIBANK, N.A.,
one of the corporations that executed the within and foregoing
instrument and acknowledged to me that such Corporation executed
the same.
IN WITNESS WHEREOF, I have hereunto
set my hand and affixed my official seal the day and year first
above written.
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Notary Public
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NOREEN IRIS SANTOS
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Notary Public, State Of New
York
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Registration #01SA6228750
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Qualified in Nassau
County
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Commission Expires Sept. 27,
2014
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11
CONFORMED COPY
EXHIBIT A
MORTGAGE, SUPPLEMENTAL
INDENTURES
AND SERIES OF
BONDS
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MORTGAGE OR
SUPPLEMENTAL
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DATED AS OF
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SERIES
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PRINCIPAL
AMOUNT
ISSUED
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PRINCIPAL
AMOUNT
OUTSTANDING
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NO.
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DESIGNATION
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Original
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June 1, 1939
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1
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3-1/2% Series due 1964
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$22,000,000
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None
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First
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October 1, 1952
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2
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3-3/4% Series due 1982
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30,000,000
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None
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Second
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May 1, 1953
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3
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3-7/8% Series due 1983
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10,000,000
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None
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Third
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December 1, 1955
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None
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Fourth
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March 15, 1957
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None
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Fifth
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July 1, 1957
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4
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4-7/8% Series due 1987
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30,000,000
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None
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Sixth
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January 1, 1958
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5
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4-1/8% Series due 1988
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20,000,000
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None
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Seventh
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August 1, 1958
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6
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4-3/8% Series due 1988
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15,000,000
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None
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Eighth
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January 1, 1959
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7
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4-3/4% Series due 1989
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15,000,000
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None
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Ninth
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January 1, 1960
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8
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5-3/8% Series due 1990
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10,000,000
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None
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Tenth
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April 1, 1964
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9
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4-5/8% Series due 1994
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30,000,000
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None
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Eleventh
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March 1 ,1965
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10
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4-5/8% Series due 1995
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10,000,000
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None
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Twelfth
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May 1, 1966
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None
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Thirteenth
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August 1, 1966
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11
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6 % Series due 1996
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20,000,000
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None
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Fourteenth
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April 1, 1970
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12
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9-1/4% Series due 2000
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20,000,000
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None
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Fifteenth
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May 1, 1973
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13
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7-7/8% Series due 2003
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20,000,000
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None
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Sixteenth
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February 1, 1975
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14
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9-3/8% Series due 2005
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25,000,000
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None
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Seventeenth
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November 1, 1976
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15
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8-3/4% Series due 2006
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30,000,000
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None
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A-12
CONFORMED COPY
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MORTGAGE OR
SUPPLEMENTAL
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DATED AS OF
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SERIES
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PRINCIPAL
AMOUNT
ISSUED
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PRINCIPAL
AMOUNT
OUTSTANDING
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NO.
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DESIGNATION
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Eighteenth
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June 1, 1980
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None
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Nineteenth
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January 1, 1981
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16
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14-1/8% Series due 1991
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40,000,000
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None
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Twentieth
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August 1, 1982
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17
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15-3/4% Series due 1990-1992
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60,000,000
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None
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Twenty-First
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September 1, 1983
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18
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13-1/2% Series due 2013
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60,000,000
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None
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Twenty-Second
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March 1, 1984
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19
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13-1/4% Series due 1994
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60,000,000
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None
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Twenty-Third
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December 1, 1986
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20
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9-1/4% Series due 2016
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80,000,000
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None
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Twenty-Fourth
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January 1, 1988
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21
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10-3/8% Series due 2018
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50,000,000
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None
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|
|
|
|
|
|
Twenty-Fifth
|
|
October 1, 1989
|
|
22
|
|
7-1/8% Series due 2013
|
|
|
66,700,000
|
|
|
None
|
|
|
|
|
23
|
|
7-2/5% Series due 2016
|
|
|
17,000,000
|
|
|
None
|
|
|
|
|
|
|
|
Twenty-Sixth
|
|
April 1, 1993
|
|
24
|
|
Secured Medium-Term Notes,
Series A ($250,000,000 authorized)
|
|
|
250,000,000
|
|
|
43,000,000
|
|
|
|
|
|
|
|
Twenty-Seventh
|
|
January 1, 1994
|
|
25
|
|
Secured Medium-Term Notes,
Series B ($250,000,000 authorized)
|
|
|
161,000,000
|
|
|
None
|
|
|
|