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Document Preview Second Supplemental Indenture |
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Title: |
Second Supplemental Indenture |
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Entities: |
Banc One Capital Markets, Inc.; BNP Paribas Securities Corp.; Credit Suisse First Boston LLC; Midamerican Energy Holdings Co /New/; Bank of New York |
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Date: |
2003 |
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Size: |
Preview shows 21KB of 144KB total |
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Price: |
$45 |
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ID: |
#1623914 |
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MIDAMERICAN ENERGY HOLDINGS COMPANY
and
THE BANK OF NEW YORK,
as Trustee
3.50% Senior Notes due 2008
Second Supplemental Indenture
Dated as of May 16, 2003
SECOND SUPPLEMENTAL INDENTURE, dated as of May 16, 2003 (this "Second
Supplemental Indenture"), between MIDAMERICAN ENERGY HOLDINGS COMPANY, an Iowa
corporation (the "Company"), and THE BANK OF NEW YORK, a New York banking
corporation, as Trustee (the "Trustee") under the Original Indenture referred to
below.
WITNESSETH:
WHEREAS, the Company has heretofore executed and delivered to the Trustee
that certain Indenture, dated as of October 4, 2002 (hereinafter called the
"Original Indenture," and together with this Second Supplemental Indenture, the
"Indenture"), to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness, the form and terms of
which are to be established as set forth in Sections 2.01 and 3.01 of the
Original Indenture;
WHEREAS, Section 9.01 of the Original Indenture provides, among other
things, that the Company and the Trustee may enter into indentures supplemental
to the Original Indenture for, among other things, the purpose of establishing
the form and terms of the Securities of any series as permitted in Sections 2.01
and 3.01 of the Original Indenture and of appointing an Authenticating Agent
with respect to the Securities of any series;
WHEREAS, the Company desires to create one series of its unsecured
debentures in an aggregate principal amount of Four Hundred Fifty Million
Dollars ($450,000,000) to be designated the "3.50% Senior Notes due 2008" (the
"Securities"), and all action on the part of the Company necessary to authorize
the issuance of the Securities under the Original Indenture and this Second
Supplemental Indenture has been duly taken; and
WHEREAS, all acts and things necessary (i) to make the Securities, when
executed by the Company and authenticated and delivered by the Trustee as
provided in the Original Indenture, the valid and binding obligations of the
Company and (ii) to constitute these presents a valid and binding supplemental
indenture and agreement according to its terms, have been done and performed.
NOW, THEREFORE, THIS SECOND SUPPLEMENTAL INDENTURE WITNESSETH:
That in consideration of the premises and of the acceptance and purchase of
the Securities by the holders thereof and of the acceptance of this trust by the
Trustee, the Company covenants and agrees with the Trustee, for the equal
benefit of holders of the Securities, as follows:
ARTICLE I.
DEFINITIONS
The use of the terms and expressions herein is in accordance with the
definitions, uses and constructions contained in the Original Indenture and the
forms of Securities attached
hereto as Exhibits A through E. In addition, for all purposes of this Second
Supplemental Indenture, except as otherwise expressly provided or unless the
context otherwise expressly requires, the following terms shall have the
respective meanings assigned to them as follows and shall be construed as if
defined in Article I of the Original Indenture:
"Exchange Security" means a security in global or definitive form
substantially in the form set forth in Exhibit E to this Second Supplemental
Indenture.
"Global Security" means a Rule 144A Global Security, a Regulation S
Temporary Global Security, or a Regulation S Permanent Global Security, in
global form substantially in the form set forth in Exhibits A, B and C,
respectively, to this Second Supplemental Indenture.
"Initial Purchasers" means Credit Suisse First Boston LLC, ABN AMRO
Incorporated, Banc One Capital Markets, Inc. and BNP Paribas Securities Corp.
"Registration Rights Agreement" means the Registration Rights Agreement,
dated May 13, 2003, among the Company and the Initial Purchasers.
ARTICLE II.
TERMS AND ISSUANCE OF THE SECURITIES
Section 2.01 Issue of Securities. One series of the Securities, which shall
be designated the "3.50% Senior Notes due 2008" shall be executed, authenticated
and delivered in accordance with the provisions of, and shall in all respects be
subject to, the terms, conditions and covenants of the Original Indenture and
this Second Supplemental Indenture (including the forms of Securities set forth
in Exhibits A through E, as applicable). The aggregate principal amount of the
3.50% Senior Notes due 2008 which may be authenticated and delivered under this
Second Supplemental Indenture shall not exceed $450,000,000.
Section 2.02 Optional Redemption. The Securities may be redeemed, in whole
or in part, at the option of the Company pursuant to the terms set forth in
paragraph 2 of the Securities to be redeemed. The provisions of Article XI of
the Original Indenture shall also apply to any redemption of the Securities by
the Company.
Section 2.03 Limitation on Liens. The covenant provided by Section 10.04 of
the Original Indenture shall be applicable to the Securities.
Section 2.04 Change of Control. The covenant provided by Section 10.10 of
the Original Indenture shall be applicable to the Securities.
Section 2.05 Place of Payment. The Place of Payment in respect of the
Securities will be in The City of New York, initially at the Corporate Trust
Office of The Bank of New York (which as of the date hereof is located at 101
Barclay Street, Floor 8W, New York, New York 10286 Attention: Corporate Trust
Administration).
Section 2.06 Form of Securities; Incorporation of Terms. The forms of the
Securities shall be substantially in the forms of Exhibits A through E attached
hereto, as
2
applicable, the respective terms of which are incorporated herein by reference
and which are part of this Second Supplemental Indenture. The Securities shall
be issued as one or more Global Securities in fully registered form and one or
more Definitive Securities in fully registered form, as determined in accordance
with Section 2.01 of the Original Indenture. The Global Securities shall be
delivered by the Trustee to the Depositary, as the Holder thereof, or a nominee
or custodian therefor, to be held by the Depositary in accordance with the
Original Indenture.
Section 2.07 Exchange of the Global Securities. Each of the Global
Securities shall be exchangeable for Definitive Securities only as provided in
Section 3.07(b)(ii) of the Original Indenture.
Section 2.08 Interest Payment Dates for the Securities. The Interest
Payment Dates for the Securities shall be May 15 and November 15 in each year,
commencing November 15, 2003 and continuing until the Principal Amount of the
Securities is paid in full or made available for payment in accordance with the
terms of the Indenture and the Securities.
Section 2.09 Regular Record Date for the Securities. The Regular Record
Date for the Securities shall be the May 1 or November 1 immediately prior to
each Interest Payment Date.
Section 2.10 Authorized Denominations. Beneficial interests in Global
Securities, as well as Definitive Securities, may be held only in denominations
of $1,000 and integral multiples of $1,000.
ARTICLE III.
DEPOSITARY
Section 3.01 Depositary. The Depository Trust Company, its nominees and
their respective successors are hereby appointed Depositary with respect to the
Global Securities.
ARTICLE IV.
AMENDMENTS TO ORIGINAL INDENTURE
Section 4.01 Definition of "Rating Decline". The definition of "Rating
Decline" set forth in Section 1.01 of the Original Indenture is hereby amended
by deleting the words "will be" in subsections (1) and (2) of such definition
and inserting in the place thereof the word "is."
Section 4.02 Events of Default. With respect to the Securities and any
other securities issued pursuant to the Original Indenture after the date
hereof, Section 5.01(f) of the Original Indenture is hereby amended by inserting
the phrase "(other than Berkshire Hathaway or any of its Affiliates that provide
commercial insurance in the ordinary course of their business)" after the phrase
"an Affiliate of the Company."
3
ARTICLE V.
MISCELLANEOUS
Section 5.01 Execution as Supplemental Indenture. This Second Supplemental
Indenture is executed and shall be construed as an indenture supplemental to the
Original Indenture and, as provided in the Original Indenture, this Second
Supplemental Indenture forms a part thereof.
Section 5.02 Effect of Headings. The Article and Section headings herein
are for convenience only and shall not affect the construction hereof.
Section 5.03 Successors and Assigns. All covenants and agreements in this
Second Supplemental Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
Section 5.04 Separability Clause. In case any provision in this Second
Supplemental Indenture or in the Securities shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section 5.05 Benefits of Second Supplemental Indenture. Nothing in this
Second Supplemental Indenture or in the Securities, express or implied, shall
give to any person, other than the parties hereto and their successors hereunder
and the Holders, any benefit or any legal or equitable right, remedy or claim
under this Second Supplemental Indenture.
Section 5.06 Execution in Counterparts. This Second Supplemental Indenture
may be executed in any number of counterparts, each of which shall be deemed to
be an original, but all such counterparts shall together constitute but one and
the same instrument.
Section 5.07 Trustee. The Trustee makes no representations as to the
validity or sufficiency of this Second Supplemental Indenture. The statements
herein are deemed to be those of the Company and not of the Trustee.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
4
IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental
Indenture to be duly executed by their respective officers or directors duly
authorized thereto, all as of the day and year first above written.
MIDAMERICAN ENERGY HOLDINGS COMPANY
By: /s/ Douglas L. Anderson
---------------------------------------
Name: Douglas L. Anderson
Title: Senior Vice President and
General Counsel
THE BANK OF NEW YORK,
as Trustee
By: /s/ Robert A. Massimillo
---------------------------------------
Name: Robert A. Massimillo
Title: Vice President
(Second Supplement Indenture)
EXHIBITS
--------
Exhibit A Form of 144A Global Senior Note due 2008
Exhibit B Form of Regulation S Temporary Global Senior Note due 2008
Exhibit C Form of Regulation S Permanent Global Senior Note due 2008
Exhibit D Form of Restricted Definitive Senior Note due 2008
Exhibit E Form of Private Exchange Senior Note due 2008
EXHIBIT A
FORM OF FACE OF RULE 144A GLOBAL
SENIOR NOTE DUE 2008
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE OF A DEPOSITARY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED
IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS
SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE DEPOSITARY TO
A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY
OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO
A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY) MAY BE
REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS GLOBAL SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITARY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY DEFINITIVE SECURITY IS ISSUED IN THE NAME OR NAMES
AS DIRECTED IN WRITING BY THE DEPOSITARY, ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL IN AS MUCH AS THE
REGISTERED OWNER HEREOF, THE DEPOSITARY, HAS AN INTEREST HEREIN.
THIS SECURITY HAS BEEN INITIALLY RESOLD IN RELIANCE ON RULE 144A UNDER THE
SECURITIES ACT AND SHALL BEAR THE FOLLOWING LEGEND UNTIL REMOVABLE IN ACCORDANCE
WITH ITS TERMS AND THE TERMS OF THE INDENTURE:
THIS SECURITY HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO OR FOR
THE ACCOUNT OR BENEFIT OF U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING
SENTENCE. BY ITS ACQUISITION HEREOF, EACH OF THE HOLDER OF THIS SECURITY AND ANY
OWNERS OF INTERESTS HEREIN (1) REPRESENTS THAT IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (2) AGREES THAT
BEGINNING FROM THE LATER OF (X) THE ORIGINAL ISSUE DATE OF THIS SECURITY OR (Y)
THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE THEREOF WAS THE BENEFICIAL
OWNER OF THIS SECURITY (OR ANY PREDECESSOR HEREOF) THROUGH THE TIME PERIOD
REFERRED TO IN RULE 144(K) UNDER THE SECURITIES ACT, IT WILL NOT RESELL OR
OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY OR ANY AFFILIATE
THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A
UNDER THE SECURITIES ACT, (C) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" THAT
PRIOR TO SUCH TRANSFER FURNISHED TO THE
Exhibit A-1
TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS SECURITY (THE FORM OF WHICH
LETTER CAN BE OBTAINED FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF
AN AGGREGATE PRINCIPAL AMOUNT OF SECURITIES AT THE TIME OF TRANSFER OF LESS THAN
$250,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS
IN COMPLIANCE WITH THE SECURITIES ACT, (D) OUTSIDE THE UNITED STATES IN
COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION
FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE)
OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT
AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. UNLESS THE
COMPANY DETERMINES OTHERWISE IN ACCORDANCE WITH APPLICABLE LAW, THIS LEGEND WILL
BE REMOVED BY THE COMPANY (1) UPON REQUEST OF THE HOLDER, AFTER THE EXPIRATION
OF THE TIME PERIOD REFERRED TO IN RULE 144(K) UNDER THE SECURITIES ACT BEGINNING
FROM THE LATER OF (A) THE ORIGINAL ISSUE DATE OF THIS SECURITY AND (B) THE LAST
DATE ON WHICH THE COMPANY OR ANY AFFILIATE THEREOF WAS THE BENEFICIAL OWNER OF
THIS SECURITY (OR ANY PREDECESSOR HEREOF) OR (2) WITH RESPECT TO SECURITIES SOLD
IN RELIANCE ON REGULATION S, FOLLOWING THE EXPIRATION OF 40 CONSECUTIVE DAYS
BEGINNING ON AND INCLUDING THE LATER OF (A) THE DAY ON WHICH INTERESTS IN THIS
SECURITY ARE OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN
REGULATION S) AND (B) THE ORIGINAL ISSUE DATE OF THIS SECURITY. AS USED HEREIN,
THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE
MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
Exhibit A-2
MIDAMERICAN ENERGY HOLDINGS COMPANY
3.50% Senior Notes due 2008
$[ ]
No. [__] CUSIP No. 59562V AG 2
ISIN No. US59562VAG23
MIDAMERICAN ENERGY HOLDINGS COMPANY, a corporation organized under the laws
of Iowa (herein called the "Company," which term includes any successor
corporation under the Indenture hereinafter referred to), for value received,
hereby promises to pay to CEDE & Co., or registered assigns, the principal
amount of [________] Dollars (such Initial Principal Amount, as it may from time
to time be adjusted by endorsement on Schedule A hereto, is hereinafter referred
to as the "Principal Amount") on May 15, 2008, and to pay interest thereon from
May 16, 2003, or from the most recent Interest Payment Date to which interest
has been paid or duly provided for, semi-annually on May 15 and November 15 in
each year, commencing November 15, 2003, at the rate of 3.50% per annum, until
the Principal Amount hereof is paid or made available for payment; provided that
any Principal Amount and premium, and any such installment of interest, which is
overdue shall bear interest at the rate of 3.50% per annum (or, if lower, the
maximum rate legally enforceable) from the dates such amounts are due until they
are paid or made available for payment; provided, further, that if a
Registration Default (as defined in the Registration Rights Agreement) occurs
with respect to this Security, interest will accrue on this Security at a rate
of 0.5% per annum from and including the date on which any such Registration
Default shall occur, until but excluding the date on which all Registration
Defaults have been cured. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in such Indenture,
be paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest, which shall be the May 1 or November 1 (whether or not a
Business Day), as the case may be, immediately preceding such Interest Payment
Date. Any such interest not so punctually paid or duly provided for will
forthwith cease to be payable to the Person in whose name this Security (or one
or more Predecessor Securities) is registered on such Regular Record Date and
may be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities of this series
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in said Indenture.
Payment of the principal of (and premium, if any) and interest, if any, on
this Security will be made at any place of payment or at the office or agency of
the Company maintained for that purpose in the Borough of Manhattan, The City of
New York, in such coin or currency of the United States as at the time of
payment is legal tender for the payment of public and private debts, provided,
however, that, payment of interest may be made by check mailed to the address of
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