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EXHIBIT 4.3
MIDAMERICAN ENERGY COMPANY
and
THE BANK OF NEW YORK ,
as
Trustee
________________
6.750%
Notes
due 2031
________________
First
Supplemental Indenture
_________________
Dated
as of February 8, 2002
FIRST
SUPPLEMENTAL INDENTURE, dated as of February 8, 2002 (herein
called the
First Supplemental Indenture ”),
between MIDAMERICAN ENERGY COMPANY, a corporation duly organized
and existing under the laws of the State of Iowa (herein called the
“
Company ”),
and THE BANK OF NEW YORK, a national banking association duly
organized and existing under the laws of the United States of
America, as Trustee (herein called the “
Trustee ”),
under the Original Indenture referred to below.
WITNESSETH:
WHEREAS,
the Company has heretofore executed and delivered to the
Trustee an indenture dated as of February 8, 2002 (herein
called the “
Original Indenture ”
) ,
to provide for the issuance from time to time of its unsubordinated
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, (i) the purpose of establishing the form and
terms of the Securities (as defined in the Original Indenture)
of any series as permitted by Sections 2.01 and 3.01 of the
Original Indenture, and (ii) to add to the covenants of the
Company for the benefit of the Holders of all or any series of
Securities (as defined in the Original
Indenture);
WHEREAS, the Company desires to create one series of
securities in an aggregate principal amount of four hundred
million dollars ($400,000,000) to be designated the
“ 6.750%
Notes
due 2031” (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 First Supplemental Indenture has been duly taken;
WHEREAS, the Company and the Trustee desire to make certain
amendments to the Original Indenture in conformance with the
requirements described above; and
WHEREAS, all acts and things necessary 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 to constitute
these presents a valid and binding supplemental indenture and
agreement
according
to its terms, have been done and performed.
NOW,
THEREFORE, THIS FIRST 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 form of Security attached hereto
as
Exhibit A .
ARTICLE
II
TERMS
AND ISSUANCE OF THE SECURITIES
Section
2.01.
Issue of Securities. One
series of notes, which shall be designated the
“ 6.750%
Notes
due 2031”, 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 First Supplemental Indenture (including the form
of Security set forth in
Exhibit A) .
The aggregate principal amount of the 6.750% Notes due 2031 which
may be authenticated and delivered under this First Supplemental
Indenture shall not exceed $400,000,000.
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
Annex 1 to
the Securities to be redeemed. The provisions of Article XI of the
Original Indenture shall also apply to any optional redemption of
Securities by the Company.
Section
2.03
. Defeasance and Discharge. The
provisions of Section 14.02 of the Original Indenture shall be
applicable to the Securities.
Section
2.04.
Covenant Defeasance. The
provisions of Section 14.03
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, 21 West, New York, New York 10286, Attention: Corporate
Trust Administration).
2
Section
2.06.
Form of Securities; Incorporation of Terms.
The form of the Securities shall be substantially in the form
of
Exhibit A ,
the terms of which are herein incorporated by reference and which
are part of this First Supplemental Indenture. The Securities shall
be issued as one or more Global Securities in filly 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
therefore, 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 3.05 of the Original
Indenture.
Section
2.08. Regular Record Date for the Securities. The Regular
Record Date for the Securities shall be the June 15 or
December 15 immediately prior to each Interest Payment
Date.
Section
2.09.
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 in excess thereof.
ARTICLE
III
DEPOSITARY
Section
3.01.
Depositary. The
Depositary 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.
Amendments. The
Original Indenture is hereby amended as follows:
(a)
Section
1.01 of the Original Indenture is hereby amended to add or
modify the following definitions, as the case may
be:
“
Common Shareholders Equity” means,
at any time, the total shareholders’ equity of the
Company and its consolidated subsidiaries, determined on a
consolidated basis in accordance with generally accepted
accounting principles, as of the end of the most recently
completed fiscal quarter of the Company for which financial
information is then available.”
3
“
Iowa-Illinois Indenture” means
the Indenture of Mortgage and Deed of Trust, dated as of March 1,
1947, from Iowa-Illinois Gas and Electric Company to Harris Trust
and Savings Bank and Lynn Lloyd (C. Potter, successor individual
trustee), as trustees, and indentures supplemental
thereto.”
“
Midwest Power Indenture” means
the General Mortgage Indenture and Deed of Trust, dated as of
January 1, 1993, between Midwest Power Systems Inc. and Morgan
Guaranty Trust Company of New York, trustee (Harris Trust and
Savings Bank, successor trustee), and indentures supplemental
thereto.”
“
Permitted Encumbrances” means:
(a)
(i)
any mortgage, pledge or other lien or encumbrance on any
property hereafter acquired or constructed by the Company or
a Subsidiary, or on which property so constructed is located,
and created prior to, contemporaneously with or within 360
days after, such acquisition or construction or the
commencement of commercial operation of such property to
secure or provide for the payment of any part of the purchase
or construction price of such property, or (ii) any property
subject to any mortgage, pledge, or other lien or encumbrance
upon such property existing at the time of acquisition
thereof by the Company or any Subsidiary, whether or not
assumed by the Company or such Subsidiary, or (iii) any
mortgage, pledge or other lien or encumbrance existing on the
property, shares of stock, membership interests or
indebtedness of a corporation or limited liability company at
the time such corporation or limited liability company shall
become a Subsidiary or any pledge of the shares of stock or
membership interests of such corporation or limited liability
company prior to, contemporaneously with or within 360 days
after such corporation or limited liability company shall
becom
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