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EXHIBIT 4.1
EXECUTION
COPY
MIDAMERICAN ENERGY COMPANY
and
THE BANK OF NEW YORK,
as
Trustee
________________
4.650%
Notes due 2014
________________
Third
Supplemental Indenture
________________
Dated
as of October 1, 2004
THIRD
SUPPLEMENTAL INDENTURE, dated as of October 1, 2004 (herein
called the "
Third 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 New York 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.
W
I T N E S S E T H :
WHEREAS,
the Company has heretofore executed and delivered to the
Trustee an indenture dated as of February 8, 2002, as amended
(herein called the "
Original Indenture "),
as supplemented by the First Supplemental Indenture dated as of
February 8, 2002 and the Second Supplemental Indenture dated as of
January 14, 2003, 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 to be
designated the "4.650% Notes due 2014" and all action on the
part of the Company necessary to authorize the issuance of up
to three hundred fifty million dollars ($350,000,000)
aggregate principal amount of such securities (the "
Securities ")
under the Original Indenture and this Third 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.
1
NOW,
THEREFORE, THIS THIRD 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
Unless
otherwise defined herein, 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 "4.650% Notes due 2014", 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
Third Supplemental Indenture (including the form of Security
set forth in
Exhibit A ).
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, 8 West, New
York, New York 10286, Attention: Corporate Trust
Administration).
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 Third Supplemental Indenture. The Securities shall
be issued as one or more Global 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
therefore, to be held by the Depositary in accordance with the
Original Indenture.
2
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 March 15 or
September 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.
Section
2.10. Additional Securities. The Company may from time to
time, without the consent of the Holders of the Securities,
create and issue further securities having the same terms and
conditions as the Securities in all respects, except for the
original issue date and offering price. Additional Securities
issued in this manner will be consolidated with, and form a
single series with, the Securities and shall thereafter be
deemed Securities for all purposes.
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:
3
"
'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."
"'
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
intere
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