EXHIBIT
4.1
MIDAMERICAN ENERGY
COMPANY
and
THE BANK OF NEW YORK TRUST
COMPANY, NA,
as Trustee
________________
5.750%
Notes due 2035
________________
Fourth Supplemental
Indenture
________________
Dated as of November 1,
2005
FOURTH SUPPLEMENTAL INDENTURE, dated as of
November 1, 2005 (herein called the “ Fourth 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 TRUST COMPANY, NA (as successor to 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, the Second Supplemental Indenture dated as
of January 14, 2003 and the Third Supplemental Indenture dated as
of October 1, 2004, 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 “5.750% Notes due
2035” and all action on the part of the Company necessary to
authorize the issuance of up to three hundred million dollars
($300,000,000) aggregate principal amount of such securities (the
“ Securities ”) under the Original Indenture and
this Fourth 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 FOURTH 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 “5.750% Notes
due 2035”, 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 Fourth 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 initially at
the Corporate Trust Office of The Bank of New York Trust Company,
NA (which as of the date hereof is located at 2 N. LaSalle Street,
Suite 1020, Chicago, Illinois 60602, 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
Fourth 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.
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 April 15 or October 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:
“ ‘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
corp
