EXHIBIT 4.1
MIDAMERICAN ENERGY HOLDINGS
COMPANY
and
THE BANK OF NEW YORK MELLON TRUST
COMPANY, N.A.,
as Trustee
3.15% Senior Notes due
2012
Eighth Supplemental
Indenture
Dated as of July 7, 2009
EIGHTH SUPPLEMENTAL INDENTURE, dated
as of July 7, 2009 (this “ Eighth Supplemental
Indenture ”), between MIDAMERICAN ENERGY HOLDINGS
COMPANY, an Iowa corporation (the “ Company ”),
and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a national
banking association, as Trustee (the “ Trustee
”) under the Base Indenture referred to below.
WITNESSETH:
WHEREAS, the Company has heretofore
executed and delivered that certain Indenture, dated as of October
4, 2002, between the Company and The Bank of New York, as trustee
(as amended by Article IV of the Second Supplemental Indenture
thereto, dated as of May 16, 2003 between the Company and The Bank
of New York, as trustee, Article IV of the Fourth
Supplemental Indenture thereto, dated as of March 24, 2006 between
the Company and The Bank of New York Trust Company, N.A., as
trustee, and Article IV of the Fifth Supplemental Indenture
thereto, dated as of May 11, 2007 between the Company and The Bank
of New York Trust Company N.A., as trustee, the “ Base
Indenture ,” and, together with this Eighth 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
Base Indenture;
WHEREAS, Section 9.01 of the Base
Indenture provides, among other things, that the Company and the
Trustee may enter into indentures supplemental to the Base
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 Base 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 notes in an initial aggregate
principal amount of Two hundred and fifty million dollars
($250,000,000) to be designated the “3.15% Senior Notes due
2012” (the “ Securities ”), and all action
on the part of the Company necessary to authorize the issuance of
the Securities under the Base Indenture and this Eighth
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 Base 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 EIGHTH
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 Base Indenture and the forms of
Securities attached hereto as Exhibits A through E. In
addition, for all purposes of this Eighth 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 Base
Indenture:
“ Exchange Security
” means a security in global or definitive form substantially
in the form set forth in Exhibit E to this Eighth 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 Eighth Supplemental
Indenture.
“ Registration Rights
Agreement ” means the Registration Rights Agreement,
dated July 7, 2009, between the Company and the
Representative.
“ Representative
” means J.P. Morgan Securities Inc., as representative of the
initial purchasers of the Securities.
ARTICLE II.
TERMS AND ISSUANCE OF THE
SECURITIES
Section 2.01 Issue of
Securities . One series of the Securities, which
shall be designated the “3.15% Senior Notes due 2012”
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 Base Indenture and this
Eighth Supplemental Indenture (including the forms of Securities
set forth in Exhibits A through E, as applicable). There
shall be no limit upon the aggregate principal amount of Securities
that may be authenticated and delivered under this Eighth
Supplemental Indenture.
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 Base
Indenture, including the amendments set forth in Article IV of the
Fourth Supplemental Indenture, dated March 24,
2006, 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 Base Indenture shall be applicable to the
Securities.
Section 2.04 Change of
Control . The covenant provided by Section 10.10 of
the Base 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 Mellon Trust
Company, N.A. (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 forms of
the Securities shall be substantially in the forms of Exhibits A
through E attached hereto, as applicable, the respective terms of
which are incorporated herein by reference and which are part of
this Eighth 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 Base
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 Base 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 Base Indenture.
Section 2.08 Interest
Payment Dates for the Securities . The Interest
Payment Dates for the Securities shall be January 15 and July 15 in
each year, commencing January 15, 2010 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 January 1 or July 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 $2,000 and integral multiples of $1,000 in excess
thereof.
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.
MISCELLANEOUS
Section 4.01 Execution as
Supplemental Indenture . This Eighth Supplemental
Indenture is executed and shall be construed as an indenture
supplemental to the Base Indenture and, as provided in the Base
Indenture, this Eighth Supplemental Indenture forms a part
thereof.
Section 4.02 Effect of
Headings . The Article and Section headings herein
are for convenience only and shall not affect the construction
hereof.
Section 4.03 Successors and
Assigns . All covenants and agreements in this
Eighth Supplemental Indenture by the Company shall bind its
successors and assigns, whether so expressed or not.
Section 4.04 Separability
Clause . In case any provision in this Eighth
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 4.05 Benefits of
Eighth Supplemental Indenture . Nothing in this
Eighth 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 Eighth
Supplemental Indenture.
Section 4.06 Execution in
Counterparts . This Eighth 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 4.07 Trustee
. The Trustee makes no representations as to the
validity or sufficiency of this Eighth Supplemental
Indenture. The statements herein are deemed to be those
of the Company and not of the Trustee.
[REMAINDER OF PAGE INTENTIONALLY
LEFT BLANK]
IN WITNESS WHEREOF, the parties
hereto have caused this Eighth 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.
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MIDAMERICAN ENERGY HOLDINGS COMPANY
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By:
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/s/ Brian K.
Hankel
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Name: Brian K. Hankel
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Title: Vice President and
Treasurer
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THE BANK OF NEW
YORK MELLON TRUST
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COMPANY, N.A.,
as Trustee
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By:
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/s/
Anabella Hernandez
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Name:
Anabella Hernandez
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Title: Assistant
Treasurer
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EXHIBITS
Exhibit
A Form
of 144A Global Senior Note due 2012
Exhibit
B Form
of Regulation S Temporary Global Senior Note due 2012
Exhibit
C Form
of Regulation S Permanent Global Senior Note due 2012
Exhibit
D Form
of Restricted Definitive Senior Note due 2012
Exhibit E
Form
of Private Exchange Senior Note due 2012
EXHIBIT A
FORM OF FACE OF RULE 144A
GLOBAL
SENIOR NOTE DUE 2012
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
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
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 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
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 ONE YEAR 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) IN
ACCORDANCE WITH THE INDENTURE 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.
MIDAMERICAN ENERGY HOLDINGS
COMPANY
3.15% Senior Notes due
2012
$[ ]
No. [ ]
CUSIP No. 59562V AU1
ISIN No. US59562VAU17
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 July 15, 2012, and to pay interest thereon from July 7,
2009, or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, semi-annually on
January 15 and July 15 in each year, commencing January 15, 2010,
at the rate of 3.15% 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 3.15% 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, additional 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
1 st
of January or 1
st of July (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 the
Person entitled thereto as such address shall appear in the
Security Register. Payment of interest, if any, in
respect of this Security may also be made, in the case of a Holder
of at least U.S. $1,000,000 aggregate principal amount of
Securities, by wire transfer to a U.S. Dollar account maintained by
the Holder with a bank in the United States; provided that such
Holder elects payment by wire transfer by giving written notice to
the Trustee or Paying Agent to such effect designating such account
no later than 15 days immediately preceding the relevant due date
for payment (or such other date as the Trustee may accept in its
discretion).
REFERENCE IS HEREBY MADE TO THE
FURTHER PROVISIONS OF THIS SECURITY SET FORTH ON THE REVERSE
HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE
SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of
authentication hereon has been executed by the Trustee referred to
on the reverse hereof by manual signature, this Security shall not
be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed.
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MIDAMERICAN
ENERGY HOLDINGS COMPANY
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By:
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Name:
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Title:
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Attest:
By:
TRUSTEE’S CERTIFICATE OF
AUTHENTICATION
This is one of the Securities of the
series designated herein and referred to in the within-mentioned
Indenture.
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THE BANK OF NEW
YORK MELLON TRUST
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COMPANY, N.A.,
as Trustee
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Dated:
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By:
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Authorized
Signatory
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FORM OF REVERSE OF RULE 144A GLOBAL
SENIOR NOTE DUE 2012
MIDAMERICAN ENERGY HOLDINGS
COMPANY
3.15% Senior Notes due
2012
1. GENERAL
This Security is one of a duly
authorized issue of Securities of the Company (the “
Securities ”), issued and to be issued in one or more
series under an Indenture, dated as of October 4, 2002 (as amended
by Article IV of the Second Supplemental Indenture thereto, dated
as of May 16, 2003, the “ Base Indenture ”),
between the Company and The Bank of New York, as trustee, as
amended and supplemented by the Fourth Supplemental Indenture,
dated as of March 24, 2006, the Fifth Supplemental Indenture, dated
as of May 11, 2007, and the Eighth Supplemental Indenture, dated as
of July 7, 2009 (together with the Base Indenture, the “
Indenture ”) between the Company and The Bank of New
York Mellon Trust Company, N.A., as trustee (the “
Trustee ”), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of
the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and are
to be, authenticated and delivered. Terms defined in the
Indenture which are not defined herein are used with the meanings
assigned to them in the Indenture. This Security is one
of the series designated on the face hereof.
2. OPTIONAL
REDEMPTION
The Securities of this series are
subject to redemption upon not less than 30 or more than 60
days’ notice to the Holders of such Securities as provided in
the Indenture, at any time, as a whole or in part, at the election
of the Company, at a redemption price equal to the greater of: (i)
100% of the principal amount of the Securities of this series being
redeemed or (ii) the sum of the present values of the remaining
scheduled payments of principal of and interest on the Securities
of this series being redeemed discounted to the Redemption Date on
a semiannual basis (assuming a 360-day year consisting of twelve
30-day months) at a discount rate equal to the Treasury Yield plus
30 basis points, plus, for (i) or (ii) above, whichever is
applicable, accrued interest on the Securities of this series to
the Redemption Date.
“ Treasury Yield
” means, with respect to any Redemption Date, the rate per
annum equal to the semiannual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount)
equal to the Comparable Treasury Price for such Redemption
Date.
“ Comparable Treasury
Issue ” means the United States Treasury security
selected by an Independent Investment Banker as having a maturity
comparable to the remaining term of the Securities of this series
to be redeemed that would be utilized, at the time of selection and
in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the
remaining term of the Securities of this series.
“ Comparable Treasury
Price ” means, with respect to any Redemption Date, (i)
the average of the bid and asked prices for the Comparable Treasury
Issue (expressed in each case as a percentage of its principal
amount) on the third Business Day in New York City preceding such
Redemption Date, as set forth in the daily statistical release (or
any successor release) published by the Federal Reserve Bank of New
York and designated “Composite 3:30 p.m. Quotations for U.S.
Government Securities” or (ii) if such release (or any
successor release) is not published or does not contain such prices
on such Business Day, the Reference Treasury Dealer Quotation for
such Redemption Date.
“ Independent Investment
Banker ” means an investment banking institution of
international standing appointed by the Company.
“ Reference Treasury
Dealer ” means a primary U.S. government securities
dealer in New York City appointed by the Company.
“ Reference Treasury Dealer
Quotation ” means, with respect to the Reference Treasury
Dealer and any Redemption Date, the average, as determined by the
Company, of the bid and asked prices for the Comparable Treasury
Issue (expressed in each case as a percentage of its principal
amount and quoted in writing to the Company by such Reference
Treasury Dealer at 5:00 p.m. on the third Business Day in New York
City preceding such Redemption Date).
Notice of redemption pursuant to
this paragraph 2 shall be given as provided for in the Indenture
not less than 30 days nor more than 60 days prior to the Redemption
Date.
If fewer than all the Securities of
this series are to be redeemed, selection of Securities of this
series for redemption will be made by the Trustee on a pro rata
basis.
Unless the Company defaults in
payment of the Redemption Price, from and after the Redemption
Date, the Securities of this series or portions thereof called for
redemption will cease to bear interest, and the Holders thereof
will have no right in respect of such Securities of this series
except the right to receive the Redemption Price
thereof.
In the event of redemption of this
Security in part only, the Trustee will reduce the Principal Amount
hereof by endorsement on Schedule A hereto such that the Principal
Amount shown on Schedule A after such endorsement will reflect only
the unredeemed portion hereof.
3. DEFEASANCE
The Indenture contains provisions
for defeasance of (a) the entire indebtedness of this Security and
(b) certain restrictive covenants upon compliance by the Company
with certain conditions set forth therein.
4. DEFAULTS
AND REMEDIES
If an Event of Default with respect
to Securities of this series shall occur and be continuing, the
principal of the Securities of this series may be declared due and
payable in the manner and with the effect provided in the
Indenture. At any time after such declaration of
acceleration with respect to Securities of this series has been
made, but before a judgment or decree for payment of money has been
obtained by the Trustee as provided in the Indenture, if all Events
of Default with respect to Securities of this series have been
cured or waived (other than the non-payment of principal of the
Securities of this series which has become due solely by reason of
such declaration of acceleration) then and in every such case, the
Holders of a majority in aggregate principal amount of the
Outstanding securities of such series may, by written notice to the
Company and to the Trustee, rescind and annul such declaration and
its consequences on behalf of all of the Holders, but no such
rescission or annulment shall extend to or affect any subsequent
default or impair any right consequent thereon.
As provided in and subject to the
provisions of the Indenture, the Holder of this Security shall not
have the right to institute any proceeding, judicial or otherwise,
with respect to the Indenture, or for the appointment of a receiver
or trustee or for any other remedy thereunder, unless (a) such
Holder shall have previously given the Trustee written notice of a
continuing Event of Default with respect to the Securities, (b) the
Holders of not less than 33% or a majority, as applicable, in
principal amount of the Securities at the time Outstanding under
the Indenture shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default as
Trustee, (c) such Holder shall have offered the Trustee indemnity
satisfactory to the Trustee against the costs, expenses and
liabilities to be incurred in compliance with such request, (d) the
Trustee shall not have received from the Holders of a majority in
principal amount of Securities at the time Outstanding under the
Indenture a direction inconsistent with such request and (e) the
Trustee for 90 days after its receipt of such notice and offer of
indemnity from the Holder, and request from the Holders, shall have
failed to institute any such proceeding. The foregoing
shall not apply to certain suits described in the Indenture,
including any suit instituted by the Holder of this Security for
the enforcement of any payment of principal hereof or any premium
or interest hereon on or after the respective due dates expressed
herein.
5. AMENDMENT
AND WAIVER
The Indenture permits, with certain
exceptions as therein provided, the amendment thereof and the
modification of the Indenture or any supplemental indenture or the
rights and obligations of the Company and rights of the Holders of
the Securities of any series at any time by the Company and the
Trustee with the consent of the Holders of a majority in aggregate
principal amount of the Securities at the time Outstanding of each
series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in
principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of such
series, to waive compliance by the Company with certain provisions
of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the
Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in
exchange herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Security.
No reference herein to the Indenture
and no provision of this Security or of the Indenture shall alter
or impair the obligation of the Company, which is absolute and
unconditional, to pay the principal of (and premium, if any) and
interest, if any, on this Security at the times, place and rate,
and in the coin or currency, herein prescribed.
6. TRANSFER
AND EXCHANGE; DENOMINATIONS
As provided in the Indenture and
subject to certain limitations therein set forth, the transfer of a
Security of the series of which this Security is a part is
registrable in the Security Register, upon surrender of this
Security for registration of transfer at the office or agency of
the Company in any place where the principal of (and premium, if
any) and interest, if any, on this Security are payable, duly
endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Securities of this series
and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated
transferee or transferees.
The Securities of the series of
which this Security is a part are issuable only in registered form,
without coupons, in denominations of $2,000 and any integral
multiple of $1,000 in excess thereof.
No service charge shall be made for
any such registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
Prior to due presentment of this
Security for registration of transfer, the Company, the Trustee and
any agent of the Company or the Trustee may treat the Person in
whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the
Company, the Trustee nor any such agent shall be affected by notice
to the contrary.
7. SUCCESSOR
OBLIGORS
When a successor assumes all the
obligations of its predecessor under the Securities of this series
and the Indenture in accordance with the terms of the Indenture,
the predecessor will be released from those obligations.
8. TRUSTEE
DEALINGS WITH THE COMPANY
The Trustee under the Indenture, in
its individual or any other capacity, may become the owner or
pledgee of Securities of this series and may otherwise deal with
the Company, its Subsidiaries or their respective Affiliates as if
it were not the Trustee.
9. NO
RECOURSE AGAINST OTHERS
No stockholder, director, officer,
employee, incorporator or Affiliate of the Company shall have any
liability for any obligation of the Company under the Securities of
this series or the Indenture or for any claim based on, in respect
of or by reason of, such obligations or their
creation. Each Holder of the Securities of this series
by accepting a Security of this series waives and releases all such
liability. The waiver and release are part of the
consideration for the issuance of the Securities of this
series.
10. AUTHENTICATION
This Security shall not be valid
until the Trustee or authenticating agent signs the certificate of
authentication on this Security.
11. CUSIP
NUMBERS
Pursuant to a recommendation
promulgated by the Committee on Uniform Security Identification
Procedures, the Company will cause CUSIP numbers to be printed on
the Securities of this series as a convenience to the Holders of
the Securities of this series.
12. GOVERNING
LAW
This Security shall be governed by
and construed in accordance with the laws of the State of New York,
including Section 5-1401 of the New York General Obligations Law,
but otherwise without regard to the principles of conflict of laws
thereof.
13. DEFINED
TERMS
All terms used in this Security
which are defined in the Indenture shall have the meanings assigned
to them in the Indenture.
SCHEDULE A
SCHEDULE OF ADJUSTMENTS
Initial Principal
Amount: U.S.$[__________________]
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Date Adjustment Made
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Notation
Made
Principal
Amount
Increase
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Principal
Amount
Decrease
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Principal
Amount
Following
Adjustment
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On Behalf of
the Security
Exchange
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OPTION OF HOLDER TO ELECT
PURCHASE
If you wish to elect to have all or
any portion of the Securities purchased by the Company pursuant to
a Change of Control Offer made in accordance with Section 10.10 of
the Base Indenture, check the applicable boxes:
I wish to have the Securities
purchased by the Company:
¨
in whole
¨
in part
purchased: $________________
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Dated:
__________________
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Signature:
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(sign exactly
as your name appears
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on the
other side of this Security)
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Guarantee:
______________________________
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(Your signature must be guaranteed by a
financial institution that is a member of the Securities Transfer
Agent Medallion Program (“ STAMP ”), the
Securities Exchange Medallion Program (“ SEMP
”), the New York Stock Exchange, Inc. Medallion Signature
Program (“ MSP ”) or such other signature
guarantee program as may be determined by the Securities Registrar
in addition to, or in substitution for, STAMP, SEMP or MSP, all in
accordance with the Securities Exchange Act of 1934, as
amended.)
Social Security Number or
Taxpayer Identification
Number: __________________________________
EXHIBIT B
FORM OF FACE OF REGULATION S
TEMPORARY
GLOBAL SENIOR NOTE DUE
2012
THE RIGHTS ATTACHING TO THIS
REGULATION S TEMPORARY GLOBAL SECURITY, AND THE CONDITIONS AND
PROCEDURES GOVERNING ITS EXCHANGE FOR DEFINITIVE SECURITIES, ARE AS
SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER
THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY
GLOBAL SECURITY SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST
HEREON.
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 ISSUED IN
RELIANCE ON REGULATION S 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
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
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 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
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 ONE YEAR 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) IN
ACCORDANCE WITH THE INDENTURE 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.
MIDAMERICAN ENERGY HOLDINGS
COMPANY
3.15% Senior Notes due
2012
$[ ]
No. [ ]
CUSIP
No. U59354 AJ6
ISIN No. USU59354AJ67
MIDAMERICAN ENERGY HOLDINGS COMPANY,
a corporation organized under the laws of Iowa (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 July 15, 2012, and to pay interest thereon from July
7, 2009, or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, semi-annually on
January 15 and July 15 in each year, commencing January 15, 2010,
at the rate of 3.15% 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 3.15% 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, additional 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
1 st
of January or 1
st of July (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.
Until this Regulation S Temporary
Global Security is exchanged for one or more Regulation S Permanent
Global Securities, the Holder hereof shall not be entitled to
receive payments of interest hereon; until so exchanged in full,
this Regulation S Temporary Global Security shall in all other
respects be entitled to the same benefits as other Securities under
the 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 the
Person entitled thereto as such address shall appear in the
Security Register. Payment of interest, if any, in
respect of this Security may also be made, in the case of a Holder
of at least U.S. $1,000,000 aggregate principal amount of
Securities, by wire transfer to a U.S. Dollar account maintained by
the Holder with a bank in the United States; provided that such
Holder elects payment by wire transfer by giving written notice to
the Trustee or Paying Agent to such effect designating such account
no later than 15 days immediately preceding the relevant due date
for payment (or such other date as the Trustee may accept in its
discretion).
REFERENCE IS HEREBY MADE TO THE
FURTHER PROVISIONS OF THIS SECURITY SET FORTH ON THE REVERSE
HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE
SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of
authentication hereon has been executed by the Trustee referred to
on the reverse hereof by manual signature, this Security shall not
be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has
caused this instrument to be duly executed.
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MIDAMERICAN
ENERGY HOLDINGS COMPANY
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By:
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Name:
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Title:
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Attest:
By:
TRUSTEE’S CERTIFICATE OF
AUTHENTICATION
This is one of the Securities of the
series designated herein and referred to in the within-mentioned
Indenture.
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THE BANK OF NEW
YORK MELLON TRUST
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COMPANY, N.A.,
as Trustee
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Dated:
__________
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By:
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Authorized
Signatory
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FORM OF REVERSE OF REGULATIONS
TEMPORARY
GLOBAL SENIOR NOTE DUE
2012
MIDAMERICAN ENERGY HOLDINGS
COMPANY
3.15% Senior Notes due
2012
1. GENERAL
This Security is one of a duly
authorized issue of securities of the Company (the “
Securities ”), issued and to be issued in one or more
series under an Indenture, dated as of October 4, 2002 (as amended
by Article IV of the Second Supplemental Indenture thereto, dated
as of May 16, 2003, the “ Base Indenture ”),
between the Company and The Bank of New York, as trustee, as
amended and supplemented by the Fourth Supplemental Indenture,
dated as of March 24, 2006, the Fifth Supplemental Indenture, dated
as of May 11, 2007, and the Eighth Supplemental Indenture, dated as
of July 7, 2009 (together with the Base Indenture, the “
Indenture ”) between the Company and The Bank of New
York Mellon Trust Company, N.A., as trustee (the “
Trustee ”), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of
the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and are
to be, authenticated and delivered. Terms defined in the
Indenture which are not defined herein are used with the meanings
assigned to them in the Indenture. This Security is one
of the series designated on the face hereof.
2. OPTIONAL
REDEMPTION
The Securities of this series are
subject to redemption upon not less than 30 or more than 60
days’ notice to the Holders of such Securities as provided in
the Indenture, at any time, as a whole or in part, at the election
of the Company, at a redemption price equal to the greater of: (i)
100% of the principal amount of the Securities of this series being
redeemed or (ii) the sum of the present values of the remaining
scheduled payments of principal of and interest on the Securities
of this series being redeemed discounted to the Redemption Date on
a semiannual basis (assuming a 360-day year consisting of twelve
30-day months) at a discount rate equal to the Treasury Yield plus
30 basis points, plus, for (i) or (ii) above, whichever is
applicable, accrued interest on the Securities of this series to
the Redemption Date.
“ Treasury Yield
” means, with respect to any Redemption Date, the rate per
annum equal to the semiannual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount)
equal to the Comparable Treasury Price for such Redemption
Date.
“ Comparable Treasury
Issue ” means the United States Treasury security
selected by an Independent Investment Banker as having a maturity
comparable to the remaining term of the Securities of this series
to be redeemed that would be utilized, at the time of selection and
in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the
remaining term of the Securities of this series.
“ Comparable Treasury
Price ” means, with respect to any Redemption Date, (i)
the average of the bid and asked prices for the Comparable Treasury
Issue (expressed in each case as a percentage of its principal
amount) on the third Business Day in New York City preceding such
Redemption Date, as set forth in the daily statistical release (or
any successor release) published by the Federal Reserve Bank of New
York and designated “Composite 3:30 p.m. Quotations for U.S.
Government Securities” or (ii) if such release (or any
successor release) is not published or does not contain such prices
on such Business Day, the Reference Treasury Dealer Quotation for
such Redemption Date.
“ Independent Investment
Banker ” means an investment banking institution of
international standing appointed by the Company.
“ Reference Treasury
Dealer ” means a primary U.S. government securities
dealer in New York City appointed by the Company.
“ Reference Treasury Dealer
Quotation ” means, with respect to the Reference Treasury
Dealer and any Redemption Date, the average, as determined by the
Company, of the bid and asked prices for the Comparable Treasury
Issue (expressed in each case as a percentage of its principal
amount and quoted in writing to the Company by such Reference
Treasury Dealer at 5:00 p.m. on the third Business Day in New York
City preceding such Redemption Date).
Notice of redemption pursuant to
this paragraph 2 shall be given as p
