MIDAMERICAN ENERGY COMPANY and THE BANK OF NEW YORK TRUST COMPANY, NA, as Trustee First Supplemental Indenture Dated as of October 6, 2006
EXHIBIT
4.2
Execution
Copy
and
THE
BANK OF NEW YORK TRUST COMPANY, NA,
as
Trustee
________________
5.800%
Notes
due 2036
________________
________________
Dated
as
of October 6, 2006
FIRST
SUPPLEMENTAL INDENTURE, dated as of October 6, 2006 (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 TRUST COMPANY, NA, 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 October 1, 2006 (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 to be designated the
“5.800%
Notes
due 2036” 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 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:
1
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 “5.800%
Notes
due 2036”, 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).
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 ▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
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 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 February 1 or
August
1 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
MISCELLANEOUS
Section
4.01. Execution
as Supplemental Indenture.
This
First Supplemental Indenture is executed and shall be construed as an indenture
supplemental to the Original Indenture and, as provided in the Original
Indenture, this First 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.
3
Section
4.03. Successors
and Assigns.
All
covenants and agreements contained in this First Supplemental Indenture made
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 First 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 First Supplemental Indenture.
Nothing
in this First 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 of the Securities, any benefit or any legal or
equitable right, remedy or claim under this First Supplemental
Indenture.
Section
4.06. Execution
and Counterparts.
This
First 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
Not Responsible for Recitals.
The
recitals herein contained are made by the Company and not by the Trustee, and
the Trustee assumes no responsibility for the correctness thereof. The Trustee
makes no representation as to the validity or sufficiency of this First
Supplemental Indenture or of the Securities. The Trustee shall not be
accountable for the use or application by the Company of the Securities or
the
proceeds thereof.
[SIGNATURE
PAGE FOLLOWS]
4
IN
WITNESS WHEREOF, the parties hereof have caused this First 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 COMPANY | ||
| |
|
|
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||
| Title: Vice President and Treasurer | ||
|
THE
BANK OF NEW YORK TRUST COMPANY, NA,
|
||
| |
|
as
Trustee |
| By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | ||
| Title: Assistant Vice President | ||
5