EXECUTION VERSION
MIDAMERICAN ENERGY HOLDINGS COMPANY
and
THE BANK OF NEW YORK,
as Trustee
4.625% Senior Notes due 2007
5.875% Senior Notes due 2012
First Supplemental Indenture
Dated as of October 4, 2002
FIRST SUPPLEMENTAL INDENTURE, dated as of October 4, 2002 (the "First
Supplemental Indenture"), between MIDAMERICAN ENERGY HOLDINGS COMPANY, an Iowa
corporation (the "Company"), and THE BANK OF NEW YORK, a New York banking
corporation, as Trustee (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 the date hereof (hereinafter called the
"Original 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 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, 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 Original Indenture and of appointing an Authenticating Agent
with respect to the Securities of any series;
WHEREAS, the Company desires to create two series of its unsecured
debentures, one series of its debentures in an aggregate principal amount of Two
Hundred Million Dollars ($200,000,000) to be designated the "4.625% Senior Notes
due 2007" and one series of its debentures in an aggregate principal amount of
Five Hundred Million Dollars ($500,000,000) to be designated the "5.875% Senior
Notes due 2012" (together, 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; 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 Original 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 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
forms of Securities attached hereto as Exhibits A and B. In addition, for all
purposes of this First 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 Original Indenture:
"Exchange Security" means a security in global or definitive form
substantially in the form set forth in Exhibit A-5, with respect to the 4.625%
Senior Notes due 2007, or in the form set forth in Exhibit B-5, with respect to
the 5.875% Senior Notes due 2012, in each case, to this First Supplemental
Indenture.
"Global Security" means a Rule 144A Global Security, a Regulation S
Permanent Global Security, or a Regulation S Temporary Global Security, in
global form substantially in the form set forth in Exhibits A-l, A-2 and A-3,
respectively, with respect to the 4.625% Senior Notes due 2007, or in the forms
set forth in Exhibits B-1, B-2 and B-3, respectively, with respect to the 5.875%
Senior Notes due 2012, in each case, to this First Supplemental Indenture.
"Initial Purchasers" means Credit Suisse First Boston Corporation, Banc
One Capital Markets, Inc., BNY Capital Markets, Inc., X.X. Xxxxxx Securities
Inc., BNP Paribas Securities Corp., Commerzbank Capital Markets Corp., ING
Financial Markets LLC, Mizuho International plc, TD Securities (USA) Inc., The
Royal Bank of Scotland plc and U.S. Bancorp Xxxxx Xxxxxxx Inc.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of October 1, 2002, among the Company and the Initial
Purchasers.
ARTICLE II.
TERMS AND ISSUANCE OF THE SECURITIES
Section 2.01 Issue of Securities. Two series of the Securities, which
shall be designated the "4.625% Senior Notes due 2007" and the "5.875% 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 Original Indenture and this First Supplemental
Indenture (including the forms of Securities set forth in Exhibits A and B, as
applicable hereto). The aggregate principal amount of the 4.625% Senior Notes
due 2007 and the aggregate principal amount of the 5.875% Senior Notes due 2012
which may be authenticated and delivered under this First Supplemental Indenture
shall not exceed $200,000,000 and $500,000,000, respectively.
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
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series of Securities to be redeemed. The provisions of Article XI of the
Original Indenture 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 Original Indenture shall be applicable to the Securities.
Section 2.04 Change of Control. The covenant provided by Section 10.10
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 000
Xxxxxxx Xxxxxx, Xxxxx 0X, Xxx Xxxx, Xxx Xxxx 00000 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 and B attached
hereto, as applicable, the respective terms of which are incorporated herein 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 and one or more Definitive 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 therefor, 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 3.07(b)(ii) of the Original Indenture.
Section 2.08 Regular Record Date for the Securities. The Regular Record
Date for the Securities shall be the January 15 or July 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.
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 First
Supplemental Indenture is executed and shall be construed as an indenture
supplemental to the Original
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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.
Section 4.03 Successors and Assigns. All covenants and agreements in
this First 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 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, any benefit or any legal or equitable right, remedy or claim
under this First Supplemental Indenture.
Section 4.06 Execution in 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. The Trustee makes no representations as to the
validity or sufficiency of this First Supplemental Indenture. The statements
herein are deemed to be those of the Company and not of the Trustee.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto 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 HOLDINGS COMPANY
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President,
General Counsel and Secretary
THE BANK OF NEW YORK,
as Trustee
By: /s/ Xxxxxx X. Xxxxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Vice President
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EXHIBITS
--------
EXHIBIT A 4.625% Senior Notes due 2007
------------------------------------------
Exhibit A-1 Form of 144A Global Senior Note due 2007
Exhibit A-2 Form of Regulation S Permanent Global Senior Note due 2007
Exhibit A-3 Form of Regulation S Temporary Global Senior Note due 2007
Exhibit A-4 Form of Restricted Definitive Senior Note due 2007
Exhibit A-5 Form of Private Exchange Senior Note due 2007
EXHIBIT B 5.875% Senior Notes due 2012
------------------------------------------
Exhibit B-1 Form of 144A Global Senior Note due 2012
Exhibit B-2 Form of Regulation S Permanent Global Senior Note due 2012
Exhibit B-3 Form of Regulation S Temporary Global Senior Note due 2012
Exhibit B-4 Form of Restricted Definitive Senior Note due 2012
Exhibit B-5 Form of Private Exchange Senior Note due 2012
EXHIBIT A-1
FORM OF FACE OF RULE 144A GLOBAL
SENIOR NOTE DUE 2007
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 AND WILL NOT BE 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 OF THE 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
BEGINNING FROM THE LATER OF (X) THE ORIGINAL ISSUE DATE OF THIS SECURITY OR (Y)
THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE THEREOF WAS THE BENEFICIAL
OWNER OF THIS SECURITY (OR ANY PREDECESSOR HEREOF) THROUGH THE TIME PERIOD
REFERRED TO IN RULE 144(K) UNDER THE SECURITIES ACT, 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 THE EXPIRATION
OF THE TIME PERIOD REFERRED TO IN RULE 144(K) UNDER THE SECURITIES ACT BEGINNING
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) 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
4.625% Senior Notes due 2007
$[_____________]
No. [__] CUSIP No. 59562V AA 5
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 October 1, 2007, and to pay interest thereon
from October 4, 2002, or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, semi-annually on January 31 and
July 31 in each year, commencing January 31, 2003, at the rate of 4.625% 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 4.625% 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, 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 January 15 or July 15
(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.
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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.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
MIDAMERICAN ENERGY HOLDINGS COMPANY
By:
-------------------------------
Name:
Title:
Attest:
By:
-------------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
Dated: By:
-------------- -----------------------------
Authorized Signatory
FORM OF REVERSE OF RULE 144A GLOBAL SENIOR NOTE DUE 2007
MIDAMERICAN ENERGY HOLDINGS COMPANY
4.625% Senior Notes due 2007
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 (the "Original Indenture"), between
the Company and The Bank of New York, as trustee (the "Trustee," which term
includes any successor trustee under the Original Indenture), as supplemented by
the First Supplemental Indenture, dated as of October 4, 2002 (together with the
Original Indenture, the "Indenture") between the Company and 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, limited in
aggregate principal amount to $200,000,000.
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 37.5
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
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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 in any manner the Trustee deems fair and appropriate.
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
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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.
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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 $1,000
and any integral multiple of $1,000.
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.
R-4
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.
R-5
SCHEDULE A
[SCHEDULE OF ADJUSTMENTS]
Initial Principal Amount: U.S.$
-----------------
NOTIFICATION
MADE PRINCIPAL ON BEHALF OF
PRINCIPAL PRINCIPAL AMOUNT THE SECURITY
AMOUNT AMOUNT FOLLOWING EXCHANGE
DATE ADJUSTMENT MADE INCREASE DECREASE ADJUSTMENT AGENT/REGISTRAR
-------------------- ------------ --------- ---------- ---------------
-------------------- ------------ --------- ---------- ---------------
-------------------- ------------ --------- ---------- ---------------
-------------------- ------------ --------- ---------- ---------------
-------------------- ------------ --------- ---------- ---------------
-------------------- ------------ --------- ---------- ---------------
-------------------- ------------ --------- ---------- ---------------
-------------------- ------------ --------- ---------- ---------------
-------------------- ------------ --------- ---------- ---------------
-------------------- ------------ --------- ---------- ---------------
-------------------- ------------ --------- ---------- ---------------
-------------------- ------------ --------- ---------- ---------------
-------------------- ------------ --------- ---------- ---------------
-------------------- ------------ --------- ---------- ---------------
-------------------- ------------ --------- ---------- ---------------
-------------------- ------------ --------- ---------- ---------------
-------------------- ------------ --------- ---------- ---------------
-------------------- ------------ --------- ---------- ---------------
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 Indenture, check the applicable boxes:
I wish to have the Securities purchased by the Company:
[ ] in whole
[ ] in part
Amount to be
purchased: $
--------------
Dated: Signature:
----------------------- -----------------------------------
(sign exactly as your name appears
on the other side of this Security)
Signature
Guarantee:
--------------------------------
(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 A-2
FORM OF FACE OF REGULATION S TEMPORARY
GLOBAL SENIOR NOTE DUE 2007
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 AND WILL NOT BE 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 OF THE 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 BEGINNING FROM THE LATER OF (X) THE ORIGINAL ISSUE DATE OF
THIS SECURITY OR (Y) THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE THEREOF
WAS THE BENEFICIAL OWNER OF THIS SECURITY (OR ANY PREDECESSOR HEREOF) THROUGH
THE TIME PERIOD REFERRED TO IN RULE 144(K) UNDER THE SECURITIES ACT, 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 THE EXPIRATION OF THE TIME PERIOD
REFERRED TO IN RULE 144(K) UNDER THE SECURITIES ACT BEGINNING 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) 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
4.625% Senior Notes due 2007
$________
CUSIP No. U59354 AB 3
No. ___ ISIN No. USU59354AB32
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 October 1, 2007, and to pay interest thereon from
October 4, 2002, or from the most recent Interest Payment Date to which interest
has been paid or duly provided for, semi-annually on January 31 and July 31 in
each year, commencing January 31, 2003, at the rate of 4.625% 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 4.625% 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, 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 January 15 or July 15 (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
3
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.
4
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
MIDAMERICAN ENERGY HOLDINGS COMPANY
By:
--------------------------------
Name:
Title:
Attest:
By:
--------------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
Dated: By:
------------------ ----------------------------------
Authorized Signatory
FORM OF REVERSE OF REGULATION S TEMPORARY
GLOBAL SENIOR NOTE DUE 2007
MIDAMERICAN ENERGY HOLDINGS COMPANY
4.625% Senior Notes due 2007
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 (the "Original Indenture"), between
the Company and The Bank of New York as trustee (the "Trustee," which term
includes any successor trustee under the Original Indenture), as supplemented by
the First Supplemental Indenture, dated as of October 4, 2002 (together with the
Original Indenture, the "Indenture") between the Company and 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, limited in
aggregate principal amount to $200,000,000.
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 37.5
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
R-1
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 in any manner the Trustee deems fair and appropriate.
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
R-2
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 under the Indenture 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.
R-3
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 $1,000
and any integral multiple of $1,000.
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.
This Regulation S Temporary Global Security is exchangeable in whole or
in part for one or more Global Securities only (i) on or after the termination
of the 40-day distribution compliance period (as defined in Regulation S) and
(ii) upon presentation of certificates (accompanied by an Opinion of Counsel, if
applicable) required by Article 2 of the Indenture. Upon exchange of this
Regulation S Temporary Global Security for one or more Global Securities, the
Trustee shall cancel this Regulation S Temporary Global Security.
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.
R-4
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. ISIN NUMBER
This Security will bear an ISIN number. No representation is made as to
the accuracy of such number as printed on the Securities of this series and
reliance may be placed only on the other identification numbers printed hereon.
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.
R-5
SCHEDULE A
SCHEDULE OF ADJUSTMENTS
Initial Principal Amount: U.S.$
NOTATION
MADE PRINCIPAL ON BEHALF OF
PRINCIPAL PRINCIPAL AMOUNT THE SECURITY
AMOUNT AMOUNT FOLLOWING EXCHANGE
DATE ADJUSTMENT MADE INCREASE DECREASE ADJUSTMENT AGENT/REGISTRAR
-------------------- --------- --------- ---------- ---------------
-------------------- --------- --------- ---------- ---------------
-------------------- --------- --------- ---------- ---------------
-------------------- --------- --------- ---------- ---------------
-------------------- --------- --------- ---------- ---------------
-------------------- --------- --------- ---------- ---------------
-------------------- --------- --------- ---------- ---------------
-------------------- --------- --------- ---------- ---------------
-------------------- --------- --------- ---------- ---------------
-------------------- --------- --------- ---------- ---------------
-------------------- --------- --------- ---------- ---------------
-------------------- --------- --------- ---------- ---------------
-------------------- --------- --------- ---------- ---------------
-------------------- --------- --------- ---------- ---------------
-------------------- --------- --------- ---------- ---------------
-------------------- --------- --------- ---------- ---------------
-------------------- --------- --------- ---------- ---------------
-------------------- --------- --------- ---------- ---------------
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 Indenture, check the applicable boxes:
I wish to have the Securities purchased by the Company:
[ ] in whole
[ ] in part
Amount to be
purchased: $________________
Dated: _____________________ Signature: __________________________________
(sign exactly as your name appears
on the other side of this Security)
Signature
Guarantee: ______________________________
(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 A-3
FORM OF FACE OF REGULATION S PERMANENT
GLOBAL SENIOR NOTE DUE 2007
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 AND WILL NOT BE 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 OF THE 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
BEGINNING FROM THE LATER OF (X) THE ORIGINAL ISSUE DATE OF THIS SECURITY OR (Y)
THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE THEREOF WAS THE BENEFICIAL
OWNER OF THIS SECURITY (OR ANY PREDECESSOR HEREOF) THROUGH THE TIME PERIOD
REFERRED TO IN RULE 144(K) UNDER THE SECURITIES ACT, 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 THE EXPIRATION
OF THE TIME PERIOD REFERRED TO IN RULE 144(K) UNDER THE SECURITIES ACT BEGINNING
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) 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
4.625% Senior Notes due 2007
$________
CUSIP No. U59354 AB 3
No. ___ ISIN No. USU59354AB32
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 October 1, 2007, and to pay interest thereon from
October 4, 2002, or from the most recent Interest Payment Date to which interest
has been paid or duly provided for, semi-annually on January 31 and July 31 in
each year, commencing January 31, 2003 at the rate of 4.625% 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 4.625% 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, 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 January 15 or July 15 (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.
3
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.
4
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
MIDAMERICAN ENERGY HOLDINGS COMPANY
By:
--------------------------------
Name:
Title:
Attest:
By:
--------------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
Dated: __________ By:_____________________________
Authorized Signatory
FORM OF REVERSE OF REGULATION S PERMANENT
GLOBAL SENIOR NOTE DUE 2007
MIDAMERICAN ENERGY HOLDINGS COMPANY
4.625% Senior Notes due 2007
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 (the "Original Indenture"), between
the Company and The Bank of New York as trustee (the "Trustee," which term
includes any successor trustee under the Original Indenture), as supplemented by
the First Supplemental Indenture, dated as of October 4, 2002 (together with the
Original Indenture, the "Indenture") between the Company and 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, limited in
aggregate principal amount to $200,000,000.
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 any time, 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 37.5 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
R-1
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 in any manner the Trustee deems fair and appropriate.
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
R-2
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.
R-3
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 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 $1,000
and any integral multiple of $1,000.
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.
R-4
10. AUTHENTICATION
This Security shall not be valid until the Trustee or authenticating
agent signs the certificate of authentication on this Security.
11. ISIN NUMBER
This Security will bear an ISIN number. No representation is made as to
the accuracy of such number as printed on the Securities of this series and
reliance may be placed only on the other identification numbers printed hereon.
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.
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SCHEDULE A
SCHEDULE OF ADJUSTMENTS
Initial Principal Amount: U.S.$
NOTATION
MADE PRINCIPAL ON BEHALF OF
PRINCIPAL PRINCIPAL AMOUNT THE SECURITY
AMOUNT AMOUNT FOLLOWING EXCHANGE
DATE ADJUSTMENT MADE INCREASE DECREASE ADJUSTMENT AGENT/REGISTRAR
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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 Indenture, check the applicable boxes:
I wish to have the Securities purchased by the Company:
[ ] in whole
[ ] in part
Amount to be
purchased: $________________
Dated: __________________ Signature: __________________________________
(sign exactly as your name appears
on the other side of this Security)
Signature
Guarantee: ______________________________
(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 A-4
FORM OF FACE OF RESTRICTED DEFINITIVE
SENIOR NOTE DUE 2007
THIS SECURITY HAS INITIALLY BEEN RESOLD TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" (AS DESCRIBED BY RULE 501(a)(1), (2), (3) or (7) UNDER THE SECURITIES
ACT) IN A TRANSACTION EXEMPT FROM REGISTRATION 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 AND WILL NOT BE 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 OF THE 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
BEGINNING FROM THE LATER OF (X) THE ORIGINAL ISSUE DATE OF THIS SECURITY OR (Y)
THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE THEREOF WAS THE BENEFICIAL
OWNER OF THIS SECURITY (OR ANY PREDECESSOR HEREOF) THROUGH THE TIME PERIOD
REFERRED TO IN RULE 144(K) UNDER THE SECURITIES ACT, 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 THE EXPIRATION OF THE TIME PERIOD
REFERRED TO IN RULE 144(K) UNDER THE SECURITIES ACT BEGINNING 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) 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
4.625% Senior Notes due 2007
$[__________]
No. [__] CUSIP No. [__________]
ISIN No. [__________]
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 [name of registered owner or its registered assigns]
the principal sum of ___ Dollars (the "Principal Amount") on October 1, 2007,
and to pay interest thereon from October 4, 2002, or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
semi-annually on January 31 and July 31 in each year, commencing January 31,
2003, at the rate of 4.625% 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 4.625% 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, 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 January 15 or July 15 (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
3
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.
4
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
MIDAMERICAN ENERGY HOLDINGS COMPANY
By: _______________________________
Name:
Title:
Attest:
By: ___________________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
Dated: __________ By: _______________________
Authorized Signatory
FORM OF REVERSE OF RESTRICTED DEFINITIVE SENIOR NOTE DUE 2007
MIDAMERICAN ENERGY HOLDINGS COMPANY
4.625% Senior Notes due 2007
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 (the "Original Indenture"), between
the Company and The Bank of New York, as trustee (the "Trustee," which term
includes any successor trustee under the Original Indenture), as supplemented by
the First Supplemental Indenture, dated as of October 4, 2002 (together with the
Original Indenture, the "Indenture") between the Company and 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, limited in
aggregate principal amount to $200,000,000.
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 37.5
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
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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 in any manner the Trustee deems fair and appropriate.
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.
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.
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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 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
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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 $1,000
and any integral multiple of $1,000.
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.
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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.
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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 Indenture, check the applicable boxes:
I wish to have the Securities purchased by the Company:
[ ] in whole
[ ] in part
Amount to be
purchased: $________________
Dated: _________________ Signature: _____________________________________
(sign exactly as your name appears
on the other side of this Security)
Signature
Guarantee: ______________________________
(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 A-5
FORM OF FACE OF SENIOR EXCHANGE NOTE DUE 2007
OR PRIVATE EXCHANGE NOTE DUE 2007
MIDAMERICAN ENERGY HOLDINGS COMPANY
4.625% Senior Notes due 2007
$[__________]
No. [__] CUSIP No. 59562V AD 9
ISIN No. US59562VAD91
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 October 1, 2007, and to pay interest thereon from October
4, 2002, or from the most recent Interest Payment Date to which interest has
been paid or duly provided for, semi-annually on January 31 and July 31 in each
year, commencing January 31, 2003, at the rate of 4.625% 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 4.625% 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. 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 January 15 or July 15
(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.
2
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
MIDAMERICAN ENERGY HOLDINGS COMPANY
By: _________________________________
Name:
Title:
Attest:
By: ________________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
Dated: __________ By: __________________________
Authorized Signatory
FORM OF REVERSE OF SENIOR EXCHANGE NOTE DUE 2007
OR PRIVATE EXCHANGE NOTE DUE 2007
MIDAMERICAN ENERGY HOLDINGS COMPANY
4.625% Senior Notes due 2007
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 (the "Original Indenture"), between
the Company and The Bank of New York, as trustee (the "Trustee," which term
includes any successor trustee under the Original Indenture), as supplemented by
the First Supplemental Indenture, dated as of October 4, 2002 (together with the
Original Indenture, the "Indenture") between the Company and 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, limited in
aggregate principal amount to $200,000,000.
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 37.5
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
R-1
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 in any manner the Trustee deems fair and appropriate.
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.
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
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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 this Security 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
R-3
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 $1,000
and any integral multiple of $1,000.
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.
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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.
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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 Indenture, check the applicable boxes:
I wish to have the Securities purchased by the Company:
[ ] in whole
[ ] in part
Amount to be
purchased: $________________
Dated: __________________ Signature: _________________________________
(sign exactly as your name appears
on the other side of this Security)
Signature
Guarantee: ______________________________
(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-1
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 AND WILL NOT BE 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 OF THE 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
BEGINNING FROM THE LATER OF (X) THE ORIGINAL ISSUE DATE OF THIS SECURITY OR (Y)
THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE THEREOF WAS THE BENEFICIAL
OWNER OF THIS SECURITY (OR ANY PREDECESSOR HEREOF) THROUGH THE TIME PERIOD
REFERRED TO IN RULE 144(K) UNDER THE SECURITIES ACT, 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 THE EXPIRATION
OF THE TIME PERIOD REFERRED TO IN RULE 144(K) UNDER THE SECURITIES ACT BEGINNING
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) 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
5.875% Senior Notes due 2012
$______________
No. [__] CUSIP No. 59562V AC 1
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 October 1, 2012, and to pay interest
thereon from October 4, 2002, or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, semi-annually on January 31
and July 31 in each year, commencing January 31, 2003 at the rate of 5.875% 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 5.875% 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, 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 January 15 or July 15
(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
3
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.
4
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
MIDAMERICAN ENERGY HOLDINGS COMPANY
By: ________________________________
Name:
Title:
Attest:
By: ____________________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
Dated: __________ By: ___________________________
Authorized Signatory
FORM OF REVERSE OF RULE 144A GLOBAL SENIOR NOTE DUE 2012
MIDAMERICAN ENERGY HOLDINGS COMPANY
5.875% 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 (the "Original Indenture"), between
the Company and The Bank of New York, as trustee (the "Trustee," which term
includes any successor trustee under the Original Indenture), as supplemented by
the First Supplemental Indenture, dated as of October 4, 2002 (together with the
Original Indenture, the "Indenture") between the Company and 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, limited in
aggregate principal amount to $500,000,000.
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 37.5
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
R-1
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 in any manner the Trustee deems fair and appropriate.
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
R-2
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
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.
R-3
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 $1,000
and any integral multiple of $1,000.
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.
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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.
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SCHEDULE A
[SCHEDULE OF ADJUSTMENTS]
Initial Principal Amount: U.S.$ _______________
NOTIFICATION
MADE PRINCIPAL ON BEHALF OF
PRINCIPAL PRINCIPAL AMOUNT THE SECURITY
AMOUNT AMOUNT FOLLOWING EXCHANGE
DATE ADJUSTMENT MADE INCREASE DECREASE ADJUSTMENT AGENT/REGISTRAR
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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 Indenture, check the applicable boxes:
I wish to have the Securities purchased by the Company:
[ ] in whole
[ ] in part
Amount to be
purchased: $________________
Dated: __________________ Signature: __________________________________
(sign exactly as your name appears
on the other side of this Security)
Signature
Guarantee: ______________________________
(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-2
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 AND WILL NOT BE 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 OF THE 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 BEGINNING FROM THE LATER OF (X) THE ORIGINAL ISSUE DATE OF
THIS SECURITY OR (Y) THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE THEREOF
WAS THE BENEFICIAL OWNER OF THIS SECURITY (OR ANY PREDECESSOR HEREOF) THROUGH
THE TIME PERIOD REFERRED TO IN RULE 144(K) UNDER THE SECURITIES ACT, 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 THE EXPIRATION OF THE TIME PERIOD
REFERRED TO IN RULE 144(K) UNDER THE SECURITIES ACT BEGINNING 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) 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
5.875% Senior Notes due 2012
$__________
CUSIP No. U59354 AB 3
No. ___ ISIN No. USU59354AB32
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 October 1, 2012, and to pay interest thereon from
October 4, 2002, or from the most recent Interest Payment Date to which interest
has been paid or duly provided for, semi-annually on January 31 and July 31 in
each year, commencing January 31, 2003, at the rate of 5.875% 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 5.875% 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, 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 January 15 or July 15 (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
3
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.
4
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
MIDAMERICAN ENERGY HOLDINGS COMPANY
By: ________________________________
Name:
Title:
Attest:
By: _______________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
Dated: __________ By: _________________________
Authorized Signatory
FORM OF REVERSE OF REGULATION S TEMPORARY
GLOBAL SENIOR NOTE DUE 2012
MIDAMERICAN ENERGY HOLDINGS COMPANY
5.875% 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 (the "Original Indenture"), between
the Company and The Bank of New York as trustee (the "Trustee," which term
includes any successor trustee under the Original Indenture), as supplemented by
the First Supplemental Indenture, dated as of October 4, 2002 (together with the
Original Indenture, the "Indenture") between the Company and 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, limited in
aggregate principal amount to $500,000,000.
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 37.5
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
R-1
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 in any manner the Trustee deems fair and appropriate.
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
R-2
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 under the Indenture 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.
R-3
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 $1,000
and any integral multiple of $1,000.
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.
This Regulation S Temporary Global Security is exchangeable in whole or
in part for one or more Global Securities only (i) on or after the termination
of the 40-day distribution compliance period (as defined in Regulation S) and
(ii) upon presentation of certificates (accompanied by an Opinion of Counsel, if
applicable) required by Article 2 of the Indenture. Upon exchange of this
Regulation S Temporary Global Security for one or more Global Securities, the
Trustee shall cancel this Regulation S Temporary Global Security.
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.
R-4
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. ISIN NUMBER
This Security will bear an ISIN number. No representation is made as to
the accuracy of such number as printed on the Securities of this series and
reliance may be placed only on the other identification numbers printed hereon.
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.
R-5
SCHEDULE A
SCHEDULE OF ADJUSTMENTS
Initial Principal Amount: U.S.$
NOTATION
MADE PRINCIPAL ON BEHALF OF
PRINCIPAL PRINCIPAL AMOUNT THE SECURITY
AMOUNT AMOUNT FOLLOWING EXCHANGE
DATE ADJUSTMENT MADE INCREASE DECREASE ADJUSTMENT AGENT/REGISTRAR
-------------------- --------- --------- ---------- ---------------
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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 Indenture, check the applicable boxes:
I wish to have the Securities purchased by the Company:
[ ] in whole
[ ] in part
Amount to be
purchased: $________________
Dated: __________________ Signature: __________________________________
(sign exactly as your name appears
on the other side of this Security)
Signature
Guarantee: ______________________________
(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-3
FORM OF FACE OF REGULATION S PERMANENT
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 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 AND WILL NOT BE 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 OF THE 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
BEGINNING FROM THE LATER OF (X) THE ORIGINAL ISSUE DATE OF THIS SECURITY OR (Y)
THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE THEREOF WAS THE BENEFICIAL
OWNER OF THIS SECURITY (OR ANY PREDECESSOR HEREOF) THROUGH THE TIME PERIOD
REFERRED TO IN RULE 144(K) UNDER THE SECURITIES ACT, 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 THE EXPIRATION OF THE TIME PERIOD
REFERRED TO IN RULE 144(K) UNDER THE SECURITIES ACT BEGINNING 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) 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
5.875% Senior Notes due 2012
$__________
CUSIP No. U59354 AB 3
No. ___ ISIN No. USU59354AB32
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 October 1, 2012, and to pay interest thereon from
October 4, 2002, or from the most recent Interest Payment Date to which interest
has been paid or duly provided for, semi-annually on January 31 and July 31 in
each year, commencing January 31, 2003 at the rate of 5.875% 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 5.875% 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, 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 January 15 or July 15 (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.
3
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.
4
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
MIDAMERICAN ENERGY HOLDINGS COMPANY
By: _______________________________
Name:
Title:
Attest:
By: ___________________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
xxx: __________ By:__________________________
Authorized Signatory
FORM OF REVERSE OF REGULATION S PERMANENT
GLOBAL SENIOR NOTE DUE 2012
MIDAMERICAN ENERGY HOLDINGS COMPANY
5.875% 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 (the "Original Indenture"), between
the Company and The Bank of New York as trustee (the "Trustee," which term
includes any successor trustee under the Original Indenture), as supplemented by
the First Supplemental Indenture, dated as of October 4, 2002 (together with the
Original Indenture, the "Indenture") between the Company and 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, limited in
aggregate principal amount to $500,000,000.
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 any time, 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 37.5 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
R-1
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 in any manner the Trustee deems fair and appropriate.
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
R-2
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.
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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 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 $1,000
and any integral multiple of $1,000.
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.
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10. AUTHENTICATION
This Security shall not be valid until the Trustee or authenticating
agent signs the certificate of authentication on this Security.
11. ISIN NUMBER
This Security will bear an ISIN number. No representation is made as to
the accuracy of such number as printed on the Securities of this series and
reliance may be placed only on the other identification numbers printed hereon.
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.
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SCHEDULE A
SCHEDULE OF ADJUSTMENTS
Initial Principal Amount: U.S.$
NOTATION
MADE PRINCIPAL ON BEHALF OF
PRINCIPAL PRINCIPAL AMOUNT THE SECURITY
AMOUNT AMOUNT FOLLOWING EXCHANGE
DATE ADJUSTMENT MADE INCREASE DECREASE ADJUSTMENT AGENT/REGISTRAR
-------------------- --------- --------- ---------- ---------------
-------------------- --------- --------- ---------- ---------------
-------------------- --------- --------- ---------- ---------------
-------------------- --------- --------- ---------- ---------------
-------------------- --------- --------- ---------- ---------------
-------------------- --------- --------- ---------- ---------------
-------------------- --------- --------- ---------- ---------------
-------------------- --------- --------- ---------- ---------------
-------------------- --------- --------- ---------- ---------------
-------------------- --------- --------- ---------- ---------------
-------------------- --------- --------- ---------- ---------------
-------------------- --------- --------- ---------- ---------------
-------------------- --------- --------- ---------- ---------------
-------------------- --------- --------- ---------- ---------------
-------------------- --------- --------- ---------- ---------------
-------------------- --------- --------- ---------- ---------------
-------------------- --------- --------- ---------- ---------------
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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 Indenture, check the applicable boxes:
I wish to have the Securities purchased by the Company:
[ ] in whole
[ ] in part
Amount to be
purchased: $________________
Dated: __________________ Signature: _________________________________
(sign exactly as your name appears
on the other side of this Security)
Signature
Guarantee: ______________________________
(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: __________________________________
R-2
EXHIBIT B-4
FORM OF FACE OF RESTRICTED DEFINITIVE
SENIOR NOTE DUE 2012
THIS SECURITY HAS INITIALLY BEEN RESOLD TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" (AS DESCRIBED BY RULE 501(a)(1), (2), (3) or (7) UNDER THE SECURITIES
ACT) IN A TRANSACTION EXEMPT FROM REGISTRATION 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 AND WILL NOT BE 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 OF THE 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
BEGINNING FROM THE LATER OF (X) THE ORIGINAL ISSUE DATE OF THIS SECURITY OR (Y)
THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE THEREOF WAS THE BENEFICIAL
OWNER OF THIS SECURITY (OR ANY PREDECESSOR HEREOF) THROUGH THE TIME PERIOD
REFERRED TO IN RULE 144(K) UNDER THE SECURITIES ACT, 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 THE EXPIRATION OF THE TIME PERIOD
REFERRED TO IN RULE 144(K) UNDER THE SECURITIES ACT BEGINNING 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) 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
5.875% Senior Notes due 2012
$[_________]
No. [__] CUSIP No. [__________]
ISIN No. [__________]
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 [name of registered owner or its registered assigns]
the principal sum of ____ ___ Dollars (the "Principal Amount") on October 1,
2012, and to pay interest thereon from October 4, 2002, or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
semi-annually on January 31 and July 31 in each year, commencing January 31,
2003, at the rate of 5.875% 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 5.875% 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, 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 January 15 or July 15 (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
3
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.
4
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
MIDAMERICAN ENERGY HOLDINGS COMPANY
By: _______________________________
Name:
Title:
Attest:
By: ___________________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
Dated: __________ By: _________________________
Authorized Signatory
FORM OF REVERSE OF RESTRICTED DEFINITIVE SENIOR NOTE DUE 2012
MIDAMERICAN ENERGY HOLDINGS COMPANY
5.875% 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 (the "Original Indenture"), between
the Company and The Bank of New York, as trustee (the "Trustee," which term
includes any successor trustee under the Original Indenture), as supplemented by
the First Supplemental Indenture, dated as of October 4, 2002 (together with the
Original Indenture, the "Indenture") between the Company and 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, limited in
aggregate principal amount to $500,000,000.
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 37.5
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
R-1
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 in any manner the Trustee deems fair and appropriate.
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.
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.
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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 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
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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 $1,000
and any integral multiple of $1,000.
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.
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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.
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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 Indenture, check the applicable boxes:
I wish to have the Securities purchased by the Company:
[ ] in whole
[ ] in part
Amount to be
purchased: $________________
Dated: __________________ Signature: ___________________________________
(sign exactly as your name appears
on the other side of this Security)
Signature
Guarantee: ______________________________
(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-5
FORM OF FACE OF SENIOR EXCHANGE NOTE DUE 2012
OR PRIVATE EXCHANGE NOTE DUE 2012
MIDAMERICAN ENERGY HOLDINGS COMPANY
5.875% Senior Notes due 2012
$[__________]
No. [__] CUSIP No. 59562V AF 4
ISIN No. US59562VAF40
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 [name of registered owner or its registered assigns] the principal sum of
_____________ Dollars (the "Principal Amount")] on October 1, 2012, and to pay
interest thereon from October 4, 2002, or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, semi-annually on
January 31 and July 31 in each year, commencing January 31, 2003, at the rate of
5.875% 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
5.875% 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.
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 January 15 or July 15 (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
1
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.
2
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
MIDAMERICAN ENERGY HOLDINGS COMPANY
By: _______________________________
Name:
Title:
Attest:
By: _______________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
Dated: __________ By: _________________________
Authorized Signatory
FORM OF REVERSE OF SENIOR EXCHANGE NOTE DUE 2012
OR PRIVATE EXCHANGE NOTE DUE 2012
MIDAMERICAN ENERGY HOLDINGS COMPANY
5.875% 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 (the "Original Indenture"), between
the Company and The Bank of New York, as trustee (the "Trustee," which term
includes any successor trustee under the Original Indenture), as supplemented by
the First Supplemental Indenture, dated as of October 4, 2002 (together with the
Original Indenture, the "Indenture") between the Company and 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, limited in
aggregate principal amount to $500,000,000.
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 37.5
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
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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 in any manner the Trustee deems fair and appropriate.
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.
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
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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 this Security 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
R-3
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.
Definitive Securities of the series of which this Security is a part
are issuable only in registered form, without coupons, in denominations of
$1,000 and any integral multiple of $1,000.
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.
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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.
R-5
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 Indenture, check the applicable boxes:
I wish to have the Securities purchased by the Company:
[ ] in whole
[ ] in part
Amount to be
purchased: $________________
Dated: __________________ Signature: __________________________________
(sign exactly as your name appears
on the other side of this Security)
Signature
Guarantee: ______________________________
(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: __________________________________
