EXHIBIT 4.5
FORM OF FACE OF SENIOR SECURED EXCHANGE BOND DUE 2029
AND PRIVATE EXCHANGE SENIOR SECURED BOND DUE 2029
[THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS HELD BY THE DEPOSITORY TRUST COMPANY
(THE "DEPOSITARY") OR A NOMINEE OF THE DEPOSITARY. THIS SECURITY IS EXCHANGEABLE
FOR SECURITIES HELD BY 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 MADE
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
OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITARY (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER
ENTITY AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF 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, CEDE & CO., HAS AN
INTEREST HEREIN.]*
[THIS SECURITY IS A PRIVATE EXCHANGE SECURITY AND ITS
PREDECESSOR SECURITY WAS INITIALLY RESOLD IN RELIANCE ON RULE 144A UNDER THE
SECURITIES ACT.] THIS SECURITY SHALL BEAR THE FOLLOWING LEGEND UNTIL REMOVABLE
IN ACCORDANCE WITH ITS TERMS AND THE TERMS OF THE INDENTURE. THIS SECURITY (OR
ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND, ACCORDINGLY, THIS SECURITY MAY NOT BE OFFERED OR SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE SELLER OF
THIS SECURITY MAY BE RELYING ON THE
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*Insert if Exchange Note is a Global Security.
EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY
RULE 144A AND REGULATION S THEREUNDER.
BY ITS ACQUISITION HEREOF, EACH OF THE HOLDER OF THIS SECURITY
AND ANY OWNERS OF INTERESTS HEREIN, FOR THE BENEFIT OF THE COMPANY, (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) IN THE UNITED STATES TO A
PERSON WHOM THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
(AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT, (D) PURSUANT
TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE) OR (E) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT, IN EACH OF CASES (A) TO (E) IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND (3) AGREES THAT
IT WILL, AND EACH SUBSEQUENT HOLDER WILL BE REQUIRED TO, DELIVER TO EACH PERSON
TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND ON THESE RESALE RESTRICTIONS.
UNLESS THE COMPANY DETERMINES OTHERWISE IN ACCORDANCE WITH
APPLICABLE LAW, THIS LEGEND WILL BE REMOVED BY THE COMPANY 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).]*
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*Insert if Security is a Private Exchange Security.
MIDAMERICAN FUNDING, LLC
6.927% Senior Secured Bonds due 2029
No. ____ $____________
CUSIP No. ____________
MIDAMERICAN FUNDING, LLC, a limited liability company
organized under the laws of Iowa (herein called the "Company," which term
includes any successor corporation or limited liability company under the
Indenture hereinafter referred to), for value received, hereby promises to pay
to ______, or registered assigns, the principal amount of [ ] Million Dollars
([such 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
March 1, 2029, and to pay interest thereon from March 11, 1999, or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, semi-annually on March 1 and September 1 in each year, commencing September
1, 1999 at the rate of 6.927% 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 continue
to bear interest at the aforesaid rate of 6.927% per annum (to the extent that
the payment of such interest shall be 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
February 15 or August 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
on this Security shall be made at the office or agency of the Company maintained
for that purpose in the Borough of Manhattan, The City of New York, or at such
additional offices or agencies as the Company from time to time may designate
for such purpose, in such coin or currency of the United States
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*Insert if Exchange Note is a Global Security.
of America as at the time of payment is legal tender for the payment of public
and private debts, provided, however, that, at the option of the Company,
payment of the interest on this Security may be made only upon presentation and
surrender hereof at any such office or agency and, at the option of the Company,
payment of interest may be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register. Payment
of interest, if any, in respect of this Security may also be made, in the case
of a Holder of at least U.S. $1,000,000 aggregate principal amount of
Securities, by wire transfer to a U.S. Dollar account maintained by the Holder
with a bank in the United States; provided that such Holder elects payment by
wire transfer by giving written notice to the Trustee or Paying Agent to such
effect designating such account no later than 15 days immediately preceding the
relevant due date for payment (or such other date as the Trustee may accept in
its discretion).
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS
SECURITY SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL
PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed.
MIDAMERICAN FUNDING, LLC
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.
IBJ WHITEHALL BANK & TRUST COMPANY
as Trustee
Dated:______________ By: ________________________________
Authorized Signatory
FORM OF REVERSE OF SENIOR SECURED EXCHANGE BOND DUE 2029
AND PRIVATE EXCHANGE SENIOR SECURED BOND
MIDAMERICAN FUNDING, LLC
6.927% Senior Secured Bonds due 2029
1. GENERAL
This Security is one of a duly authorized issue of securities
of the Company (herein called the "Securities"), issued and to be issued in one
or more series under an Indenture, dated as of March 11, 1999 (herein called the
"Original Indenture"), between the Company and IBJ Whitehall Bank & Trust
Company as trustee (herein called the "Trustee," which term includes any
successor trustee under the Original Indenture), as supplemented by the First
Supplemental Indenture, dated as of March 11, 1999 (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
$325,000,000.
2. OPTIONAL REDEMPTION
The Securities of this series will be redeemable in whole or in
part, at the option 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 25 basis points, plus, for (i) or (ii) above, whichever is
applicable, accrued interest on the Securities of this series to the Redemption
Date.
"Treasury Yield" means, with respect to any Redemption Date,
the rate per annum equal to the semiannual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such Redemption Date.
"Comparable Treasury Issue" means the United States Treasury
security selected by an Independent Investment Banker as having a maturity
comparable to the remaining term of the Securities of this series to be redeemed
that would be utilized, at the time of selection and in accordance with
customary financial practice, in pricing new issues of corporate debt securities
of comparable maturity to the remaining term of the Securities of this series.
"Comparable Treasury Price" means, with respect to any
Redemption Date, (i) the average of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount)
on the third Business Day in New York City preceding such Redemption Date, as
set forth in the daily statistical release (or any successor release) published
by the Federal Reserve Bank of New York and designated "Composite 3:30 p.m.
Quotations for U.S. Government Securities" or (ii) if such release (or any
successor release) is not published or does not contain such prices on such
Business Day, the Reference Treasury Dealer Quotation for such Redemption Date.
"Independent Investment Banker" means an investment banking
institution of international standing appointed by the Company.
"Reference Treasury Dealer" means a primary U.S. Government
securities dealer in New York City appointed by the Company.
"Reference Treasury Dealer Quotation" means, with respect to
the Reference Treasury Dealer and any Redemption Date, the average, as
determined by the Company, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount
and quoted in writing to the Company by such Reference Treasury Dealer at 5:00
p.m. on the third Business Day in New York City preceding such Redemption Date).
Notice of redemption pursuant to this paragraph 2 shall be
given as provided for in the Indenture not less than 30 days nor more than 60
days prior to the Redemption Date.
If fewer than all the Securities of this series are to be
redeemed, selection of Securities of this series for redemption will be made by
the Trustee in any manner the Trustee deems fair and appropriate.
The Trustee may conclusively rely on an Officers' Certificate
setting forth the calculation of the Redemption Price, which Officers'
Certificate shall be delivered to the Trustee prior to the Redemption Date.
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. MANDATORY REDEMPTION
In the event that (i) the MidAmerican Merger is not
consummated on or prior to September 7, 1999 or (ii) CalEnergy elects to abandon
the MidAmerican Merger, or the MidAmerican Merger Agreement is terminated, in
either case, on or prior to September 7, 1999, for any reason, the Company shall
redeem all the Securities on the Mandatory Redemption Date, in cash at a
redemption price (the "Mandatory Redemption Price") equal to the aggregate
principal amount thereof plus accrued and unpaid interest thereon to the earlier
of (a) September 27, 1999, in the event that the MidAmerican Merger is not
consummated on or prior to September 7, 1999 or (b) the 20th day (or if such day
is not a Business Day, the first Business Day thereafter) following the
occurrence of an event described in (ii) above (such earlier date being referred
to herein as the "Mandatory Redemption Date").
Notice of Redemption pursuant to this paragraph 3 shall be
given as provided for in the Indenture promptly after the occurrence of the
event triggering such mandatory redemption.
Unless the Company defaults in payment of the Mandatory
Redemption Price, from and after the Mandatory Redemption Date, the Securities
of this series 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 Mandatory Redemption Price thereof.*
4. 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.
5. 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
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*Include if Exchange Note is a Global Security.
*Include if Exchange Note is issued prior to the MidAmerican Merger.
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 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 recision 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 from the
Holder, request and offer of indemnity 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.
6. 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 on 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 uncondi-
tional, 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.
7. 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 the Borough of Manhattan, The
City of New York, (which initially shall be the corporate trust office of the
Trustee), 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 authorized denominations and for the same aggregate
principal amount, shall be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered
form, without coupons, in denominations of $1,000 and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations therein
set forth, Securities of this series are exchangeable for a like aggregate
principal amount of Securities of this series and of like tenor of a different
authorized denomination as requested by the Holder surrendering the same.
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.
8. 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.
9. 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.
10. 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.
11. AUTHENTICATION
This Security shall not be valid until the Trustee or
authenticating agent signs the certificate of authentication on this Security.
12. 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.
13. GOVERNING LAW
This Security shall be governed by and construed in accordance
with the laws of the State of New York, without giving effect to the principles
of conflict of laws thereof.
14. DEFINED TERMS
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
SCHEDULE A
[SCHEDULE OF ADJUSTMENTS]*
Initial Principal Amount: U.S. $
Notation made
Principal on behalf of
Date Principal Principal Amount the Security
adjustment amount amount following Exchange
made increase decrease adjustment Agent/Registrar
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*Insert if Exchange Note is a Global Security