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CALENERGY COMPANY, INC.,
as Issuer
MAVERICK REINCORPORATION SUB, INC.
(Successor to CALENERGY COMPANY, INC.
and
to be known as MIDAMERICAN ENERGY HOLDINGS COMPANY)
and
THE BANK OF NEW YORK,
as Trustee
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FIRST
SUPPLEMENTAL INDENTURE
Dated as of March 12, 1999
Amending
INDENTURE
Dated as of August 12, 1997
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6-1/2% Convertible Junior Subordinated Debentures
Due 2027
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THIS FIRST SUPPLEMENTAL INDENTURE, dated as of March 12, 1999 (herein
called the "Supplement"), by and between CALENERGY COMPANY, INC., a Delaware
corporation (herein called the "Issuer"), MAVERICK REINCORPORATION SUB, INC., an
Iowa corporation and the successor-in-interest to the Issuer ("Maverick") and
THE BANK OF NEW YORK, a New York banking corporation, as trustee (herein called
the "Trustee").
RECITALS OF THE ISSUER
----------------------
WHEREAS, the Issuer and the Trustee executed and delivered the
Indenture, dated as of August 12, 1997 (as amended and modified from time
through the date hereof, the "Indenture"), providing for the issuance thereunder
by the Issuer and the authentication and delivery by the Trustee, of the
Issuer's 6-1/2% Convertible Junior Subordinated Debentures due 2027 (the
"Securities") of which $225,000,000 aggregate principal amount were issued;
WHEREAS, the Issuer entered into an Agreement and Plan of Merger,
dated as of August 11, 1998, with MidAmerican Energy Holdings Company, an Iowa
corporation ("MidAmerican"), Maverick and MAVH Inc., an Iowa corporation and
wholly-owned subsidiary of the Issuer ("Merger Sub"), pursuant to which
MidAmerican merged with and into Merger Sub, with Merger Sub being the surviving
entity (the "Merger");
WHEREAS, as a condition to the Merger, the Issuer reincorporated in
the State of Iowa by means of a merger with and into Maverick, with Maverick
being the surviving entity (the "Reincorporation"); and
WHEREAS, as a result of and after the Reincorporation, Maverick will
change its name to MidAmerican Energy Holdings Company; and
WHEREAS, Section 901 of the Indenture provides for the execution and
delivery by the Issuer and, subject to the provisions of Section 903 of the
Indenture, by the Trustee, of one or more supplemental indentures, without the
consent of the Holders of the Securities, for the purposes specified therein;
and
WHEREAS, pursuant to the provisions of Section 801, the Issuer is
permitted to merge into another person in a transaction in which the Issuer is
not the surviving entity, upon the satisfaction of certain conditions including
that the Surviving Entity and the Trustee enter into a supplemental indenture,
in order that the successor entity expressly assume the due and punctual payment
of the principal (and premium, if any) and interest on the Securities and the
performance of the Issuer's covenants and obligations under the Indenture and
the Securities, which supplemental indenture, pursuant to Section 901 of the
Indenture, does not require the consent of the Holders of the Securities; and
WHEREAS, pursuant to the provisions of Section 801, Maverick wishes by
this Supplement to evidence its succession to the Issuer and its assumption of
the covenants of the Issuer contained in the Indenture and the Securities and,
pursuant to the provisions of Section 802, Maverick shall be the Surviving
Entity and succeed to, and be substituted for, and may exercise every right and
power of, the Issuer under the Indenture; and
WHEREAS, all things necessary to make this Supplement, when executed
and delivered by the Trustee, the valid agreement of the Issuer and Maverick in
accordance with its terms have been done.
NOW, THEREFORE, for and in consideration of premises, Maverick and the
Trustee mutually covenant and agree for the equal and proportional benefit of
the Holders from time to time of the Securities as follows:
SECTION 1. Definitions. Except as otherwise expressly provided herein, all
capitalized words and terms used herein shall have the respective meanings
ascribed thereto in Article One of the Indenture.
SECTION 2. Successor Substitution. Pursuant to the provisions of Section
801(1), Maverick hereby acknowledges and agrees that it has succeeded the Issuer
as the Issuer under the Indenture and the Securities, and does hereby assume and
agree to perform, from and after the effective time of the Reincorporation, all
of the obligations of the Issuer under the Indenture, including the obligation
to issue Common Stock in accordance with Section 1304 thereunder, and the
Securities and does otherwise agree to be bound by and subject to the terms and
provisions of the Indenture and the Securities in each and every respect as if
it had been initially named as the Issuer therein. Without in any way limiting
the generality of the foregoing, Maverick hereby agrees to be liable for the due
and punctual payment of principal of (and premium, if any) and interest on all
of the Securities and to perform and observe all the Issuer's covenants and
obligations under the Indenture.
SECTION 3. Representations of Maverick Maverick hereby represents and
warrants to the Trustee that as of the date hereof:
(a) Maverick is a corporation validly existing and in good standing under
the laws of the State of Iowa;
(b) no Default or Event of Default will result or has resulted from the
Reincorporation or the execution and delivery of this Supplement; and
(c) Maverick has provided for conversion rights in accordance with Article
XIII of the Indenture.
SECTION 4. Effectiveness. This Supplement shall take effect on the date
hereof, in accordance with the provisions of Article Nine of the Indenture,
provided, however, that the amendments provided for in this Supplement shall not
become operative unless and until the Reincorporation has been consummated and
Articles of Merger have been filed with the Secretary of State of Iowa and a
Certificate of Merger with the Secretary of State of Delaware in connection with
the Reincorporation. Subject to the foregoing, the provisions of this Supplement
shall be deemed to be, and shall be construed as part of, the Indenture to the
same extent as if set forth fully therein. All references to the Indenture in
the Indenture or in any other agreement, document or instrument delivered in
connection therewith or pursuant thereto shall be deemed to refer to the
Indenture as amended by this Supplement.
SECTION 5. Construction with Indenture. All of the covenants, agreements
and provisions of this Supplement shall be deemed to be and construed as part of
the Indenture and vice versa to the same extent as if fully set forth verbatim
therein and herein and shall be fully enforceable in the manner provided in the
Indenture. Except as provided in this Supplement, the Indenture shall remain in
full force and effect and the terms and conditions thereof are hereby confirmed.
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SECTION 6. Conflict with Trust Indenture Act. If any provision hereof
limits, qualifies or conflicts with a provision of the Trust Indenture Act that
is required under such Act to be part of and govern the Indenture or this
Supplement, the latter provision shall control. If any provision hereof modifies
or excludes any provision of the Trust Indenture Act that may be so modified or
excluded, the latter provision shall be deemed to apply to this Supplement as so
modified or to be excluded, as the case may be.
SECTION 7. Effect of Headings. The Section headings herein are for
convenience only and shall not affect the construction hereof.
SECTION 8. Separability Clause. In case any provision in this Supplement
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, it being intended that all of the provisions hereof shall be
enforceable to the full extent permitted by law.
SECTION 9. Benefits of Supplement and Indenture. Nothing in this Supplement
or the Indenture or in the Securities, express or implied, shall give to any
Person other than the parties hereto and thereto and their successors hereunder
and thereunder and the Holders of Securities, any benefit or any legal or
equitable right, remedy or claim under this Supplement or the Indenture. Neither
this Supplement nor the Indenture may be used to interpret another indenture,
loan agreement or debt agreement of the Issuer, Maverick or any of their
respective Subsidiaries. No such other indenture or loan or debt agreement may
be utilized to interpret this Supplement or the Indenture.
SECTION 10. Governing Law. This Supplement shall be governed by and
construed in accordance with the laws of the State of New York without regard to
principles of conflicts of laws.
SECTION 11. No Recourse Against Others. A director, member, managing member
officer, employee, stockholder or incorporator, as such, of the Issuer or
Maverick shall not have any liability for any obligations of the Issuer or
Maverick under this Supplement or for any claim based on, in respect or by
reason of such obligations or their creation. Section 1401 of the Indenture is
incorporated herein by reference.
SECTION 12. Duplicate Originals. All parties may sign any number of copies
or counterparts of this Supplement. Each signed copy or counterpart shall be an
original, but all of them together shall represent the same agreement.
[Signature page follows.]
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IN WITNESS WHEREOF, the parties hereto have caused this Supplement to be
duly executed, all as of the day and year first above written.
CALENERGY COMPANY, INC.
By: /s/ Xxxxxx X. XxXxxxxx
---------------------------------
Name: Xxxxxx X. XxXxxxxx
Title: Executive Vice President
and Secretary
MAVERICK REINCORPORATION SUB, INC.
By: /s/ Xxxxxx X. XxXxxxxx
---------------------------------
Name: Xxxxxx X. XxXxxxxx
Title: Executive Vice President
and Secretary
THE BANK OF NEW YORK,
as Trustee
By: /s/ Xxxx Xx Xxxxxx
---------------------------------
Name: Xxxx Xx Xxxxxx
Title: Assistant Vice President
