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Securities and Exchange Commission
Washington, D.C. 20549
FORM 8-K
Current Report
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) November 10, 1998
CALENERGY COMPANY, INC.
(Exact name of registrant as specified in its charter)
Delaware 1-9874 94-2213782
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(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification No.)
incorporation)
302 South 36th Street, Suite 400, Omaha, Nebraska 68131
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(Address of principal executive offices) (Zip Code)
Registrant's Telephone Number, including area code: (402) 341-4500
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N/A
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(Former name or former address, if changed since last report)
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ITEM 5. OTHER EVENTS.
On November 10, 1998, the Registrant priced its offering of $100 million
aggregate principal amount of its 7.52% Senior Notes due 2008, Series B, at a
price equal to 100.74264147% of the principal amount. Pursuant to such
offering, the Registrant entered into an Underwriting Agreement, dated November
10, 1998, a copy of which is attached hereto as Exhibit 1.1. On November 13,
1998, the Registrant expects to enter into a Third Supplemental Indenture (as
referred to below), the form of which is attached hereto as Exhibit 4.1.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits:
The following exhibits are filed as part of this report:
1.1 Underwriting Agreement, dated November 10, 1998, between the
Company and Credit Suisse First Boston Corporation, as
underwriter.
4.1 Form of Third Supplemental Indenture, to be dated November
13, 1998, between the Company and IBJ Schroder Bank & Trust
Company, as Trustee.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
CALENERGY COMPANY, INC.
By: /s/ Steven A. McArthur
-----------------------------------------
Steven A. McArthur
Executive Vice President, General
Counsel and Secretary
Dated: November 11, 1998
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Exhibit Index
Exhibit No. Description
- ----------- -----------
1.1 Underwriting Agreement, dated November 10, 1998, between the
Company and Credit Suisse First Boston Corporation,
as underwriter.
4.1 Form of Third Supplemental Indenture, to be dated
November 13, 1998, between the Company and IBJ Schroder
Bank & Trust Company, as Trustee.
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$100,000,000
CALENERGY COMPANY, INC.
7.52% Senior Notes due 2008, Series B
UNDERWRITING AGREEMENT
November 10, 1998
CREDIT SUISSE FIRST BOSTON CORPORATION
Eleven Madison Avenue
New York, New York 10010
Dear Sirs:
CalEnergy Company, Inc., a Delaware corporation (the
"Company"), proposes to sell $100,000,000 aggregate principal amount of its
7.52% Senior Notes due 2008, Series B (the "Securities"). The Securities are to
be issued pursuant to the Indenture dated as of October 15, 1997 (the "Base
Indenture"), as supplemented by the First Supplemental Indenture dated as of
October 28, 1997 (the "First Supplemental Indenture"), the Second Supplemental
Indenture dated as of September 22, 1998 (the "Second Supplemental Indenture")
and the Third Supplemental Indenture to be dated as of November 13, 1998
relating to the Securities (the "Third Supplemental Indenture" and, together
with the Base Indenture, the First Supplemental Indenture and the Second
Supplemental Indenture, the "Indenture"), between the Company and IBJ Schroder
Bank & Trust Company, as trustee (the "Trustee"). This is to confirm the
agreement concerning the purchase of the Securities from the Company by Credit
Suisse First Boston Corporation (the "Underwriter").
1. Representations, Warranties and Agreements of the Company.
The Company represents, warrants and agrees that:
(a) A registration statement on Form S-3 (No.
333-62697), including a form of prospectus relating to certain debt
and equity securities (the "Registered Securities") to be issued from
time to time by the Company, has been filed with the Securities and
Exchange Commission (the "Commission") and has been declared effective
under the Securities Act of 1933, as amended (the "Act"), and the
Indenture has been qualified under the Trust Indenture Act of 1939
(the "Trust Indenture Act"). The Company proposes to file with the
Commission pursuant to Rule 424 under the Act, a form of prospectus
supplement specifically relating to the Securities. The registration
statement, as amended at the time of this Agreement, including all
material
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incorporated by reference therein, is hereinafter referred to as the
"Registration State ment," and the form of prospectus included in such
Registration Statement, as supplemented by the prospectus supplement
specifically relating to the Securities, as first filed with the
Commission pursuant to and in accordance with Rule 424(b) ("Rule
424(b)") under the Act, including all material incorporated by
reference therein, is hereinafter referred to as the "Prospectus". No
document has been or will be prepared or distributed in reliance on
Rule 434 under the Act.
(b) On the effective date of the registration
statement relating to the Registered Securities, such registration
statement conformed in all material respects to the requirements of
the Act and the rules and regulations of the Commission ("Rules and
Regulations") thereunder and did not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading,
and on the date of this Agreement, the Registration Statement
conforms, and at the time of filing of the Prospectus pursuant to Rule
424(b), the Registration Statement and the Prospectus will conform, in
all material respects to the requirements of the Act and the Rules and
Regulations, and none of such documents includes, or will include, any
untrue statement of a material fact or omits, or will omit, to state
any material fact required to be stated therein or necessary to make
the statements therein (with respect to the Prospectus, in the light
of the circumstances under which they were made) not misleading,
except that the foregoing does not apply to statements in or omissions
from the Registration Statement or the Prospectus based upon written
information furnished to the Company by or on behalf of the
Underwriter specifically for use therein, it being understood and
agreed that the only such information is that described as such in
Section 8(e); and the Indenture conforms in all material respects to
the requirements of the Trust Indenture Act and the Rules and
Regulations of the Commission thereunder.
(c) The documents incorporated by reference in the
Registration Statement and the Prospectus, when they became effective
or were last amended or filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Act or
the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
as applicable, and the Rules and Regulations, and none of such docu-
ments contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the
circumstances under which they were made, and any further documents so
filed and incorporated by reference in the Registration Statement and
the Prospectus, when such documents become effective or are filed with
the Commission, as the case may be, shall conform in all material
respects to the requirements of the Act and the Exchange Act as
applicable, and the Rules and Regulations and shall not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances under which they
were made.
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(d) The Company, each Subsidiary (as defined below)
and each Joint Venture (as defined below) have been duly organized and
are validly existing and, if applicable, in good standing under the
laws of their respective jurisdictions of organization as a
corporation, limited liability company or partnership, as the case may
be, and have the power and authority to own, lease and operate their
property and conduct their businesses as described in the Prospectus;
the Company, the Subsidiaries and the Joint Ventures are duly
qualified to do business and are in good standing as foreign
corporations or foreign partnerships, as the case may be, in each
jurisdiction, domestic or foreign, in which such registration or
qualification or good standing is required (whether by reason of the
ownership or leasing of property, the conduct of business or
otherwise), except where the failure to so register or qualify or be
in good standing is not reasonably likely to have a material adverse
effect on the financial condition, business or results of operations
of the Company, the Subsidiaries and the Joint Ventures taken as a
whole. For purposes of this Agreement, (A) the term "Subsidiary" shall
mean the entities listed in Schedule A hereto ("Schedule A") and (B)
the term "Joint Venture" shall mean the entities listed in Schedule B
hereto ("Schedule B"), it being understood that such term means the
general or limited partnership or other joint venture entity and not
the individual general or limited partners or other joint venturers
thereof. The Subsidiaries listed in Schedule A are all the material
direct and indirect "subsidiaries" of the Company, as such term is
defined in Rule 405 of the Rules and Regulations, and are all of the
"Significant Subsidiaries" of the Company, as such term is defined in
Rule 1-02 of Regulation S-X.
(e) All the outstanding shares of capital stock of
each Subsidiary have been duly and validly authorized and issued and
are fully-paid and nonassessable; and except as otherwise set forth in
Schedule A or disclosed in or contemplated by the Prospectus, all
outstanding shares of capital stock of each Subsidiary are owned
beneficially by the Company free and clear of any material claims,
liens, encumbrances and security interests. All of the partnership
interests in the Joint Ventures beneficially owned by the Company (as
reflected in Schedule B) have been duly and validly authorized and
issued and, except as otherwise set forth in Schedule B or disclosed
in or contemplated by the Prospectus, are owned beneficially by the
Company free and clear of any material claims, liens, encumbrances and
security interests.
(f) All the outstanding shares of capital stock of
the Company have been duly and validly authorized and issued and are
fully paid and nonassessable.
(g) The Securities have been duly authorized by the
Company, and, when duly executed, authenticated, issued and delivered
against payment therefor as contemplated hereby and by the Indenture,
shall be validly issued and outstanding, and shall constitute valid
and binding obligations on the part of the Company, entitled to the
benefits of the Indenture, and enforceable against the Company in
accordance with their terms, except as enforcement may be limited by
applicable bankruptcy, fraudulent
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conveyance, insolvency, reorganization, moratorium or other similar
laws affecting creditors' rights generally and by equitable principles
generally; and the Securities, when issued and delivered, shall
conform in all material respects to the descriptions thereof contained
in the Prospectus.
(h) Each of the Base Indenture and the Third
Supplemental Indenture has been duly authorized, and when duly
executed and delivered by the Company, shall constitute a valid and
binding agreement on the part of the Company, enforceable against the
Company in accordance with its terms, except as enforcement may be
limited by applicable bankruptcy, fraudulent conveyance, insolvency,
reorganization, moratorium or other similar laws affecting creditors'
rights generally and by equitable principles generally; and the Base
Indenture and the Third Supplemental Indenture, when executed and
delivered, shall conform in all material respects to the descriptions
thereof contained in the Prospectus.
(i) The use of the proceeds of the offering of the
Securities as described in the Prospectus has been duly authorized by
all necessary action on the part of the Company.
(j) Except as disclosed in the Prospectus, there are
no contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against the Company or
the Underwriter for a brokerage commission, finder's fee or other like
payment in connection with the offering of the Securities.
(k) Except as disclosed in the Prospectus, there are
no contracts, agreements or understandings which have not been
satisfied or waived between the Company and any person requiring the
Company to include securities of the Company owned or to be owned by
such person in the securities registered pursuant to the Registration
Statement.
(l) The execution, delivery and performance of this
Agreement, the Base Indenture and the Third Supplemental Indenture,
and the issuance and sale of the Securities and the use of the
proceeds of the offering of the Securities as described in the
Prospectus will not (A) conflict with the corporate charter or by-laws
or partnership agreement of the Company, any Subsidiary or any Joint
Venture, (B) conflict with, result in the creation or imposition of
any lien, charge or other encumbrance (other than as contemplated by
the Indenture) upon any asset of the Company, any Subsidiary or any
Joint Venture pursuant to the terms of, or constitute a breach of, or
default under, any agreement, indenture or other instrument to which
the Company, any Subsidiary or any Joint Venture is a party or by
which the Company, any Subsidiary or any Joint Venture is bound or to
which any of the properties of the Company, any Subsidiary or any
Joint Venture is subject, or (C) result in a violation of any statute,
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rule, regulation, order, judgment or decree of any court or
governmental agency, body or authority having jurisdiction over the
Company, any Subsidiary or any Joint Venture or any of their
properties where any such conflicts, encumbrances, breaches, defaults
or violations under clauses (B) or (C), individually or in the
aggregate, is reasonably likely to (i) have a material adverse effect
on the financial condition, business or results of operations of the
Company, the Subsidiaries and the Joint Ventures taken as a whole or
(ii) impair the validity or enforceability of the Securities under the
Act.
(m) Except (A) as to state or foreign securities
laws , (B) consents of third parties which have been obtained and (C)
consents of third parties that are required to be obtained to the
MidAmerican Merger (as defined herein) that have been disclosed in the
Prospectus or that are ministerial in nature and are expected to be
obtained in the ordinary course, no consent, approval, authorization
or order of, or filing or registration by the Company, any Subsidiary
or, to the best of the Company's knowledge, any Joint Venture with,
any court, governmental agency or third party is required for the
consummation of the transactions contemplated by this Agreement and
the Indenture in connection with the issuance and sale of the
Securities by the Company and the use of the proceeds of the offering
of the Securities as described in the Prospectus.
(n) The Company has full power and authority to
authorize, issue and sell the Securities as contemplated by this
Agreement and to execute, deliver and perform this Agreement, the Base
Indenture and the Third Supplemental Indenture and the Securities.
(o) This Agreement has been duly authorized,
executed and delivered by the Company.
(p) Except as disclosed in or contemplated by the
Prospectus, the Company, each Subsidiary and each Joint Venture holds,
as applicable, good and valid title to, or valid and enforceable
leasehold or contractual interests in, all real properties and all
other properties and assets owned or leased by or held under contract
by each of them that are material to the business of the Company, the
Subsidiaries and the Joint Ventures taken as a whole, and free from
liens, encumbrances and defects that would materially interfere with
the use made or to be made thereof by them.
(q) Except as disclosed in or contemplated by the
Prospectus, the Company, the Subsidiaries and the Joint Ventures
carry, or are covered by, insurance in such amounts and covering such
risks as is customary for similarly situated companies in the
Company's, such Subsidiaries' and such Joint Ventures' industries,
respectively. Each of the foregoing insurance policies is valid and in
full force and effect, and no event has occurred and is continuing
that permits, or after notice or lapse of time or both would permit,
modifications or terminations of the foregoing that,
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individually or in the aggregate, is reasonably likely to have a
material adverse effect on the financial condition, business or
results of operations of the Company, the Subsidiaries and the Joint
Ventures taken as a whole.
(r) Except as disclosed in or contemplated by the
Prospectus, the Company, each Subsidiary and each Joint Venture (i)
has obtained each license, permit, certificate, franchise or other
governmental authorization which is material to the ownership of their
properties or to the conduct of their businesses as described in or
contemplated by the Prospectus and (ii) is in compliance with all
terms and conditions of such license, permit, certificate, franchise
or other governmental authorization, except (A) in either case where
the failure to do so is not reasonably likely to have, individually or
in the aggregate, a material adverse effect on the financial
condition, business or results of operations of the Company, the
Subsidiaries and the Joint Ventures taken as a whole, (B) permits,
consents and approvals that may be required for future drilling or
operating activities which are ordinarily deemed to be ministerial in
nature and which are anticipated to be obtained in the ordinary course
and (C) permits, consents and approvals for developmental or
construction activities which have not yet been obtained but which
have been or will be applied for in the course of development or
construction and which are anticipated to be obtained in the ordinary
course.
(s) Except as disclosed in the Prospectus, there are
no legal or governmental actions, suits or proceedings before any
court, governmental agency, body or authority, domestic or foreign,
now pending or, to the knowledge of the Company, threatened against,
or, to the knowledge of the Company, involving, the Company, any
Subsidiary or any Joint Venture (i) of a character required to be
disclosed in the Registration Statement which is not adequately
disclosed in the Registration Statement or (ii) that, if determined
adversely to the Company, any Subsidiary or any Joint Venture would be
reasonably likely to have, individually or in the aggregate, a
material adverse effect on the financial condition, business or
results of operations of the Company, the Subsidiaries and the Joint
Ventures taken as a whole, or on the ability of the Company to perform
its obligations under this Agreement or the Indenture, or which are
otherwise material in the context of the sale of the Securities.
(t) The conditions for use of Form S-3, as set forth
in the General Instructions thereto, have been satisfied.
(u) The Company, the Subsidiaries and the Joint
Ventures are currently conducting their respective businesses as
described in the Prospectus.
(v) There are no contracts or documents of a
character required to be described in the Registration Statement or
Prospectus or to be filed as exhibits to the Registration Statement
which are not described or filed as required under the Act.
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(w) There is no relationship, direct or indirect,
that exists between or among the Company on the one hand, and the
directors, officers, stockholders, customers or suppliers of the
Company on the other hand, of a character required to be described in
the Registration Statement or Prospectus which is not described as
required under the Act.
(x) There is no labor problem or disturbance with
the persons employed by the Company, any Subsidiary or any Joint
Venture that exists or, to the knowledge of the Company, that is
threatened and that might reasonably be expected to have a material
adverse effect on the financial condition, business or results of
operations of the Company, the Subsidiaries and the Joint Ventures
taken as a whole.
(y) Neither the Company nor any person who is a
member of a group which is under common control with the Company and
the Subsidiaries and the Joint Ventures, who together with the
Company, the Subsidiaries and the Joint Ventures is treated as a
single employer ("ERISA Affiliate") within the meaning of Section
414(b), (c), (m) or (o) of the Internal Revenue Code of 1986, as
amended from time to time (the "Code"), or Section 4001(b) of the
Employee Retirement Income Security Act of 1974, as amended from time
to time ("ERISA"), has established, sponsored, maintained or had any
obligation to contribute to any employee benefit plans within the
meaning of Section 3(3) of ERISA which are subject to Title IV of
ERISA or Section 412 of the Code. Except where it could not reasonably
be expected to result in a material adverse effect on the financial
condition, business or results of operations of the Company, the
Subsidiaries and the Joint Ventures taken as a whole, (i) all employee
benefit plans within the meaning of Section 3(3) of ERISA established,
sponsored or maintained for or on behalf of the employees, officers
or directors of the Company, the Subsidiaries, the Joint Ventures or
any ERISA Affiliate ("Employee Benefit Plans") are in compliance with
all applicable provisions of ERISA and the Code and the regulations
and published interpretations thereunder and each such Employee
Benefit Plan that is intended to be qualified under Code Section
401(a) has been determined by the Internal Revenue Service to be so
qualified and (ii) no material liability or obligation has been
incurred or is reasonably expected to be incurred by the Company, the
Subsidiaries or the Joint Ventures or any ERISA Affiliate with respect
to any Employee Benefit Plan.
(z) None of the Company, any Subsidiary or any Joint
Venture (i) is in violation of its respective charter, by-laws or
partnership agreement, (ii) is in default, and no event exists and is
continuing that, with notice or lapse of time or both, would
constitute such a default, in the due performance and observance of
any material term contained in any lease, license, indenture,
mortgage, deed of trust, note, bank loan or other evidence of
indebtedness or any other agreement, understanding or instrument to
which the Company, any Subsidiary or any Joint Venture is a party or
by which the Company, any Subsidiary or any Joint Venture or any
property of the Company, any
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Subsidiary or any Joint Venture may be bound or affected, which
default, individually or in the aggregate, is reasonably likely to
have a material adverse effect on the financial condition, business or
results of operations of the Company, the Subsidiaries and the Joint
Ventures taken as a whole, or (iii) is in violation of any law,
ordinance, governmental rule or regulation or court decree to which it
may be subject, which violation, individually or in the aggregate, is
reasonably likely to have a material adverse effect on the financial
condition, business or results of operations of the Company, the
Subsidiaries and the Joint Ventures taken as a whole or would
materially interfere with the execution, delivery and performance of
this Agreement, the Indenture, the consummation of the transactions
contemplated herein or therein, the issuance and sale of the
Securities or the use of the proceeds of the offering of the
Securities as described in the Prospectus.
(aa) There has been no storage, disposal,
generation, manufacture, refinement, transportation, handling or
treatment of toxic wastes, hazardous wastes or hazardous substances,
pollutants or contaminants by the Company, any Subsidiary or any Joint
Venture (or, to the knowledge of the Company, any of their
predecessors in interest) at, upon or from any of the property now or
previously owned or leased by the Company, any Subsidiary or any Joint
Venture in violation of any applicable law, ordinance, rule,
regulation, order, judgment, decree or permit or which would require
remedial action under any applicable law, ordinance, rule, regulation,
order, judgment, decree or permit, except for any violation or
remedial action which does not have, or would not be reasonably likely
to have, individually or in the aggregate with all such violations and
remedial actions, a material adverse effect on the financial
condition, business or results of operations of the Company, the
Subsidiaries and the Joint Ventures taken as a whole; there has been
no material spill, discharge, leak, emission, injection, escape,
dumping or release of any kind onto such property or into the
environment surrounding such property of any toxic wastes, solid
wastes, hazardous wastes or hazardous substances, pollutants or
contaminants due to or caused by the Company, any Subsidiary or any
Joint Venture or with respect to which the Company, any Subsidiary or
any Joint Venture has knowledge, except for any such spill, discharge,
leak, emission, injection, escape, dumping or release which does not
have, or would not be reasonably likely to have, individually or in
the aggregate with all such spills, discharges, leaks, emissions,
injections, escapes, dumpings and releases, a material adverse effect
on the financial condition, business or results of operations of the
Company, the Subsidiaries and the Joint Ventures taken as a whole; and
the terms "hazardous wastes", "toxic wastes" and "hazardous
substances" shall have the meanings specified in any applicable local,
state, federal and foreign laws or regulations with respect to
environmental protection.
(ab) None of the Company or any Subsidiary or any
Joint Venture is an open-end investment company, unit investment trust
or face-amount certificate company that is or is required to be
registered under Section 8 of the United States In-
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vestment Company Act of 1940, as amended (the "1940 Act"), nor is it a
closed-end investment company required to be registered, but not
registered, thereunder; and each of the Company, each Subsidiary and
each Joint Venture is not and, after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as
described in the Prospectus, will not be an "investment company", or,
to the best knowledge of the Company after due inquiry, a company
controlled by an "investment company" within the meaning of the 1940
Act.
(ac) The Company, each Subsidiary and each Joint
Venture has filed all federal, state and local income and franchise
tax returns required to be filed through the date hereof, or has filed
extensions in accordance with applicable law, and has paid all taxes
required to be paid through the date hereof thereon, except for such
failures to file or pay that would not, individually or in the
aggregate, be reasonably likely to have a material adverse effect on
the financial condition, business or results of operations of the
Company, the Subsidiaries and the Joint Ventures taken as a whole, and
no tax deficiency has been determined adversely to the Company, any
Subsidiary or any Joint Venture that has had (nor does the Company
have any knowledge of any tax deficiency which, if determined
adversely to the Company, any Subsidiary or any Joint Venture would be
reasonably likely to have) a material adverse effect on the financial
condition, business or results of operations of the Company, the
Subsidiaries and the Joint Ventures taken as a whole.
(ad) The financial statements and the related notes
and schedules of each of the Company and, to the best of the Company's
knowledge, MidAmerican Energy Holdings Company ("MidAmerican")
included or incorporated by reference in the Registration Statement
and Prospectus fairly present the financial position, the results of
operations and the cash flows of each of the Company and its
consolidated subsidiaries and MidAmerican and its consolidated
subsidiaries, respectively, at the respective dates and for the
respective periods to which they apply; and such financial statements
and the related notes and schedules have been prepared in conformity
with United States generally accepted accounting principles applied on
a consistent basis throughout the periods therein specified. The
historical information under the caption "Capitalization" in the
Prospectus is accurately described as of the date presented therein.
(ae) Since the date of the latest financial
statements included or incorporated by reference in the Prospectus (i)
there has been no material adverse change, nor any development or
event involving a prospective material adverse change, in the
financial condition, business or results of operations of the Company,
the Subsidiaries and the Joint Ventures taken as a whole, (ii) to the
best of the Company's knowledge, there has been no material adverse
change, nor any development or event involving a prospective material
adverse change, in the financial condition, business or results of
operations of MidAmerican and its subsidiaries and joint ventures
taken as a
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whole and (iii) except as disclosed in or contemplated by the
Prospectus, there have not been any transactions entered into by the
Company, the Subsidiaries or any Joint Venture, other than those in
the ordinary course of business, which are material to the Company,
the Subsidiaries and the Joint Ventures taken as a whole; and, except
as disclosed in the Prospectus, there has been no dividend or
distribution of any kind declared, paid or made by the Company on any
class of its capital stock.
(af) The pro forma financial information included in
the Registration Statement and the Prospectus presents fairly the
information shown therein, has been prepared in accordance with the
Commission's rules and guidelines with respect to pro forma financial
information, has been properly compiled on the pro forma bases
described therein, and, in the opinion of the Company, the assumptions
used in the preparation thereof are reasonable and the adjustments
used therein are appropriate to give effect to the transactions or
circumstances referred to therein.
(ag) The accountants who have certified certain
financial statements of the Company or of businesses acquired or to be
acquired by the Company, as applicable, and whose reports appear in
the Registration Statement and the Prospectus or are incorporated by
reference therein, are and were independent public accountants as
required by the Act and the Rules and Regulations during the periods
covered by the financial statements on which they reported which are
contained or incorporated by reference in the Registration Statement
or the Prospectus.
(ah) (i) Each of the operational electric generation
facilities ("Plants") owned in whole or in part, directly or
indirectly by (A) the Company, (B) the Subsidiaries or (C) the Joint
Ventures which is located in the United States is a "qualifying
cogeneration facility" or a "qualifying small power production
facility" (either or both of which are hereinafter referred to as a
"QF"), as such terms are defined under the Federal Power Act, as
amended ("FPA"), and the regulations thereunder, and has continuously
been in compliance with the requirements for being a QF since it
commenced sales of electricity; (ii) with respect to each Plant under
development and located in the United States, either (x) to the extent
that the Company, the Subsidiaries or the Joint Ventures plan to act
as the owner and/or operator of any one of the Plants under
development by the Company, the Subsidiaries or the Joint Ventures and
located in the United States (as currently configured or as currently
anticipated to be configured), that owner and/or operator satisfies or
is currently expected to satisfy current regulatory requirements for
being an "exempt wholesale generator" ("EWG"), as such term is defined
under the FPA, the Public Utility Holding Company Act of 1935, as
amended ("PUHCA") and the regulations thereunder or (y) each of the
Plants under development by the Company, the Subsidiaries or the
Joint Ventures and located in the United States (as currently
configured or as currently anticipated to be configured) will be a QF
and will be in continuous compliance with the requirements for being a
QF; (iii) the owner or operator of each of
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the Plants under development by the Company, the Subsidiaries or the
Joint Ventures and located outside the United States (as currently
configured or as currently anticipated to be configured) satisfies or
is currently expected to satisfy current regulatory requirements for
being either (A) an EWG or (B) a "foreign utility company," as such
term is defined under PUHCA and the regulations thereunder; (iv) none
of the entities identified in clause (A) or (B) of subparagraph (i)
above owns or operates or will own or operate any electric
distribution facilities or any electric transmission facilities in or
outside of the United States other than electric transmission
facilities that have been or will be approved by the Federal Energy
Regulatory Commission as being part of a QF, or the owner and/or
operator of which will have qualified as EWG's or as "foreign utility
companies" as such terms are defined under the FPA, PUHCA and the
regulations thereunder; and (v) none of the entities identified in
clause (A), (B) or (C) of subparagraph (i) above is, or is subject to
regulation as, a "public utility holding company" or a "subsidiary
company" of a "public utility holding company," as those terms are
defined under PUHCA, or is subject to regulation under the FPA, other
than as contemplated by 18 C.F.R Section 292.601(c), or, except as
described in or contemplated by the Prospectus, subject to regulation
by any state law or foreign governmental law with respect to rates or
the financial or organizational regulation of electric utilities.
(ai) The Agreement and Plan of Merger dated as of
August 11, 1998 among the Company, Maverick Reincorporation Sub, Inc.,
MidAmerican and MAVH Inc.(including all exhibits and schedules
thereto, the "MidAmerican Merger Agreement") has been duly and validly
authorized, executed and delivered by the Company and, assuming the
due execution and delivery by the other parties thereto, constitutes a
valid and binding agreement on the part of the Company, enforceable
against the Company in accordance with its terms, except as
enforcement may be limited by applicable bankruptcy, fraudulent
conveyance, insolvency, reorganization, moratorium or other similar
laws affecting creditors' rights generally and by equitable principles
generally. No facts have come to the Company's attention that have led
the Company to believe that the MidAmerican Merger or the
reincorporation of the Company contemplated by the MidAmerican Merger
Agreement will not be consummated on terms (subject to satisfaction of
applicable conditions) that are materially consistent with those
described in the Prospectus.
(aj) The Company's pending acquisition of
MidAmerican Energy Holdings Company (the "MidAmerican Merger") and the
consummation of the transactions contemplated thereby, shall not (A)
conflict with the corporate charter of the Company, (B) constitute a
breach of, or default under, any agreement, indenture or other
instrument to which the Company, any Subsidiary or any Joint Venture
is a party or by which the Company, any Subsidiary or any Joint
Venture is bound or to which any of the properties of the Company, any
Subsidiary or Joint Venture is subject, or (C) result in a violation
of any statue, rule, regulation, order, judgment or decree of
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any court or governmental agency, body or authority, having
jurisdiction over the Company or, to the best of the Company's
knowledge, MidAmerican; except in the case of clauses (B) and (C) such
breaches, defaults or violations which, individually or in the
aggregate, would not have a material adverse effect on the financial
condition, business or results of operations of the Company, the
Subsidiaries and Joint Ventures taken as a whole.
(ak) To the best of the Company's knowledge, the
representations and warranties of MidAmerican contained in the
MidAmerican Merger Agreement are true and correct in all material
respects as if made on the date hereof.
2. Purchase of the Securities by the Underwriter.
On the basis of the representations and warranties contained
in, and subject to the terms and conditions of, this Agreement, the Company
agrees to sell $100,000,000 aggregate principal amount of the Securities to the
Underwriter and the Underwriter agrees to purchase $100,000,000 aggregate
principal amount of the Securities. The price to be paid to the Company for the
Securities shall be 100.74264147% of the aggregate principal amount. The
Company shall not be obligated to deliver any of the Securities to be delivered
on the Delivery Date, except upon payment for all the Securities to be
purchased on the Delivery Date (as hereinafter defined) as provided herein.
3. Offering of the Securities by the Underwriter.
The Underwriter proposes to offer the Securities for sale
upon the terms and conditions set forth in the Prospectus.
4. Delivery of and Payment for the Securities. Delivery of
and payment for the Securities shall be made at the office of Skadden, Arps,
Slate, Meagher & Flom LLP, 919 Third Avenue, New York, New York 10022, at 10:00
A.M., New York City time, on the third full business day following the date of
this Agreement or at such other date or place as shall be determined by
agreement between the Underwriter and the Company. This date and time are
sometimes referred to as the "Delivery Date." On the Delivery Date, the Company
shall deliver or cause to be delivered to the Underwriter the Securities, in
the form of one or more permanent global notes in definitive form (the "Global
Securities") deposited with the Trustee as custodian for the Depository Trust
Company ("DTC") and registered in the name of Cede & Co., as nominee for DTC,
against payment to or upon the order of the Company of the purchase price by
certified or official bank check or checks payable in or wire transfer of
Federal (same-day) funds. Time shall be of the essence, and delivery at the
time and place specified pursuant to this Agreement is a further condition of
the obligation of the Underwriter hereunder. Upon delivery, the Securities
shall be registered in such names and in such denominations as the Underwriter
shall request in writing not less than two full business days prior to the
Delivery Date. For the purpose of expediting the checking and packaging of the
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Global Securities, the Company shall make the Global Securities available for
inspection by the Underwriter in New York, New York, not later than 2:00 P.M.,
New York City time, on the business day prior to the Delivery Date.
5. Further Agreements of the Company. The Company agrees:
(a) The Company will file the Prospectus with the
Commission pursuant to and in accordance with subparagraph (2) (or, if
applicable and if consented to by the Underwriter, subparagraph (5))
of Rule 424(b) not later than the second business day following the
execution and delivery of this Agreement. The Company will advise the
Underwriter promptly of any such filing pursuant to Rule 424(b).
(b) The Company will advise the Underwriter promptly
of any proposal to amend or supplement the Registration Statement or
the Prospectus and will not effect such amendment or supplementation
without the Underwriter's prior consent, which consent shall not be
unreasonably withheld; and the Company will also advise the
Underwriter promptly of the effectiveness of any amendment or
supplementation of the Registration Statement or the Prospectus and of
the institution by the Commission of any stop order proceedings in
respect of the Registration Statement and will use its reasonable best
efforts to prevent the issuance of any such stop order and to obtain
as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to
the Securities is required, in the opinion of counsel for the
Underwriter, to be delivered under the Act in connection with sales by
the Underwriter or any dealer, any event occurs as a result of which
the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any such time to amend the Prospectus to comply with the
Act, the Company will promptly notify the Underwriter of such event
and will promptly prepare and file with the Commission, at its own
expense, an amendment or supplement which will correct such statement
or omission or an amendment which will effect such compliance. Neither
the Underwriter's consent to, nor the Underwriter's delivery of, any
such amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 7.
(d) As soon as practicable, but not later than 16
months after the date of this Agreement, the Company will make
generally available to its securityholders an earnings statement
(which need not be audited) covering a period of at least 12 months
beginning after the later of (i) the effective date of the most recent
post-effective amendment to the Registration Statement to become
effective prior to the date of this Agreement and (ii) the date of the
Company's most recent Annual Report on Form 10-
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K filed with the Commission prior to the date of this Agreement, which
will satisfy the provisions of Section 11(a) of the Act.
(e) The Company will furnish to the Underwriter
copies of the Registration Statement (two of which will be signed and
will include all exhibits), each preliminary prospectus and
preliminary prospectus supplement relating to the Securities, and, so
long as delivery of a prospectus relating to the Securities is
required to be delivered under the Act in connection with sales by the
Underwriter or any dealer, the Prospectus and all amendments and
supplements to such documents, in each case as soon as available and
in such quantities as the Underwriter requests. The Company will pay
the expenses of printing and distributing to the Underwriter all such
documents.
(f) The Company will arrange for the qualifications
of the Securities for sale under the laws of such jurisdictions in the
United States as the Underwriter designates and will continue such
qualifications in effect so long as required for the distribution,
provided that, in connection therewith the Company shall not, with
respect to any such jurisdiction, be required to qualify as a foreign
corporation, to file a general consent to service of process or to
take any other action that would subject it to service of process in
suits other than those arising out of the offering of the Securities
or to taxation in respect of doing business in any jurisdiction in
which it is not otherwise subject.
(g) During the period of three years hereafter, the
Company will furnish to the Underwriter as soon as practicable, after
the end of each fiscal year, a copy of its annual report to
stockholders for such year; and the Company will furnish to the
Underwriter as soon as available, a copy of each report and any
definitive proxy statement of the Company filed with the Commission
under the Exchange Act or mailed to stockholders.
(h) The Company will indemnify and hold harmless the
Underwriter against any documentary, stamp or similar issuance tax,
including any interest and penalties, on the issuance and sale of the
Securities and on the execution and delivery of this Agreement. All
payments to be made by the Company hereunder shall be made without
withholding or deduction for or on account of any present or future
taxes, duties or governmental charges whatsoever unless the Company is
compelled by law to deduct or withhold such taxes, duties or charges.
In that event, the Company shall pay such additional amounts as may be
necessary in order that the net amounts received after such
withholding or deduction shall equal the amounts that would have been
received if no withholding or deduction had been made.
(i) The Company shall apply the net proceeds from
the sale of the Securities as set forth in the Prospectus.
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<PAGE>
(j) No action has been or, prior to the completion
of the distribution of the Securities, will be taken by the Company in
any jurisdiction outside the United States that would permit a public
offering of the Securities, or possession or distribution of the
Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus or preliminary prospectus supplement issued in
connection with the offering of the Securities, or any other offering
material, in any country or jurisdiction where action for that purpose
is required.
6. Expenses. The Company agrees to pay (a) the costs incident
to the authorization, issuance, sale and delivery of the Securities and will
reimburse the Underwriter (if and to the extent necessary) for any travel
expenses of the Company's officers and employees and other expenses of the
Company in connection with attending or hosting meetings with prospective
purchasers of the Securities; (b) the costs incident to the preparation,
printing and filing under the Securities Act of the Registration Statement and
any amendments and exhibits thereto; (c) the costs of distributing any
preliminary prospectus, preliminary prospectus supplement, the Prospectus and
any amendment or supplement thereto or any document incorporated by reference
therein, all as provided in this Agreement; (d) the costs of producing and
distributing this Agreement, the Base Indenture and the Third Supplemental
Indenture and any other related documents in connection with the offering,
purchase, sale and delivery of the Securities; (e) any rating agency fees; and
(f) all other costs and expenses incident to the performance of the obligations
of the Company under this Agreement; provided that, except as provided in this
Section 6 and in Section 10, the Underwriter shall pay its own costs and
expenses, including the costs and expenses of its counsel, any transfer taxes
on the Securities which they may sell and the expenses of advertising any
offering of the Securities made by the Underwriter.
7. Conditions of Underwriter's Obligations. The obligations
of the Underwriter hereunder are subject to the accuracy, when made and on the
Delivery Date, of the representations and warranties of the Company contained
herein, to the performance by the Company of its obligations hereunder, and to
each of the following additional terms and conditions:
(a) The Underwriter shall have received a letter,
dated the date of this Agreement, of Deloitte & Touche LLP (and the
independent accountants of any subsidiary of the Company or of any
business acquired by the Company for which financial statements and
financial data are included or incorporated by reference in the
Prospectus) in agreed form with respect to the Company's financial
statements and financial data.
(b) The Underwriter shall have received a letter,
dated the date of this Agreement, of PricewaterhouseCoopers LLP (and
the independent accountants of any subsidiary of MidAmerican or of any
business acquired by MidAmerican for which financial statements and
financial data are included or incorporated by reference in the
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<PAGE>
Prospectus) in agreed form with respect to MidAmerican's financial
statements and financial data.
All financial statements and schedules included in
material incorporated by reference into the Registration Statement and
the Prospectus shall be deemed included in the Registration Statement
and the Prospectuses for purposes of this subsection and subsection
(a) above.
(c) The Prospectus shall have been filed with the
Commission in accordance with the Rules and Regulations and Section
5(a) of this Agreement. Prior to the Delivery Date, no stop order
suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of the Company or the Underwriter,
shall be contemplated by the Commission.
(d) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any
development or event involving a prospective change in the financial
condition, business or results of operations of the Company, the
Subsidiaries and the Joint Ventures, taken as a whole, which, in the
judgment of the Underwriter, is material and adverse and makes it
impractical or inadvisable to proceed with completion of the public
offering or the sale of and payment for the Securities; (ii) any
downgrading in the rating of any debt securities or preferred stock of
the Company by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act),
or any public announcement that any such organization has under
surveillance or review its rating of any debt securities or preferred
stock of the Company (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (iii) any suspension or limitation of
trading in securities generally on the New York Stock Exchange or any
setting of minimum prices for trading on such exchange, or any
suspension of trading of any securities of the Company on any exchange
or in the over-the-counter market; (iv) any banking moratorium
declared by Federal or New York authorities; or (v) any outbreak or
escalation of major hostilities in which the United States is
involved, any declaration of war by the United States Congress or any
other substantial national or international calamity or emergency if,
in the judgment of the Underwriter, the effect of any such outbreak,
escalation, declaration, calamity or emergency on the financial
markets makes it impracticable or inadvisable to proceed with
completion of the public offering or the sale of and payment for the
Securities.
(e) The Underwriter shall have received an opinion,
dated the Delivery Date, of Steven A. McArthur, Executive Vice
President and General Counsel of the Company, to the effect that:
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(i) Each of the Company, the Subsidiaries and the
Joint Ventures has been duly organized and is validly
existing and, if applicable, in good standing under the laws
of its respective jurisdiction of organization and each of
the Company, the Subsidiaries and the Joint Ventures has the
power and authority to own, lease and operate its respective
properties and to conduct its businesses as described in the
Prospectus;
(ii) Each of the Company, the Subsidiaries and the
Joint Ventures is duly registered or qualified to do business
and (to the extent applicable) is in good standing as a
foreign corporation, a foreign partnership or a foreign
limited liability company, as the case may be, in each
jurisdiction, domestic or foreign, in which such
registration, qualification or good standing is required
(whether by reason of the ownership or leasing of property,
the conduct of its business or otherwise), except where the
failure to so register or qualify or be in good standing is
not reasonably likely to have a material adverse effect on
the financial condition, business or results of operation of
the Company, the Subsidiaries and the Joint Ventures taken
as a whole;
(iii) The Company has the authorized and outstanding
capitalization as set forth under the caption
"Capitalization" in the Prospectus; to the best knowl edge of
such counsel, all the outstanding shares of capital stock of
each Subsidiary have been duly and validly authorized and
issued and are fully paid and nonassessable; and to the best
knowledge of such counsel, except as otherwise set forth in
Schedule A attached hereto or disclosed in or contemplated by
the Prospectus, all outstanding shares of capital stock of
each Subsidiary are owned beneficially by the Company free
and clear of any material claims, liens, encumbrances and
security interests; and to the best knowledge of such
counsel, all of the partnership interests in the Joint
Ventures owned by the Company (as reflected in Schedule B
attached hereto) have been duly and validly authorized and
issued, and, except as otherwise disclosed in or contemplated
by the Prospectus, are owned beneficially by the Company
free and clear of any material claims, liens, encumbrances
and security interests;
(iv) Each of the Base Indenture and the Third
Supplemental Indenture and the MidAmerican Merger Agreement
has been duly and validly authorized, executed and delivered
by the Company and constitutes the legal, valid and binding
obligation of the Company, enforceable against the Company in
accordance with its terms, except as enforcement may be
limited by bankruptcy, insolvency (involving, without
limitation, all laws relating to fraudulent transfers),
reorganization or other laws relating to or affecting
creditors' rights generally and except as enforcement thereof
is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity
or at law);
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(v) The Securities have been validly authorized by
the Company, and, assuming due authentication by the Trustee,
when issued and delivered as contemplated by the Indenture
upon payment therefor as provided in this Agreement, will be
validly issued and outstanding, and will constitute valid and
binding obligations of the Company, entitled to the benefits
of the Indenture and enforceable against the Company in
accordance with their terms, except as enforcement may be
limited by bankruptcy, insolvency (involving, without
limitation, all laws relating to fraudulent transfers),
reorganization or other laws relating to or affecting
creditors' rights generally and except as enforcement thereof
is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity
or at law);
(vi) The statements in the Prospectus under the
captions "Description of the Securities" and "Description of
Debt Securities," insofar as they purport to summarize the
provisions of the Indenture and the Securities, fairly
summarized such provisions in all material respects.
(vii) To such counsel's knowledge, except as
otherwise disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company
and any person that would give rise to a valid claim against
the Company or the Underwriter for a brokerage commission,
finder's fee or other like payment;
(viii) To such counsel's knowledge, there are no
contracts, agreements or understandings which have not been
satisfied or waived between the Compa ny and any person
granting such person the right to require the Company to file
a registration statement under the Act with respect to any
securities of the Company owned or to be owned by such person
or to require the Company to include any such securities in
the securities registered pursuant to the Registration
Statement or in any securities being registered pursuant to
any other registration statement filed by the Company under
the Act;
(ix) Except as disclosed in or contemplated by the
Prospectus, each of the Company, the Subsidiaries and the
Joint Ventures has good and valid title to, or valid and
enforceable leasehold or contractual interests in, all real
properties and all other properties and assets owned or
leased by each of them that are material to the business of
each such entity, in each case free from all liens,
encumbrances, and defects that would materially interfere
with the use made or to be made thereof by them;
(x) To such counsel's knowledge, there is no legal
or governmental action, suit or proceeding before any court,
governmental agency, body or authority, domestic or foreign,
now pending, threatened against, or involving,
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the Company, any Subsidiary or any Joint Venture (i) of a
character required to be disclosed in the Registration
Statement which is not adequately disclosed in the
Registration Statement or (ii) that, if determined adversely
to the Company, any Subsidiary or any Joint Venture, is
reasonably likely to have, individually or in the aggregate,
a material adverse effect on the financial condition,
business or results of operations of the Company, the
Subsidiaries and the Joint Ventures taken as a whole or on
the ability of the Company to perform its obligations under
this Agreement, the Indenture or the Securities;
(xi) To such counsel's knowledge, the Company, each
Subsidiary and each Joint Venture (i) has obtained each
license, permit, certificate, franchise or other governmental
authorization which is material to the ownership of their
properties or to the conduct of their businesses as described
in the Prospectuses and (ii) is in compliance with all terms
and conditions of such license, permit, certificate,
franchise or other governmental authorization, except (x) in
either case where the failure to do so is not reasonably
likely to have, individually or in the aggregate, a material
adverse effect on the financial condition, business or
results of operations of the Company, the Subsidiaries and
the Joint Ventures taken as a whole, (y) permits, consents
and approvals that may be required for future drilling or
operating activities which are ordinarily deemed to be
ministerial in nature and which are anticipated to be
obtained in the ordinary course and (z) permits, consents and
approvals for developmental or construction activities which
have not yet been obtained but which have been or will be
applied for in the course of development or construction and
which are anticipated to be obtained in the ordinary course;
(xii) The Company has all requisite corporate power
and authority to enter into this Agreement, the MidAmerican
Merger Agreement, the Base Indenture and the Third
Supplemental Indenture, to issue the Securities and to
consummate the transactions contemplated by this Agreement,
the Indenture, the Securities and the MidAmerican Merger
Agreement;
(xiii) There are no contracts or other documents
which are required to be described in the Prospectus or filed
as exhibits to the Registration Statement by the Act or by
the Rules and Regulations which have not been described or
filed as exhibits to the Registration Statement or
incorporated by reference therein as permitted by the Rules
and Regulations;
(xiv) This Agreement has been duly authorized,
executed and delivered by the Company;
(xv) (A) The execution, delivery and performance of
this Agreement, the MidAmerican Merger Agreement, the
Indenture, the issuance and sale of the
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Securities and the use of proceeds of the Securities as
designated in the Prospectus do not and will not (i) conflict
with the corporate charter or by-laws or partnership
agreement of the Company, any Subsidiary or any Joint
Venture, (ii) to the best knowledge of such counsel (except
as contemplated by the Indenture), conflict with, result in
the creation or imposition of any lien, charge or other
encumbrance upon any asset of the Company, any Subsidiary or
any Joint Venture pursuant to the terms of, or constitute a
breach of, or default under, any agreement, indenture or
other instrument to which the Company, any Subsidiary or any
Joint Venture is a party or by which the Company, any
Subsidiary or any Joint Venture is bound or to which any of
the properties of the Company, any Subsidiary or any Joint
Venture is subject, or (iii) to the best knowledge of such
counsel, result in a violation of any statute, rule,
regulation, order, judgment or decree of any court or
governmental agency, body or authority having jurisdiction
over the Company, any Subsidiary or any Joint Venture or any
of their properties where any such conflict, encumbrance,
breach, default or violation under clauses (ii) or (iii),
individually or in the aggregate, is reasonably likely to
have a material adverse effect on the financial condition,
business or results of operations of the Company, its
Subsidiaries and the Joint Ventures taken as a whole; (B) to
the knowledge of such counsel, except for (i) the
registration of the Securities under the Act and the
qualification of the Indenture under the Trust Indenture Act
and (ii) such consents, approvals, authorizations,
registrations or qualifications as may be required under the
Exchange Act and applicable state securities laws in
connection with the purchase and distribution of the
Securities, no consent, authorization or order of, or filing
or registration by the Company, any Subsidiary or any Joint
Venture with, any court, governmental agency or third party
is required in connection with the execution, delivery and
performance by the Company of this Agreement, the Indenture,
the consummation of the transactions contemplated herein and
therein, and the issuance, distribution and sale of the
Securities as contemplated herein and therein, the failure to
obtain which, individually or in the aggregate, is reasonably
likely to have a material adverse effect on the financial
condition, business or results of operations of the Company,
the Subsidiaries and the Joint Ventures taken as a whole, or
on the Securities or the ability of the Company to perform
its obligations under this Agreement, the Indenture and the
Securities and (C) the Company has full corporate power and
authority to authorize, issue and sell the Securities as
contemplated by this Agreement and the Indenture;
(xvi) The Company is not required to be registered
under the Invest ment Company Act of 1940, as amended;
(xvii) The documents incorporated by reference in
the Prospectus and any further amendments or supplements to
any such incorporated document
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made by the Company prior to the Delivery Date (other than
the financial statements, related schedules and other
financial and statistical information contained therein or
omitted therefrom as to which such counsel need express no
opinion), when they became effective or were filed with the
Commission, as the case may be, appear on their face to have
been appropriately responsive in all material respects to the
applicable requirements of the Act or the Exchange Act, as
the case may be, and the Rules and Regulations of the
Commission thereunder; and
(f) The Company shall have furnished to the
Underwriter the opinion of Willkie Farr & Gallagher, special counsel
to the Company, addressed to the Underwriter and dated the Delivery
Date, in form and substance satisfactory to the Underwriter, to the
effect that:
(i) The Company has been duly organized and is
validly existing and in good standing under the laws of its
jurisdiction of organization and the Company has the
corporate power and authority to own, lease and operate its
properties and to conduct its businesses as described in the
Prospectus;
(ii) Such counsel has been advised by the Commission
that the Registration Statement has been declared effective
under the Act; the Prospectus has been filed with the
Commission pursuant to the appropriate subparagraph of Rule
424(b) of the Rules and Regulations; to the best knowledge of
such counsel, no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceeding
for that purpose is pending or threatened by the Commission;
(iii) The Registration Statement, as of its
effective date, the Registration Statement and the
Prospectus, as of the date of this Agreement, and any further
amendments or supplements thereto made by the Company prior
to the Delivery Date (in each case, other than the financial
statements, related schedules, other financial and
statistical information contained therein or omitted
therefrom as to which such counsel need express no opinion)
as of their effective dates, appear on their face to have
been appropriately responsive in all material respects to the
applicable requirements of the Act, the Exchange Act and the
Rules and Regulations;
(iv) Each of the Base Indenture and the Third
Supplemental Indenture has been duly and validly authorized,
executed and delivered by the Company and constitutes the
valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to
fraudulent transfers), reorganization or other similar laws
affecting
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creditors' rights generally and except as enforcement thereof
is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity
or at law);
(v) The Securities have been validly authorized by
the Company, and, upon payment therefor as provided in this
Agreement, will be validly issued and outstanding, and will
constitute valid and binding obligations of the Company
entitled to the benefits of the Indenture and enforceable
against the Company in accordance with their terms, except as
enforcement may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to
fraudulent transfers), reorganization or other similar laws
relating to or affecting creditors' rights generally and
except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law);
(vi) To such counsel's knowledge, there are no
contracts or other documents which are required to be
described in the Prospectus or filed as exhibits to the
Registration Statement by the Act or by the Rules and
Regulations which have not been described or filed as
exhibits to the Registration Statement or incorporated by
reference therein as permitted by the Rules and Regulations;
(vii) This Agreement has been duly authorized,
executed and delivered by the Company; and
(viii) No consent, authorization, order of, or
filing or registration by the Company with, any United States
governmental authority or body having jurisdiction over the
Company is necessary or required for the performance by the
Company of its obligations under this Agreement, the
Indenture or the Securities or in connection with the
issuance and sale of the Securities hereunder or thereunder,
except as may be required under applicable federal, state or
foreign securities laws or blue sky laws in connection with
the purchase and distribution of the Securities.
(g) In the rendering of the opinions described in
Section 7(e) and Section 7(f) above, such counsel may (i) state that
their opinion is limited to matters governed by the Federal laws of
the United States of America, the laws of the State of New York and
the General Corporation Law of the State of Delaware and (ii) rely, to
the extent they deem proper, in respect of matters of fact, upon
certificates and representations of officers of the Company, the
Subsidiaries or the Joint Ventures and public officials. Such counsel
shall also have furnished to the Underwriter a written statement,
dated the Delivery Date, in form and substance reasonably satisfactory
to the Underwriter, to the effect that (i) such counsel (in the case
of Willkie Farr &
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<PAGE>
Gallagher, such counsel may state that they have acted as special
counsel to the Company for purposes of the offering of the Securities)
have participated in conferences with representatives of the Company,
some of which have been attended by the Underwriter and its counsel,
at which conferences the contents of the Registration Statement, the
Prospectus, each amendment thereof and supplement thereto and related
matters were discussed, although such counsel has not independently
checked or verified and is not passing upon and assumes no
responsibility for the factual accuracy, completeness or fairness of
the statements (except to the extent set forth in the opinion of such
counsel) contained in the Registration Statement, the Prospectus, any
amendment thereof or supplement thereto, and did not participate in
the preparation of the documents incorporated by reference in the
Registration Statement and (ii) based on the foregoing, no facts have
come to the attention of such counsel which cause them to believe that
(except for the financial statements, related schedules and other
financial and statistical information contained therein or omitted
therefrom as to all of which such counsel need not express any belief)
(I) the Registration Statement, as of its effective date and as of the
date of this Agreement, contained any untrue statement of a material
fact or omitted to state a material fact required to be stated therein
or necessary in order to make the statements therein not misleading,
or that the Prospectus, as amended and supplemented as of the date of
this Agreement or the Delivery Date, contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading or
(II), in the case of the General Counsel of the Company, any document
incorporated by reference in the Prospectus or any further amendment
or supplement to such incorporated document made by the Company prior
to the Delivery Date when they became effective or were filed with the
Commission, as the case may be, contained, in the case of a
registration statement that became effective under the Act, any untrue
statement of a material fact or omitted to state a material fact
required to be stated therein, in the light of the circumstances under
which they were made, or necessary in order to make the statements
therein not misleading, or, in the case of other documents which were
filed under the Exchange Act with the Commission, an untrue statement
of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in light of the circumstances
under which they were made, not misleading.
(h) The Underwriter shall have received from
Skadden, Arps, Slate Meagher & Flom LLP, counsel for the Underwriter,
such opinion or opinions, dated the Delivery Date, with respect to the
issuance and sale of the Securities, the Registration Statement, the
Prospectus and other related matters as the Underwriter may require,
and the Company shall have furnished to such counsel such documents as
they request for the purpose of enabling them to pass upon such
matters.
(i) The Underwriter shall have received a
certificate, dated the Delivery Date, of the President or any
Vice-President and a principal financial or
23
<PAGE>
accounting officer of the Company in which such officers shall state
that, to the best of their knowledge after reasonable investigation,
the representations and warranties of the Company in this Agreement
are true and correct in all material respects, that the Company has
complied with all agreements and satisfied all conditions on its part
to be performed or satisfied hereunder at or prior to the Delivery
Date, that no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or are contemplated by the Commission and
that, subsequent to the date of the most recent financial statements
included or incorporated by reference in the Prospectus, there has
been no material adverse change, nor any development or event
involving a prospective material adverse change, in the financial
condition, business or results of operations of the Company, the
Subsidiaries and the Joint Ventures taken as a whole except as set
forth in or contemplated by the Prospectuses or as described in such
certificate.
(j) The Underwriter shall have received letters,
dated the Delivery Date, of Deloitte & Touche LLP and such other
independent accountants for subsidiaries and acquired businesses which
meet the requirements of subsection (a) of this Section, except that
the specified date referred to in such subsection will be a date not
more than three days prior to the Delivery Date for the purposes of
this subsection.
(k) The Underwriter shall have received letters,
dated the Delivery Date, of PricewaterhouseCoopers LLP and such other
independent accountants for subsidiaries and acquired businesses which
meet the requirements of subsection (b) of this Section, except that
the specified date referred to in such subsection will be a date not
more than three days prior to the Delivery Date for the purposes of
this subsection.
(l) Since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus (i)
except as disclosed in the Prospectus, there shall have been no
material adverse change, or a development which is reasonably likely
to lead to a material adverse change, in the financial condition,
business or results of operations of the Company, the Subsidiaries and
the Joint Ventures taken as a whole and (ii) except as disclosed in
the Prospectus, there shall not have been any transactions entered
into by the Company, the Subsidiaries or any Joint Venture, other than
those in the ordinary course of business, which are material and
adverse to the Company, the Subsidiaries and the Joint Ventures taken
as a whole, and which, in the judgment of the Underwriter, make it
impracticable or inadvisable to proceed with the public offering or
the delivery of the Securities on the terms and in the manner
contemplated in the Prospectus.
All opinions, letters, evidence and certificates
mentioned above or elsewhere in this Agreement shall be deemed in
compliance with the provisions hereof only if they are in the form and
substance reasonably satisfactorily to counsel for the Underwriter.
24
<PAGE>
8. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless
the Underwriter, its officers and employees and each person, if any,
who controls the Underwriter within the meaning of the Act, from and
against any loss, claim, damage or liability, joint or several, or any
action in respect thereof (including, but not limited to, any loss,
claim, damage, liability or action relating to purchases and sales of
the Securities), to which the Underwriter, officer, employee or
controlling person may become subject, under the Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement,
the Prospectus, or in any amendment or supplement thereto, or in any
related preliminary prospectus or preliminary prospectus supplement,
(ii) the omission or alleged omission to state in the Registration
Statement or the Prospectus, or in any amendment or supplement
thereto, or any related preliminary prospectus or preliminary
prospectus supplement, any material fact required to be stated therein
or necessary to make the statements therein (with respect to any
prospectus or prospectus supplement, in light of the circumstances
under which they were made) not misleading, and shall reimburse the
Underwriter and each officer, employee or controlling person promptly
upon demand for any legal or other expenses reasonably incurred by the
Underwriter in connection with investigating or defending or preparing
to defend against any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that the Company shall
not be liable in any such case to the extent that any such loss,
claim, damage, liability or action arises out of, or is based upon, an
untrue statement or alleged untrue statement or omission or alleged
omission made in any preliminary prospectus or preliminary prospectus
supplement, the Registration Statement or the Prospectus, or in any
such amendment or supplement, in reliance upon and in conformity with
written information furnished to the Company by the Underwriter
specifically for inclusion therein.
(b) The Underwriter shall indemnify and hold
harmless the Company, its officers and employees, each of its
directors, and each person, if any, who controls the Company within
the meaning of the Act, from and against any loss claim, damage or
liability, joint or several, or any action in respect thereof, to
which the Company may become subject, under the Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained (A) in the Registration
Statement or the Prospectus or in any amendment or supplement thereto,
or any related preliminary prospectus or preliminary prospectus
supplement or (ii) the omission or alleged omission to state in the
Registration Statement or the Prospectus, or in any amendment or
supplement thereto, or in any related preliminary prospectus or
preliminary prospectus supplement, any material fact required to be
stated therein or necessary to make the statements therein (with
respect to any prospectus or prospectus supplement,
25
<PAGE>
in the light of the circumstances under which they were made) not
misleading, but in each case only to the extent that the untrue
statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written information
furnished to the Company by the Underwriter specifically for inclusion
therein, and shall reimburse the Company and any such director,
officer or controlling person for any legal or other expenses
reasonably incurred by the Company in connection with investigating or
defending or preparing to defend against any such loss, claim, damage,
liability or action as such expenses are incurred. The foregoing
indemnity agreement is in addition to any liability which the
Underwriter may otherwise have to the Company or any such director,
officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party
under this Section 8 of notice of any claim or the commencement of any
action, the indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party under this Section 8, notify
the indemnifying party in writing of the claim or the commencement of
that action; provided, however, that the failure to notify the
indemnifying party shall not relieve it from any liability which it
may have under this Section 8 except to the extent it has been
materially prejudiced by such failure and, provided further, that the
failure to notify the indemnifying party shall not relieve it from any
liability which it may have to an indemnified party otherwise than
under this Section 8. If any such claim or action shall be brought
against an indemnified party, and it shall notify the indemnifying
party thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof
with counsel reasonably satisfactory to the indemnified party. After
notice from the indemnifying party to the indemnified party of its
election to assume the defense of such claim or action, the
indemnifying party shall not be liable to the indemnified party under
this Section 8 for any legal or other expenses subsequently incurred
by the indemnified party in connection with the defense thereof other
than reasonable costs of investigation; provided, however, that the
Underwriter shall have the right to employ counsel to represent
jointly the Underwriter and its respective officers, employees and
controlling persons who may be subject to liability arising out of any
claim in respect of which indemnity may be sought by the Underwriter
against the Company under this Section 8 if the employment of such
counsel shall have been authorized in writing by the Company in
connection with the defense of such action or, if in the written
opinion of counsel to either the Company or the Underwriter,
representation of both parties by the same counsel would be
inappropriate due to actual or likely conflicts of interest between
the Underwriter and its officers, employees, directors and controlling
persons and in that event the fees and expenses of such separate
counsel shall be paid by the Company. No indemnifying party shall (i)
without the prior written consent of the indemnified parties (which
consent shall not be unreasonably withheld), settle or compromise or
consent to the entry of any judgment with respect to any pending or
threatened claim, action, suit or
26
<PAGE>
proceeding in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim,
action, suit or proceeding, or (ii) be liable for any settlement of
any such action effected without its written consent (which consent
shall not be unreasonably withheld), but if settled with the consent
of the indemnifying party or if there be a final judgment of the
plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against any
loss or liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this
Section 8 shall for any reason be unavailable to or insufficient to
hold harmless an indemnified party under Section 8(a) or 8(b) in
respect of any loss, claim, damage or liability, or any action in
respect thereof, referred to therein, then each indemnifying party
shall, in lieu of indemnifying such indemnified party, contribute to
the amount paid or payable by such indemnified party as a result of
such loss, claim, damage or liability, or action in respect thereof,
(i) in such proportion as shall be appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriter
on the other from the offering of the Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and the Underwriter on
the other with respect to the statements or omissions which resulted
in such loss, claim, damage or liability, or action in respect
thereof, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the
Underwriter on the other with respect to such offering shall be deemed
to be in the same proportion as the total net proceeds from the
offering of the Securities purchased under this Agreement (before
deducting expenses) received by the Company, bear to the total
underwriting discounts and commissions received by the Underwriter
with respect to the Securities purchased under this Agreement. The
relative fault shall be determined by reference to whether the untrue
or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by
the Company or the Underwriter, the intent of the parties and their
relative knowledge, access to information and opportunity to correct
or prevent such statement or omission. The Company and the Underwriter
agree that it would not be just and equitable if contribution pursuant
to this Section were to be determined by pro rata allocation or by any
other method of allocation which does not take into account the
equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the loss, claim, damage
or liability, or action in respect thereof, referred to above in this
Section shall be deemed to include, for purposes of this Section 8(d),
any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or
claim. Notwithstanding
27
<PAGE>
the provision of this Section 8(d), the Underwriter shall not be
required to contribute any amount in excess of the amount by which the
total price at which the amount of Securities underwritten by it and
distributed to the public was offered to the public exceeds the amount
of any damages which the Underwriter has otherwise paid or become
liable to pay by reason of any untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation.
(e) The Underwriter confirms and the Company
acknowledges that (i) the statements with respect to the public
offering of the Securities by the Underwriter set forth on the cover
page of the Prospectus and in paragraph 2 in the section
"Underwriting" in the Prospectus concerning the terms of the offering
and resales by the Underwriter, (ii) the statement relating to
market-making by the Underwriter in paragraph 5 in the section
"Underwriting" in the Prospectus and (iii) the information relating to
over-allotments and stabilizing in paragraph 7 in the section
"Underwriting" in the Prospectus constitute the only information
concerning the Underwriter furnished in writing to the Company by the
Underwriter specifically for inclusion in the Registration Statement
and the Prospectus.
9. Termination. The obligations of the Underwriter hereunder
may be terminated by the Underwriter by notice given to and received by the
Company prior to delivery of and payment for the Securities if, prior to that
time, any of the events described in Sections 7(d) or 7(l), shall have occurred
or if the Underwriter shall decline to purchase the Securities for any reason
permitted under this Agreement.
10. Reimbursement of Underwriter's Expenses. If the Company
shall fail to tender the Securities for delivery to the Underwriter by reason
of any failure, refusal or inability on the part of the Company to perform any
material agreement on its part to be performed, or because any other material
condition of the Underwriter's obligations hereunder required to be fulfilled
by the Company is not fulfilled, the Company will reimburse the Underwriter for
all reasonable out-of-pocket expenses (including fees and disbursements of
counsel) reasonably incurred by the Underwriter in connection with this
Agreement and the proposed purchase of the Securities in excess of $250,000,
and upon demand the Company shall pay the full amount thereof to the
Underwriter; provided, however, that in no event shall such amount exceed
$100,000.
11. Notices, etc. All statements, requests, notices and
agreements hereunder shall be in writing, and:
(a) if to the Underwriter, shall be delivered or
sent by mail, telex or facsimile transmission to Credit Suisse First
Boston Corporation, Eleven Madison
28
<PAGE>
Avenue, New York, New York 10010, Attention: Investment Banking
Department/Transactions Advisory Group (Fax: (212) 325-8278); and
(b) if to the Company, shall be delivered or sent by
mail, telex or facsimile transmission to the address of the Company
set forth in the Registration Statement, Attention: General Counsel
(Fax: (402) 231-1658).
Any such statements, requests, notices or agreements
shall take effect at the time of receipt thereof.
12. Persons Entitled to Benefit of Agreement. This Agreement
shall inure to the benefit of and be binding upon the Underwriter, the Company
and their respective successors. This Agreement and the terms and provisions
hereof are for the sole benefit of only those persons, except that (A) the
representations, warranties, indemnities and agreements of the Company
contained in this Agreement shall also be deemed to be for the benefit of the
person or persons, if any, who control the Underwriter within the meaning of
Section 15 of the Act and (B) the indemnity agreement of the Underwriter
contained in Section 8(b) of this Agreement shall be deemed to be for the
benefit of directors of the Company, officers of the Company who have signed
the Registration Statement and any person controlling the Company within the
meaning of Section 15 of the Act. Nothing in this Agreement is intended or
shall be construed to give any person, other than the persons referred to in
this Section 12, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision contained herein.
13. Survival. The respective indemnities, representations,
warranties and agreements of the Company and the Underwriter contained in this
Agreement or made by or on behalf on them, respectively, pursuant to this
Agreement, shall survive the delivery of and payment for the Securities and
shall remain in full force and effect, regardless of any investigation made by
or on behalf of any of them or any person controlling any of them.
14. Definition of the Term "Business Day". For purposes of
this Agreement, "business day" means any day on which the New York Stock
Exchange, Inc. is open for trading.
15. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF NEW YORK.
Each party irrevocably agrees that any legal suit, action or
proceeding arising out of or based upon this Agreement or the transactions
contemplated hereby ("Related Proceedings") may be instituted in the federal
courts of the United States of America located in the City of New York or the
courts of the State of New York in each case located in the Borough of
Manhattan in the City of New York (collectively, the "Specified Courts"), and
29
<PAGE>
irrevocably submits to the exclusive jurisdiction (except for proceedings
instituted in regard to the enforcement of a judgment of any such court (a
"Related Judgment"), as to which such jurisdiction is non-exclusive) of such
courts in any such suit, action or proceeding. The parties further agree that
service of any process, summons, notice or document by mail to such party's
address set forth above shall be effective service of process for any lawsuit,
action or other proceeding brought in any such court. The parties hereby
irrevocably and unconditionally waive any objection to the laying of venue of
any lawsuit, action or other proceeding in the Specified Courts, and hereby
further irrevocably and unconditionally waive and agree not to plead or claim
in any such court that any such lawsuit, action or other proceeding brought in
any such court has been brought in an inconvenient forum.
16. Counterparts. This Agreement may be executed in one or
more counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
17. Headings. The headings herein are inserted for
convenience of reference only and are not intended to be part of, or to affect
the meaning or interpretation of, this Agreement.
30
<PAGE>
If the foregoing correctly sets forth the agreement between
the Company and the Underwriter, please indicate your acceptance in the space
provided for that purpose below.
Very truly yours,
CALENERGY COMPANY, INC.
By /s/ Steven A. McArthur
---------------------------------
Name: Steven A. McArthur
Title: Executive Vice President
Accepted:
CREDIT SUISSE FIRST BOSTON CORPORATION
By /s/ Adebayo Ogunlesi
------------------------------------
Authorized Representative
<PAGE>
SCHEDULE A
Subsidiaries
Coso Funding Corp.+
Incorporated in Delaware
Coso Hotsprings Intermountain Power, Inc. +
Incorporated in Delaware
China Lake Operating Company +
Incorporated in Delaware
Coso Technology Corporation +
Incorporated in Delaware
China Lake Geothermal Management Company +
Incorporated in Delaware
China Lake Plant Services, Inc. +
Incorporated in California
Coso Hotsprings Overland Power, Inc.+
Incorporated in Delaware
CE Geothermal, Inc.
Incorporated in Delaware
Western States Geothermal Company
Incorporated in Delaware
Intermountain Geothermal Company
Incorporated in Delaware
CalEnergy Development Corporation
Incorporated in Delaware
California Energy Yuma Corporation
Incorporated in Utah
<PAGE>
California Energy General Corporation
Incorporated in Delaware
Rose Valley Properties, Inc.
Incorporated in Delaware
CalEnergy Minerals, LLC
Incorporated in Delaware
CBE Engineering Co.
Incorporated in California
CE Exploration Company
Incorporated in Delaware
CE Newberry, Inc.
Incorporated in Delaware
CE International Investments Inc.
Incorporated in Delaware
CE Philippines Ltd.
Incorporated in Bermuda
CE Mahanagdong Ltd.
Incorporated in Bermuda
Ormoc Cebu Ltd.
Incorporated in Bermuda
CE Cebu Geothermal Power Company, Inc.+
Incorporated in the Philippines
CE Indonesia Ltd.+
Incorporated in Bermuda
- --------------------------
+ Indicates stock or partnership interests that are and at the Delivery Date
will continue to be pledged, subject to a purchase agreement, or otherwise
encumbered and subject to foreclosure or other exercise of remedies.
<PAGE>
CE Casecnan Ltd.
Incorporated in Bermuda
CE Singapore Ltd.
Incorporated in Bermuda
CalEnergy International Ltd.
Incorporated in Bermuda
CE Bali, Ltd.
Incorporated in Bermuda
CE Casecnan Water and Energy Company, Inc.+
Incorporated in the Philippines
Capital Stock: Owned 35% by CE Casecnan Ltd.,
35% by Kiewit Energy International (Bermuda) Ltd.,
15% by La Prairie Group Contractors (International) Ltd and
15% by San Lorenzo Ruiz Builders & Developers Group, Inc.
Magma Power Company+
Incorporated in Nevada
CalEnergy Operating Corporation+
Incorporated in Delaware
Salton Sea Power Company+
Incorporated in Nevada
Vulcan Power Company+
Incorporated in Nevada
Imperial Magma+
Incorporated in Nevada
Magma Land Company I+
Incorporated in Nevada
- --------------------------
+ Indicates stock or partnership interests that are and at the Delivery Date
will continue to be pledged, subject to a purchase agreement, or otherwise
encumbered and subject to foreclosure or other exercise of remedies.
<PAGE>
Desert Valley Company+
Incorporated in California
Fish Lake Power Company+
Incorporated in Delaware
Magma Netherlands B.V.+
Formed in the Netherlands
Tongonan Power Investment, Inc.+
Incorporated in the Philippines
Salton Sea Funding Corporation +
Incorporated in Delaware
Salton Sea Royalty Company+
Incorporated in Delaware
CE Asia Ltd.+
Incorporated In Bermuda
American Pacific Finance Company
Incorporated in Delaware
CalEnergy International Services, Inc.
Incorporated in Delaware
CalEnergy Imperial Valley Company, Inc.
Incorporated in Delaware
California Energy Retail Company, Inc.
Incorporated in Delaware
CE Humboldt, Inc.
Incorporated in Delaware
- --------------------------
+ Indicates stock or partnership interests that are and at the Delivery Date
will continue to be pledged, subject to a purchase agreement, or otherwise
encumbered and subject to foreclosure or other exercise of remedies.
<PAGE>
CE Ijen Ltd.
Incorporated in Bermuda
Magma Generating Company I
Incorporated in Nevada
Magma Generating Company II
Incorporated in Nevada
Peak Power Corporation
Incorporated in California
CE Luzon Geothermal Power Company, Inc.+
Incorporated in the Philippines
Capital Stock: Owned 50% by CE Mahanagdong Ltd.; 50% by Kiewit Energy
International (Bermuda) Ltd.; an industrial company has the right to
acquire 10% of the equity - 5% from CE Mahanagdong Ltd. and 5% from
Kiewit Energy International (Bermuda) Ltd.
Himpurna California Energy Ltd.+
Incorporated in Bermuda
Capital Stock: Owned 47% by CE Indonesia Ltd.; 47% by Kiewit Energy
International (Bermuda) Ltd., and 6% by P.T. Himpurna Enersindo Abadi;
("Himpurna"). Himpurna has assigned the right to certain preferred
dividends representing a 4% interest in Himpurna California Energy
Ltd., under the Joint Operating Contract, Pertamina has certain rights
to acquire up to a 25% interest in the Joint Operating Contract, but
not under the Energy Sales Contract
- --------------------------
+ Indicates stock or partnership interests that are and at the Delivery Date
will continue to be pledged, subject to a purchase agreement, or otherwise
encumbered and subject to foreclosure or other exercise of remedies.
<PAGE>
Patuha Power, Ltd.+
Incorporated in Bermuda
Capital Stock: Owned 44% by CE Singapore Ltd., and 44% by Kiewit
Energy International (Bermuda) Ltd.; and 12% by Mahaka Energy; under
the Joint Operating Contract, Pertamina has certain rights to acquire
up to a 25% interest in the Joint Operating Contract, but not under
the Energy Sales Agreement
Bali Energy Ltd.+
Incorporated in Bermuda
Capital Stock: Owned 50% by CE Bali Ltd. and 50% by Kiewit Energy
International (Bermuda) Ltd. P.T. Pandanwangi Sekartji has the right
to acquire up to 40% of the equity in Bali Energy Ltd.
Norming Investments BV+
Incorporated in the Netherlands
BN Geothermal Inc.+
Incorporated in Delaware
Conejo Energy Company+
Incorporated in California
Niguel Energy Company+
Incorporated in California
San Felipe Energy Company+
Incorporated in California
CE/FS Holding Company, Inc.
Incorporated in Delaware
Falcon Seaboard Power Corporation
Incorporated in Texas
- --------------------------
+ Indicates stock or partnership interests that are and at the Delivery Date
will continue to be pledged, subject to a purchase agreement, or otherwise
encumbered and subject to foreclosure or other exercise of remedies.
<PAGE>
Falcon Seaboard Resources, Inc.
Incorporated in Texas
Falcon Seaboard Energy Corporation
Incorporated in Texas
Falcon Seaboard Gas Company
Incorporated in Texas
Falcon Seaboard Oil Company
Incorporated in Texas
Falcon Seaboard Pipeline Corporation
Incorporated in Texas
Big Spring Pipeline Company
Incorporated in Texas
Falcon Power Operating Company
Incorporated in Texas
Power Resources, Inc.+
Incorporated in Texas
North Country Gas Pipeline Corporation +
Incorporated in New York
Owned by Saranac Power Partners, L.P.
Saranac Energy Company, Inc.+
Incorporated in Delaware
SECI Holdings, Inc.+
Incorporated in Delaware
Northern Consolidated Power, Inc. +
Incorporated in Delaware
- --------------------------
+ Indicates stock or partnership interests that are and at the Delivery Date
will continue to be pledged, subject to a purchase agreement, or otherwise
encumbered and subject to foreclosure or other exercise of remedies.
<PAGE>
NorCon Holdings, Inc.
Incorporated in Delaware
CE Electric, Inc.
Incorporated in Delaware
CE Power, Inc.
Incorporated in Delaware
CE Electric UK plc +
Incorporated in England
Capital Stock: Owned by CE Electric UK Holdings
American Pacific Finance Company II +
Incorporated in Delaware
Capital Stock: Owned 50% by CalEnergy Company, Inc. and
50% by Kiewit Energy Company
CE Indonesia Geothermal, Inc.
Incorporated in Delaware
Slupo I B.V.+
Incorporated in Netherlands
Owned 50% by CE Asia Ltd. and 50% by Kiewit
Energy International (Bermuda) Limited
CE Indonesia Funding Corp. +
Incorporated in Delaware
Owned 50% by Himpurna California Energy Ltd.
and 50% by Patuha Power, Ltd.
Gilbert/CBE Indonesia L.L.C.
Organized in Nebraska
Owned 60% Gilbert Industrial Corporation and 40% CBE Engineering Co.
- --------------------------
+ Indicates stock or partnership interests that are and at the Delivery Date
will continue to be pledged, subject to a purchase agreement, or otherwise
encumbered and subject to foreclosure or other exercise of remedies.
<PAGE>
Northern Electric plc+ Incorporated in England and Wales Owned by CE
Electric UK plc.
Northern Electric Generation (NPL) Limited + Incorporated in England
and Wales Owned by Northern Electric plc.
Northern Electric Supply Limited + Incorporated in England and Wales
Owned by Northern Electric plc.
Northern Electric Share Scheme Trustee Limited + Incorporated in
England and Wales Owned by Northern Electric plc.
Northern Transport Finance Limited + Incorporated in England and Wales
Owned by Northern Electric plc.
Northern Electric Retail Limited + Incorporated in England and Wales
Owned by Northern Electric plc.
Northern Electric Properties Limited + Incorporated in England and
Wales Owned by Northern Electric plc.
Northern Electric Distribution Limited
Incorporated in England and Wales
Owned by Northern Electric plc.
Gas UK Limited+ Incorporated in England and Wales Owned by Northern
Electric plc.
- --------------------------
+ Indicates stock or partnership interests that are and at the Delivery Date
will continue to be pledged, subject to a purchase agreement, or otherwise
encumbered and subject to foreclosure or other exercise of remedies.
<PAGE>
Northern Electric (Overseas Holdings) Limited + Incorporated in
England and Wales Owned by Northern Electric plc.
Northern Electric Generation (CPS) Limited + Incorporated in England
and Wales Owned indirectly by Northern Electric plc.
Kings Road Developments Limited+
Incorporated in England and Wales
Owned 48% by Northern Electric plc., 26% by Cussins Homes and 26% by
Bellway Homes.
Ryhope Road Developments Ltd. +
Incorporated in England and Wales
Owned 49% by Northern Electric Properties Ltd. and
51% by Bowey Group Limited
Stamfordham Road Developments Ltd.+
Incorporated in England and Wales
Owned 49% by Northern Electric Properties Ltd. and
51% by Cussins Commercial Development Ltd.
Northern Electric Generation (TPL) Limited + Incorporated in England
and Wales Owned indirectly by Northern Electric plc.
Northern Electric Generation Limited + Incorporated in England and
Wales Owned by Northern Electric plc.
Northern Electric Insurance Services Limited + Incorporated in England
and Wales Owned indirectly by Northern Electric plc.
- --------------------------
+ Indicates stock or partnership interests that are and at the Delivery Date
will continue to be pledged, subject to a purchase agreement, or otherwise
encumbered and subject to foreclosure or other exercise of remedies.
<PAGE>
Northern Metering Services Limited + Incorporated in Isle of Man Owned
indirectly by Northern Electric plc.
CalEnergy Gas (UK) Limited + Incorporated in England and Wales Owned
indirectly by Northern Electric plc.
Northern Electric Generation (Peaking) Limited + Incorporated in
England and Wales Owned indirectly by Northern Electric plc.
Northern Electric Training Limited + Incorporated in England and Wales
Owned by Northern Electric plc.
Northern Electric Transport Limited + Incorporated in England and
Wales Owned by Northern Electric plc.
Northern Infocom Limited (formerly known as Northern Information
Systems Limited) +
Incorporated in England and Wales
Owned by Northern Electric plc.
Northern Utility Services Limited + Incorporated in England and Wales
Owned by Northern Electric plc.
Viking Power Ltd.+
Incorporated in England and Wales
Capital Stock: Owned 50% by Northern Electric Generation Limited
and 50% by Rolls-Royce Power Ventures Limited
Northern Electric Finance plc. +
Incorporated in England and Wales
Owned indirectly by Northern Electric plc.
- --------------------------
+ Indicates stock or partnership interests that are and at the Delivery Date
will continue to be pledged, subject to a purchase agreement, or otherwise
encumbered and subject to foreclosure or other exercise of remedies.
<PAGE>
Northgas Limited + Incorporated in England and Wales Owned by Northern
Electric plc.
Northern Tracing & Collection Services Limited + Incorporated in
England and Wales Owned by Northern Electric plc.
Northern Electric Telecom Limited + Incorporated in England and Wales
Owned by Northern Electric plc.
CE Electric UK Holdings +
Incorporated in England and Wales
Capital Stock: Owned 35% by CE Power, Inc., 35% by CE Electric Inc.
and 30% by Kiewit Energy UK, Inc.
CalEnergy Gas (Polska) *Polish limited liability company Owned
indirectly by Northern Electric plc.
CalEnergy Capital Trust I
Formed under the laws of Delaware
CalEnergy Capital Trust II
Formed under the laws of Delaware
CalEnergy Capital Trust III
Formed under the laws of Delaware
CalEnergy Capital Trust IV
Formed under the laws of Delaware
CalEnergy Capital Trust V
Formed under the laws of Delaware
- --------------------------
+ Indicates stock or partnership interests that are and at the Delivery Date
will continue to be pledged, subject to a purchase agreement, or otherwise
encumbered and subject to foreclosure or other exercise of remedies.
<PAGE>
CalEnergy Capital Trust VI
Formed under the laws of Delaware
Aurora 2000, LLC+
Incorporated in Delaware
CalEnergy Development Company
Incorporated in Delaware
CalEnergy International, Inc.
Incorporated in Delaware
CE Aurora I, Inc.+
Incorporated in Delaware
CE Salton Sea Inc.+
Incorporated in Delaware
CE Turbo LLC+
Incorporated in Delaware
Kiewit Energy Company+
Incorporated in Delaware
Kiewit Energy Pacific Holdings Corp.+
Incorporated in Delaware
Kiewit Energy U.K. Inc.+
Incorporated in Delaware
Maverick Reincorporation Sub, Inc.+
Incorporated in Iowa
MAVH Inc.+
Incorporated in Iowa
- --------------------------
+ Indicates stock or partnership interests that are and at the Delivery Date
will continue to be pledged, subject to a purchase agreement, or otherwise
encumbered and subject to foreclosure or other exercise of remedies.
<PAGE>
Northern Aurora, Inc.+
Incorporated in Delaware
Salton Sea Minerals Corp.+
Incorporated in Delaware
Salton Sea Power L.L.C.+
Incorporated in Delaware
Kiewit Energy International (Bermuda) Ltd.+
Incorporated in Bermuda
Polska Power Sp.z.o.o.+
Incorporated in Poland
CalEnergy Europe Limited+
Incorporated in the United Kingdom
CalEnergy Gas (Pipelines) Limited+
Incorporated in the United Kingdom
CE Electric UK Funding Company+
Incorporated in the United Kingdom
Neptune Power Ltd.+
Incorporated in the United Kingdom
Northern Aurora Limited (f/k/a/ Aurora 2000+Limited)
Incorporated in the United Kingdom
Northern Electric & Gas Limited+
Incorporated in the United Kingdom
Northern Electric Investments Limited+
Incorporated in the United Kingdom
Seal Sands Network Limited+
- --------------------------
+ Indicates stock or partnership interests that are and at the Delivery Date
will continue to be pledged, subject to a purchase agreement, or otherwise
encumbered and subject to foreclosure or other exercise of remedies.
<PAGE>
Incorporated in the United Kingdom
Teesside Power Limited+
Incorporated in the United Kingdom
- --------------------------
+ Indicates stock or partnership interests that are and at the Delivery Date
will continue to be pledged, subject to a purchase agreement, or otherwise
encumbered and subject to foreclosure or other exercise of remedies.
<PAGE>
SCHEDULE B
Joint Ventures
Coso Energy Developers (CED)+
Formed in California
General Partnership: 48% CHIP; 52% Caithness Coso
Holdings, L.P.
Coso Finance Partners+
Formed in California
General Partnership: 46.4% owned by CLOC; 53.6%
owned by ESCA I, L.P.
Coso Power Developers (CPD)+
Formed in California
General Partnership: 50% owned by CTC; 50% by
Caithness Navy II
Coso Transmission Line Partners+
Formed in California
General Partnership: Owned 50% by CED; 50% by CPD
Vulcan/BN Geothermal Power Company+
Formed in Nevada
Partnership Interests: Vulcan Power Company 50%
General Partner; BN Geothermal, Inc. 50% General
Partner
Del Ranch, L.P.+
Formed in California
Partnership Interests: Magma Power Company 10%
Limited Partner; CalEnergy Operating Company 40% General Partner;
Conejo Energy Company 10% Limited Partner and 40% General Partner
- --------------------------
+ Indicates stock or partnership interests that are and at the Delivery Date
will continue to be pledged, subject to a purchase agreement, or otherwise
encumbered and subject to foreclosure or other exercise of remedies.
<PAGE>
Elmore, L.P.+
Formed in California
Partnership Interests: Magma Power Company 10%
Limited Partner; CalEnergy Operating Company 40% General Partner;
Niguel Energy Company 10% Limited Partner and 40% General Partner
Leathers, L.P.+
Formed in California
Partnership Interests: Magma Power Company 10%
Limited Partner; CalEnergy Operating Company 40% General Partner; San
Felipe Energy Company 10% Limited Partner and 40% General Partner
Salton Sea Brine Processing L.P.+
Limited Partnership Formed in California
Salton Sea Power Generation L.P.+
Limited Partnership Formed in California
Visayas Geothermal Power Company+
Partnership Formed in the Philippines
Yuma Cogeneration Associates+
Formed in Utah
Alto Peak Power Company
Formed in the Philippines
China Lake Joint Venture
Formed in California
Owned 50% by CalEnergy Company and 50% by Caithness Geothermal 1980
Ltd.
Coso Finance Partners II
Formed in California
- --------------------------
+ Indicates stock or partnership interests that are and at the Delivery Date
will continue to be pledged, subject to a purchase agreement, or otherwise
encumbered and subject to foreclosure or other exercise of remedies.
<PAGE>
Owned 50% by China Lake Geothermal Management Co., an affiliate of
CalEnergy Company, Inc. and 50% by ESCA II, L.P.
Coso Land Company
Formed in California
Owned 50% by CalEnergy Company and 50% by Caithness Geothermal 1980
Ltd.
Gilbert/CBE L.P.
Limited partnership formed in Nebraska
Partnership Interests: 20% CBE Engineering Co. and 80% Gilbert
Industrial Corporation
Saranac Power Partners, L.P.+
Limited partnership formed in Delaware
Partnership Interests: 80% Saranac Energy Company, Inc. and 20%
affiliates of Tomen Power Corporation
NorCon Power Partners, L.P.+
Limited partnership formed in Delaware
Partnership Interests: 80% Northern Consolidated Power, Inc. and 20%
affiliates of Tomen Power Corporation
- --------------------------
+ Indicates stock or partnership interests that are and at the Delivery Date
will continue to be pledged, subject to a purchase agreement, or otherwise
encumbered and subject to foreclosure or other exercise of remedies.
<PAGE>
- -------------------------------------------------------------------------------
CALENERGY COMPANY, INC.,
as Issuer
to
IBJ SCHRODER BANK & TRUST COMPANY,
as Trustee
-------------------------
Third Supplemental Indenture
Dated as of November 13, 1998
-------------------------
$100,000,000
of
7.52% Senior Notes due 2008, Series B
- -------------------------------------------------------------------------------
<PAGE>
THE THIRD SUPPLEMENTAL INDENTURE, dated as of November 13,
1998 (the "Supplemental Indenture"), between CalEnergy Company, Inc., a
corporation duly organized and existing under the laws of the State of Delaware
(herein called the "Company"), having its principal office at 302 South
Thirty-Sixth Street, Suite 400, Omaha, Nebraska 68131, and IBJ Schroder Bank &
Trust Company, a New York banking corporation, as trustee (herein called the
"Trustee").
RECITALS OF THE COMPANY
The Company entered into an Indenture dated as of October 15,
1997 with the Trustee, as supplemented by the First Supplemental Indenture
dated as of October 28, 1997 and the Second Supplemental Indenture dated as of
September 22, 1998 (the "Indenture"), to provide for the issuance from time to
time of its unsecured senior debt securities (hereinafter called the "Debt
Securities"), to be issued in one or more series as provided in the Indenture.
The Company proposes to issue one new series of Debt
Securities designated its 7.52% Senior Notes due 2008, Series B (the
"Securities").
Sections 201 and 301 of the Indenture provide for the form of
and various other matters with respect to any series of Debt Securities issued
under the Indenture to be established in an indenture supplemental to the
Indenture.
Section 901(8) of the Indenture provides that, without the
consent of any Holders, the Company, when authorized by or pursuant to a Board
Resolution, may, and subject to Section 903 of the Indenture, the Trustee, at
any time and from time to time, shall, enter into one or more indentures
supplemental to the Indenture, in form satisfactory to the Trustee, to
establish the form or terms of Debt Securities of any Series as permitted by
Sections 201 and 301 thereof.
All the conditions and requirements necessary to make this
Supplemental Indenture, when duly executed and delivered, a valid and binding
agreement of the Company in accordance with its terms and for the purposes
herein expressed, have been performed and fulfilled.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities provided for herein by the Holders thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of all Holders
of the Securities, as follows:
<PAGE>
ARTICLE ONE
RELATION TO INDENTURE; DEFINITIONS
SECTION 1.1. Relation to Indenture.
This Supplemental Indenture constitutes an integral part of
the Indenture.
SECTION 1.2. Definitions.
For all purposes of this Supplemental Indenture, except as
otherwise expressly provided for or unless the context otherwise requires:
(1) Capitalized terms used but not defined herein shall have
the respective meanings assigned to them in the Indenture; and
(2) All references herein to Articles and Sections, unless
otherwise specified, refer to the corresponding Articles and Sections
of this Supplemental Indenture.
"Consolidated Net Tangible Assets" means, as of the date of
any determination thereof, the total amount of all assets of the Company
determined on a consolidated basis in accordance with GAAP as of such date less
the sum of (a) the consolidated current liabilities of the Company determined
in accordance with GAAP and (b) assets properly classified as Intangible
Assets.
"Indebtedness" means any indebtedness for money borrowed
which is incurred, issued, assumed or guaranteed by the Company.
"Intangible Assets" means, as of the date of determination
thereof, all assets of the Company properly classified as intangible assets
determined on a consolidated basis in accordance with GAAP.
"Rating Event Date" means the first date upon which the
Securities are rated Baa3 or better by Moody's Investors Service, Inc., BBB- or
better by Standard & Poor's Corporation and BBB- or better by Duff & Phelps
Credit Rating Co. (or, in any case, if such person ceases to rate the
Securities for reasons outside the control of the Company, the equivalent
investment grade credit rating from any other "nationally recognized
statistical rating organization" (within the meaning of Rule
15c3-1(c)(2)(vi)(F) under the Exchange Act selected by the Company as a
replacement rating agency).
3
<PAGE>
ARTICLE TWO
THE SERIES OF SECURITIES
SECTION 2.1. Title of the Debt Securities.
There shall be one new separate series of Debt Securities
designated its 7.52% Senior Notes due 2008, Series B.
SECTION 2.2. Limitation on Aggregate Principal Amount.
(a) The aggregate principal amount of the new series of the
Debt Securities authorized by this Supplemental Indenture shall be limited to
$100,000,000 and, except as provided in this Section 2.2, the Company shall not
execute and the Trustee shall not authenticate or deliver Securities in excess
of such aggregate principal amount.
(b) Nothing contained in this Section 2.2 or elsewhere in
this Supplemental Indenture, or in the Securities, is intended to or shall
limit execution by the Company or authentication or delivery by the Trustee of
Securities under the circumstances contemplated by Sections 307, 308, 309, 906,
1013, 1015 or 1108 of the Indenture.
SECTION 2.3. Interest and Interest Rate; Interest on Overdue
Amounts.
The Securities will bear interest at the rate of 7.52% per
annum from November 13, 1998 or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, payable semi-annually in
arrears on March 15 and September 15 in each year, commencing March 15, 1999
(each, an "Interest Payment Date"), to the Persons in whose name the Securities
are registered at the close of business on the Regular Record Date for such
interest, which shall be March 1 or September 1 (whether or not a Business
Day), as the case may be, next preced ing such Interest Payment Date, until the
principal thereof is paid or duly provided for. Interest on the Securities will
be computed on the basis of a 360-day year of twelve 30-day months. The
interest so payable on any Security which is not punctually paid or duly
provided for on any Interest Payment Date shall forthwith cease to be payable
to the Holder on the relevant Regular Record Date and such Defaulted Interest,
together with any interest payable on overdue principal, premium or interest,
may either be paid to the Person in whose name such Security 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 not less than 10 days prior to such Special Record Date,
or be paid on such other specified date determined in accordance with the
Indenture.
4
<PAGE>
SECTION 2.4 Maturity Date of Securities.
The Securities will mature on September 15, 2008.
SECTION 2.5. Elimination of Certain Covenants Upon Rating
Event Date.
Following the Rating Event Date (and provided no Event of
Default or Default shall exist on the Rating Event Date), Section 801 and
Sections 1008, 1009, 1010, 1011, 1012, 1014, 1015, 1016, 1018 and 1021 of the
Indenture (collectively, the "Eliminated Covenants") shall be of no further
force and effect and shall cease to apply to the Securities and, in place
thereof, the provisions of Sections 2.6 and 2.7 hereof shall apply to the
Securities. In the event that, subsequent to the Rating Event Date an Event of
Default or a Default shall exist with respect to the Securities or the
Securities shall thereafter be rated less than Baa3 by Moody's Investors
Service, Inc., less than BBB- by Standard & Poor's Corporation and less than
BBB- by Duff & Philips Credit Rating Co. (or such other "nationally recognized
statistical rating organization" (within the meaning of Rule
15c3-1(c)(2)(vi)(F) under the Exchange Act) selected by the Company as a
replacement rating agency), in each case the Eliminated Covenants shall not be
reinstated.
SECTION 2.6. Restrictions on Liens
Following the Rating Event Date:
(a) So long as any of the Securities are outstanding, the
Company shall not pledge, mortgage, hypothecate or permit to exist any
mortgage, pledge or other lien upon any property or assets at any time directly
owned by the Company to secure any Indebtedness, without making effective
provisions whereby the Securities shall be equally and ratably secured with any
and all such Indebtedness and with any other Indebtedness similarly entitled to
be equally and ratably secured; provided however, that this Section 2.6(a)
shall not apply to or prevent the creation or existence of: (i) liens existing
on the Rating Event Date; (ii) purchase money liens which do not exceed the
cost or value of the purchased property or assets; (iii) liens not to exceed
10% of Consolidated Net Tangible Assets; and (iv) liens on property or assets
granted in connection with extending, renewing, replacing or refinancing in
whole or in part the Indebtedness (including, without limitation, increasing
the principal amount of such Indebtedness) secured by liens described in the
foregoing clauses (i) through (iii), provided that the liens in connection with
any such extension, renewal, replacement or refinancing will be limited to the
specific property or assets that was subject to the original lien.
5
<PAGE>
(b) In the event that the Company shall propose to pledge,
mortgage or hypothecate or permit to exist any pledge, mortgage or other lien
upon any property or assets at any time directly owned by it to secure any
Indebtedness, other than as permitted by clauses (i) through (iv) of subsection
(a) above, the Company shall give prior written notice thereof to the Trustee
and the Company will, prior to or simultaneously with such pledge, mortgage or
hypothecation, effectively secure all the Securities equally and ratably with
such Indebtedness.
(c) The provisions of this Section 2.6 shall not restrict the
ability of the Company's Subsidiaries and Affiliates to pledge, mortgage,
hypothecate or permit to exist any mortgage, pledge or lien upon their property
or assets, in connection with project financings or otherwise.
SECTION 2.7. Consolidation, Merger, Sale of Assets
Following the Rating Event Date:
(a) So long as any of the Securities are outstanding, the
Company shall not consolidate with or merge with or into any other Person, or
convey, transfer or lease its consolidated properties and assets substantially
as an entirety to any Person, or permit any Person to merge into or consolidate
with the Company, unless: (i) the Company is the surviving or continuing
corporation or the surviving or continuing corporation or purchaser or lessee
is a corporation incorporated under the laws of the United States of America,
one of the States thereof or the District of Columbia or Canada and assumes the
Company's obligations under the Securities and under the Indenture and (ii)
immediately before and after such transaction, no Event of Default shall have
occurred and be continuing.
(b) Except for a sale of the consolidated properties and
assets of the Company substantially as an entirety pursuant to subsection (a)
above, and other than properties or assets required to be sold to conform with
laws or governmental regulations, the Company shall not, directly or
indirectly, sell or otherwise dispose of any of its consolidated properties or
assets (other than short-term, readily marketable investments purchased for
cash management purposes with funds not representing the proceeds of other
asset sales) if on a pro forma basis, the aggregate net book value of all such
sales during the most recent 12-month period would exceed 10% of Consolidated
Net Tangible Assets computed as of the end of the most recent quarter preceding
such sale; provided, however, that any such sales shall be disregarded for
purposes of this 10% limitation if the net proceeds are invested in properties
or assets in similar or related lines of business of the Company and its
Subsidiaries and, provided further, that the Company may sell or otherwise
dispose of consolidated properties and assets in excess of such 10% limitation
if the net proceeds from such sales or dispositions, which are not reinvested
as provided above, are retained by the
6
<PAGE>
Company as cash or Cash Equivalents or used to retire Indebtedness of the
Company (other than Indebtedness which is subordinated to the Securities) and
its Subsidiaries.
SECTION 2.8. Redemption.
The Securities are not subject to any mandatory sinking fund.
The Securities are subject to optional redemption by the
Company in whole at any time, or in part from time to time, upon notice as
provided in the Section 1105 of the Indenture, at a redemption price equal to
100% of the principal amount of the Securities to be redeemed, plus interest
accrued on such principal amount to the Redemption Date plus a yield
maintenance premium (the "Premium") calculated by the Company with respect to a
particular series of Securities as of the Redemption Date as follows:
(1) the average life of the remaining scheduled payments of
principal in respect of outstanding Securities of such series (the
"Remaining Average Life") shall be calculated as of the Redemption
Date;
(2) the yield to maturity shall be calculated as of the
Business Day immediately preceding the Redemption Date for the United
States Treasury security having an average life equal to the Remaining
Average Life and trading in the secondary market at the price closest
to par (the "Primary Issue"); provided, however, that if no United
States Treasury security has an average life equal to the Remaining
Average Life, the yields (the "Other Yields") for the two maturities
of United States Treasury securities having average lives most closely
corresponding to such Remaining Average Life and trading in the
secondary market at the price closest to par shall be calculated, and
the yield to maturity for the Primary Issue shall be the yield
interpolated or extrapolated from such Other Yields on a straight-line
basis, rounding in each of such relevant periods to the nearest month;
(3) the discounted present value of the then remaining
scheduled payments of principal and interest (but excluding that
portion of any sched uled payment of interest that is actually due and
paid on the Redemption Date) in respect of outstanding Securities of
such series shall be calculated as of the Redemption Date using a
discount factor equal to the sum of (a) the yield to maturity for the
Primary Issue, plus (b) 37.5 basis points; and
(4) the amount of Premium in respect of Securities to be
redeemed shall be an amount equal to (a) the discounted present value
of such Securities to be redeemed determined in accordance with clause
(3) above minus (b) the unpaid principal amount of such Securities;
provided, however, that the Premium shall not be less than zero.
7
<PAGE>
The Trustee may conclusively rely on an Officers' Certificate
setting forth the calculation of the Premium, which Officers' Certificate shall
be delivered to the Trustee on or before the Redemption Date.
SECTION 2.9. Global Form.
The Securities shall initially be issued in the form of one
or more Global Securities as provided in Section 201(a) of the Indenture. The
Depositary for the Securities shall be The Depository Trust Company. Except as
otherwise provided in Sections 201, 307 or 309 of the Indenture, owners of
beneficial interests in the Global Security or Securities will not be entitled
to receive physical delivery of Certificated Securities.
SECTION 2.10. Form of Securities.
The Securities shall be substantially in the form attached as
Exhibit A hereto.
SECTION 2.11. Security Registrar and Paying Agent.
The Trustee shall initially serve as Security Registrar and
Paying Agent for the Securities.
SECTION 2.12. Place and Method of Payment.
Payment of the principal of (and premium, if any) and any
interest on the Securities 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
(which initially shall be the Corporate Trust Office of the Trustee), 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 of
America as at the time of payment is legal tender for payment of public and
private debts, provided that payment of the principal of (and premium, if any,
on) the Securities shall be made only upon presentation and surrender thereof
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.
SECTION 2.13. Defeasance.
The provisions of Sections 1202 and 1203 of the Indenture
relating to defeasance and covenant defeasance shall be applicable to the
Securities. The provisions of Section 1203 of the Indenture shall apply to the
covenants set forth in Sections 2.6 and 2.7 of this Supplemental Indenture and
to those covenants specified in Section 1203 of the Indenture.
8
<PAGE>
ARTICLE THREE
MISCELLANEOUS PROVISIONS
SECTION 3.1. Ratification of Indenture.
Except as expressly modified or amended hereby, the Indenture
continues in full force and effect and is in all respects confirmed and
preserved.
SECTION 3.1. Governing Law.
THIS SUPPLEMENTAL INDENTURE AND EACH 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 PRINCIPLES OF CONFLICT OF LAWS. THE COMPANY
HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE COURT
SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL
COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF
ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS SUPPLEMENTAL
INDENTURE AND THE SECURITIES, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE
AFORESAID COURTS. THE COMPANY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT THAT
IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, TRIAL BY JURY AND ANY OBJECTION
THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT,
ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH
SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE TRUSTEE OR ANY
HOLDER OF THE SECURITIES TO SERVE PROCESS IN ANY OTHER MAN NER PERMITTED BY LAW
OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE COMPANY IN
ANY OTHER JURISDICTION.
SECTION 3.2. Trust Indenture Act.
This Supplemental Indenture is subject to the provisions of
the Trust Indenture Act of 1939, as amended, and shall, to the extent
applicable, be governed by such provisions.
9
<PAGE>
SECTION 3.3. Counterparts.
This Supplemental Indenture may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same
instrument.
10
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed, all as of the day and year first
written above.
CALENERGY COMPANY, INC.
By:
-----------------------------------
Name: Steven A. McArthur
Title: Executive Vice President
IBJ SCHRODER BANK & TRUST COMPANY,
as Trustee
By:
-----------------------------------
Name:
Title:
<PAGE>
EXHIBIT A
FORM OF SECURITY
THIS SECURITY IS ISSUED IN GLOBAL FORM AND REGISTERED IN THE
NAME OF THE DEPOSITORY OR A NOMINEE THEREOF. UNLESS AND UNTIL IT IS EXCHANGED
IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE FORM IN ACCORDANCE WITH THE
TERMS HEREOF AND OF THE INDENTURE REFERRED TO ON THE REVERSE HEREOF, THIS
SECURITY MAY NOT BE TRANSFERRED EXCEPT 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. UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY
TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF THE DEPOSITARY OR ITS
NOMINEE AND ANY PAYMENT IS MADE TO THE DEPOSITARY OR ITS NOMINEE, ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL SINCE THE REGISTERED OWNER HEREOF HAS AN INTEREST HEREIN.
(FACE OF SECURITY)
CALENERGY COMPANY, INC.
7.52% Senior Notes due 2008, Series B
No. R - $
----- -------------
CUSIP No. 129466 A N 8
CalEnergy Company, Inc., a corporation duly organized and
existing under the laws of the State of Delaware (herein called the "Company",
which term includes any successor or Person under the Indenture hereinafter
referred to), for value received, hereby promises to pay to Cede & Co., or
registered assigns, the principal sum of ____________ Dollars on September 15,
2008, and to pay interest thereon from their date of issue and thereafter from
the most recent Interest Payment Date to which interest has been paid or duly
provided for, semi-annually on March 15 and September 15 in each year,
commencing March 15, 1999, at the rate of 7.52% per annum, until the principal
hereof is paid or duly provided for, provided that any principal and premium,
if any, and any such installment of interest, that is overdue
A-1
<PAGE>
shall bear interest at the rate of 7.52% 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 duly provided for, and such interest
shall be payable on demand. The interest so payable, and punctually paid or
duly provided for, on any Interest Payment Date shall, 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 March 1 or September 1 (whether
or not a Business Day), as the case may be, next preceding such Interest
Payment Date. Any such interest not so punctually paid or duly provided for
shall forthwith cease to be payable to the Holder on such Regular Record Date
and, together with any interest payable or overdue principal, premium or
interest, may either 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 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 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 any
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 of
America as at the time of payment is legal tender for payment of public and
private debts, provided that payment of the principal of (and premium, if any,
on) this Security shall 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.
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.
A-2
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed.
CALENERGY COMPANY, INC.
By:
--------------------------
Title:
Attest:
- ---------------------------
Title:
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<PAGE>
FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series designated therein referred to
in the within-mentioned Indenture.
Dated:
----------------------
IBJ SCHRODER BANK & TRUST COMPANY,
as Trustee
By:
---------------------------------------
Authorized Signatory
A-4
<PAGE>
(REVERSE OF SECURITY)
This Security is one of a duly authorized issue of Debt
Securities of the Company designated as its 7.52% Senior Notes due 2008, Series
B (herein called the "Securities"), limited in aggregate principal amount of
$100,000,000 issued and to be issued under an Indenture, dated as of October
15, 1997, as supplemented by the First Supplemental Indenture dated as of
October 28, 1997, by the Second Supplemental Indenture dated as of September
22, 1998 and by the Third Supplemental Indenture dated as of November 13, 1998
(as so supplemented, herein called the "Indenture", which term shall have the
meaning assigned to it in such instrument), between the Company and IBJ
Schroder Bank & Trust Company, as Trustee (herein called the "Trustee" which
term includes any successor trustee under the Indenture), and reference is
hereby made to the Indenture 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.
The Securities do not have the benefit of any sinking fund
obligations.
The Securities are subject to optional redemption by the
Company in whole at any time, or in part from time to time, at a redemption
price equal to 100% of the principal amount of the Securities to be redeemed,
plus interest accrued on such principal amount to the Redemption Date plus a
Premium calculated as of the Redemption Date, as provided in the Third
Supplemental Indenture dated as of November 13, 1998.
Upon the occurrence of a Change of Control, the Company shall
be required to make an Offer to Purchase all or a specified portion of the
Securities at a purchase price in cash equal to 101% of the principal amount
thereof on any Purchase Date plus accrued and unpaid interest, if any, to such
Purchase Date. If the Company, any Restricted Subsidiary or any Eligible Joint
Venture consummates an Asset Disposition, under certain circumstances, the
Company shall be required to make an Offer to Purchase up to all or a specified
portion of the Securities at a purchase price in cash equal to 100% of the
principal amount thereof on any Purchase Date, plus accrued and unpaid
interest, if any, to such Purchase Date, in an amount equal to any Net Cash
Proceeds from such an Asset Disposition that are not used to reinvest in the
business of the Company and/or repay in a permanent reduction of Debt of the
Company or Debt of its Restricted Subsidiaries or Eligible Joint Ventures.
Holders of Securities shall receive notice of any such Offer to Purchase from
the Company prior to the related Purchase Date and may elect to have such
Securities purchased by completing the form entitled "Option of Holder to Elect
Purchase" appearing on the reverse side of this Security.
A-5
<PAGE>
In the event of purchase, pursuant to an Offer to Purchase,
of this Security in part only, a new Security or Securities for the portion
hereof not purchased shall be issued in the name of the Holder hereof upon
surrender of this Security to the Trustee for cancellation thereof.
Following the Rating Event Date (and provided no Event of
Default or Default shall exist on the Rating Event Date), substantially all the
covenants contained in the Indenture (excluding the covenant relating to the
Company's obligation to make an Offer to Purchase Securities upon the
occurrence of a Change of Control) will cease to apply to the Securities. In
their place, certain other covenants regarding restrictions on liens and the
ability of the Company to merge or consolidate with or into any other Person,
or to transfer or lease assets will apply to the Securities.
The Indenture contains provisions for defeasance at any time
of the entire Debt of the Company with respect to this Security or certain
restrictive covenants and Events of Default with respect to this Security,
including, without limitation, covenants relating to Offers to Purchase, in
each case upon compliance with certain conditions set forth in the Indenture.
If an Event of Default shall occur and be continuing, there
may be declared due and payable the Default Amount of the Securities, in the
manner and with the effect provided in the Indenture. The Default Amount in
respect of this Security as of any particular date shall equal 100% of the
principal amount of this Security plus accrued and unpaid interest, if any, to
such date.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities
under the Indenture 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. The Indenture also contains provisions permitting the
Holders of specified percentages in aggregate principal amount of the
Securities of any 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 in each case with respect to the Securities of such series.
In addition, without the consent of any Holder of a Security, the Indenture and
the Securities may be amended and supplemented to cure any ambiguity or
inconsistency, make other changes that shall not adversely affect the rights of
the Holders or certain other matters specified in the Indenture. 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.
A-6
<PAGE>
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 with respect to the Indenture or for the appointment of a
receiver, or trustee or for any other remedy thereunder, unless such Holder
shall have previously given the Trustee written notice of a continuing Event of
Default with respect to the Securities, the Holders of not less than 25% in
principal amount of the Securities of this series at the time Outstanding shall
have made written request to the Trustee to institute proceedings in respect
of such Event of Default as Trustee and offered the Trustee reasonable
indemnity, and the Trustee shall not have received from the Holders of a
majority in principal amount of Securities of this series at the time
Outstanding a direction inconsistent with such request and shall have failed to
institute any such proceeding for 60 days after receipt of such notice, request
and offer of indemnity. 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 (or,
in the case of any purchase of this Security required to be made pursuant to an
Offer to Purchase, on or after the Purchase Date).
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 on this Security at the times, place, manner and
rate, and in the coin or currency, herein prescribed.
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 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 are exchangeable for a like aggregate principal amount of
Securities 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.
A-7
<PAGE>
A director, officer, employee, stockholder or incorporator of
the Company shall not have any liability for any obligations of the Company
under this Security or the Indenture or for any claim based on, in respect of
or by reason of such obligations or their creation. Each Holder by accepting
this Security waives and releases all such liability. Such waiver and release
are part of the consideration for the issuance of this Security.
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 is overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
Interest on this Security shall be computed on the basis of a
360-day year of twelve 30-day months.
All terms used in this Security that are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
THE INDENTURE AND 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.
A-8
<PAGE>
ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we)
assign and transfer this Security to
- -------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint__________________________________ agent to transfer
this Security on the books of the Company. The agent may substitute another to
act for him.
Dated: Your Signature:
---------------------------------
(sign exactly as name appears on
the other side of this Security)
Signature Guarantee:
(Signature must be guaranteed by a financial institution that is a member of
the Securities Transfer Agent Medallion Program ("STAMP"), the Stock 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 Security Registrar in addition to, or in substitution for,
STAMP, SEMP or MSP, all in accordance with the Securities Exchange Act of 1934,
as amended.)
A-9
<PAGE>
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 Section 1013 ("Change of Control Offer") or Section
1015 ("Excess Proceeds Offer") of the Indenture, check the applicable boxes:
[ ] Change of Control Offer: [ ] Excess Proceeds Offer:
in whole [ ] in whole [ ]
in part [ ] in part [ ]
Amount to be Amount to be
purchased: $ purchased: $
---------- ----------
Dated: Signature:
---------------- -------------------------------
(Sign exactly as your name ap-
pears on the other side of this
Security)
Signature
Guarantee:
------------------------
(Signature must be guaranteed by a financial institution that is a
member of the Securities Transfer Agent Medallion Program ("STAMP"),
the Stock 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 Security
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:
---------------------------
A-10
