exh10-1.htm


    
      

      

    

    Exhibit
10.1


    FIRST
AMENDMENT

     

    


     

    This
FIRST AMENDMENT dated as of April 15, 2009 (this “Amendment”) amends
the AMENDED AND RESTATED CREDIT AGREEMENT dated as of July 6, 2006 (the “Credit Agreement”) among
MIDAMERICAN ENERGY COMPANY (the “Company”), various
financial institutions (the “Banks”) and JPMORGAN
CHASE BANK, N.A., as Administrative Agent.  Capitalized terms used but
not defined herein have the respective meanings given to them in the Credit
Agreement.

     

    WHEREAS,
the parties hereto have agreed to amend the Credit Agreement in certain respects
as more fully set forth below;

     

    NOW,
THEREFORE, the parties hereto agree as follows:

     

    SECTION
1 AMENDMENTS.  Subject
to satisfaction of the condition precedent in Section 3, the Credit
Agreement is amended as follows:

     

    1.1 Addition of
Definitions.  Section 1.1 is amended by adding the following
definitions in proper alphabetical order:

     

    “Designated
Bank” means a Defaulting Bank or a Downgraded Bank.

     

    “Defaulting
Bank” means any Bank that (a) has not made available to the Administrative Agent
such Bank’s ratable portion of a requested borrowing or has not reimbursed the
LC Issuer for such Bank’s Pro Rata Share of the amount of a payment made by the
LC Issuer under a Facility LC, in each case within three Business Days after the
due date therefor in accordance with Section 2.4.1 or
Section 2.7.5,
as applicable; (b) has notified the Company or the Administrative Agent that it
does not intend to comply with its obligations under Section 2.4.1 or
Section 2.7.5;
or (c) is the subject of a bankruptcy, insolvency or similar
proceeding.  A Bank shall not be a Defaulting Bank solely by virtue of
the ownership or acquisition of an equity interest in such Bank or its parent
company by a governmental authority or instrumentality thereof.

     

    “Downgraded
Bank” means any Bank that (a) has a non-investment grade rating from Moody’s
Investors Service, Inc., Standard & Poor’s Rating Services, a division of
The McGraw Hill Companies, Inc., or another nationally recognized rating agency
or (b) is a Subsidiary of a Person that is the subject of a bankruptcy,
insolvency or similar proceeding.

     

    1.2 Definition of Aggregate
Commitment.  The definition of Aggregate Commitment in Section
1.1 is amended by substituting the following for the period at the end
thereof:

     

    ; provided that for
purposes of Sections
2.1.2, 2.2.2, 2.4.2, 2.7.1 and 2.7.6, at any time
there is a Defaulting Bank, the Aggregate Commitment shall be reduced by an
amount equal to the remainder of (A) the amount of such Defaulting Bank’s
Commitment minus (B) the principal amount of such Defaulting Bank’s outstanding
Loans.  No reduction of the Aggregate Commitment pursuant to the
proviso to the foregoing sentence shall be permanent (and if the circumstances
giving rise to such a reduction of the Aggregate Commitment cease to exist, then
such reduction shall no longer apply).

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    1.3 Definition of LC
Issuer.  The definition of LC Issuer in Section 1.1 is amended
in its entirety to read as follows (and if at any time there is more than one LC
Issuer, all other provisions of the Credit Agreement shall be deemed to be
amended to the extent necessary or appropriate to accommodate multiple LC
Issuers):

     

    “LC
Issuer” means JPMorgan (or any subsidiary or affiliate of JPMorgan designated by
JPMorgan) or any other Bank designated by the Company that agrees to issue
Facility LCs hereunder, in each case in its capacity as an issuer of Facility
LCs hereunder.

     

    1.4 Termination of Designated
Bank.  The following subsection (iii) is added to Section
2.4.12 in proper sequence:

     

    (iii)           Concurrently
with the termination of a Designated Bank’s Commitment pursuant to Section 3.6,
(a) the Aggregate Commitment shall be reduced by the amount of such Commitment;
and (b) the participations of the other Banks in the undrawn stated amount of
all Facility LCs shall be redetermined as if all outstanding Facility LCs were
issued on such date.

     

    1.5 Cash Collateralization of
Participation Obligations of Defaulting Bank.  The following
Section 2.7.13 is added to Section 2.7 in proper sequence:

     

    2.7.13  Cash Collateralization of
Participation Obligations of Defaulting Bank.  If a Bank at any
time becomes a Defaulting Bank and Letters of Credit are outstanding (or the
Company requests the issuance of a Letter of Credit) at such time, then the
Company shall promptly (and in any event within three Business Days) after
request by the LC Issuer or the Administrative Agent (or, in the case of the
requested issuance of a Letter of Credit, prior to such issuance) provide cash
collateral to the Administrative Agent in an amount equal to the aggregate
amount of such Defaulting Bank’s participation in the outstanding Letters of
Credit (or in the requested Letter of Credit, if applicable) pursuant to
documentation satisfactory to the Administrative Agent, the LC Issuer and the
Company, which cash collateral shall secure such Defaulting Bank’s contingent
obligations to the LC Issuer in respect of such Letters of Credit.  If
the amount of cash collateral required to cover a Defaulting Bank’s
participation in Letters of Credit is reduced (or the circumstances giving rise
to the requirement that the Company provide cash collateral pursuant to this
Section 2.7.13 cease to exist), then the Administrative Agent shall promptly
return the excess (or, if applicable, all) cash collateral to the
Company.

     

    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    

     

    1.6 Replacement of Designated
Bank.  The second line in Section 3.5 is amended by (a)
replacing the word “or” (which appears before the words “delivers a notice”)
with a comma and (b) inserting the following immediately after the words
“pursuant to Section
3.2”: “or is a Designated Bank”.

     

    1.7   Termination of Designated
Bank.  The following Section 3.6 is added to Article III in
proper sequence:

     

    3.6           Termination of Designated
Bank.  At any time a Bank is a Designated Bank, the Company may
terminate in full the Commitment of such Designated Bank by giving notice to
such Designated Bank and the Administrative Agent (which notice shall specify
the effective date of such termination); provided that (a) at
the time of such termination, no Event of Default exists; (b) if any Facility LC
is outstanding, the conditions precedent to the issuance of a Facility LC set
forth in Section
4.2 shall be satisfied as if all outstanding Facility LCs were being
issued at such time; (c) concurrently with such termination, the Company shall
prepay all outstanding Loans of such Designated Bank together with accrued
interest thereon and accrued fees and any other amounts payable for the account
of such Designated Bank hereunder; and (d) after giving effect to the
termination of such Designated Bank’s Commitment, the Outstanding Credit
Exposure will not exceed the Aggregate Commitment.  The termination of
the Commitment of a Defaulting Bank pursuant to this Section 3.6 shall not
be deemed to be a waiver of any right that the Company, the Administrative
Agent, the LC Issuer or any other Bank may have against such Defaulting
Bank.

     

    SECTION
2 TERMINATION
OF LEHMAN BROTHERS BANK, FSB.  Pursuant to,
and subject to satisfaction of the conditions precedent set forth in, Section
2.4.12(iii) of the Credit Agreement as amended hereby (the “Amended
Credit Agreement”), the Company hereby
terminates the Commitment of Lehman Brothers Bank, FSB (“Lehman”)
effective immediately upon the effectiveness of this Amendment pursuant to Section
3.  Concurrently with such termination, the Aggregate
Commitment will be reduced by the amount of Lehman’s Commitment (as in effect on
such date), Lehman’s participation in the undrawn Facility LCs shall terminate
and the participations of the other Banks in the outstanding Facility LCs shall
be redetermined as if all outstanding Facility LCs had been issued on such
date.

     

    SECTION
3 CONDITION
PRECEDENT.  This Amendment shall become effective as of April
__, 2009 when the Administrative Agent has received counterparts hereof signed
by the Company and the Required Banks.

     

    SECTION
4 REPRESENTATIONS AND
WARRANTIES.  The Company represents and warrants as
follows:

     

    4.1 Due Authorization,
Non-Contravention, etc.  The execution and delivery by the
Company of this Amendment, and the performance by the Company of its obligations
under this Amendment and the Amended Credit Agreement, are within the Company’s
corporate powers, have been duly authorized by all necessary corporate action
and do not (a) contravene the articles of incorporation or by-laws (or any
comparable document) of the Company, (b) contravene any law or governmental
regulation or court decree or order, or any material contractual restriction,
binding on or affecting the Company or (c) result in, or require the creation or
imposition of, any lien on any of the Company’s properties.

     

    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

    

     

    4.2 Government Approval,
Regulation, etc.  No authorization or approval or other action
by, and no notice to or filing with, any governmental authority or regulatory
body or other Person is required for the due execution and delivery by the
Company of this Amendment or the performance by the Company of its obligations
under this Amendment and the Amended Credit Agreement (except for any of the
foregoing that has been obtained and is in full force and effect).

     

    4.3 Enforceable
Agreement.  This Amendment has been duly executed and delivered
by the Company, and this Amendment and the Amended Credit Agreement constitute
legal, valid and enforceable obligations of the Company, enforceable against the
Company in accordance with their respective terms, except as enforceability may
be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws of general applicability and by the effect of general principles of
equity (regardless of whether enforceability is considered in a proceeding in
equity or at law) and except that no representation or warranty is made as to
the indemnification provisions of Section 9.7 of the Amended Credit Agreement or
the provisions of the Amended Credit Agreement purporting to authorize
conclusive determinations by the Banks.

     

    4.4 No Material Adverse Change;
No Default.  Since December 31, 2008, there has been no
material adverse change in the consolidated financial condition, operations,
assets, business, properties or prospects of the Company and its Subsidiaries,
taken as a whole.  No Default or Unmatured Default has occurred and is
continuing.

     

    4.5 Credit Agreement
Representations and Warranties.  The representations and
warranties contained in Article V of the Credit Agreement are true and correct
in all material respects as of the date of the execution and delivery of this
Amendment by the Company (except to the extent that any such representation or
warranty relates to a particular date, in which case it was true and correct in
all material respects as of such earlier date).

     

    SECTION
5 MISCELLANEOUS.

     

    5.1 Continuing
Effectiveness.  Except as expressly set forth herein, the
Credit Agreement shall remain in full force and effect and is ratified, approved
and confirmed in all respects.

     

    5.2 Execution in
Counterparts.  This Amendment may be executed in any number of
counterparts, all of which taken together shall constitute one agreement, and
any of the parties hereto may execute this Amendment by signing any such
counterpart.  Delivery to the Administrative Agent of a counterpart
hereof, or signature page hereto, by facsimile or electronically in a pdf or
similar file shall be effective as delivery of an original manually-executed
counterpart hereof.

     

    
      
        
        

      

      
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    5.3 Governing
Law.  THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF ILLINOIS, BUT
GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.

     

    5.4 Successors and
Assigns.  This Amendment shall be binding upon and shall inure
to the benefit of the parties hereto and their respective successors and
assigns.

     

    [Signature
pages follow.]

     

    
      
        
        

      

      
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    IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by
their respective officers thereunto duly authorized, as of the date first above
written.

     

    
      
        
          
            
              
                	 	MIDAMERICAN ENERGY
      COMPANY	 
	 	 	 	 
	
                         

                      	
                        By:
      

                      	/s/  Paul
      J. Leighton	 
	 	 	Paul
      J.Leighton 	 
	 	 	Vice
      President & Corporate Secretary	 
	 	 	 	 
	 	By:	 /s/ 
      Brian K. Hankel	 
	 	 	Brian
      K. Hankel	 
	 	 	Vice
      President & Treasurer	 


              

            

          

        

      

    

    


     

    
      
        
        

      

      
        6

        
          

        

      

      
        
        

      

    

     

     

    
      
        
          
            
              
                
                  	 	JPMORGAN CHASE BANK,
      N.A., individually, as LC Issuer and as Administrative
    Agent	 
	 	 	 	 
	
                           

                        	
                          By:
      

                        	/s/ 
      Juan J. Javellana	 
	 	 	Name: 
      Juan J. Javellana	 
	 	 	Title:   
      Vice President	 


                

              

            

          

        

      

    

    


     

     

    
      
        
        

      

      
        7

        
          

        

      

      
        
        

      

    

     

     

    
      
        
          	 	UNION BANK, N.A. (formerly
      known as Union Bank of California, N.A.)	 
	 	 	 	 
	
                   

                	
                  By:
      

                	/s/ 
      Dennis G. Blank	 
	 	 	Name: 
      Dennis G. Blank	 
	 	 	Title:   
      Vice President 	 
	 	 	 	 


        

      

    

     

     

    


    
      
        
        

      

      
        8

        
          

        

      

      
        
        

      

    

     

     

     

    
      
        
          	 	THE ROYAL BANK OF SCOTLAND
      plc	 
	 	 	 	 
	
                   

                	
                  By:
      

                	/s/ 
      Belinda Tucker	 
	 	 	Name: 
      Belinda Tucker 	 
	 	 	Title:   
      Senior Vice President 	 
	 	 	 	 


        

      

    

     

     

    
      
        
        

      

      
        9

        
          

        

      

      
        
        

      

    

     

     

    
      
        
          
            
              
                	 	ABN AMRO BANK
    N.V.	 
	 	 	 	 
	
                         

                      	
                        By:
      

                      	/s/ 
      Scott Donaldson	 
	 	 	Name: 
      Scott Donaldson 	 
	 	 	Title:   
      Director 	 
	 	 	 	 
	 	By: 	/s/  Todd
      Vaubel 	 
	 	 	Name: 
      Todd Vaubel 	 
	 	 	Title:   
      Vice President 	 


              

            

          

        

      

    

     

     

     

     

    
      
        
        

      

      
        10

        
          

        

      

      
        
        

      

    

     

    
      
        
          	 	BNP PARIBAS	 
	 	 	 	 
	
                   

                	
                  By:
      

                	 	 
	 	 	Name:  
      	 
	 	 	Title:     	 
	 	 	 	 


        

      

    

    
 

     

    


    
      
        
        

      

      
        11

        
          

        

      

      
        
        

      

    

     

    
      
        
          	 	BARCLAYS BANK
    PLC	 
	 	 	 	 
	
                   

                	
                  By:
      

                	/s/ 
      Alicia Borys	 
	 	 	Name: 
      Alicia Borys 	 
	 	 	Title:   
      Assistant Vice President 	 
	 	 	 	 


        

      

    

     

     

     

    


    
      
        
        

      

      
        12

        
          

        

      

      
        
        

      

    

     

     

    
      
        
          	 	THE BANK OF NEW YORK
      MELLON	 
	 	 	 	 
	
                   

                	
                  By:
      

                	/s/  
      John N. Watt	 
	 	 	Name: 
      John N. Watt 	 
	 	 	Title:   
      Vice President 	 
	 	 	 	 


        

      

    

     

     

     

    
      
        
        

      

      
        13

        
          

        

      

      
        
        

      

    

     

     

    
      
        	 	FIFTH THIRD
      BANK	 
	 	 	 	 
	
                 

              	
                By:
      

              	/s/ 
      Ashley Colmenero	 
	 	 	Name: 
      Ashley Colmenero 	 
	 	 	Title:   
      Relationship Manager 	 
	 	 	 	 


      

    

     

     

    


    


    
      
        
        

      

      
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          	 	LEHMAN BROTHERS BANK,
      FSB	 
	 	 	 	 
	
                   

                	
                  By:
      

                	 	 
	 	 	Name:	 
	 	 	Title:    	 
	 	 	 	 


        

      

    

     

     

     

     

    
      
        
        

      

      
        15

        
          

        

      

      
        
        

      

    

    
 

    
      
        
          	 	MIZUHO CORPORATE BANK,
      LTD.	 
	 	 	 	 
	
                   

                	
                  By:
      

                	 	 
	 	 	Name: 	 
	 	 	Title: 	 
	 	 	 	 


        

      

    

     

     

     

    


    
      
        
        

      

      
        16

        
          

        

      

      
        
        

      

    

     

     

    
      
        
          	 	NATIONAL CITY
    BANK	 
	 	 	 	 
	
                   

                	
                  By:
      

                	/s/  
      Michael Leong	 
	 	 	Name: 
      Michael Leong 	 
	 	 	Title:   
      Vice President 	 
	 	 	 	 


        

      

    

     

     

     

    
      
        
        

      

      
        17

        
          

        

      

      
        
        

      

    

    


    


    
      
        
          	 	U.S. BANK NATIONAL
      ASSOCIATION	 
	 	 	 	 
	
                   

                	
                  By:
      

                	/s/  
      Karen Nelsen	 
	 	 	Name: 
      Karen Nelsen 	 
	 	 	Title:   
      Vice President 	 
	 	 	 	 


        

      

    

     

    


    


    
      
        
        

      

      
        18

        
          

        

      

      
        
        

      

    

     

     

    
 

    
      
        
          	 	WACHOVIA BANK, NATIONAL
      ASSOCIATION	 
	 	 	 	 
	
                   

                	
                  By:
      

                	/s/ 
      Frederick W. Price	 
	 	 	Name: 
      Frederick W. Price 	 
	 	 	Title:   
      Managing Director 	 
	 	 	 	 


        

      



    


     

    
      
        
        

      

      
        19

        
          

        

      

      
        
        

      

    

    


     

    
      
        
          	 	WELLS FARGO BANK,
      N.A.	 
	 	 	 	 
	
                   

                	
                  By:
      

                	/s/ 
      Lisa Larpenteur	 
	 	 	Name: 
      Lisa Larpenteur 	 
	 	 	Title:   
      Vice President 	 
	 	 	 	 


        

      

    

    


     

     

    


    
      
        
        

      

      
        20

        
          

        

      

      
        
        

      

    

     

     

    
      
        
          	 	WILLIAM STREET COMMITMENT
      CORPORATION 	 
	 	(Recourse only to assets of William Street Commitment Corporation)	 
	 	 	
                   

                	 
	
                   

                	
                  By:
      

                	/s/  
      Mark Walton	 
	 	 	Name: 
      Mark Walton 	 
	 	 	Title:    Assistant Vice
      President 	 
	 	 	 	 


        

      

    

     

     

     

    
      
        
        

      

      
        21

        
          

        

      

      
        
        

      

    

     

     

    
      
        
          	 	FIRST NATIONAL BANK OF
      OMAHA	 
	 	 	 	 
	
                   

                	
                  By:
      

                	 	 
	 	 	Name: 	 
	 	 	Title: 	 
	 	 	 	 


        

      

    

     

     

    


    
      
        
        

      

      
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                	 	UBS LOAN FINANCE
      LLC	 
	 	 	 	 
	
                         

                      	
                        By:
      

                      	/s/  Marie
      Haddad	 
	 	 	Name: 
      Marie Haddad 	 
	 	 	Title:   
      Associate Director 	 
	 	 	 	 
	 	By: 	/s/  Irja
      R. Otsa 	 
	 	 	Name: 
       Irja R. Otsa	 
	 	 	Title:    
      Associate Director 	 


              

            

          

        

      

    

     

     

    
      
        
        

      

      
        23

        
          

        

      

      
        
        

      

    

     

     

     

    
      
        
          
            
              
                	 	UBS AG STAMFORD
      BRANCH	 
	 	 	 	 
	
                         

                      	
                        By:
      

                      	/s/  
      Marie Haddad	 
	 	 	Name: 
      Marie Haddad 	 
	 	 	Title:   
      Associate Director 	 
	 	 	 	 
	 	By: 	/s/  Irja R.
      Otsa 	 
	 	 	Name: 
      Irja R. Otsa 	 
	 	 	Title:   
      Associate Director 	 


              

            

          

        

      

    

     

     

     

    
      
        
        

      

      
        24

        
          

        

      

      
        
        

      

    

     

     

     

    
      
        
          	 	SUMITOMO MITSUI BANKING
      CORPORATION	 
	 	 	 	 
	
                   

                	
                  By:
      

                	/s/ 
      Masakazu Hasegawa	 
	 	 	Name: 
      Masakazu Hasegawa 	 
	 	 	Title:   
      General Manager 	 
	 	 	 	 


        

      

    

    


     

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