UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
[X] Quarterly Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

For the quarterly period ended September 30, 2019
or
[  ] Transition Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
For the transition period from ______ to _______
Commission
File Number
 
Exact name of registrant as specified in its charter;
State or other jurisdiction of incorporation or organization
 
IRS Employer
Identification No.
001-14881
 
BERKSHIRE HATHAWAY ENERGY COMPANY
 
94-2213782
 
 
(An Iowa Corporation)
 
 
 
 
666 Grand Avenue, Suite 500
 
 
 
 
Des Moines, Iowa 50309-2580
 
 
 
 
515-242-4300
 
 
 
 
 
 
 
001-05152
 
PACIFICORP
 
93-0246090
 
 
(An Oregon Corporation)
 
 
 
 
825 N.E. Multnomah Street
 
 
 
 
Portland, Oregon 97232
 
 
 
 
888-221-7070
 
 
 
 
 
 
 
333-90553
 
MIDAMERICAN FUNDING, LLC
 
47-0819200
 
 
(An Iowa Limited Liability Company)
 
 
 
 
666 Grand Avenue, Suite 500
 
 
 
 
Des Moines, Iowa 50309-2580
 
 
 
 
515-242-4300
 
 
 
 
 
 
 
333-15387
 
MIDAMERICAN ENERGY COMPANY
 
42-1425214
 
 
(An Iowa Corporation)
 
 
 
 
666 Grand Avenue, Suite 500
 
 
 
 
Des Moines, Iowa 50309-2580
 
 
 
 
515-242-4300
 
 
 
 
 
 
 
000-52378
 
NEVADA POWER COMPANY
 
88-0420104
 
 
(A Nevada Corporation)
 
 
 
 
6226 West Sahara Avenue
 
 
 
 
Las Vegas, Nevada 89146
 
 
 
 
702-402-5000
 
 
 
 
 
 
 
000-00508
 
SIERRA PACIFIC POWER COMPANY
 
88-0044418
 
 
(A Nevada Corporation)
 
 
 
 
6100 Neil Road
 
 
 
 
Reno, Nevada 89511
 
 
 
 
775-834-4011
 
 
 
 
 
 
 
 
 
N/A
 
 
 
 
(Former name or former address, if changed from last report)
 
 




Registrant
Securities registered pursuant to Section 12(b) of the Act:
BERKSHIRE HATHAWAY ENERGY COMPANY
None
PACIFICORP
None
MIDAMERICAN FUNDING, LLC
None
MIDAMERICAN ENERGY COMPANY
None
NEVADA POWER COMPANY
None
SIERRA PACIFIC POWER COMPANY
None
Registrant
Name of exchange on which registered:
BERKSHIRE HATHAWAY ENERGY COMPANY
None
PACIFICORP
None
MIDAMERICAN FUNDING, LLC
None
MIDAMERICAN ENERGY COMPANY
None
NEVADA POWER COMPANY
None
SIERRA PACIFIC POWER COMPANY
None
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.
Registrant
Yes
No
BERKSHIRE HATHAWAY ENERGY COMPANY
X
 
PACIFICORP
X
 
MIDAMERICAN FUNDING, LLC
 
X
MIDAMERICAN ENERGY COMPANY
X
 
NEVADA POWER COMPANY
X
 
SIERRA PACIFIC POWER COMPANY
X
 
Indicate by check mark whether the registrants have submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrants were required to submit such files). Yes  x  No  o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of "large accelerated filer," "accelerated filer," "smaller reporting company," and "emerging growth company" in Rule 12b-2 of the Exchange Act.
Registrant
Large accelerated filer
Accelerated filer
Non-accelerated filer
Smaller reporting company
Emerging growth company
BERKSHIRE HATHAWAY ENERGY COMPANY
 
 
X
 
 
PACIFICORP
 
 
X
 
 
MIDAMERICAN FUNDING, LLC
 
 
X
 
 
MIDAMERICAN ENERGY COMPANY
 
 
X
 
 
NEVADA POWER COMPANY
 
 
X
 
 
SIERRA PACIFIC POWER COMPANY
 
 
X
 
 
If an emerging growth company, indicate by check mark if the registrants have elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.  o
Indicate by check mark whether the registrants are a shell company (as defined in Rule 12b-2 of the Exchange Act).
Yes  o  No  x




All shares of outstanding common stock of Berkshire Hathaway Energy Company are privately held by a limited group of investors. As of October 31, 2019, 76,549,232 shares of common stock, no par value, were outstanding.
All shares of outstanding common stock of PacifiCorp are indirectly owned by Berkshire Hathaway Energy Company. As of October 31, 2019, 357,060,915 shares of common stock, no par value, were outstanding.
All of the member's equity of MidAmerican Funding, LLC is held by its parent company, Berkshire Hathaway Energy Company, as of October 31, 2019.
All shares of outstanding common stock of MidAmerican Energy Company are owned by its parent company, MHC Inc., which is a direct, wholly owned subsidiary of MidAmerican Funding, LLC. As of October 31, 2019, 70,980,203 shares of common stock, no par value, were outstanding.
All shares of outstanding common stock of Nevada Power Company are owned by its parent company, NV Energy, Inc., which is an indirect, wholly owned subsidiary of Berkshire Hathaway Energy Company. As of October 31, 2019, 1,000 shares of common stock, $1.00 stated value, were outstanding.
All shares of outstanding common stock of Sierra Pacific Power Company are owned by its parent company, NV Energy, Inc. As of October 31, 2019, 1,000 shares of common stock, $3.75 par value, were outstanding.
This combined Form 10-Q is separately filed by Berkshire Hathaway Energy Company, PacifiCorp, MidAmerican Funding, LLC, MidAmerican Energy Company, Nevada Power Company and Sierra Pacific Power Company. Information contained herein relating to any individual company is filed by such company on its own behalf. Each company makes no representation as to information relating to the other companies.





TABLE OF CONTENTS
 
PART I
 
1
2
171
171
 
PART II
 
172
172
172
172
172
172
172
 
176


i



Definition of Abbreviations and Industry Terms

When used in Forward-Looking Statements, Part I - Items 2 through 3, and Part II - Items 1 through 6, the following terms have the definitions indicated.
Berkshire Hathaway Energy Company and Related Entities
BHE
 
Berkshire Hathaway Energy Company
Berkshire Hathaway
 
Berkshire Hathaway Inc.
Berkshire Hathaway Energy or the Company
 
Berkshire Hathaway Energy Company and its subsidiaries
PacifiCorp
 
PacifiCorp and its subsidiaries
MidAmerican Funding
 
MidAmerican Funding, LLC and its subsidiaries
MidAmerican Energy
 
MidAmerican Energy Company
NV Energy
 
NV Energy, Inc. and its subsidiaries
Nevada Power
 
Nevada Power Company and its subsidiaries
Sierra Pacific
 
Sierra Pacific Power Company
Nevada Utilities
 
Nevada Power Company and Sierra Pacific Power Company
Registrants
 
Berkshire Hathaway Energy Company, PacifiCorp, MidAmerican Funding, MidAmerican Energy, Nevada Power and Sierra Pacific
Northern Powergrid
 
Northern Powergrid Holdings Company
BHE Pipeline Group
 
Consists of Northern Natural Gas Company and Kern River Gas Transmission Company
Northern Natural Gas
 
Northern Natural Gas Company
Kern River
 
Kern River Gas Transmission Company
BHE Transmission
 
Consists of BHE Canada Holdings Corporation and BHE U.S. Transmission, LLC
BHE Canada
 
BHE Canada Holdings Corporation
AltaLink
 
AltaLink, L.P.
BHE U.S. Transmission
 
BHE U.S. Transmission, LLC
BHE Renewables
 
Consists of BHE Renewables, LLC and CalEnergy Philippines
HomeServices
 
HomeServices of America, Inc. and its subsidiaries
Utilities
 
PacifiCorp, MidAmerican Energy Company, Nevada Power Company and Sierra Pacific Power Company
Domestic Regulated Businesses
 
PacifiCorp, MidAmerican Energy Company, Nevada Power Company, Sierra Pacific Power Company, Northern Natural Gas Company and Kern River Gas Transmission Company
Topaz
 
Topaz Solar Farms LLC
Agua Caliente
 
Agua Caliente Solar, LLC
 
 
 
Certain Industry Terms
 
 
2017 Tax Reform
 
The Tax Cuts and Jobs Act enacted on December 22, 2017, effective January 1, 2018
AB 1054
 
California Assembly Bill 1054
AESO
 
Alberta Electric System Operator
AFUDC
 
Allowance for Funds Used During Construction
AUC
 
Alberta Utilities Commission
CPUC
 
California Public Utilities Commission
CSAPR
 
Cross-State Air Pollution Rule
DEAA
 
Deferred Energy Accounting Adjustment
Dth
 
Decatherm
EBA
 
Energy Balancing Account
ECAM
 
Energy Cost Adjustment Mechanism
EPA
 
United States Environmental Protection Agency

ii



FERC
 
Federal Energy Regulatory Commission
FRMMA
 
Fire Risk Mitigation Memorandum Account
GAAP
 
Accounting principles generally accepted in the United States of America
GEMA
 
Gas and Electricity Markets Authority
GHG
 
Greenhouse Gases
GWh
 
Gigawatt Hour
GTA
 
General Tariff Application
IPUC
 
Idaho Public Utilities Commission
IRP
 
Integrated Resource Plan
IUB
 
Iowa Utilities Board
kV
 
Kilovolt
MW
 
Megawatt
MWh
 
Megawatt Hour
NAAQS
 
National Ambient Air Quality Standards
Ofgem
 
Office of Gas and Electric Markets
OPUC
 
Oregon Public Utility Commission
PUCN
 
Public Utilities Commission of Nevada
RAC
 
Renewable Adjustment Clause
REC
 
Renewable Energy Credit
RPS
 
Renewable Portfolio Standards
RRA
 
Renewable Energy Credit and Sulfur Dioxide Revenue Adjustment Mechanism
SB 901
 
California Senate Bill 901
SEC
 
United States Securities and Exchange Commission
SIP
 
State Implementation Plan
TAM
 
Transition Adjustment Mechanism
UPSC
 
Utah Public Service Commission
WPSC
 
Wyoming Public Service Commission
WUTC
 
Washington Utilities and Transportation Commission

Forward-Looking Statements

This report contains statements that do not directly or exclusively relate to historical facts. These statements are "forward-looking statements" within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended. Forward-looking statements can typically be identified by the use of forward-looking words, such as "will," "may," "could," "project," "believe," "anticipate," "expect," "estimate," "continue," "intend," "potential," "plan," "forecast" and similar terms. These statements are based upon the relevant Registrant's current intentions, assumptions, expectations and beliefs and are subject to risks, uncertainties and other important factors. Many of these factors are outside the control of each Registrant and could cause actual results to differ materially from those expressed or implied by such forward-looking statements. These factors include, among others:
general economic, political and business conditions, as well as changes in, and compliance with, laws and regulations, including income tax reform, initiatives regarding deregulation and restructuring of the utility industry, and reliability and safety standards, affecting the respective Registrant's operations or related industries;
changes in, and compliance with, environmental laws, regulations, decisions and policies that could, among other items, increase operating and capital costs, reduce facility output, accelerate facility retirements or delay facility construction or acquisition;
the outcome of regulatory rate reviews and other proceedings conducted by regulatory agencies or other governmental and legal bodies and the respective Registrant's ability to recover costs through rates in a timely manner;

iii



changes in economic, industry, competition or weather conditions, as well as demographic trends, new technologies and various conservation, energy efficiency and private generation measures and programs, that could affect customer growth and usage, electricity and natural gas supply or the respective Registrant's ability to obtain long-term contracts with customers and suppliers;
performance, availability and ongoing operation of the respective Registrant's facilities, including facilities not operated by the Registrants, due to the impacts of market conditions, outages and repairs, transmission constraints, weather, including wind, solar and hydroelectric conditions, and operating conditions;
the effects of catastrophic and other unforeseen events, which may be caused by factors beyond the control of each respective Registrant or by a breakdown or failure of the Registrants' operating assets, including severe storms, floods, fires, earthquakes, explosions, landslides, an electromagnetic pulse, mining incidents, litigation, wars, terrorism, embargoes, and cyber security attacks, data security breaches, disruptions, or other malicious acts;
a high degree of variance between actual and forecasted load or generation that could impact a Registrant's hedging strategy and the cost of balancing its generation resources with its retail load obligations;
changes in prices, availability and demand for wholesale electricity, coal, natural gas, other fuel sources and fuel transportation that could have a significant impact on generating capacity and energy costs;
the financial condition, creditworthiness and operational stability of the respective Registrant's significant customers and suppliers;
changes in business strategy or development plans;
availability, terms and deployment of capital, including reductions in demand for investment-grade commercial paper, debt securities and other sources of debt financing and volatility in interest rates;
changes in the respective Registrant's credit ratings;
risks relating to nuclear generation, including unique operational, closure and decommissioning risks;
hydroelectric conditions and the cost, feasibility and eventual outcome of hydroelectric relicensing proceedings;
the impact of certain contracts used to mitigate or manage volume, price and interest rate risk, including increased collateral requirements, and changes in commodity prices, interest rates and other conditions that affect the fair value of certain contracts;
the impact of inflation on costs and the ability of the respective Registrants to recover such costs in regulated rates;
fluctuations in foreign currency exchange rates, primarily the British pound and the Canadian dollar;
increases in employee healthcare costs;
the impact of investment performance and changes in interest rates, legislation, healthcare cost trends, mortality and morbidity on pension and other postretirement benefits expense and funding requirements;
changes in the residential real estate brokerage, mortgage and franchising industries and regulations that could affect brokerage, mortgage and franchising transactions;
the ability to successfully integrate future acquired operations into a Registrant's business;
unanticipated construction delays, changes in costs, receipt of required permits and authorizations, ability to fund capital projects and other factors that could affect future facilities and infrastructure additions;
the availability and price of natural gas in applicable geographic regions and demand for natural gas supply;
the impact of new accounting guidance or changes in current accounting estimates and assumptions on the financial results of the respective Registrants; and
other business or investment considerations that may be disclosed from time to time in the Registrants' filings with the SEC or in other publicly disseminated written documents.
 
Further details of the potential risks and uncertainties affecting the Registrants are described in the Registrants' filings with the SEC, including Part II, Item 1A and other discussions contained in this Form 10-Q. Each Registrant undertakes no obligation to publicly update or revise any forward-looking statements, whether as a result of new information, future events or otherwise. The foregoing factors should not be construed as exclusive.


iv



Item 1.
Financial Statements
Berkshire Hathaway Energy Company and its subsidiaries
 
 
 
4
 
5
 
7
 
8
 
9
 
10
 
11
PacifiCorp and its subsidiaries
 
 
 
63
 
64
 
66
 
67
 
68
 
69
MidAmerican Energy Company
 
 
 
91
 
92
 
94
 
95
 
96
 
97
MidAmerican Funding, LLC and its subsidiaries
 
 
 
106
 
107
 
109
 
110
 
111
 
112
Nevada Power Company and its subsidiaries
 
 
 
127
 
128
 
129
 
130
 
131
 
132
Sierra Pacific Power Company
 
 
 
149
 
150
 
151
 
152
 
153
 
154



1



Item 2.
Management's Discussion and Analysis of Financial Condition and Results of Operations



2



Berkshire Hathaway Energy Company and its subsidiaries
Consolidated Financial Section


3



PART I
Item 1.
Financial Statements


REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM


To the Board of Directors and Shareholders of
Berkshire Hathaway Energy Company

Results of Review of Interim Financial Information

We have reviewed the accompanying consolidated balance sheet of Berkshire Hathaway Energy Company and subsidiaries (the "Company") as of September 30, 2019, the related consolidated statements of operations, comprehensive income and changes in equity for the three-month and nine-month periods ended September 30, 2019 and 2018, and of cash flows for the nine-month periods ended September 30, 2019 and 2018, and the related notes (collectively referred to as the "interim financial information"). Based on our reviews, we are not aware of any material modifications that should be made to the accompanying interim financial information for it to be in conformity with accounting principles generally accepted in the United States of America.

We have previously audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (PCAOB), the consolidated balance sheet of the Company as of December 31, 2018, and the related consolidated statements of operations, comprehensive income, changes in equity, and cash flows for the year then ended (not presented herein); and in our report dated February 22, 2019, we expressed an unqualified opinion on those consolidated financial statements. In our opinion, the information set forth in the accompanying consolidated balance sheet as of December 31, 2018 is fairly stated, in all material respects, in relation to the consolidated balance sheet from which it has been derived.

Basis for Review Results

This interim financial information is the responsibility of the Company's management. We are a public accounting firm registered with the PCAOB and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.

We conducted our reviews in accordance with standards of the PCAOB. A review of interim financial information consists principally of applying analytical procedures and making inquiries of persons responsible for financial and accounting matters. It is substantially less in scope than an audit conducted in accordance with the standards of the PCAOB, the objective of which is the expression of an opinion regarding the financial statements taken as a whole. Accordingly, we do not express such an opinion.


/s/ Deloitte & Touche LLP


Des Moines, Iowa
November 1, 2019

4



BERKSHIRE HATHAWAY ENERGY COMPANY AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS (Unaudited)
(Amounts in millions)

 
As of
 
September 30,
 
December 31,
 
2019
 
2018
ASSETS
Current assets:
 
 
 
Cash and cash equivalents
$
1,141

 
$
627

Restricted cash and cash equivalents
238

 
227

Trade receivables, net
2,075

 
2,038

Inventories
862

 
844

Mortgage loans held for sale
1,060

 
468

Amounts held in trust
304

 
145

Other current assets
680

 
798

Total current assets
6,360

 
5,147

 
 

 
 

Property, plant and equipment, net
71,324

 
68,087

Goodwill
9,643

 
9,595

Regulatory assets
2,817

 
2,896

Investments and restricted cash and cash equivalents and investments
5,775

 
4,903

Other assets
1,994

 
1,561

 
 
 
 

Total assets
$
97,913

 
$
92,189


The accompanying notes are an integral part of these consolidated financial statements.


5



BERKSHIRE HATHAWAY ENERGY COMPANY AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS (Unaudited) (continued)
(Amounts in millions)

 
As of
 
September 30,
 
December 31,
 
2019
 
2018
LIABILITIES AND EQUITY
Current liabilities:
 
 
 
Accounts payable
$
1,939

 
$
1,809

Accrued interest
504

 
469

Accrued property, income and other taxes
709

 
599

Accrued employee expenses
406

 
275

Short-term debt
3,119

 
2,516

Current portion of long-term debt
1,976

 
2,081

Other current liabilities
1,350

 
1,021

Total current liabilities
10,003

 
8,770

 
 

 
 

BHE senior debt
8,230

 
8,577

BHE junior subordinated debentures
100

 
100

Subsidiary debt
27,603

 
25,492

Regulatory liabilities
7,249

 
7,346

Deferred income taxes
9,195

 
9,047

Other long-term liabilities
3,793

 
3,134

Total liabilities
66,173

 
62,466

 
 

 
 

Commitments and contingencies (Note 10)
 
 


 
 

 
 

Equity:
 

 
 

BHE shareholders' equity:
 

 
 

Common stock - 115 shares authorized, no par value, 77 shares issued and outstanding

 

Additional paid-in capital
6,355

 
6,371

Long-term income tax receivable
(457
)
 
(457
)
Retained earnings
27,789

 
25,624

Accumulated other comprehensive loss, net
(2,079
)
 
(1,945
)
Total BHE shareholders' equity
31,608

 
29,593

Noncontrolling interests
132

 
130

Total equity
31,740

 
29,723

 
 
 
 

Total liabilities and equity
$
97,913

 
$
92,189


The accompanying notes are an integral part of these consolidated financial statements.


6



BERKSHIRE HATHAWAY ENERGY COMPANY AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS (Unaudited)
(Amounts in millions)

 
Three-Month Periods
 
Nine-Month Periods
 
Ended September 30,
 
Ended September 30,
 
2019
 
2018
 
2019
 
2018
Operating revenue:
 
 
 
 
 
 
 
Energy
$
4,337

 
$
4,419

 
$
11,729

 
$
11,818

Real estate
1,307

 
1,218

 
3,419

 
3,252

Total operating revenue
5,644

 
5,637

 
15,148

 
15,070

 
 
 
 
 
 
 
 
Operating expenses:
 
 
 
 
 
 
 
Energy:
 
 
 
 
 
 
 
Cost of sales
1,230

 
1,271

 
3,471

 
3,565

Operations and maintenance
845

 
901

 
2,469

 
2,534

Depreciation and amortization
795

 
667

 
2,243

 
2,110

Property and other taxes
130

 
142

 
427

 
428

Real estate
1,194

 
1,133

 
3,210

 
3,067

Total operating expenses
4,194

 
4,114

 
11,820

 
11,704

 
 
 
 
 
 
 
 
Operating income
1,450

 
1,523

 
3,328

 
3,366

 
 
 
 
 
 
 
 
Other income (expense):
 
 
 
 
 
 
 
Interest expense
(475
)
 
(453
)
 
(1,428
)
 
(1,380
)
Capitalized interest
23

 
17

 
56

 
44

Allowance for equity funds
56

 
30

 
126

 
75

Interest and dividend income
25

 
27

 
91

 
85

(Losses) gains on marketable securities, net
(234
)
 
260

 
(296
)
 
(336
)
Other, net
2

 
19

 
67

 
50

Total other income (expense)
(603
)
 
(100
)
 
(1,384
)
 
(1,462
)
 
 
 
 
 
 
 
 
Income before income tax benefit and equity income (loss)
847

 
1,423

 
1,944

 
1,904

Income tax (benefit) expense
(302
)
 
23

 
(526
)
 
(366
)
Equity (loss) income
(4
)
 
9

 
(12
)
 
35

Net income
1,145

 
1,409

 
2,458

 
2,305

Net income attributable to noncontrolling interests
8

 
8

 
15

 
19

Net income attributable to BHE shareholders
$
1,137

 
$
1,401

 
$
2,443

 
$
2,286


The accompanying notes are an integral part of these consolidated financial statements.
 

7



BERKSHIRE HATHAWAY ENERGY COMPANY AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME (Unaudited)
(Amounts in millions)

 
Three-Month Periods
 
Nine-Month Periods
 
Ended September 30,
 
Ended September 30,
 
2019
 
2018
 
2019
 
2018
 
 
 
 
 
 
 
 
Net income
$
1,145

 
$
1,409

 
$
2,458

 
$
2,305

 
 
 
 
 
 
 
 
Other comprehensive (loss) income, net of tax:
 
 
 
 
 
 
 
Unrecognized amounts on retirement benefits, net of tax of $(4), $-, $(6) and $12
(26
)
 
(1
)
 
(40
)
 
50

Foreign currency translation adjustment
(172
)
 
(2
)
 
(66
)
 
(236
)
Unrealized gains (losses) on cash flow hedges, net of tax of $3, $(1), $(8) and $(1)
7

 
1

 
(28
)
 
2

Total other comprehensive loss, net of tax
(191
)
 
(2
)
 
(134
)
 
(184
)
 
 

 
 

 
 

 
 

Comprehensive income
954

 
1,407

 
2,324

 
2,121

Comprehensive income attributable to noncontrolling interests
8

 
8

 
15

 
19

Comprehensive income attributable to BHE shareholders
$
946

 
$
1,399

 
$
2,309

 
$
2,102


The accompanying notes are an integral part of these consolidated financial statements.


8



BERKSHIRE HATHAWAY ENERGY COMPANY AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CHANGES IN EQUITY (Unaudited)
(Amounts in millions)
 
BHE Shareholders' Equity
 
 
 
 
 
 
 
 
 
 
Long-term
 
 
 
Accumulated
 
 
 
 
 
 
 
 
 
Additional
 
Income
 
 
 
Other
 
 
 
 
 
Common
 
Paid-in
 
Tax
 
Retained
 
Comprehensive
 
Noncontrolling
 
Total
 
Shares
 
Stock
 
Capital
 
Receivable
 
Earnings
 
Loss, Net
 
Interests
 
Equity
Balance, June 30, 2018
77

 
$

 
$
6,358

 
$
(494
)
 
$
23,976

 
$
(1,665
)
 
$
129

 
$
28,304

Net income

 

 

 

 
1,401

 

 
8

 
1,409

Other comprehensive loss

 

 

 

 

 
(2
)
 

 
(2
)
Common stock repurchases

 

 
(1
)
 

 
(16
)
 

 

 
(17
)
Distributions

 

 

 

 

 

 
(5
)
 
(5
)
Other equity transactions

 

 

 

 

 

 
(1
)
 
(1
)
Balance, September 30, 2018
77

 
$

 
$
6,357

 
$
(494
)
 
$
25,361

 
$
(1,667
)
 
$
131

 
$
29,688

 
 

 
 

 
 

 
 
 
 

 
 

 
 

 
 

Balance, December 31, 2017
77

 
$

 
$
6,368

 
$

 
$
22,206

 
$
(398
)
 
$
132

 
$
28,308

Adoption of ASU 2016-01

 

 

 

 
1,085

 
(1,085
)
 

 

Net income

 

 

 

 
2,286

 

 
16

 
2,302

Other comprehensive loss

 

 

 

 

 
(184
)
 

 
(184
)
Reclassification of long-term income tax receivable

 

 

 
(609
)
 

 

 

 
(609
)
Long-term income tax receivable adjustments

 

 

 
115

 
(115
)
 

 

 

Common stock repurchases

 

 
(6
)
 

 
(101
)
 

 

 
(107
)
Distributions

 

 

 

 

 

 
(17
)
 
(17
)
Other equity transactions

 

 
(5
)
 

 

 

 

 
(5
)
Balance, September 30, 2018
77

 
$

 
$
6,357

 
$
(494
)
 
$
25,361

 
$
(1,667
)
 
$
131

 
$
29,688

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Balance, June 30, 2019
77

 
$

 
$
6,355

 
$
(457
)
 
$
26,651

 
$
(1,888
)
 
$
126

 
$
30,787

Net income

 

 

 

 
1,137

 

 
7

 
1,144

Other comprehensive loss

 

 

 

 

 
(191
)
 

 
(191
)
Distributions

 

 

 

 

 

 
(6
)
 
(6
)
Other equity transactions

 

 

 

 
1

 

 
5

 
6

Balance, September 30, 2019
77

 
$

 
$
6,355

 
$
(457
)
 
$
27,789

 
$
(2,079
)
 
$
132

 
$
31,740

 
 

 
 

 
 

 
 
 
 

 
 

 
 

 
 

Balance, December 31, 2018
77

 
$

 
$
6,371

 
$
(457
)
 
$
25,624

 
$
(1,945
)
 
$
130

 
$
29,723

Net income

 

 

 

 
2,443

 

 
14

 
2,457

Other comprehensive loss

 

 

 

 

 
(134
)
 

 
(134
)
Common stock repurchases

 

 
(16
)
 

 
(277
)
 

 

 
(293
)
Distributions

 

 

 

 

 

 
(16
)
 
(16
)
Other equity transactions

 

 

 

 
(1
)
 

 
4

 
3

Balance, September 30, 2019
77

 
$

 
$
6,355

 
$
(457
)
 
$
27,789

 
$
(2,079
)
 
$
132

 
$
31,740


The accompanying notes are an integral part of these consolidated financial statements.

9



BERKSHIRE HATHAWAY ENERGY COMPANY AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS (Unaudited)
(Amounts in millions)

 
Nine-Month Periods
 
Ended September 30,
 
2019
 
2018
Cash flows from operating activities:
 
 
 
Net income
$
2,458

 
$
2,305

Adjustments to reconcile net income to net cash flows from operating activities:
 

 
 

Losses on marketable securities, net
296

 
336

Depreciation and amortization
2,278

 
2,147

Allowance for equity funds
(126
)
 
(75
)
Equity loss (income), net of distributions
43

 
17

Changes in regulatory assets and liabilities
108

 
263

Deferred income taxes and amortization of investment tax credits
(92
)
 
(116
)
Other, net
44

 
40

Changes in other operating assets and liabilities, net of effects from acquisitions:
 
 
 
Trade receivables and other assets
(594
)
 
(192
)
Derivative collateral, net
(19
)
 
9

Pension and other postretirement benefit plans
(40
)
 
(61
)
Accrued property, income and other taxes, net
195

 
190

Accounts payable and other liabilities
109

 
168

Net cash flows from operating activities
4,660

 
5,031

 
 

 
 

Cash flows from investing activities:
 

 
 

Capital expenditures
(4,898
)
 
(4,203
)
Acquisitions, net of cash acquired
(28
)
 
(105
)
Purchases of marketable securities
(242
)
 
(287
)
Proceeds from sales of marketable securities
223

 
266

Equity method investments
(1,144
)
 
(236
)
Other, net
54

 
48

Net cash flows from investing activities
(6,035
)
 
(4,517
)
 
 

 
 

Cash flows from financing activities:
 

 
 

Proceeds from BHE senior debt

 
3,166

Repayments of BHE senior debt

 
(650
)
Common stock repurchases
(293
)
 
(107
)
Proceeds from subsidiary debt
3,463

 
2,353

Repayments of subsidiary debt
(1,821
)
 
(2,297
)
Net proceeds from (repayments of) short-term debt
594

 
(2,694
)
Purchase of redeemable noncontrolling interest

 
(131
)
Other, net
(42
)
 
(32
)
Net cash flows from financing activities
1,901

 
(392
)
 
 

 
 

Effect of exchange rate changes
(3
)
 
(3
)
 
 

 
 

Net change in cash and cash equivalents and restricted cash and cash equivalents
523

 
119

Cash and cash equivalents and restricted cash and cash equivalents at beginning of period
883

 
1,283

Cash and cash equivalents and restricted cash and cash equivalents at end of period
$
1,406

 
$
1,402


The accompanying notes are an integral part of these consolidated financial statements.

10



BERKSHIRE HATHAWAY ENERGY COMPANY AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)

(1)
General

Berkshire Hathaway Energy Company ("BHE") is a holding company that owns a highly diversified portfolio of locally managed businesses principally engaged in the energy industry (collectively with its subsidiaries, the "Company") and is a consolidated subsidiary of Berkshire Hathaway Inc. ("Berkshire Hathaway").

The Company's operations are organized as eight business segments: PacifiCorp, MidAmerican Funding, LLC ("MidAmerican Funding") (which primarily consists of MidAmerican Energy Company ("MidAmerican Energy")), NV Energy, Inc. ("NV Energy") (which primarily consists of Nevada Power Company ("Nevada Power") and Sierra Pacific Power Company ("Sierra Pacific")), Northern Powergrid Holdings Company ("Northern Powergrid") (which primarily consists of Northern Powergrid (Northeast) Limited and Northern Powergrid (Yorkshire) plc), BHE Pipeline Group (which consists of Northern Natural Gas Company ("Northern Natural Gas") and Kern River Gas Transmission Company ("Kern River")), BHE Transmission (which consists of BHE Canada Holdings Corporation ("BHE Canada") (which primarily consists of AltaLink, L.P. ("AltaLink")) and BHE U.S. Transmission, LLC), BHE Renewables (which primarily consists of BHE Renewables, LLC and CalEnergy Philippines) and HomeServices of America, Inc. (collectively with its subsidiaries, "HomeServices"). The Company, through these locally managed and operated businesses, owns four utility companies in the United States serving customers in 11 states, two electricity distribution companies in Great Britain, two interstate natural gas pipeline companies in the United States, an electric transmission business in Canada, interests in electric transmission businesses in the United States, a renewable energy business primarily investing in wind, solar, geothermal and hydroelectric projects, the largest residential real estate brokerage firm in the United States and one of the largest residential real estate brokerage franchise networks in the United States.

The unaudited Consolidated Financial Statements have been prepared in accordance with accounting principles generally accepted in the United States of America ("GAAP") for interim financial information and the United States Securities and Exchange Commission's rules and regulations for Form 10-Q and Article 10 of Regulation S-X. Accordingly, they do not include all of the disclosures required by GAAP for annual financial statements. Management believes the unaudited Consolidated Financial Statements contain all adjustments (consisting only of normal recurring adjustments) considered necessary for the fair presentation of the unaudited Consolidated Financial Statements as of September 30, 2019 and for the three- and nine-month periods ended September 30, 2019 and 2018. The results of operations for the three- and nine-month periods ended September 30, 2019 are not necessarily indicative of the results to be expected for the full year.

The preparation of the unaudited Consolidated Financial Statements in conformity with GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities at the date of the unaudited Consolidated Financial Statements and the reported amounts of revenue and expenses during the period. Actual results may differ from the estimates used in preparing the unaudited Consolidated Financial Statements. Note 2 of Notes to Consolidated Financial Statements included in the Company's Annual Report on Form 10-K for the year ended December 31, 2018 describes the most significant accounting policies used in the preparation of the unaudited Consolidated Financial Statements. There have been no significant changes in the Company's assumptions regarding significant accounting estimates and policies, except as disclosed in Note 4, during the nine-month period ended September 30, 2019.



11



(2)
Property, Plant and Equipment, Net

Property, plant and equipment, net consists of the following (in millions):
 
 
 
As of
 
Depreciable
 
September 30,
 
December 31,
 
Life
 
2019
 
2018
Regulated assets:
 
 
 
 
 
Utility generation, transmission and distribution systems
5-80 years
 
$
78,596

 
$
76,707

Interstate natural gas pipeline assets
3-80 years
 
7,637

 
7,524

 
 
 
86,233

 
84,231

Accumulated depreciation and amortization
 
 
(26,719
)
 
(25,894
)
Regulated assets, net
 
 
59,514

 
58,337

 
 
 
 

 
 

Nonregulated assets:
 
 
 

 
 

Independent power plants
5-30 years
 
6,966

 
6,826

Other assets
3-30 years
 
1,606

 
1,424

 
 
 
8,572

 
8,250

Accumulated depreciation and amortization
 
 
(2,075
)
 
(1,610
)
Nonregulated assets, net
 
 
6,497

 
6,640

 
 
 
 

 
 

Net operating assets
 
 
66,011

 
64,977

Construction work-in-progress
 
 
5,313

 
3,110

Property, plant and equipment, net
 
 
$
71,324

 
$
68,087


Construction work-in-progress includes $5.1 billion as of September 30, 2019 and $2.9 billion as of December 31, 2018, related to the construction of regulated assets.


12



(3)
Investments and Restricted Cash and Cash Equivalents and Investments

Investments and restricted cash and cash equivalents and investments consists of the following (in millions):
 
As of
 
September 30,
 
December 31,
 
2019
 
2018
Investments:
 
 
 
BYD Company Limited common stock
$
1,124

 
$
1,435

Rabbi trusts
395

 
371

Other
181

 
168

Total investments
1,700

 
1,974

 
 

 
 

Equity method investments:
 
 
 
BHE Renewables tax equity investments
2,695

 
1,661

Electric Transmission Texas, LLC
553

 
527

Bridger Coal Company
83

 
99

Other
173

 
153

Total equity method investments
3,504

 
2,440

 
 
 
 
Restricted cash and cash equivalents and investments:
 

 
 

Quad Cities Station nuclear decommissioning trust funds
571

 
504

Restricted cash and cash equivalents
265

 
256

Total restricted cash and cash equivalents and investments
836

 
760

 
 

 
 

Total investments and restricted cash and cash equivalents and investments
$
6,040

 
$
5,174

 
 
 
 
Reflected as:
 
 
 
Current assets
$
265

 
$
271

Noncurrent assets
5,775

 
4,903

Total investments and restricted cash and cash equivalents and investments
$
6,040

 
$
5,174


Investments

(Losses) gains on marketable securities, net recognized during the period consists of the following (in millions):
 
Three-Month Periods
 
Nine-Month Periods
 
Ended September 30,
 
Ended September 30,
 
2019
 
2018
 
2019
 
2018
Unrealized (losses) gains recognized on marketable securities still held at the reporting date
$
(236
)
 
$
260

 
$
(297
)
 
$
(337
)
Net gains recognized on marketable securities sold during the period
2

 

 
1

 
1

(Losses) gains on marketable securities, net
$
(234
)
 
$
260

 
$
(296
)
 
$
(336
)


13



Cash and Cash Equivalents and Restricted Cash and Cash Equivalents

Cash equivalents consist of funds invested in money market mutual funds, United States Treasury Bills and other investments with a maturity of three months or less when purchased. Cash and cash equivalents exclude amounts where availability is restricted by legal requirements, loan agreements or other contractual provisions. Restricted cash and cash equivalents as of September 30, 2019 and December 31, 2018, consist substantially of funds restricted for the purpose of constructing solid waste facilities under tax-exempt bond obligation agreements and debt service obligations for certain of the Company's nonregulated renewable energy projects. A reconciliation of cash and cash equivalents and restricted cash and cash equivalents as of September 30, 2019 and December 31, 2018, as presented in the Consolidated Statements of Cash Flows is outlined below and disaggregated by the line items in which they appear on the Consolidated Balance Sheets (in millions):
 
As of
 
September 30,
 
December 31,
 
2019
 
2018
Cash and cash equivalents
$
1,141

 
$
627

Restricted cash and cash equivalents
238

 
227

Investments and restricted cash and cash equivalents and investments
27

 
29

Total cash and cash equivalents and restricted cash and cash equivalents
$
1,406

 
$
883


(4)    Leases

Adoption

In February 2016, the Financial Accounting Standards Board ("FASB") issued Accounting Standards Update ("ASU") No. 2016-02, which creates FASB Accounting Standards Codification ("ASC") Topic 842, "Leases" and supersedes Topic 840 "Leases." This guidance increases transparency and comparability among entities by recording lease assets and lease liabilities on the balance sheet and disclosing key information about leasing arrangements. A lessee should recognize on the balance sheet a liability to make lease payments (the lease liability) and a right-of-use asset representing its right to use the underlying asset for the lease term. The recognition, measurement and presentation of expenses and cash flows arising from a lease by a lessee have not significantly changed from previous guidance. Following the issuance of ASU No. 2016-02, the FASB issued several ASUs that clarified the implementation guidance for ASU No. 2016-02 but did not change the core principle of the guidance. The Company adopted this guidance for all applicable contracts in-effect as of January 1, 2019 under a modified retrospective method and the adoption did not have a cumulative effect impact at the date of initial adoption.

The Company has elected to utilize various practical expedients available to adopt ASU No. 2016-02, including (1) the package of three not requiring a reassessment of (i) whether any expired or existing contracts are or contain leases; (ii) the lease classification for any expired or existing leases; and (iii) initial direct costs for any existing leases; (2) using hindsight in determining the lease term; and (3) not requiring a reassessment of whether existing or expired land easements that were not previously accounted for as leases under ASC Topic 840 are or contain a lease under ASC Topic 842.

Leases

Lessee

The Company has non-cancelable operating leases primarily for office space, office equipment, generating facilities, land and rail cars and finance leases consisting primarily of transmission assets, generating facilities and vehicles. These leases generally require the Company to pay for insurance, taxes and maintenance applicable to the leased property. Given the capital intensive nature of the utility industry, it is common for a portion of lease costs to be capitalized when used during construction or maintenance of assets, in which the associated costs will be capitalized with the corresponding asset and depreciated over the remaining life of that asset. Certain leases contain renewal options for varying periods and escalation clauses for adjusting rent to reflect changes in price indices. The Company does not include options in its lease calculations unless there is a triggering event indicating the Company is reasonably certain to exercise the option. The Company’s accounting policy is to not recognize lease obligations and corresponding right-of-use assets for leases with contract terms of one year or less and not separate lease components from non-lease components and instead account for each separate lease component and the non-lease components associated with a lease as a single lease component. Leases will be evaluated for impairment in line with ASC 360, "Property, Plant and Equipment" when a triggering event has occurred that might affect the value and use of the assets being leased.


14



The Company's leases of generating facilities generally are for the long-term purchase of electric energy, also known as power purchase agreements ("PPA"). PPAs are generally signed before or during the early stages of project construction and can yield a lease that has not yet commenced. These agreements are primarily for renewable energy and the payments are considered variable lease payments as they are based on the amount of output.

The Company's operating and finance right-of-use assets are recorded in other assets and the operating and finance lease liabilities are recorded in current and long-term other liabilities accordingly. The right-of-use assets and lease liabilities for finance leases as of December 31, 2018 have been reclassified from property, plant and equipment, net and current portion of long-term and subsidiary debt, respectively, to conform to the current period presentation. The following table summarizes the Company's leases recorded on the Consolidated Balance Sheet (in millions):
 
As of
 
September 30,
 
2019
Right-of-use assets:
 
Operating leases
$
526

Finance leases
503

Total right-of-use assets
$
1,029

 
 
Lease liabilities:
 
Operating leases
$
574

Finance leases
517

Total lease liabilities
$
1,091


The following table summarizes the Company's lease costs (in millions):
 
Three-Month Period
 
Nine-Month Period
 
Ended September 30,
 
Ended September 30,
 
2019
 
2019
 
 
 
 
Variable
$
156

 
$
453

Operating
43

 
127

Finance:
 
 
 
Amortization
4

 
12

Interest
10

 
31

Short-term
2

 
6

Total lease costs
$
215

 
$
629

 
 
 
 
Weighted-average remaining lease term (years):
 
 
 
Operating leases
 
 
7.8

Finance leases
 
 
29.3

 
 
 
 
Weighted-average discount rate:
 
 
 
Operating leases
 
 
5.2
%
Finance leases
 
 
8.6
%


15



The following table summarizes the Company's supplemental cash flow information relating to leases (in millions):
 
Nine-Month Period
 
Ended September 30,
 
2019
Cash paid for amounts included in the measurement of lease liabilities:
 
Operating cash flows from operating leases
$
(106
)
Operating cash flows from finance leases
(32
)
Financing cash flows from finance leases
(14
)
Right-of-use assets obtained in exchange for lease liabilities:
 
Operating leases
$
49

Finance leases
12


The Company has the following remaining lease commitments as of (in millions):
 
September 30, 2019
 
December 31, 2018(1)
 
Operating
 
Finance
 
Total
 
Operating
 
Capital
 
Total
2019
$
38

 
$
16

 
$
54

 
$
147

 
$
69

 
$
216

2020
139

 
70

 
209

 
128

 
68

 
196

2021
118

 
76

 
194

 
110

 
73

 
183

2022
96

 
69

 
165

 
87

 
67

 
154

2023
68

 
58

 
126

 
61

 
56

 
117

Thereafter
241

 
779

 
1,020

 
159

 
772

 
931

Total undiscounted lease payments
700

 
1,068

 
1,768

 
$
692

 
$
1,105

 
$
1,797

Less - amounts representing interest
(126
)
 
(551
)
 
(677
)
 
 
 
 
 
 
Lease liabilities
$
574

 
$
517

 
$
1,091

 
 
 
 
 
 

(1)     Amounts included for comparability and accounted for in accordance with ASC 840, "Leases".
(5)
Recent Financing Transactions

Long-Term Debt

In October 2019, MidAmerican Energy issued $600 million of its 3.15% First Mortgage Bonds due April 2050 and $250 million of its 3.65% First Mortgage Bonds due April 2029, which are part of the same series as the 3.65% First Mortgage Bonds issued in January 2019. An amount equal to the net proceeds was used to finance capital expenditures, disbursed during the period from December 20, 2018 to July 15, 2019, with respect to investments in MidAmerican Energy's 2,000-megawatt (nameplate capacity) Wind XI project, MidAmerican Energy's 591-megawatt (nameplate capacity) Wind XII project and the repowering of certain of MidAmerican Energy's existing wind facilities, which were previously financed with MidAmerican Energy's general funds.

In October 2019, Northern Powergrid (Yorkshire) plc issued £300 million of its 2.25% Bonds due October 2059 and intends to use the net proceeds for general corporate purposes.

In June 2019, Northern Natural Gas issued $200 million of its 4.30% Senior Bonds due January 2049. The bonds are part of the same series as the $450 million aggregate principal amount of 4.30% bonds due 2049 that were issued in July 2018. Northern Natural Gas intends to use the net proceeds to fund capital expenditures and for general corporate purposes.

In May 2019, Northern Electric Finance plc issued £150 million of its 2.75% Guaranteed Bonds due May 2049 and intends to use the net proceeds for general corporate purposes.

In March 2019, PacifiCorp issued $400 million of its 3.50% First Mortgage Bonds due June 2029 and $600 million of its 4.15% First Mortgage Bonds due February 2050. PacifiCorp used a portion of the net proceeds to repay short-term debt partially incurred in January 2019 to repay all of PacifiCorp's $350 million 5.50% First Mortgage Bonds due January 2019 and intends to use the remaining net proceeds to fund capital expenditures and for general corporate purposes.

16




In February 2019, MidAmerican Energy redeemed $500 million of its 2.40% First Mortgage Bonds due in March 2019 at a redemption price of 100% of the principal amount plus accrued interest.

In January 2019, Nevada Power issued $500 million of its 3.70% General and Refunding Mortgage Notes, Series CC, due May 2029. Nevada Power used the net proceeds to repay all of Nevada Power's $500 million 7.125% General and Refunding Mortgage Notes, Series V, maturing in March 2019.

In January 2019, MidAmerican Energy issued $600 million of its 3.65% First Mortgage Bonds due April 2029 and $900 million of its 4.25% First Mortgage Bonds due July 2049. An amount equal to the net proceeds was used to finance capital expenditures, disbursed during the period from November 1, 2017 to December 14, 2018, with respect to investments in MidAmerican Energy's 2,000-megawatt (nameplate capacity) Wind XI project, MidAmerican Energy's 591-megawatt (nameplate capacity) Wind XII project and the repowering of certain of MidAmerican Energy's existing wind facilities, which were previously financed with MidAmerican Energy's general funds.

Credit Facilities

In October 2019, Northern Powergrid amended and restated its existing £150 million multicurrency revolving credit facility expiring April 2020, extending the expiration date to October 2022 with two one-year extension options.

In August 2019, MidAmerican Energy entered into a $400 million unsecured credit facility, which expires August 2020 and has a variable rate based on the Eurodollar rate or a base rate, at MidAmerican Energy's option, plus a spread. The facility requires that MidAmerican Energy’s ratio of consolidated debt, including current maturities, to total capitalization not exceed 0.65 to 1.0 as of the last day of any quarter.

In May 2019, BHE extended, with lender consent, the expiration date for its existing $3.5 billion unsecured credit facility to June 2022 by exercising the first of two available one-year extensions.

In May 2019, PacifiCorp extended, with lender consent, the expiration date for each of its two existing $600 million unsecured credit facilities to June 2022 by exercising the remaining one-year extension option for one facility and exercising the first of two available one-year extensions for the second facility.

In May 2019, MidAmerican Energy extended, with lender consent, the expiration date for its existing $900 million unsecured credit facility to June 2022 by exercising the remaining one-year extension option.

In May 2019, Nevada Power and Sierra Pacific extended, with lender consent, the expiration date for its $400 million and $250 million secured credit facilities, respectively, to June 2022 by exercising the remaining one-year extension options.

(6)
Income Taxes

A reconciliation of the federal statutory income tax rate to the effective income tax rate applicable to income before income tax expense is as follows:
 
Three-Month Periods
 
Nine-Month Periods
 
Ended September 30,
 
Ended September 30,
 
2019
 
2018
 
2019
 
2018
 
 
 
 
 
 
 
 
Federal statutory income tax rate
21
 %
 
21
 %
 
21
 %
 
21
 %
Income tax credits
(43
)
 
(19
)
 
(35
)
 
(29
)
State income tax, net of federal income tax benefit
(3
)
 
1

 
(6
)
 
(6
)
Income tax effect of foreign income
(1
)
 

 
(2
)
 
(3
)
Effects of ratemaking
(9
)
 
(2
)
 
(5
)
 
(3
)
Equity income

 

 

 

Other, net
(1
)
 
1

 


1

Effective income tax rate
(36
)%
 
2
 %
 
(27
)%
 
(19
)%


17



Income tax credits relate primarily to production tax credits from wind-powered generating facilities owned by MidAmerican Energy, PacifiCorp and BHE Renewables. Federal renewable electricity production tax credits are earned as energy from qualifying wind-powered generating facilities is produced and sold and are based on a per-kilowatt hour rate pursuant to the applicable federal income tax law. Wind-powered generating facilities are eligible for the credits for 10 years from the date the qualifying generating facilities are placed in-service.

The Company's provision for income tax has been computed on a stand-alone basis. Berkshire Hathaway includes the Company in its United States federal and Iowa state income tax returns and the majority of all of its currently payable or receivable income tax is remitted to or received from Berkshire Hathaway. For the nine-month periods ended September 30, 2019 and 2018, the Company received net cash payments for federal income taxes from Berkshire Hathaway totaling $534 million and $450 million, respectively.

(7)
Employee Benefit Plans

Domestic Operations

Net periodic benefit cost (credit) for the domestic pension and other postretirement benefit plans included the following components (in millions):
 
Three-Month Periods
 
Nine-Month Periods
 
Ended September 30,
 
Ended September 30,
 
2019
 
2018
 
2019
 
2018
Pension:
 
 
 
 
 
 
 
Service cost
$
4

 
$
5

 
$
12

 
$
15

Interest cost
27

 
26

 
82

 
78

Expected return on plan assets
(38
)
 
(41
)
 
(115
)
 
(123
)
Net amortization
8

 
8

 
24

 
23

Net periodic benefit cost (credit)
$
1

 
$
(2
)
 
$
3

 
$
(7
)
 
 
 
 
 
 
 
 
Other postretirement:
 
 
 
 
 
 
 
Service cost
$
1

 
$
1

 
$
6

 
$
6

Interest cost
6

 
7

 
20

 
19

Expected return on plan assets
(10
)
 
(9
)
 
(30
)
 
(31
)
Net amortization

 
(3
)
 
(3
)
 
(9
)
Net periodic benefit credit
$
(3
)
 
$
(4
)
 
$
(7
)
 
$
(15
)

Amounts other than the service cost for pension and other postretirement benefit plans are recorded in Other, net in the Consolidated Statements of Operations. Employer contributions to the domestic pension and other postretirement benefit plans are expected to be $13 million and $1 million, respectively, during 2019. As of September 30, 2019, $9 million and $- million of contributions had been made to the domestic pension and other postretirement benefit plans, respectively.


18



Foreign Operations

Net periodic benefit cost for the United Kingdom pension plan included the following components (in millions):
 
Three-Month Periods
 
Nine-Month Periods
 
Ended September 30,
 
Ended September 30,
 
2019
 
2018
 
2019
 
2018
 
 
 
 
 
 
 
 
Service cost
$
3

 
$
5

 
$
11

 
$
15

Interest cost
13

 
14

 
39

 
42

Expected return on plan assets
(24
)
 
(25
)
 
(74
)
 
(78
)
Settlement
21

 
12

 
21

 
36

Net amortization
9

 
9

 
27

 
38

Net periodic benefit cost
$
22

 
$
15

 
$
24

 
$
53


Amounts other than the service cost for the United Kingdom pension plan are recorded in Other, net in the Consolidated Statements of Operations. Employer contributions to the United Kingdom pension plan are expected to be £44 million during 2019. As of September 30, 2019, £33 million, or $42 million, of contributions had been made to the United Kingdom pension plan.

(8)    Asset Retirement Obligations

In January 2018, MidAmerican Energy completed groundwater testing at its coal combustion residuals ("CCR") surface impoundments. Based on this information, MidAmerican Energy discontinued sending CCR to surface impoundments effective April 2018 and initiated analysis of additional actions to be taken. As a result of that analysis, MidAmerican Energy will remove all CCR material located below the water table and cap the material in such facilities, which is a more extensive closure activity than previously assumed. In the first quarter of 2019, MidAmerican Energy increased the asset retirement obligations for its fossil-fueled generating facilities by $237 million related to the cost of this closure activity. Closure activity on the six existing surface impoundments is estimated to extend through 2023.

(9)
Fair Value Measurements

The carrying value of the Company's cash, certain cash equivalents, receivables, payables, accrued liabilities and short-term borrowings approximates fair value because of the short-term maturity of these instruments. The Company has various financial assets and liabilities that are measured at fair value on the Consolidated Financial Statements using inputs from the three levels of the fair value hierarchy. A financial asset or liability classification within the hierarchy is determined based on the lowest level input that is significant to the fair value measurement. The three levels are as follows:

Level 1 — Inputs are unadjusted quoted prices in active markets for identical assets or liabilities that the Company has the ability to access at the measurement date.
Level 2 — Inputs include quoted prices for similar assets or liabilities in active markets, quoted prices for identical or similar assets or liabilities in markets that are not active, inputs other than quoted prices that are observable for the asset or liability and inputs that are derived principally from or corroborated by observable market data by correlation or other means (market corroborated inputs).
Level 3 — Unobservable inputs reflect the Company's judgments about the assumptions market participants would use in pricing the asset or liability since limited market data exists. The Company develops these inputs based on the best information available, including its own data.


19



The following table presents the Company's financial assets and liabilities recognized on the Consolidated Balance Sheets and measured at fair value on a recurring basis (in millions):
 
 
Input Levels for Fair Value Measurements
 
 
 
 
 
 
Level 1
 
Level 2
 
Level 3
 
Other(1)
 
Total
As of September 30, 2019
 
 
 
 
 
 
 
 
 
 
Assets:
 
 
 
 
 
 
 
 
 
 
Commodity derivatives
 
$

 
$
36

 
$
103

 
$
(25
)
 
$
114

Interest rate derivatives
 

 
7

 
23

 

 
30

Mortgage loans held for sale
 

 
1,060

 

 

 
1,060

Money market mutual funds(2)
 
837

 

 

 

 
837

Debt securities:
 
 
 
 
 
 
 
 
 
 
United States government obligations
 
189

 

 

 

 
189

International government obligations
 

 
5

 

 

 
5

Corporate obligations
 

 
57

 

 

 
57

Municipal obligations
 

 
1

 

 

 
1

Agency, asset and mortgage-backed obligations
 

 
1

 

 

 
1

Equity securities:
 
 
 
 
 
 
 
 
 
 
United States companies
 
309

 

 

 

 
309

International companies
 
1,132

 

 

 

 
1,132

Investment funds
 
182

 

 

 

 
182

 
 
$
2,649


$
1,167


$
126


$
(25
)
 
$
3,917

Liabilities:
 
 

 
 

 
 

 
 

 
 

Commodity derivatives
 
$
(3
)

$
(142
)

$
(25
)

$
101

 
$
(69
)
Interest rate derivatives
 
(3
)
 
(21
)
 
(3
)
 

 
(27
)
 
 
$
(6
)
 
$
(163
)
 
$
(28
)
 
$
101

 
$
(96
)
 
 
Input Levels for Fair Value Measurements
 
 
 
 
 
 
Level 1
 
Level 2
 
Level 3
 
Other(1)
 
Total
As of December 31, 2018
 
 
 
 
 
 
 
 
 
 
Assets:
 
 
 
 
 
 
 
 
 
 
Commodity derivatives
 
$
1

 
$
91

 
$
108

 
$
(52
)
 
$
148

Interest rate derivatives
 
1

 
13

 
10

 

 
24

Mortgage loans held for sale
 

 
468

 

 

 
468

Money market mutual funds(2)
 
409

 

 

 

 
409

Debt securities:
 
 
 
 
 
 
 
 
 
 
United States government obligations
 
187

 

 

 

 
187

International government obligations
 

 
4

 

 

 
4

Corporate obligations
 

 
46

 

 

 
46

Municipal obligations
 

 
2

 

 

 
2

Agency, asset and mortgage-backed obligations
 

 
1

 

 

 
1

Equity securities:
 
 
 
 
 
 
 
 
 
 
United States companies
 
256

 

 

 

 
256

International companies
 
1,441

 

 

 

 
1,441

Investment funds
 
128

 

 

 

 
128

 
 
$
2,423

 
$
625

 
$
118

 
$
(52
)
 
$
3,114

Liabilities:
 
 
 
 
 
 
 
 
 
 
Commodity derivatives
 
$
(1
)
 
$
(180
)
 
$
(9
)
 
$
111

 
$
(79
)
Interest rate derivatives
 

 
(32
)
 

 

 
(32
)
 
 
$
(1
)
 
$
(212
)
 
$
(9
)
 
$
111

 
$
(111
)

20




(1)
Represents netting under master netting arrangements and a net cash collateral receivable of $76 million and $59 million as of September 30, 2019 and December 31, 2018, respectively.
(2)
Amounts are included in cash and cash equivalents; other current assets; and noncurrent investments and restricted cash and investments on the Consolidated Balance Sheets. The fair value of these money market mutual funds approximates cost.
Derivative contracts are recorded on the Consolidated Balance Sheets as either assets or liabilities and are stated at estimated fair value unless they are designated as normal purchases or normal sales and qualify for the exception afforded by GAAP. When available, the fair value of derivative contracts is estimated using unadjusted quoted prices for identical contracts in the market in which the Company transacts. When quoted prices for identical contracts are not available, the Company uses forward price curves. Forward price curves represent the Company's estimates of the prices at which a buyer or seller could contract today for delivery or settlement at future dates. The Company bases its forward price curves upon market price quotations, when available, or internally developed and commercial models, with internal and external fundamental data inputs. Market price quotations are obtained from independent brokers, exchanges, direct communication with market participants and actual transactions executed by the Company. Market price quotations are generally readily obtainable for the applicable term of the Company's outstanding derivative contracts; therefore, the Company's forward price curves reflect observable market quotes. Market price quotations for certain electricity and natural gas trading hubs are not as readily obtainable due to the length of the contract. Given that limited market data exists for these contracts, as well as for those contracts that are not actively traded, the Company uses forward price curves derived from internal models based on perceived pricing relationships to major trading hubs that are based on unobservable inputs. The estimated fair value of these derivative contracts is a function of underlying forward commodity prices, interest rates, currency rates, related volatility, counterparty creditworthiness and duration of contracts.

The Company's mortgage loans held for sale are valued based on independent quoted market prices, where available, or the prices of other mortgage whole loans with similar characteristics. As necessary, these prices are adjusted for typical securitization activities, including servicing value, portfolio composition, market conditions and liquidity.

The Company's investments in money market mutual funds and debt and equity securities are stated at fair value. When available, a readily observable quoted market price or net asset value of an identical security in an active market is used to record the fair value. In the absence of a quoted market price or net asset value of an identical security, the fair value is determined using pricing models or net asset values based on observable market inputs and quoted market prices of securities with similar characteristics.


21



The following table reconciles the beginning and ending balances of the Company's assets and liabilities measured at fair value on a recurring basis using significant Level 3 inputs (in millions):
 
Three-Month Periods
 
Nine-Month Periods
 
Ended September 30,
 
Ended September 30,
 
 
 
Interest
 
 
 
Interest
 
Commodity
 
Rate
 
Commodity
 
Rate
 
Derivatives
 
Derivatives
 
Derivatives
 
Derivatives
2019:
 
 
 
 
 
 
 
Beginning balance
$
86

 
$
23

 
$
99

 
$
10

Changes included in earnings
1

 
158

 
6

 
305

Changes in fair value recognized in OCI

 

 
(1
)
 

Changes in fair value recognized in net regulatory assets
(17
)
 

 
(40
)
 

Purchases

 

 
4

 

Settlements
8

 
(161
)
 
10

 
(295
)
Ending balance
$
78

 
$
20

 
$
78

 
$
20

2018:
 
 
 
 
 
 
 
Beginning balance
$
83

 
$
17

 
$
94

 
$
9

Changes included in earnings
(1
)
 
54

 
3

 
140

Changes in fair value recognized in OCI
1

 

 
1

 

Changes in fair value recognized in net regulatory assets
3

 

 
(11
)
 

Purchases
1

 

 
2

 

Settlements
(3
)
 
(61
)
 
(5
)
 
(139
)
Ending balance
$
84

 
$
10

 
$
84

 
$
10


The Company's long-term debt is carried at cost on the Consolidated Balance Sheets. The fair value of the Company's long-term debt is a Level 2 fair value measurement and has been estimated based upon quoted market prices, where available, or at the present value of future cash flows discounted at rates consistent with comparable maturities with similar credit risks. The carrying value of the Company's variable-rate long-term debt approximates fair value because of the frequent repricing of these instruments at market rates. The following table presents the carrying value and estimated fair value of the Company's long-term debt (in millions):
 
As of September 30, 2019
 
As of December 31, 2018
 
Carrying
 
Fair
 
Carrying
 
Fair
 
Value
 
Value
 
Value
 
Value
 
 
 
 
 
 
 
 
Long-term debt
$
37,909

 
$
44,979

 
$
36,250

 
$
38,874


(10)
Commitments and Contingencies

Fuel, Capacity and Transmission Contract Commitments

In October 2019, Nevada Power terminated a power purchase agreement, due to the supplier's failure to satisfy its performance obligations as detailed in the agreement, that had minimum annual payments of approximately $60 million in 2019 through 2023 and $1,145 million in 2024 and thereafter, as of December 31, 2018.

22





Construction Commitments

During the nine-month period ended September 30, 2019, PacifiCorp and MidAmerican Energy entered into firm construction commitments totaling $1.1 billion for the remainder of 2019 through 2021 related to repowering and development of certain existing and new wind facilities in Wyoming, Montana, Washington and Iowa.

Easements

During the nine-month period ended September 30, 2019, PacifiCorp and MidAmerican Energy entered into non-cancelable easements with minimum payments totaling $593 million through 2060 for land in Wyoming, Montana and Iowa, on which some of its wind-powered generating facilities will be located.

Maintenance and Service Contracts

During the nine-month period ended September 30, 2019, PacifiCorp and MidAmerican Energy entered into non-cancelable maintenance and service contracts related to wind-powered generating facilities with minimum payments totaling $618 million through 2032.

BHE Renewables' Counterparty Risk

On January 29, 2019, PG&E Corporation and Pacific Gas and Electric Company (the "PG&E Utility") (together "PG&E") filed voluntary petitions for relief under chapter 11 of the United States Bankruptcy Code in the United States Bankruptcy Court for the Northern District of California ("PG&E Bankruptcy Filing"). The Company owns 100% of Topaz Solar Farm LLC ("Topaz") and owns a 49% interest in Agua Caliente Solar, LLC ("Agua Caliente"). Topaz is a 550-MW solar photovoltaic electric power generating facility located in California. Topaz sells 100% of its energy, capacity and renewable energy credits generated from the facility to PG&E Utility under a 25-year wholesale PPA that is in effect until October 2039. As of September 30, 2019, the Company's consolidated balance sheet includes $1.0 billion of property, plant and equipment, net and $0.9 billion of non-recourse project debt related to Topaz. Agua Caliente is a 290-MW solar photovoltaic electric power generating facility located in Arizona. Agua Caliente sells 100% of its energy, capacity and renewable energy credits generated from the facility to PG&E Utility under a 25-year wholesale PPA that is in effect until June 2039. As of September 30, 2019, the Company's equity investment in Agua Caliente totals $70 million and the project has $0.8 billion of non-recourse project debt owed to the United States Department of Energy. The PG&E Bankruptcy Filing is an event of default under the Topaz PPA ("PPA Default"). PG&E paid in full the invoices for December deliveries and all amounts invoiced to date for post-petition energy deliveries for both Topaz and Agua Caliente in 2019. PG&E has not paid for the power delivered from January 1 through January 28, 2019. The Company continues to perform on its obligations and deliver renewable energy to the PG&E Utility, and PG&E has publicly stated it will pay suppliers in full under normal terms for post-petition goods and services received. The Company maintains that, in light of the current facts and circumstances, the PPA Default could not reasonably be expected to result in a material adverse effect under the Topaz indenture and, therefore, no default has occurred under the Topaz indenture. In July 2019, the California Governor signed California Assembly Bill 1054 ("AB 1054") into law. AB 1054 is comprehensive legislation addressing wildfire risk in the state of California that, among other items, authorizes a wildfire fund which would operate as an insurance fund to support the creditworthiness of electrical utilities, if certain utilities, including PG&E, participate by making the required contributions, among other things. In July 2019, PG&E notified the California Public Utilities Commission of its intent to participate in the insurance fund and such participation requires, among other items, PG&E to exit bankruptcy by June 30, 2020. The Company believes it is more likely than not that no impairment exists and current debt obligations will be met, as post-petition contractual revenue payments are expected to be paid by PG&E Utility to the Topaz and Agua Caliente projects. The Company will continue to monitor the situation, including continued receipt of future PG&E payments and the future risk of the PPAs being rejected or modified through the bankruptcy process.

Legal Matters

The Company is party to a variety of legal actions arising out of the normal course of business. Plaintiffs occasionally seek punitive or exemplary damages. The Company does not believe that such normal and routine litigation will have a material impact on its consolidated financial results. The Company is also involved in other kinds of legal actions, some of which assert or may assert claims or seek to impose fines, penalties and other costs in substantial amounts and are described below.


23



Environmental Laws and Regulations

The Company is subject to federal, state, local and foreign laws and regulations regarding climate change, renewable portfolio standards, air and water quality, emissions performance standards, coal combustion byproduct disposal, hazardous and solid waste disposal, protected species and other environmental matters that have the potential to impact the Company's current and future operations. The Company believes it is in material compliance with all applicable laws and regulations.    

Hydroelectric Relicensing

PacifiCorp is a party to the 2016 amended Klamath Hydroelectric Settlement Agreement ("KHSA"), which is intended to resolve disputes surrounding PacifiCorp's efforts to relicense the Klamath Hydroelectric Project. The KHSA does not guarantee dam removal. Instead, it establishes a process for PacifiCorp, the states of Oregon and California ("States") and other stakeholders to assess whether dam removal can occur consistent with the settlement's terms. For PacifiCorp, the key elements of the settlement include: (1) a contribution from PacifiCorp's Oregon and California customers capped at $200 million plus $250 million in California bond funds; (2) complete indemnification from harms associated with dam removal; (3) transfer of the Federal Energy Regulatory Commission ("FERC") license to a third-party dam removal entity, the Klamath River Renewal Corporation ("KRRC"), who would conduct dam removal; and (4) ability for PacifiCorp to operate the facilities for the benefit of customers until dam removal commences.

In September 2016, the KRRC and PacifiCorp filed a joint application with the FERC to transfer the license for the four main-stem Klamath dams from PacifiCorp to the KRRC. Over the past two years, the KRRC has been supplementing the application with additional information about its financial, technical, and legal capacity to become the licensee. In July 2019, the KRRC provided the FERC with additional information about its financial capacity to become a licensee, including updated cost estimates, and its insurance, bonding and liability transfer package. The FERC is evaluating the KRRC's information and the proposed license transfer. The KRRC will continue to refine its insurance, bonding and liability transfer package, and PacifiCorp will review the KRRC's capacity to fulfill its indemnity obligation under the KHSA. If certain conditions in the amended KHSA are not satisfied (e.g., inadequate funding or inability of KRRC to satisfy its indemnification obligation) and the license does not transfer to the KRRC, PacifiCorp will resume relicensing with the FERC.

The United States Court of Appeals for the District of Columbia Circuit issued a decision in the Hoopa Valley Tribe v. FERC litigation, in January 2019, finding that the states of California and Oregon have waived their Clean Water Act, Section 401, water quality certification authority over the Klamath hydroelectric project relicensing. This decision has the potential to limit the ability of the States to impose water quality conditions on new and relicensed projects. Environmental interests, supported by California, Oregon and other states, asked the court to rehear the case, which was denied. Subsequently, environmental groups, supported by numerous states, filed a petition for certiorari before the United States Supreme Court, which remains pending.

Guarantees

The Company has entered into guarantees as part of the normal course of business and the sale of certain assets. These guarantees are not expected to have a material impact on the Company's consolidated financial results.


24



(11)
Revenue from Contracts with Customers

Energy Products and Services

The following table summarizes the Company's energy products and services revenue from contracts with customers ("Customer Revenue") by regulated energy and nonregulated energy, with further disaggregation of regulated energy by customer class and line of business, including a reconciliation to the Company's reportable segment information included in Note 14 (in millions):
 
 
For the Three-Month Period Ended September 30, 2019
 
 
PacifiCorp
 
MidAmerican Funding
 
NV Energy
 
Northern Powergrid
 
BHE Pipeline Group
 
BHE Transmission
 
BHE Renewables
 
BHE and
Other(1)
 
Total
Customer Revenue:
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Regulated:
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Retail electric
 
$
1,320

 
$
651

 
$
998

 
$

 
$

 
$

 
$

 
$
(1
)
 
$
2,968

Retail gas
 

 
61

 
16

 

 

 

 

 

 
77

Wholesale
 
8

 
56

 
6

 

 

 

 

 
(1
)
 
69

Transmission and
   distribution
 
26

 
16

 
27

 
195

 

 
179

 

 

 
443

Interstate pipeline
 

 

 

 

 
221

 

 

 
(25
)
 
196

Other
 

 

 

 

 

 

 

 

 

Total Regulated
 
1,354

 
784

 
1,047

 
195

 
221

 
179

 

 
(27
)
 
3,753

Nonregulated
 

 
9

 

 
9

 

 
5

 
276

 
161

 
460

Total Customer Revenue
 
1,354

 
793

 
1,047

 
204

 
221

 
184

 
276

 
134

 
4,213

Other revenue
 
13

 
4

 
7

 
26

 
5

 

 
53

 
16

 
124

Total
 
$
1,367

 
$
797

 
$
1,054

 
$
230

 
$
226

 
$
184

 
$
329

 
$
150

 
$
4,337

 
 
For the Nine-Month Period Ended September 30, 2019
 
 
PacifiCorp
 
MidAmerican Funding
 
NV Energy
 
Northern Powergrid
 
BHE Pipeline Group
 
BHE Transmission
 
BHE Renewables
 
BHE and
Other(1)
 
Total
Customer Revenue:
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Regulated:
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Retail electric
 
$
3,613

 
$
1,561

 
$
2,183

 
$

 
$

 
$

 
$

 
$
(1
)
 
$
7,356

Retail gas
 

 
416

 
74

 

 

 

 

 

 
490

Wholesale
 
47

 
232

 
34

 

 

 

 

 
(2
)
 
311

Transmission and
   distribution
 
76

 
47

 
75

 
634

 

 
514

 

 

 
1,346

Interstate pipeline
 

 

 

 

 
805

 

 

 
(86
)
 
719

Other
 

 

 
1

 

 

 

 

 

 
1

Total Regulated
 
3,736

 
2,256

 
2,367

 
634

 
805

 
514

 

 
(89
)
 
10,223

Nonregulated
 

 
25

 

 
27

 

 
13

 
599

 
442

 
1,106

Total Customer Revenue
 
3,736

 
2,281

 
2,367

 
661

 
805

 
527

 
599

 
353

 
11,329

Other revenue
 
57

 
18

 
22

 
75

 
4

 

 
146

 
78

 
400

Total
 
$
3,793

 
$
2,299

 
$
2,389

 
$
736

 
$
809

 
$
527

 
$
745

 
$
431

 
$
11,729


25



 
 
For the Three-Month Period Ended September 30, 2018
 
 
PacifiCorp
 
MidAmerican Funding
 
NV Energy
 
Northern Powergrid
 
BHE Pipeline Group
 
BHE Transmission
 
BHE Renewables
 
BHE and
Other(1)
 
Total
Customer Revenue:
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Regulated:
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Retail electric
 
$
1,323

 
$
647

 
$
1,002

 
$

 
$

 
$

 
$

 
$
(1
)
 
$
2,971

Retail gas
 

 
83

 
13

 

 

 

 

 

 
96

Wholesale(2)
 
(10
)
 
82

 
9

 

 

 

 

 
(1
)
 
80

Transmission and
   distribution
 
30

 
14

 
28

 
196

 

 
171

 

 

 
439

Interstate pipeline
 

 

 

 

 
283

 

 

 
(25
)
 
258

Other
 

 

 

 

 

 

 

 

 

Total Regulated
 
1,343

 
826

 
1,052

 
196

 
283

 
171

 

 
(27
)
 
3,844

Nonregulated
 

 
2

 

 
10

 

 
3

 
235

 
176

 
426

Total Customer Revenue
 
1,343

 
828

 
1,052

 
206

 
283

 
174

 
235

 
149

 
4,270

Other revenue(3)
 
26

 
4

 
7

 
27

 
(24
)
 

 
85

 
24

 
149

Total
 
$
1,369

 
$
832

 
$
1,059

 
$
233

 
$
259

 
$
174

 
$
320

 
$
173

 
$
4,419

 
 
For the Nine-Month Period Ended September 30, 2018
 
 
PacifiCorp
 
MidAmerican Funding
 
NV Energy
 
Northern Powergrid
 
BHE Pipeline Group
 
BHE Transmission
 
BHE Renewables
 
BHE and
Other(1)
 
Total
Customer Revenue:
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Regulated:
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Retail electric
 
$
3,534

 
$
1,538

 
$
2,232

 
$

 
$

 
$

 
$

 
$
(1
)
 
$
7,303

Retail gas
 

 
428

 
72

 

 

 

 

 

 
500

Wholesale
 
21

 
262

 
26

 

 

 

 

 
(3
)
 
306

Transmission and
   distribution
 
82

 
44

 
73

 
661

 

 
525

 

 

 
1,385

Interstate pipeline
 

 

 

 

 
893

 

 

 
(91
)
 
802

Other
 

 

 
1

 

 

 

 

 

 
1

Total Regulated
 
3,637

 
2,272

 
2,404

 
661

 
893

 
525

 

 
(95
)
 
10,297

Nonregulated
 

 
7

 
1

 
31

 

 
6

 
538

 
478

 
1,061

Total Customer Revenue
 
3,637

 
2,279

 
2,405

 
692

 
893

 
531

 
538

 
383

 
11,358

Other revenue(3)
 
109

 
18

 
21

 
65

 
(22
)
 

 
182

 
87

 
460

Total
 
$
3,746

 
$
2,297

 
$
2,426

 
$
757

 
$
871

 
$
531

 
$
720

 
$
470

 
$
11,818


(1)
The BHE and Other reportable segment represents amounts related principally to other entities, corporate functions and intersegment eliminations.
(2)
Includes net payments to counterparties for the financial settlement of certain non-derivative forward contracts for energy sales at PacifiCorp.
(3)
Includes net payments to counterparties for the financial settlement of certain derivative contracts at BHE Pipeline Group.


26



Real Estate Services

The following table summarizes the Company's real estate services Customer Revenue by line of business (in millions):

 
HomeServices
 
Three-Month Periods
 
Nine-Month Periods
 
Ended September 30,
 
Ended September 30,
 
2019
 
2018
 
2019
 
2018
Customer Revenue:
 
 
 
 
 
 
 
Brokerage
$
1,172

 
$
1,122

 
$
3,087

 
$
2,975

Franchise
20

 
18

 
53

 
52

Total Customer Revenue
1,192

 
1,140

 
3,140

 
3,027

Other revenue
115

 
78

 
279

 
225

Total
$
1,307

 
$
1,218

 
$
3,419

 
$
3,252


Remaining Performance Obligations

The following table summarizes the Company's revenue it expects to recognize in future periods related to significant unsatisfied remaining performance obligations for fixed contracts with expected durations in excess of one year as of September 30, 2019, by reportable segment (in millions):
 
Performance obligations expected to be satisfied:
 
 
 
Less than 12 months
 
More than 12 months
 
Total
BHE Pipeline Group
$
922

 
$
5,309

 
$
6,231


(12)
BHE Shareholders' Equity

For the nine-month periods ended September 30, 2019 and 2018, BHE repurchased 447,712 shares of its common stock for $293 million and 177,381 shares of its common stock for $107 million, respectively.

(13)
Components of Other Comprehensive Income (Loss), Net

The following table shows the change in AOCI attributable to BHE shareholders by each component of OCI, net of applicable income tax (in millions):
 
 
Unrecognized
 
Foreign
 
Unrealized
 
Unrealized
 
AOCI
 
 
Amounts on
 
Currency
 
Gains on
 
Gains (Losses)
 
Attributable
 
 
Retirement
 
Translation
 
Marketable
 
on Cash
 
To BHE
 
 
Benefits
 
Adjustment
 
Securities
 
Flow Hedges
 
Shareholders, Net
 
 
 
 
 
 
 
 
 
 
 
Balance, December 31, 2017
 
$
(383
)
 
$
(1,129
)
 
$
1,085

 
$
29

 
$
(398
)
Adoption of ASU 2016-01
 

 

 
(1,085
)
 

 
(1,085
)
Other comprehensive income (loss)
 
50

 
(236
)
 

 
2

 
(184
)
Balance, September 30, 2018
 
$
(333
)
 
$
(1,365
)
 
$

 
$
31

 
$
(1,667
)
 
 
 
 
 
 
 
 
 
 
 
Balance, December 31, 2018
 
$
(358
)
 
$
(1,623
)
 
$

 
$
36

 
$
(1,945
)
Other comprehensive loss
 
(40
)
 
(66
)
 

 
(28
)
 
(134
)
Balance, September 30, 2019
 
$
(398
)
 
$
(1,689
)
 
$

 
$
8

 
$
(2,079
)


27



(14)
Segment Information

The Company's reportable segments with foreign operations include Northern Powergrid, whose business is principally in the United Kingdom, BHE Transmission, whose business includes operations in Canada, and BHE Renewables, whose business includes operations in the Philippines. Intersegment eliminations and adjustments, including the allocation of goodwill, have been made. Information related to the Company's reportable segments is shown below (in millions):
 
Three-Month Periods
 
Nine-Month Periods
 
Ended September 30,
 
Ended September 30,
 
2019
 
2018
 
2019
 
2018
Operating revenue:
 
 
 
 
 
 
 
PacifiCorp
$
1,367

 
$
1,369

 
$
3,793

 
$
3,746

MidAmerican Funding
797

 
832

 
2,299

 
2,297

NV Energy
1,054

 
1,059

 
2,389

 
2,426

Northern Powergrid
230

 
233

 
736

 
757

BHE Pipeline Group
226

 
259

 
809

 
871

BHE Transmission
184

 
174

 
527

 
531

BHE Renewables
329

 
320

 
745

 
720

HomeServices
1,307

 
1,218

 
3,419

 
3,252

BHE and Other(1)
150

 
173

 
431

 
470

Total operating revenue
$
5,644

 
$
5,637

 
$
15,148

 
$
15,070

Depreciation and amortization:
 
 
 
 
 
 
 
PacifiCorp
$
272

 
$
203

 
$
686

 
$
602

MidAmerican Funding
184

 
133

 
540

 
499

NV Energy
121

 
114

 
361

 
341

Northern Powergrid
60

 
62

 
186

 
189

BHE Pipeline Group
28

 
27

 
85

 
99

BHE Transmission
59

 
61

 
177

 
184

BHE Renewables
71

 
68

 
210

 
198

HomeServices
11

 
14

 
35

 
37

BHE and Other(1)

 
(1
)
 
(2
)
 
(2
)
Total depreciation and amortization
$
806

 
$
681

 
$
2,278

 
$
2,147



28



 
Three-Month Periods
 
Nine-Month Periods
 
Ended September 30,
 
Ended September 30,
 
2019
 
2018
 
2019
 
2018
Operating income:
 
 
 
 
 
 
 
PacifiCorp
$
333

 
$
386

 
$
885

 
$
917

MidAmerican Funding
234

 
278

 
444

 
444

NV Energy
313

 
307

 
547

 
540

Northern Powergrid
98

 
102

 
337

 
360

BHE Pipeline Group
87

 
105

 
398

 
388

BHE Transmission
91

 
82

 
244

 
244

BHE Renewables
183

 
176

 
298

 
308

HomeServices
113

 
85

 
209

 
185

BHE and Other(1)
(2
)
 
2

 
(34
)
 
(20
)
Total operating income
1,450


1,523

 
3,328


3,366

Interest expense
(475
)
 
(453
)
 
(1,428
)
 
(1,380
)
Capitalized interest
23

 
17

 
56

 
44

Allowance for equity funds
56

 
30

 
126

 
75

Interest and dividend income
25

 
27

 
91

 
85

(Losses) gains on marketable securities, net
(234
)
 
260

 
(296
)
 
(336
)
Other, net
2

 
19

 
67

 
50

Total income before income tax expense and equity income
$
847


$
1,423

 
$
1,944


$
1,904

Interest expense:
 
 
 
 
 
 
 
PacifiCorp
$
101

 
$
96

 
$
299

 
$
288

MidAmerican Funding
74

 
61

 
223

 
185

NV Energy
55

 
52

 
173

 
169

Northern Powergrid
33

 
34

 
102

 
107

BHE Pipeline Group
14

 
11

 
38

 
31

BHE Transmission
40

 
42

 
118

 
127

BHE Renewables
44

 
49

 
132

 
150

HomeServices
6

 
6

 
20

 
16

BHE and Other(1)
108

 
102

 
323

 
307

Total interest expense
$
475

 
$
453

 
$
1,428


$
1,380

Operating revenue by country:
 
 
 
 
 
 
 
United States
$
5,222

 
$
5,209

 
$
13,875

 
$
13,757

United Kingdom
229

 
232

 
734

 
754

Canada
183

 
174

 
526

 
531

Philippines and other
10

 
22

 
13

 
28

Total operating revenue by country
$
5,644

 
$
5,637

 
$
15,148

 
$
15,070

Income before income tax benefit and equity income (loss) by country:
 
 
 
 
 
 
 
United States
$
728

 
$
1,290

 
$
1,546

 
$
1,501

United Kingdom
49

 
59

 
228

 
220

Canada
55

 
43

 
134

 
125

Philippines and other
15

 
31

 
36

 
58

Total income before income tax benefit and equity income (loss) by country
$
847

 
$
1,423

 
$
1,944

 
$
1,904



29



 
As of
 
September 30,
 
December 31,
 
2019
 
2018
Assets:
 
 
 
PacifiCorp
$
24,789

 
$
23,478

MidAmerican Funding
21,806

 
20,029

NV Energy
14,477

 
14,119

Northern Powergrid
7,334

 
7,427

BHE Pipeline Group
5,775

 
5,511

BHE Transmission
8,692

 
8,424

BHE Renewables
9,650

 
8,666

HomeServices
3,971

 
2,797

BHE and Other(1)
1,419

 
1,738

Total assets
$
97,913

 
$
92,189


(1)
The differences between the reportable segment amounts and the consolidated amounts, described as BHE and Other, relate principally to other entities, corporate functions and intersegment eliminations.

The following table shows the change in the carrying amount of goodwill by reportable segment for the nine-month period ended September 30, 2019 (in millions):
 
 
 
 
 
 
 
 
 
BHE Pipeline Group
 
 
 
 
 
 
 
 
 
PacifiCorp
 
MidAmerican Funding
 
NV Energy
 
Northern Powergrid
 
 
BHE Transmission
 
BHE Renewables
 
HomeServices
 
 
 
 
 
 
 
 
 
 
 
Total
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
December 31, 2018
$
1,129

 
$
2,102

 
$
2,369

 
$
952

 
$
73

 
$
1,448

 
$
95

 
$
1,427

 
$
9,595

Acquisitions

 

 

 

 

 

 

 
30

 
30

Foreign currency translation

 

 

 
(26
)
 

 
44

 

 

 
18

September 30, 2019
$
1,129

 
$
2,102

 
$
2,369

 
$
926

 
$
73

 
$
1,492

 
$
95

 
$
1,457

 
$
9,643


30



Item 2.
Management's Discussion and Analysis of Financial Condition and Results of Operations

The following is management's discussion and analysis of certain significant factors that have affected the consolidated financial condition and results of operations of the Company during the periods included herein. Explanations include management's best estimate of the impact of weather, customer growth and other usage factors. This discussion should be read in conjunction with the Company's historical unaudited Consolidated Financial Statements and Notes to Consolidated Financial Statements in Part I, Item 1 of this Form 10-Q. The Company's actual results in the future could differ significantly from the historical results.

The Company's operations are organized as eight business segments: PacifiCorp, MidAmerican Funding (which primarily consists of MidAmerican Energy), NV Energy (which primarily consists of Nevada Power and Sierra Pacific), Northern Powergrid (which primarily consists of Northern Powergrid (Northeast) Limited and Northern Powergrid (Yorkshire) plc), BHE Pipeline Group (which consists of Northern Natural Gas and Kern River), BHE Transmission (which consists of BHE Canada (which primarily consists of AltaLink) and BHE U.S. Transmission), BHE Renewables and HomeServices. BHE, through these locally managed and operated businesses, owns four utility companies in the United States serving customers in 11 states, two electricity distribution companies in Great Britain, two interstate natural gas pipeline companies in the United States, an electric transmission business in Canada, interests in electric transmission businesses in the United States, a renewable energy business primarily investing in wind, solar, geothermal and hydroelectric projects, the largest residential real estate brokerage firm in the United States and one of the largest residential real estate brokerage franchise networks in the United States. The reportable segment financial information includes all necessary adjustments and eliminations needed to conform to the Company's significant accounting policies. The differences between the reportable segment amounts and the consolidated amounts, described as BHE and Other, relate principally to other entities, corporate functions and intersegment eliminations.

Results of Operations for the Third Quarter and First Nine Months of 2019 and 2018

Overview

Net income for the Company's reportable segments is summarized as follows (in millions):
 
Third Quarter
 
First Nine Months
 
2019
 
2018
 
Change
 
2019
 
2018
 
Change
Net income attributable to BHE shareholders:
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
PacifiCorp
$
278

 
$
270

 
$
8

 
3
 %
 
$
626

 
$
603

 
$
23

 
4
 %
MidAmerican Funding
279

 
479

 
(200
)
 
(42
)
 
622

 
685

 
(63
)
 
(9
)
NV Energy
206

 
201

 
5

 
2

 
316

 
311

 
5

 
2

Northern Powergrid
37

 
44

 
(7
)
 
(16
)
 
181

 
169

 
12

 
7

BHE Pipeline Group
66

 
79

 
(13
)
 
(16
)
 
295

 
286

 
9

 
3

BHE Transmission
65

 
55

 
10

 
18

 
172

 
164

 
8

 
5

BHE Renewables
167

 
139

 
28

 
20

 
335

 
304

 
31

 
10

HomeServices
82

 
60

 
22

 
37

 
150

 
127

 
23

 
18

BHE and Other
(43
)
 
74

 
(117
)
 
*

 
(254
)
 
(363
)
 
109

 
30

Total net income attributable to BHE shareholders
$
1,137

 
$
1,401

 
$
(264
)
 
(19
)
 
$
2,443

 
$
2,286

 
$
157

 
7


*    Not meaningful

Net income attributable to BHE shareholders decreased $264 million for the third quarter of 2019 compared to 2018. The third quarter of 2019 included a pre-tax unrealized loss of $234 million ($170 million after-tax) compared to a pre-tax unrealized gain in the third quarter of 2018 of $252 million ($182 million after-tax), respectively, on the Company's investment in BYD Company Limited. Excluding the impact of this item, adjusted net income attributable to BHE shareholders for the third quarter of 2019 was $1,307 million, an increase of $88 million, or 7%, compared to adjusted net income attributable to BHE shareholders in the third quarter of 2018 of $1,219 million.


31



Net income attributable to BHE shareholders increased $157 million for the first nine months of 2019 compared to 2018. The first nine months of 2019 and 2018 included a pre-tax unrealized loss of $311 million ($226 million after-tax) and $346 million ($250 million after-tax), respectively, on the Company's investment in BYD Company Limited. Excluding the impact of this item, adjusted net income attributable to BHE shareholders for the first nine months of 2019 was $2,669 million, an increase of $133 million, or 5%, compared to adjusted net income attributable to BHE shareholders in the first nine months of 2018 of $2,536 million.

In 2018, the Domestic Regulated Businesses began passing the benefits of lower income tax expense related to 2017 Tax Reform to customers through various regulatory mechanisms, including lower retail rates, higher depreciation expense and reductions to rate base. The decrease in net income attributable to BHE shareholders for the third quarter of 2019 compared to 2018 was due to the following:
PacifiCorp's net income increased $8 million primarily due to higher allowances for equity and borrowed funds of $18 million and lower operations and maintenance expense of $14 million, largely due to a decrease in expenses from lower wildfire reserves, partially offset by lower recognized production tax credits of $8 million from expiring production tax credits and higher interest expense of $5 million. Utility margin was relatively unchanged; however, retail customer volumes decreased 1.6% primarily due to lower customer usage and the unfavorable impact of weather, partially offset by an increase in the average number of customers.
MidAmerican Funding's net income decreased $200 million primarily due to lower income tax benefit of $148 million primarily due to a $172 million decrease in recognized production tax credits, partially offset by the effects of ratemaking, higher depreciation and amortization expense of $51 million due to $33 million of higher Iowa revenue sharing accruals and greater assets placed in-service, and higher interest expense of $13 million, partially offset by higher electric utility margin and higher allowances for equity and borrowed funds of $12 million. The decrease in production tax credits recognized was due to a change in the method of interim period recognition of $185 million, partially offset by higher actual generation. Electric utility margin increased due to lower generation and purchased power costs and higher retail customer volumes, partially offset by lower wholesale revenue, lower average retail rates and lower recoveries through bill riders. Electric retail customer volumes increased 1.7% from higher industrial volumes of 2.9% and the favorable impact of weather, partially offset by a decrease in residential and commercial volumes from lower customer usage.
NV Energy's net income increased $5 million primarily due to lower operations and maintenance expense of $44 million, largely due to lower political activity expenses and lower earnings sharing accruals at Nevada Power, and lower income tax expense of $13 million largely offset by lower electric utility margin of $32 million, unfavorable other, net of $8 million, primarily due to higher non-service pension expense, higher depreciation and amortization expense of $7 million and higher interest expense of $4 million. Electric utility margin decreased primarily due to lower retail customer volumes and lower transmission and wholesale revenue, partially offset by an increase in the average number of customers. Electric retail customer volumes decreased 2.6% primarily due to the impacts of weather, net of increased distribution only service customer volumes.
Northern Powergrid's net income decreased $7 million primarily due to higher overall pension expense of $10 million, largely resulting from higher pension settlement losses recognized, and the stronger United States dollar of $2 million.
BHE Pipeline Group's net income decreased $13 million primarily due to lower transportation revenue of $30 million, partially offset by lower property and other tax expense of $11 million due to a non-recurring state property tax refund in 2019.
BHE Transmission's net income increased $10 million primarily due to $12 million from favorable regulatory decisions received in August 2019 at AltaLink and higher equity earnings at Electric Transmission Texas, LLC.
BHE Renewables' net income increased $28 million primarily due to higher wind earnings of $18 million primarily due to higher earnings from tax equity investments, mainly due to $12 million of earnings from projects reaching commercial operation and $6 million of higher commitment fees, improved geothermal earnings of $14 million from higher generation and pricing and improved solar earnings of $5 million from higher generation, partially offset by lower hydro earnings of $8 million from lower rainfall.
HomeServices' net income increased $22 million primarily due to higher earnings at existing mortgage businesses of $17 million and net income from acquired businesses.
BHE and Other had a net loss of $43 million for the third quarter of 2019 compared to net income of $74 million for the third quarter of 2018. The difference of $117 million was primarily due to the change in the after-tax unrealized position of the Company's investment in BYD Company Limited of $352 million, partially offset by $255 million of higher federal income tax credits recognized on a consolidated basis in large part due to the change in the method of interim period recognition at MidAmerican Funding.

32




The increase in net income attributable to BHE shareholders for the first nine months of 2019 compared to 2018 was due to the following:
PacifiCorp's net income increased $23 million primarily due to higher allowances for equity and borrowed funds of $40 million, higher utility margin of $34 million and lower operations and maintenance expense of $14 million, mainly due to a decrease in expenses from lower wildfire reserves, partially offset by higher depreciation and amortization expense of $19 million from additional plant placed in-service, higher interest expense of $11 million and lower recognized production tax credits of $11 million from expiring production tax credits. Utility margin increased primarily due to higher average retail rates, lower coal-fueled generation costs, higher retail customer volumes and higher net deferrals of incurred net power costs in accordance with established adjustment mechanisms, partially offset by lower wholesale revenue, higher natural gas-fueled generation costs and higher purchased electricity costs. Retail customer volumes increased 0.3% primarily due to an increase in the average number of customers and the favorable impact of weather, partially offset by lower customer usage.
MidAmerican Funding's net income decreased $63 million primarily due to lower income tax benefit of $52 million primarily due to a $90 million decrease in recognized production tax credits, partially offset by the effects of ratemaking, higher depreciation and amortization expense of $41 million due to greater assets placed in-service, partially offset by $15 million of lower Iowa revenue sharing accruals, and higher interest expense of $38 million, partially offset by higher electric utility margin and higher allowances for equity and borrowed funds of $26 million. The decrease in production tax credits recognized was due to a change in the method of interim period recognition of $129 million, partially offset by higher actual generation. Electric utility margin increased due to lower generation and purchased power costs, higher recoveries through bill riders and higher retail customer volumes, partially offset by lower average retail rates and lower wholesale revenue. Electric retail customer volumes increased 0.9% as an increase in industrial volumes of 4.0% was largely offset by lower residential and commercial volumes from the unfavorable impact of weather and lower customer usage.
NV Energy's net income increased $5 million primarily due to lower operations and maintenance expense of $88 million, largely due to lower political activity expenses and lower earnings sharing accruals at Nevada Power, and lower income tax expense of $8 million, largely offset by lower electric utility margin of $58 million, higher depreciation and amortization expense of $20 million, unfavorable other, net of $8 million, primarily due to higher non-service pension expense, and higher interest expense of $5 million. Electric utility margin decreased due to lower retail customer volumes and lower average retail rates from a tax rate reduction rider effective April 1, 2018, partially offset by higher wholesale and transmission revenue and an increase in the average number of customers. Electric retail customer volumes decreased 1.3% primarily due to the impacts of weather, net of increased distribution only service customer volumes.
Northern Powergrid's net income increased $12 million primarily due to lower overall pension expense of $25 million, largely resulting from lower pension settlement losses recognized in 2019 compared to 2018, partially offset by the stronger United States dollar of $11 million.
BHE Pipeline Group's net income increased $9 million primarily due to higher transportation revenue of $23 million, lower property and other tax expense of $9 million due to a non-recurring state property tax refund in 2019 and favorable margin of $9 million on system balancing activities, partially offset by higher operations and maintenance expense of $18 million, primarily from increased asset modernization and pipeline integrity projects, and higher depreciation and amortization expense, net of the impact of period two rates at Kern River.
BHE Transmission's net income increased $8 million primarily due to $12 million from favorable regulatory decisions received in August 2019 at AltaLink and higher equity earnings at Electric Transmission Texas, LLC, partially offset by the stronger United States dollar of $4 million and the unfavorable impact of a reduction in the Alberta provincial corporate income tax rate from the remeasurement of nonregulated deferred tax assets.
BHE Renewables' net income increased $31 million primarily due to higher wind earnings of $33 million and higher geothermal earnings of $23 million largely due to higher generation and pricing, partially offset by lower hydro earnings of $14 million, primarily due to lower rainfall and a declining financial asset balance, and lower solar earnings of $10 million primarily due to lower insolation and a settlement received in 2018 from Solar Star transformer related outages in 2016. Wind earnings were favorable primarily due to earnings from new projects of $28 million, improved tax equity investment earnings of $18 million and a favorable change in the valuation of a power purchase agreement of $10 million, partially offset by lower earnings on existing projects of $12 million from lower generation and $13 million of unfavorable changes in the valuation of interest rate swap derivatives. Tax equity investment earnings were favorable due to $33 million of earnings from projects reaching commercial operation and $10 million of higher commitment fees, partially offset by $23 million of lower earnings from existing projects mainly due to derates caused by turbine blade repairs.

33



HomeServices' net income increased $23 million primarily due to higher earnings at existing mortgage businesses of $27 million and net income from acquired businesses, partially offset by lower earnings at existing brokerage businesses primarily from lower closed units and margins.
BHE and Other's net loss improved $109 million primarily due to $176 million of higher federal income tax credits recognized on a consolidated basis in large part due to the change in the method of interim period recognition at MidAmerican Funding and the change in the after-tax unrealized position of the Company's investment in BYD Company Limited of $24 million, partially offset by $76 million of income tax benefits recognized in 2018 related to the accrued repatriation tax on undistributed foreign earnings and foreign earnings and lower margin of $21 million from unrealized mark to market losses on contracts at MidAmerican Energy Services, LLC.

Reportable Segment Results

Operating revenue and operating income for the Company's reportable segments are summarized as follows (in millions):
 
Third Quarter
 
First Nine Months
 
2019
 
2018
 
Change
 
2019
 
2018
 
Change
Operating revenue:
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
PacifiCorp
$
1,367

 
$
1,369

 
$
(2
)
 
 %
 
$
3,793

 
$
3,746

 
$
47

 
1
 %
MidAmerican Funding
797

 
832

 
(35
)
 
(4
)
 
2,299

 
2,297

 
2

 

NV Energy
1,054

 
1,059

 
(5
)
 

 
2,389

 
2,426

 
(37
)
 
(2
)
Northern Powergrid
230

 
233

 
(3
)
 
(1
)
 
736

 
757

 
(21
)
 
(3
)
BHE Pipeline Group
226

 
259

 
(33
)
 
(13
)
 
809

 
871

 
(62
)
 
(7
)
BHE Transmission
184

 
174

 
10

 
6

 
527

 
531

 
(4
)
 
(1
)
BHE Renewables
329

 
320

 
9

 
3

 
745

 
720

 
25

 
3

HomeServices
1,307

 
1,218

 
89

 
7

 
3,419

 
3,252

 
167

 
5

BHE and Other
150

 
173

 
(23
)
 
(13
)
 
431

 
470

 
(39
)
 
(8
)
Total operating revenue
$
5,644

 
$
5,637

 
$
7

 

 
$
15,148

 
$
15,070

 
$
78

 
1

 
Operating income:
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
PacifiCorp
$
333

 
$
386

 
$
(53
)
 
(14
)%
 
$
885

 
$
917

 
$
(32
)
 
(3
)%
MidAmerican Funding
234

 
278

 
(44
)
 
(16
)
 
444

 
444

 

 

NV Energy
313

 
307

 
6

 
2

 
547

 
540

 
7

 
1

Northern Powergrid
98

 
102

 
(4
)
 
(4
)
 
337

 
360

 
(23
)
 
(6
)
BHE Pipeline Group
87

 
105

 
(18
)
 
(17
)
 
398

 
388

 
10

 
3

BHE Transmission
91

 
82

 
9

 
11

 
244

 
244

 

 

BHE Renewables
183

 
176

 
7

 
4

 
298

 
308

 
(10
)
 
(3
)
HomeServices
113

 
85

 
28

 
33

 
209

 
185

 
24

 
13

BHE and Other
(2
)
 
2

 
(4
)
 
*

 
(34
)
 
(20
)
 
(14
)
 
(70
)
Total operating income
$
1,450

 
$
1,523

 
$
(73
)
 
(5
)
 
$
3,328

 
$
3,366

 
$
(38
)
 
(1
)

*    Not meaningful

PacifiCorp

Operating revenue decreased $2 million for the third quarter of 2019 compared to 2018 due to lower retail revenue. Retail revenue decreased due to lower customer volumes of $19 million, largely offset by higher average retail rates of $17 million primarily due to lower net tax deferrals associated with 2017 Tax Reform and product mix. Retail customer volumes decreased 1.6% primarily due to lower customer usage and the unfavorable impact of weather, partially offset by an increase in the average number of residential and commercial customers.


34



Operating income decreased $53 million for the third quarter of 2019 compared to 2018 primarily due to higher depreciation and amortization expense of $69 million, primarily due to $65 million (offset in income tax expense) of accelerated depreciation for Oregon’s share of certain retired wind equipment due to repowering, partially offset by lower operations and maintenance expense of $14 million largely due to a decrease in expenses from lower wildfire reserves.

Operating revenue increased $47 million for the first nine months of 2019 compared to 2018 due to higher retail revenue of $81 million, partially offset by lower wholesale and other revenue of $34 million, primarily due to lower wholesale volumes. Retail revenue increased primarily due to higher average retail rates of $65 million due to lower net tax deferrals associated with 2017 Tax Reform and product mix and $17 million from higher customer volumes. Retail customer volumes increased 0.3% primarily due to an increase in the average number of residential and commercial customers and the favorable impact of weather, partially offset by lower customer usage.

Operating income decreased $32 million for the first nine months of 2019 compared to 2018 primarily due to higher depreciation and amortization expense of $84 million, partially offset by higher utility margin of $34 million and lower operations and maintenance expense of $14 million largely due to a decrease in expenses from lower wildfire reserves. The increase in depreciation and amortization expense reflects $65 million (offset in income tax expense) of accelerated depreciation for Oregon’s share of certain retired wind equipment due to repowering and higher plant in-service. Utility margin increased primarily due to higher average retail rates, lower coal-fueled generation costs, higher retail customer volumes and higher net deferrals of incurred net power costs in accordance with established adjustment mechanisms, partially offset by lower wholesale revenue, higher natural gas-fueled generation costs and higher purchased electricity costs.

MidAmerican Funding

Operating revenue decreased $35 million for the third quarter of 2019 compared to 2018 primarily due to lower demand-side management electric and natural gas revenue of $30 million (offset in operations and maintenance expense) and lower natural gas operating revenue, partially offset by higher other operating revenue of $7 million, primarily from nonregulated utility construction services, and higher electric operating revenue. Natural gas operating revenue decreased primarily due to a lower average per-unit cost of gas sold (offset in cost of sales) and 5.9% lower retail sales volumes from the unfavorable impact of weather. Electric operating revenue increased due to higher retail revenue, partially offset by lower wholesale and other revenue of $19 million, which decreased due to a 20.9% decrease in wholesale volumes and lower average per-unit prices of $6 million. Electric retail revenue increased from higher recoveries through bill riders (substantially offset in cost of fuel and energy, operations and maintenance expense and income tax expense), primarily the energy adjustment clause, $6 million from the favorable impact of weather and $6 million from higher customer usage, primarily industrial, partially offset by $5 million from lower average rates due to sales mix. Electric retail customer volumes increased 1.7% primarily from higher industrial volumes of 2.9% and the favorable impact of weather, partially offset by a decrease in residential and commercial volumes from lower customer usage.

Operating income decreased $44 million for the third quarter of 2019 compared to 2018 primarily due to higher depreciation and amortization expense of $51 million and higher operations and maintenance expense, partially offset by higher electric utility margin. The increase in depreciation and amortization expense reflects higher Iowa revenue sharing accruals of $33 million and an increase related to new wind-powered generation and other plant additions. Operations and maintenance expense increased mainly due to increased electric generation costs and higher electric and natural gas distribution costs. Electric utility margin increased due to lower generation and purchased power costs, higher recoveries through bill riders and higher retail customer volumes, partially offset by lower wholesale revenue and lower average retail rates.

Operating revenue increased $2 million for the first nine months of 2019 compared to 2018 due to higher electric operating revenue and higher other operating revenue of $18 million, primarily from nonregulated utility construction services, partially offset by lower demand-side management electric and natural gas revenue of $46 million and lower natural gas operating revenue. Electric operating revenue increased due to higher retail revenue, partially offset by lower wholesale and other revenue of $14 million. Electric retail revenue increased from higher recoveries through bill riders, primarily the energy adjustment clause, and $44 million from higher customer usage, primarily industrial, partially offset by lower average rates of $32 million due to sales mix and $18 million from the unfavorable impact of weather. Electric retail customer volumes increased 0.9% as an increase in industrial volumes of 4.0% was largely offset by lower residential and commercial volumes from the unfavorable impact of weather and lower customer usage. Electric wholesale and other revenue decreased due to lower wholesale average per-unit prices of $15 million, partially offset by a 1.9% increase in wholesale volumes. Natural gas operating revenue decreased due to a lower average per-unit cost of gas sold, partially offset by 3.2% higher retail sales volumes from the favorable impact of weather in 2019.


35



Operating income was unchanged for the first nine months of 2019 compared to 2018 primarily due to higher electric utility margin, offset by higher depreciation and amortization expense of $41 million and higher operations and maintenance expense. Electric utility margin increased due to higher recoveries through bill riders, lower generation and purchased power costs and higher retail customer volumes, partially offset by lower average retail rates and lower wholesale revenue. The increase in depreciation and amortization expense reflects an increase related to new wind-powered generation and other plant additions, partially offset by lower Iowa revenue sharing accruals of $15 million. Operations and maintenance expense increased mainly due to higher electric generation costs and higher electric and natural gas distribution costs.

NV Energy

Operating revenue decreased $5 million for the third quarter of 2019 compared to 2018 primarily due to lower electric operating revenue of $9 million, partially offset by higher natural gas operating revenue of $3 million. Electric operating revenue decreased due to lower wholesale and other revenue of $5 million and lower retail revenue of $4 million. Electric retail revenue decreased primarily due to lower customer volumes of $29 million, partially offset by higher energy rates (offset in cost of fuel and energy) of $23 million and an increase in the average number of customers of $5 million. Electric retail customer volumes decreased 2.6% primarily due to the impacts of weather, net of increased distribution only service customer volumes.

Operating income increased $6 million for the third quarter of 2019 compared to 2018 due to lower operations and maintenance expense of $44 million, primarily due to lower political activity expenses and lower earnings sharing accruals at Nevada Power, partially offset by lower electric utility margin of $32 million and higher depreciation and amortization expense of $7 million. Electric utility margin decreased due to higher energy costs of $23 million and lower operating revenue. Energy costs increased due to higher net deferred power costs of $106 million, partially offset by lower purchased power costs of $56 million and a lower average cost of fuel for generation of $27 million.

Operating revenue decreased $37 million for the first nine months of 2019 compared to 2018 primarily due to lower electric operating revenue of $38 million. Electric operating revenue decreased due to lower retail revenue of $48 million, partially offset by higher wholesale and other revenue of $10 million. Electric retail revenue decreased primarily due to lower retail customer volumes of $47 million and a decrease from the tax rate reduction rider effective April 1, 2018 of $17 million, partially offset by higher energy rates (offset in cost of fuel and energy) of $10 million and an increase in the average number of customers of $10 million. Electric retail customer volumes decreased 1.3% primarily due to the impacts of weather, net of increased distribution only service customer volumes.

Operating income increased $7 million for the first nine months of 2019 compared to 2018 due to lower operations and maintenance expense of $88 million, primarily due to lower political activity expenses and lower earnings sharing accruals at Nevada Power, partially offset by lower electric utility margin of $58 million and higher depreciation and amortization expense of $20 million. Electric utility margin decreased due to the lower operating revenue and higher energy costs of $20 million. Energy costs increased due to higher net deferred power costs of $50 million and a higher average cost of fuel for generation of $12 million, partially offset by lower purchased power costs of $42 million.

Northern Powergrid

Operating revenue decreased $3 million for the third quarter of 2019 compared to 2018 primarily due to the stronger United States dollar of $13 million and lower distributed units of $4 million, partially offset by higher distribution tariff rates of $9 million and higher smart meter revenue of $2 million from increased smart meter asset additions. Operating income decreased $4 million for the third quarter of 2019 compared to 2018 primarily due to the stronger United States dollar of $6 million, higher distribution-related operations and maintenance expense and higher depreciation expense related to additional distribution network and smart meter investments, partially offset by the higher distribution and smart meter revenues.

Operating revenue decreased $21 million for the first nine months of 2019 compared to 2018 primarily due to the stronger United States dollar of $46 million and lower distributed units of $19 million, partially offset by higher distribution tariff rates of $29 million and higher smart meter revenue of $13 million from increased smart meter asset additions. Operating income decreased $23 million for the first nine months of 2019 compared to 2018 primarily due to the stronger United States dollar of $21 million, higher distribution-related operations and maintenance expense and higher depreciation expense related to additional distribution network and smart meter investments, partially offset by the higher distribution and smart meter revenues.


36



BHE Pipeline Group

Operating revenue decreased $33 million for the third quarter of 2019 compared to 2018 primarily due to $30 million of lower transportation revenue largely from lower rates and volumes and $3 million from refunds related to 2017 Tax Reform. Operating income decreased $18 million for the third quarter of 2019 compared to 2018 primarily due to lower transportation revenue of $30 million, partially offset by lower property and other tax expense of $11 million due to a non-recurring state property tax refund in 2019.

Operating revenue decreased $62 million for the first nine months of 2019 compared to 2018 due to lower gas sales of $58 million at Northern Natural Gas related to system balancing activities (largely offset in cost of sales) and lower transportation revenue of $3 million. Transportation revenue decreased from the impact of period two rates of $26 million (largely offset in depreciation and amortization expense) and $9 million from refunds related to 2017 Tax Reform at Kern River, largely offset by generally higher volumes and rates. Operating income increased $10 million for the first nine months of 2019 compared to 2018 primarily due to higher transportation revenue of $23 million, lower property and other tax expense of $9 million due to a non-recurring state property tax refund in 2019 and favorable margins of $9 million on system balancing activities, partially offset by higher operations and maintenance expense of $18 million, primarily from increased asset modernization and pipeline integrity projects, and higher depreciation and amortization expense, net of the impact of period two rates at Kern River.

BHE Transmission

Operating revenue increased $10 million for the third quarter of 2019 compared to 2018 primarily due to $12 million from favorable regulatory decisions received in August 2019, partially offset by the stronger United States dollar of $2 million. Operating income increased $9 million for the third quarter of 2019 compared to 2018 primarily due to the higher operating revenue.

Operating revenue decreased $4 million for the first nine months of 2019 compared to 2018 primarily due to the stronger United States dollar of $17 million, partially offset by $12 million from favorable regulatory decisions received in August 2019. Operating income was unchanged for the first nine months of 2019 compared to 2018 as the impact from the favorable regulatory decisions received in August 2019 was largely offset by the stronger United States dollar of $8 million.

BHE Renewables

Operating revenue increased $9 million for the third quarter of 2019 compared to 2018 primarily due to higher natural gas revenues of $15 million due to higher generation and pricing and higher solar revenues of $7 million due to higher insolation and pricing, partially offset by lower hydro revenues of $12 million from lower rainfall. Operating income increased $7 million for the third quarter of 2019 compared to 2018 primarily due to the higher operating revenue and lower other operations and maintenance expense of $5 million, partially offset by higher expenses related to new wind-powered generation of $5 million.

Operating revenue increased $25 million for the first nine months of 2019 compared to 2018 primarily due to higher wind revenues of $29 million and higher natural gas revenues of $21 million due to higher generation and pricing, partially offset by lower hydro revenues of $16 million due to lower rainfall and lower solar revenues of $10 million due to lower insolation. Wind revenues increased primarily due to $28 million from new projects and a favorable change in the valuation of a power purchase agreement of $10 million, partially offset by lower generation of $9 million at existing projects. Operating income decreased $10 million for the first nine months of 2019 compared to 2018 primarily due to higher expenses related to new wind-powered generation of $26 million and higher other operations and maintenance expense of $10 million, partially offset by the higher operating revenue.

HomeServices

Operating revenue increased $89 million for the third quarter of 2019 compared to 2018 due to higher revenue at existing businesses, primarily mortgage, of $63 million and an increase from acquired businesses of $26 million. Operating income increased $28 million for the third quarter of 2019 compared to 2018 primarily due to an increase at existing mortgage businesses of $21 million and an increase from acquired businesses of $5 million.

Operating revenue increased $167 million for the first nine months of 2019 compared to 2018 due to an increase from acquired businesses of $195 million and higher mortgage revenue at existing businesses of $63 million, partially offset by lower brokerage revenue at existing businesses of $91 million primarily due to a 5% decrease in closed units. Operating income increased $24 million for the first nine months of 2019 compared to 2018 primarily due to an increase at existing mortgage businesses of $37 million and an increase from acquired businesses of $13 million, partially offset by a decrease at existing brokerage companies of $30 million primarily from lower closed units and margins.


37



BHE and Other

Operating revenue decreased $23 million for the third quarter of 2019 compared to 2018 and $39 million for the first nine months of 2019 compared to 2018 primarily due to lower electricity and natural gas volumes at MidAmerican Energy Services, LLC. Operating loss increased $4 million for the third quarter of 2019 compared to 2018 and $14 million for the first nine months of 2019 compared to 2018 due to lower margin of $21 million from unrealized mark to market losses on contracts at MidAmerican Energy Services, LLC for the first nine months.

Consolidated Other Income and Expense Items

Interest expense

Interest expense is summarized as follows (in millions):
 
Third Quarter
 
First Nine Months
 
2019
 
2018
 
Change
 
2019
 
2018
 
Change
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Subsidiary debt
$
366

 
$
347

 
$
19

 
5
%
 
$
1,102

 
$
1,062

 
$
40

 
4
%
BHE senior debt and other
108

 
105

 
3

 
3

 
322

 
314

 
8

 
3

BHE junior subordinated debentures
1

 
1

 

 

 
4

 
4

 

 

Total interest expense
$
475

 
$
453

 
$
22

 
5

 
$
1,428

 
$
1,380

 
$
48

 
3


Interest expense increased $22 million for the third quarter of 2019 compared to 2018 and $48 million for the first nine months of 2019 compared to 2018 primarily due to debt issuances at BHE, PacifiCorp, MidAmerican Energy and BHE Pipeline Group and higher short-term borrowings, partially offset by scheduled maturities, principal payments and the impact of foreign currency exchange rate movements.

Capitalized interest

Capitalized interest increased $6 million for the third quarter of 2019 compared to 2018 and $12 million for the first nine months of 2019 compared to 2018 primarily due to higher construction work-in-progress balances at PacifiCorp and MidAmerican Energy, partially offset by a lower construction work-in-progress balance at BHE Renewables.

Allowance for equity funds

Allowance for equity funds increased $26 million for the third quarter of 2019 compared to 2018 and $51 million for the first nine months of 2019 compared to 2018 primarily due to higher construction work-in-progress balances at PacifiCorp and MidAmerican Energy.

Interest and dividend income

Interest and dividend income decreased $2 million for the third quarter of 2019 compared to 2018 and increased $6 million for the first nine months of 2019 compared to 2018 primarily due to higher cash balances at PacifiCorp and NV Energy for the first nine months, partially offset by a declining financial asset balance at the Casecnan project.

(Losses) gains on marketable securities, net

(Losses) gains on marketable securities, net was unfavorable $(494) million for the third quarter of 2019 compared to 2018 and favorable $40 million for the first nine months of 2019 compared to 2018 primarily due to the change in the unrealized position on the Company's investment in BYD Company Limited of $(486) million and $35 million, respectively.


38



Other, net

Other, net decreased $17 million for the third quarter of 2019 compared to 2018 primarily due to higher non-service pension expense of $13 million, largely resulting from higher pension settlement losses recognized at Northern Powergrid, and lower investment earnings, partially offset by higher commitment fees of $6 million from new tax equity investments.

Other, net increased $17 million for the first nine months of 2019 compared to 2018 primarily due to higher investment earnings, higher commitment fees of $10 million and lower non-service pension expense of $7 million, largely resulting from lower pension settlement losses recognized in 2019 compared to 2018 at Northern Powergrid, partially offset by unfavorable changes in the valuation of interest rate swap derivatives of $13 million and a $7 million settlement received in 2018 due to transformer related outages at the Solar Star projects in 2016.

Income tax (benefit) expense

Income tax benefit increased $325 million for the third quarter of 2019 compared to 2018, including $134 million related to the change in the unrealized position of the Company's investment in BYD Company Limited. The effective tax rate was (36)% for the third quarter of 2019 and 2% for the third quarter of 2018. The effective tax rate decreased primarily due to the lower income before taxes from the Company's investment in BYD Company Limited, higher production tax credits recognized of $101 million and the favorable impacts of ratemaking of $51 million.

Income tax benefit increased $160 million for the first nine months of 2019 compared to 2018 and the effective tax rate was (27)% for the first nine months of 2019 and (19)% for the first nine months of 2018. The effective tax rate decreased primarily due to higher production tax credits recognized of $146 million and the favorable impacts of ratemaking of $66 million, partially offset by $76 million of benefits recognized in 2018 related to the accrued repatriation tax on undistributed foreign earnings and foreign earnings.

Production tax credits are recognized in earnings for interim periods based on the application of an estimated annual effective tax rate to pretax earnings. Federal renewable electricity production tax credits are earned as energy from qualifying wind-powered generating facilities is produced and sold based on a per-kilowatt rate pursuant to the applicable federal income tax law and are eligible for the credit for 10 years from the date the qualifying generating facilities are placed in-service. Production tax credits recognized in 2019 were $675 million, or $146 million higher than 2018, while production tax credits earned in 2019 were $504 million, or $90 million higher than 2018. The difference between production tax credits recognized and earned of $171 million as of September 30, 2019 will be reflected in earnings over the remainder of 2019.

Equity (loss) income

Equity (loss) income was unfavorable $13 million for the third quarter of 2019 compared to 2018 and $47 million for the first nine months of 2019 compared to 2018 primarily due to higher pre-tax equity losses from tax equity investments at BHE Renewables.


39



Liquidity and Capital Resources

Each of BHE's direct and indirect subsidiaries is organized as a legal entity separate and apart from BHE and its other subsidiaries. It should not be assumed that the assets of any subsidiary will be available to satisfy BHE's obligations or the obligations of its other subsidiaries. However, unrestricted cash or other assets that are available for distribution may, subject to applicable law, regulatory commitments and the terms of financing and ring-fencing arrangements for such parties, be advanced, loaned, paid as dividends or otherwise distributed or contributed to BHE or affiliates thereof. The Company's long-term debt may include provisions that allow BHE or its subsidiaries to redeem such debt in whole or in part at any time. These provisions generally include make-whole premiums. Refer to Note 16 of Notes to Consolidated Financial Statements in Item 8 of the Company's Annual Report on Form 10-K for the year ended December 31, 2018 for further discussion regarding the limitation of distributions from BHE's subsidiaries.

As of September 30, 2019, the Company's total net liquidity was as follows (in millions):
 
 
 
 
 
MidAmerican
 
NV
 
Northern
 
BHE
 
 
 
 
 
BHE
 
PacifiCorp
 
Funding
 
Energy
 
Powergrid
 
Canada
 
Other
 
Total
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Cash and cash equivalents
$
55

 
$
331

 
$
47

 
$
356

 
$
66

 
$
67

 
$
219

 
$
1,141

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Credit facilities(1)
3,500

 
1,200

 
1,309

 
650

 
185

 
661

 
1,945

 
9,450

Less:
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Short-term debt
(1,514
)
 

 

 

 

 
(315
)
 
(1,290
)
 
(3,119
)
Tax-exempt bond support and letters of credit

 
(256
)
 
(370
)
 

 

 
(5
)
 

 
(631
)
Net credit facilities
1,986

 
944

 
939

 
650

 
185

 
341

 
655

 
5,700

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Total net liquidity
$
2,041

 
$
1,275

 
$
986

 
$
1,006

 
$
251

 
$
408

 
$
874

 
$
6,841

Credit facilities:
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Maturity dates(1)
2022

 
2022

 
2020, 2022

 
2022

 
2020

 
2023

 
2019,
2020, 2022

 
 

(1) 
Refer to Note 5 of the Notes to Consolidated Financial Statements in Item 1 of this Form 10-Q for further discussion regarding the Company's recent financing transactions.

Operating Activities

Net cash flows from operating activities for the nine-month periods ended September 30, 2019 and 2018 were $4.7 billion and $5.0 billion, respectively. The decrease was primarily due to changes in working capital, partially offset by an increase in income tax receipts.

The timing of the Company's income tax cash flows from period to period can be significantly affected by the estimated federal income tax payment methods and assumptions used for each payment date.

Investing Activities

Net cash flows from investing activities for the nine-month periods ended September 30, 2019 and 2018 were $(6.0) billion and $(4.5) billion, respectively. The change was primarily due to higher funding of tax equity investments and higher capital expenditures of $695 million. Refer to "Future Uses of Cash" for further discussion of capital expenditures.


40



Financing Activities

Net cash flows from financing activities for the nine-month period ended September 30, 2019 was $1.9 billion. Sources of cash totaled $4.1 billion and consisted of proceeds from subsidiary debt issuances totaling $3.5 billion and net proceeds from short-term debt totaling $594 million. Uses of cash totaled $2.2 billion and consisted mainly of repayments of subsidiary debt totaling $1.8 billion and common stock repurchases totaling $293 million.

For a discussion of recent financing transactions, refer to Note 5 of Notes to Consolidated Financial Statements in Part I, Item 1 of this Form 10-Q.

Net cash flows from financing activities for the nine-month period ended September 30, 2018 was $(392) million. Uses of cash totaled $5.9 billion and consisted mainly of net repayments of short-term debt totaling $2.7 billion, repayments of subsidiary debt totaling $2.3 billion, repayments of BHE senior debt of $650 million and the purchase of redeemable noncontrolling interest of $131 million. Sources of cash totaled $5.5 billion and consisted of proceeds from BHE senior debt issuances totaling $3.2 billion and proceeds from subsidiary debt issuances totaling $2.4 billion.

The Company may from time to time seek to acquire its outstanding debt securities through cash purchases in the open market, privately negotiated transactions or otherwise. Any debt securities repurchased by the Company may be reissued or resold by the Company from time to time and will depend on prevailing market conditions, the Company's liquidity requirements, contractual restrictions and other factors. The amounts involved may be material.

Future Uses of Cash

The Company has available a variety of sources of liquidity and capital resources, both internal and external, including net cash flows from operating activities, public and private debt offerings, the issuance of commercial paper, the use of unsecured revolving credit facilities, the issuance of equity and other sources. These sources are expected to provide funds required for current operations, capital expenditures, acquisitions, investments, debt retirements and other capital requirements. The availability and terms under which BHE and each subsidiary has access to external financing depends on a variety of factors, including regulatory approvals, its credit ratings, investors' judgment of risk and conditions in the overall capital markets, including the condition of the utility industry and project finance markets, among other items.

Capital Expenditures

The Company has significant future capital requirements. Capital expenditure needs are reviewed regularly by management and may change significantly as a result of these reviews, which may consider, among other factors, impacts to customers' rates; changes in environmental and other rules and regulations; outcomes of regulatory proceedings; changes in income tax laws; general business conditions; load projections; system reliability standards; the cost and efficiency of construction labor, equipment and materials; commodity prices; and the cost and availability of capital. Expenditures for certain assets may ultimately include acquisitions of existing assets.


41



The Company's historical and forecast capital expenditures, each of which exclude amounts for non-cash equity AFUDC and other non-cash items, are as follows (in millions):
 
Nine-Month Periods
 
Annual
 
Ended September 30,
 
Forecast
 
2018
 
2019
 
2019
Capital expenditures by business:
 
 
 
 
 
PacifiCorp
$
713

 
$
1,449

 
$
2,292

MidAmerican Funding
1,466

 
1,909

 
2,880

NV Energy
342

 
448

 
676

Northern Powergrid
446

 
372

 
537

BHE Pipeline Group
251

 
403

 
770

BHE Transmission
203

 
175

 
239

BHE Renewables
741

 
97

 
122

HomeServices
34

 
38

 
58

BHE and Other
7

 
7

 
8

Total
$
4,203

 
$
4,898

 
$
7,582


Capital expenditures by type:
 
 
 
 
 
Wind generation
$
1,696

 
$
2,060

 
$
2,831

Electric transmission
118

 
472

 
655

Other growth
504

 
514

 
819

Operating
1,885

 
1,852

 
3,277

Total
$
4,203

 
$
4,898

 
$
7,582


The Company's historical and forecast capital expenditures consisted mainly of the following:
Wind generation includes the following:
Construction of wind-powered generating facilities at MidAmerican Energy totaling $1.0 billion and $704 million for the nine-month periods ended September 30, 2019 and 2018, respectively. MidAmerican Energy anticipates costs for wind-powered generating facilities will total an additional $420 million for 2019. MidAmerican Energy has approval to construct up to 2,591 MW (nominal ratings) of wind-powered generating facilities expected to be placed in-service in 2017 through 2020, including 1,345 MW (nominal ratings) placed in-service as of September 30, 2019. Additionally, MidAmerican Energy is constructing an additional 205 MW (nominal ratings) of wind-powered generating facilities expected to be placed in-service in 2020, with a forecast investment of $300 million, including AFUDC. This project is not under pre-approved ratemaking principles. Production tax credits from this project are expected be included in MidAmerican Energy's Iowa energy adjustment clause. MidAmerican Energy expects all of these wind-powered generating facilities to qualify for 100% of production tax credits available.
Repowering certain existing wind-powered generating facilities at MidAmerican Energy totaling $332 million and $233 million for the nine-month periods ended September 30, 2019 and 2018, respectively. The repowering projects entail the replacement of significant components of older turbines. MidAmerican Energy anticipates costs for these activities will total an additional $165 million for 2019. Of the 1,307 MW of current repowering projects not in-service as of September 30, 2019, 136 MW are currently expected to qualify for 100% of the federal production tax credits available for ten years following each facility's return to service, 764 MW are expected to qualify for 80% of such credits and 407 MW are expected to qualify for 60% of such credits.
Construction of wind-powered generating facilities at PacifiCorp totaling $245 million and $5 million for the nine-month periods ended September 30, 2019 and 2018, respectively. PacifiCorp anticipates costs for these activities will total an additional $104 million for 2019, which includes a new 240 MW wind-powered generating facility. The new wind-powered generating facilities are expected to be placed in-service in 2020. The energy production from the new wind-powered generating facilities is expected to qualify for 100% of the federal production tax credits available for ten years once the equipment is placed in-service.

42



Repowering certain existing wind-powered generating facilities at PacifiCorp totaling $442 million and $70 million for the nine-month periods ended September 30, 2019 and 2018, respectively. PacifiCorp anticipates costs for these activities will total an additional $180 million for 2019. The energy production from such repowered facilities is expected to qualify for 100% of the federal production tax credits available for ten years following each facility's return to service.
Construction of wind-powered generating facilities at BHE Renewables totaling $13 million and $684 million for the nine-month periods ended September 30, 2019 and 2018, respectively.
Electric transmission includes PacifiCorp's costs for the 140-mile 500-kV Aeolus-Bridger/Anticline transmission line, which is a major segment of PacifiCorp's Energy Gateway Transmission expansion program expected to be placed in service in 2020 and AltaLink's directly assigned projects from the AESO.
Other growth includes projects to deliver power and services to new markets, new customer connections, enhancements to existing customer connections and investments in solar generation.
Operating includes ongoing distribution systems infrastructure needed at the Utilities and Northern Powergrid, investments in routine expenditures for generation, transmission, distribution and other infrastructure needed to serve existing and expected demand, environmental spending relating to emissions control equipment and the management of coal combustion residuals.

Other Renewable Investments

The Company has invested in projects sponsored by third parties, commonly referred to as tax equity investments. Under the terms of these tax equity investments, the Company has entered into equity capital contribution agreements with the project sponsors that require contributions. The Company has made contributions of $1,145 million for the nine-month period ended September 30, 2019. Additionally, the Company has commitments as of September 30, 2019, subject to satisfaction of certain specified conditions, to provide equity contributions of $656 million for the remainder of 2019 and $1,760 million in 2020 pursuant to these equity capital contribution agreements as the various projects achieve commercial operation. Once a project achieves commercial operation, the Company enters into a partnership agreement with the project sponsor that directs and allocates the operating profits and tax benefits from the project.

Contractual Obligations

As of September 30, 2019, there have been no material changes outside the normal course of business in contractual obligations from the information provided in Item 7 of the Company's Annual Report on Form 10-K for the year ended December 31, 2018 other than the power purchase agreement termination discussed below and the recent financing transactions and renewable tax equity investments previously discussed.

In October 2019, Nevada Power terminated a power purchase agreement, due to the supplier's failure to satisfy its performance obligations as detailed in the agreement, that had annual contractual cash obligations of approximately $60 million in 2019 through 2023 and $1,145 million in 2024 and thereafter, as of December 31, 2018.

Regulatory Matters

BHE's regulated subsidiaries and certain affiliates are subject to comprehensive regulation. The discussion below contains material developments to those matters disclosed in Item 1 of each Registrant's Annual Report on Form 10-K for the year ended December 31, 2018, and new regulatory matters occurring in 2019.

PacifiCorp

Retirement Plan Settlement Charge

During 2018, the PacifiCorp Retirement Plan incurred a settlement charge of $22 million as a result of excess lump sum distributions over the defined threshold for the year ended December 31, 2018. In December 2018, PacifiCorp submitted filings with the UPSC, the OPUC, the WPSC and the WUTC seeking approval to defer the settlement charge. Also in December 2018, an advice letter was filed with the CPUC requesting a memo account to track the costs associated with pension and postretirement settlements and curtailments. In April 2019, WUTC approved PacifiCorp's requested deferral. In May 2019, the UPSC denied PacifiCorp's request. In June 2019 and July 2019, PacifiCorp filed testimony with the WPSC and OPUC, respectively. In October 2019, the request for a memo account was re-filed as an application with the CPUC. A hearing was held before the WPSC in October 2019 and a decision is expected before the end of 2019.

43




2017 Tax Reform

2017 Tax Reform enacted significant changes to the Internal Revenue Code, including, among other things, a reduction in the United States federal corporate income tax rate from 35% to 21%. In 2018, PacifiCorp agreed to refund or defer the impact of the tax law change with each of its state regulatory commissions. The status of the remaining 2017 Tax Reform proceedings is noted in the applicable state sections below.

Utah

In March 2018, PacifiCorp filed its annual EBA with the UPSC seeking approval to recover $3 million, or 0.1%, in deferred net power costs from customers for the period January 1, 2017 through December 31, 2017, reflecting the difference between base and actual net power costs in the 2017 deferral period. The rate change was approved by the UPSC effective May 1, 2018 on an interim basis. A hearing was held in February 2019, and final approval was issued March 2019.

In March 2019, PacifiCorp filed its annual EBA with the UPSC seeking approval to recover $24 million, or 1.1%, in deferred net power costs from customers for the period January 1, 2018 through December 31, 2018, reflecting the difference between base and actual net power costs in the 2018 deferral period. The rate change was approved by the UPSC effective May 1, 2019 on an interim basis. Following a decision from the Utah Supreme Court in June 2019 that found the UPSC did not have authority to approve interim rates in conjunction with the EBA, the UPSC directed PacifiCorp to terminate the interim rate change pending final approval in the proceeding. The hearing on final approval is scheduled for February 2020.

In May 2019, Utah House Bill 411 went into effect. The legislation, among other things, authorizes the UPSC to approve a renewable energy program for communities seeking 100% renewable electricity. Participating cities must adopt a resolution with a goal to be on 100% renewable electricity by 2030 before December 31, 2019. Customers within a participating community may opt out of the program and maintain existing rates. Rates approved for the program may not result in any shift of costs or benefits to nonparticipating customers. Several communities in Utah, including Salt Lake City, have either recently set renewable goals or are actively considering them.

Oregon

In December 2018, PacifiCorp proposed to reduce customer rates to reflect the lower annual current income tax expense in Oregon resulting from 2017 Tax Reform. PacifiCorp reached an all-party settlement on the amortization of the current income tax expense benefits and the deferral of the decision regarding the ratemaking treatment of excess deferred income tax balances until no later than PacifiCorp's next general rate proceeding. The settlement, which results in a rate reduction of $48 million, or 3.7%, effective February 1, 2019, was approved by the OPUC in January 2019.

In December 2018, PacifiCorp filed the 2019 RAC application requesting recovery of $37 million, or a 2.8% increase in rates, associated with repowering of approximately 900 MW of company-owned and installed wind facilities expected to be completed in 2019. In March 2019, the application was updated to request recovery of $32 million, or a 2.5% increase in rates. In August 2019, PacifiCorp filed an all-party settlement for the 2019 RAC. The settlement provides for an $11 million or 0.8% rate increase effective October 1, 2019, and a rate increase of $13 million or 1.0% effective December 1, 2019 for a total rate increase of $24 million or 1.8%. In September 2019, the commission approved the all-party settlement for the 2019 RAC. Per the terms of the settlement agreement, the October 1, 2019 rate increase of 0.7% was based upon a final cost update of $9 million that was filed in early September 2019. The December 1, 2019 rate increase is subject to final cost updates.

Additionally as part of the commission-approved settlement, parties agreed that the Oregon-allocated net book value of certain undepreciated equipment that is replaced as a result of repowering in 2019, which was approximately $157 million as of September 30, 2019, will be depreciated and offset with excess deferred income taxes resulting from 2017 Tax Reform. In September 2019, $65 million of the estimated $157 million was recognized based on repowering activities completed through September 30, 2019.

In April 2019, PacifiCorp submitted its annual TAM filing in Oregon requesting an annual decrease of $15 million, or an average rate decrease of 1.2%, based on forecasted net power costs and loads for calendar year 2020. The filing includes the customer benefits of repowering, including an increase in production tax credits. In September 2019, PacifiCorp filed an all-party settlement for the 2020 TAM. The settlement provides for a rate decrease of $20 million from the 2019 TAM, or an average rate decrease of 1.6%, effective January 1, 2020. In October 2019, the commission approved the all-party settlement.

44




In May 2019, PacifiCorp filed an application for deferral of incremental costs associated with implementing wildfire mitigation measures in Oregon. Operations and maintenance costs associated with the implementation measures are estimated to be $5 million in 2019.

Wyoming

In April 2018, PacifiCorp filed a partial settlement related to the impact of 2017 Tax Reform with the WPSC that provided a rate reduction of $23 million, or 3.3%, effective July 1, 2018 through June 30, 2019, with the remaining tax savings to be deferred with offsets to other costs. In June 2018, PacifiCorp filed reports with the WPSC with the calculation of the full impact of the tax law change on revenue requirement of $28 million annually, comprised of $20 million in current tax savings and $8 million for the amortization of excess deferred income tax balances. In March 2019, the WPSC issued a written order approving the continued annual rate reduction of $23 million until base rates are reset in the next general rate proceeding and a $4 million offset to PacifiCorp's 2018 ECAM rates. The order reflected the $20 million of current tax savings and was updated to reflect a projection of $7 million for amortization of excess deferred income tax balances. In April 2019, PacifiCorp filed a new application updating the amount of benefits being returned to customers. PacifiCorp continued the interim rate reduction that includes the previously approved $23 million and an additional $4 million reduction to offset the 2019 ECAM, effective June 15, 2019. A hearing will be held before the WPSC in November 2019 and a decision is expected before the end of 2019.

In April 2019, PacifiCorp submitted a compliance filing to the WPSC regarding bonus tax depreciation resulting in a $2 million rate reduction for the period June 15, 2019 through June 14, 2020.

In February 2019, PacifiCorp filed a certificate of public convenience and necessity application with the WPSC requesting to repower the existing Foote Creek I wind facility, which was approved without conditions in April 2019. In connection with the repowering of Foote Creek, PacifiCorp acquired the joint owner's 21% interest in the facility in June 2019.

In April 2019, PacifiCorp filed its annual ECAM and RRA application with the WPSC. The filing requests approval to recover from customers $7 million, or approximately 1.0%, in deferred net power costs for the period January 1, 2018 through December 31, 2018. The rate change went into effect on an interim basis June 15, 2019. In August, a joint notice of no contest was filed with the WPSC on behalf of PacifiCorp and the Wyoming Industrial Energy Consumers, the only intervenor in the proceeding. Interim rates are expected to be approved as final before the end of 2019. PacifiCorp has proposed to offset this increase with other rate credits that went into effect on June 15, 2019.

In July 2019, Wyoming Senate Enrolled Act No. 74 went into effect. The legislation, among other things, requires electric utilities to make a good faith effort to sell a coal-fired generation facility in Wyoming before it can receive recovery in rates for capital costs associated with new generation facilities built, in whole or in part, to replace the retiring coal facility. The electric utility is obligated to purchase the electricity from the facility through a power purchase agreement at a price that is no greater than the utility’s avoided cost, as determined by the WPSC. Costs associated with an approved power purchase agreement are expected to be recoverable in rates from Wyoming customers. PacifiCorp is working with the WPSC and other stakeholders to determine the implementation process. The overall impacts of this legislation cannot be determined at this time.
 
Washington

In June 2019, PacifiCorp submitted its 2018 PCAM filing with WUTC seeking approval to credit $7 million to the PCAM balancing account. No rate changes were requested.

Idaho

In May 2018, the IPUC approved a rate reduction of $6 million, or 2.2%, effective June 1, 2018 through May 31, 2019, to pass back a portion of the current tax benefits associated with 2017 Tax Reform. In March 2019 an all-party settlement resolving the treatment of the remaining tax savings was filed with the IPUC. In May 2019, the IPUC approved the all-party settlement resulting in the rate reduction for current tax savings being adjusted to $8 million per year, effective June 1, 2019 and $3 million related to amortization of excess deferred income taxes from the 2017 Tax Reform being applied as an offset to the 2019 ECAM.


45



In March 2019, PacifiCorp filed its annual ECAM application with the IPUC requesting recovery of $15 million, or 0.4%, for deferred costs in 2018. This filing includes recovery of the difference in actual net power costs to the base level in rates, an adder for recovery of the Lake Side 2 resource, recovery of Deer Creek Mine investment and changes in production tax credits and renewable energy credits. In May 2019, the IPUC approved recovery of the $15 million, effective June 1, 2019 to be offset by the $3 million related to amortization of excess deferred income taxes stemming from the all-party settlement related to the 2017 Tax Reform.
California

In April 2018, PacifiCorp filed a general rate case with the CPUC for an overall rate increase of $1 million, or 0.9%, effective January 1, 2019. A CPUC decision is anticipated by April 2020.

On September 21, 2018, California's governor signed legislation to strengthen California's ability to prevent and recover from catastrophic wildfires, including SB 901. SB 901 requires electric utilities to prepare and submit wildfire mitigation plans that describe the utilities' plans to prevent, combat and respond to wildfires affecting their service territories. PacifiCorp filed its wildfire mitigation plan with the CPUC on February 6, 2019. The wildfire mitigation plan incorporates the requirements outlined in SB 901, including situational awareness, system hardening, vegetation management and procedures for proactive de-energization in certain high risk areas during times of extreme danger.

SB 901 also authorized utilities, including PacifiCorp, to establish two memorandum accounts to track costs related to California Wildfire Mitigation. In March 2019, PacifiCorp received approval to establish a FRMMA effective January 1, 2019 to track a range of fire risk mitigation activities incremental to what is already included in PacifiCorp's rates. The CPUC also granted PacifiCorp the ability to track costs related to complying with the implementation of Proactive Safety Power Shut-off, or de-energization events in the FRMMA.

In May 2019, the CPUC issued a decision approving PacifiCorp's 2019 Wildfire Mitigation Plan. In June 2019, following approval of its 2019 Wildfire Mitigation Plan, PacifiCorp filed to establish a second Wildfire Mitigation Plan Memorandum Account effective May 31, 2019, to track costs related to the implementation of its approved 2019 Plan. Cost recovery is contingent on the CPUC's review of activities tracked in the memorandum accounts.

SB 901 also required the CPUC to develop a financial stress test methodology to determine the maximum amount an electrical corporation's shareholders can pay for 2017 catastrophic wildfire damages without harming ratepayers or impacting the utility's ability to provide adequate and safe service. The CPUC's final decision in June 2019 regarding this test does not have an impact on PacifiCorp as its assets did not cause catastrophic wildfires in California in 2017.

In July 2019, California's governor signed AB 1054 into law. AB 1054 is comprehensive legislation addressing wildfire risk in the state of California. The new law authorizes a wildfire fund which would operate as an insurance fund to support the creditworthiness of electrical utilities, if certain utilities participate by making the required contributions, among other things. In August, PacifiCorp notified the CPUC that it will not participate in the wildfire fund.

AB 1054 also amends CPUC requirements for recovery of wildfire-related costs regardless of participation in the insurance fund. The CPUC must allow cost recovery of the costs and expenses of a "covered wildfire" which is defined as a fire ignited on or after July 12, 2019, if they are determined to be just and reasonable, meaning the electrical corporation's conduct related to the ignition was consistent with actions that a reasonable utility would have undertaken in good faith under similar circumstances, at the relevant point in time, and based on the information available to the electrical corporation at the relevant point in time.

NV Energy (Nevada Power and Sierra Pacific)

Regulatory Rate Review

In June 2019, Sierra Pacific filed an electric regulatory rate review with the PUCN. The filing supported an annual revenue increase of $5 million but requested an annual revenue reduction of $5 million. In September 2019, Sierra Pacific filed an all-party settlement for the electric regulatory rate review. The settlement resolves all cost of capital and revenue requirement issues and provides for an annual revenue reduction of $5 million. The rate design portion of the regulatory rate review was not a part of the settlement and is expected to go to hearing in November 2019. An order is expected by the end of 2019 and, if approved, would be effective January 1, 2020.

In August 2019, as a part of the annual DEAA filing, the PUCN issued an order confirming the methodology of calculating the earnings sharing and directed Nevada Power, in its next regulatory rate review in June 2020, to address the return of the earnings sharing to customers.

46




2017 Tax Reform

In February 2018, the Nevada Utilities made filings with the PUCN proposing a tax rate reduction rider for the lower annual income tax expense anticipated to result from 2017 Tax Reform for 2018 and beyond. In March 2018, the PUCN issued an order approving the rate reduction proposed by the Nevada Utilities. The new rates were effective April 1, 2018. The order extended the procedural schedule to allow parties additional discovery relevant to 2017 Tax Reform and a hearing was held in July 2018. In September 2018, the PUCN issued an order directing the Nevada Utilities to record the amortization of any excess protected accumulated deferred income tax arising from the 2017 Tax Reform as a regulatory liability effective January 1, 2018. Subsequently, the Nevada Utilities filed a petition for reconsideration relating to the amortization of protected excess accumulated deferred income tax balances resulting from the 2017 Tax Reform. In November 2018, the PUCN issued an order granting reconsideration and reaffirming the September 2018 order. In December 2018, the Nevada Utilities filed a petition for judicial review. In January 2019, intervening parties filed statements of intent to participate in the petition for judicial review. The Nevada Utilities have filed opening briefs and the intervening parties have filed answering briefs. Oral arguments on the petition have been scheduled for January 2020.

Optional Pricing Program

In November 2018, the Nevada Utilities made filings with the PUCN to implement the Optional Pricing Program ("OPP"). The Nevada Utilities have designed the OPP to provide certain customers, namely those eligible to file an application pursuant to Chapter 704B of the Nevada Revised Statutes, with a market-based pricing option that is based on renewable resources. The OPP provides for an energy rate that would replace the base tariff energy rate and deferred energy accounting adjustment. The goal is to have an energy rate that yields an all-in effective rate that is competitive with market options available to such customers. In February 2019, the PUCN granted several intervenors the ability to participate in the proceeding. In June 2019, the Nevada Utilities withdrew their filings but plan to refile a modified tariff in December 2019 that incorporates the considerations raised by intervenors.

Chapter 704B Applications

Chapter 704B of the Nevada Revised Statutes allows retail electric customers with an average annual load of one MW or more to file with the PUCN an application to purchase energy from alternative providers of a new electric resource and become distribution only service customers. On a case-by-case basis, the PUCN will assess the application and may deny or grant the application subject to conditions, including paying an impact fee, paying on-going charges and receiving approval for specific alternative energy providers and terms. The impact fee and on-going charges are assessed to alleviate the burden on other Nevada customers for the applicant's share of previously committed investments and long-term renewable contracts and are set at a level designed such that the remaining customers are not subjected to increased costs. In June 2019, the Nevada Legislature passed Senate Bill 547 ("SB 547") which modifies the 704B process. The modifications outlined in SB 547, among others, require a utility to establish limits in their integrated resource plan on the amount of load that can take service under Chapter 704B, customers taking service under Chapter 704B continue to pay for public program costs and requires the alternative energy providers to be licensed by the PUCN. In addition, SB 547 requires customers to file a 704B application with the PUCN in January allowing for alignment with the capacity amount established in the integrated resource plan.

Since 2016, five fully bundled retail customers have transitioned to distribution only service and are acquiring energy from an energy supplier other than the Nevada Utilities. The total estimated peak demand of these customers was approximately 400 MW, as of the date their applications were filed with the PUCN, which represents approximately 5% of the annual hourly peak demand on the Nevada Utilities' electric system in 2018. The PUCN has imposed cumulative impact fees of $155 million on these customers which includes impact fee credits of $20 million established by the PUCN subsequent to the initial application approvals.

The Nevada Utilities have approximately 120 fully bundled retail customers that are eligible to file Chapter 704B applications. The PUCN has approved the applications of five additional fully bundled retail customers whose total estimated peak demand is approximately 95 MW, as of the date their applications were filed with the PUCN. The PUCN has imposed impact fees of $30 million on these customers. Subsequent to approval, three customers with a total estimated peak demand of approximately 85 MW and imposed impact fees of $27 million have withdrawn their applications leaving only two fully bundled customer applications open and approved. The PUCN has also approved the applications of four pending customers not yet receiving service. These six customers have not yet become distribution only service customers.


47



As of September 2019, in addition to the approved 704B applications, the Nevada Utilities have also received communications from eight additional fully bundled or pending customers, three of which provided a letter of intent to file an application with the PUCN and five of which filed an application with the PUCN to purchase energy from another energy supplier and become distribution only service customers. The five applicants have subsequently withdrawn their applications leaving no 704B applications awaiting consideration for approval. The three customers who filed letters of intent are no longer eligible to pursue 704B applications under the previous process due to the passage of SB 547.

The Nevada Utilities are addressing further Chapter 704B activity by evaluating options that include aligning with customer initiatives, implementing alternative pricing plans including the OPP, educating current customers on the value of the Nevada Utilities' fully bundled service and evaluating legislative or administrative changes to the Chapter 704B process as a result of SB 547.

Northern Powergrid Distribution Companies

GEMA, through the Ofgem, published its RIIO-2 sector methodology consultation in December 2018, continuing the process of developing the next set of price control arrangements that will be implemented for transmission and gas distribution networks in Great Britain. Ofgem explicitly states that this consultation does not set out proposals for Northern Powergrid's next price control, which will begin in April 2023. However, it also states that some of the proposals may be capable of application to that price control. Regarding allowed return on capital, Ofgem stated in the December 2018 consultation that it considered a cost of equity of 4.0% (plus inflation calculated using the United Kingdom's consumer prices index including owner occupiers' housing costs) would be appropriate for energy networks, which is approximately 2.5 percentage points lower than the current comparable cost of equity. This cost of equity assumption is based on a proposed debt capitalization assumption for the next price control of 60%, which is five percentage points lower than the 65% debt capitalization assumption for the current price control.

In May 2019, Ofgem published its sector methodology decision for the RIIO-2 price controls that will apply to transmission and gas distribution starting in April 2021. The decision confirmed a continued intention to move to lower returns, although Ofgem increased its initial view on the cost of equity of 4.0% to 4.3%. The transmission and gas distribution price control reviews are now moving into a detailed implementation phase, with draft and final determinations due in the summer and fall of 2020. In August 2019, Ofgem published its initial consultation on the next electricity distribution price control review, which is due to set price controls from April 2023. This initial consultation will be followed by a framework decision in the fourth quarter of 2019, a methodology consultation (and decision) in 2020 and initial and final determinations in 2022.
 
BHE Pipeline Group

Northern Natural Gas

In July 2018, the FERC issued a final rule adopting procedures for determining whether natural gas pipelines were collecting unjust and unreasonable rates in light of the reduction in the federal corporate tax rate from 2017 Tax Reform. Pursuant to the final rule, in October 2018, Northern Natural Gas filed an informational filing on FERC Form No. 501-G and a Statement Demonstrating Why No Rate Adjustment is Necessary. In January 2019, FERC initiated a Section 5 investigation to determine whether the rates currently charged by Northern Natural Gas are just and reasonable. As required by the FERC Section 5 order, Northern Natural Gas filed a full cost and revenue study on April 1, 2019. On July 1, 2019, Northern Natural Gas filed a Section 4 rate case. Northern Natural Gas has requested increases in various rates, including transportation reservation rates ranging from approximately 35% in the Field Area to 90% in the Market Area to be implemented, subject to refund, effective January 1, 2020. On September 12, 2019, FERC consolidated the Section 5 investigation and the Section 4 rate case into one procedural process set for hearing commencing June 23, 2020.


48



BHE Transmission

AltaLink

General Tariff Application

In August 2018, AltaLink filed its 2019-2021 GTA with the AUC, delivering on the first three years of its commitment to keep rates lower or flat for customers for the next five years. The three-year application achieves flat tariffs by keeping operating and maintenance expenses flat, with the exception of salaries and wages and software licensing fees, transitioning to a new salvage recovery approach and continuing the use of the flow-through income tax method. In addition, similar to the refund approved by the AUC for the 2017-2018 GTA of C$31 million, AltaLink proposes to provide a further tariff reduction over the three years by refunding previously collected accumulated depreciation surplus of an additional C$31 million. In November 2018, the AUC approved the 2019 interim refundable transmission tariff at C$74 million per month effective January 2019.

AltaLink provided responses to information requests in November 2018 and additional responses in December 2018 and April 2019. In April 2019, AltaLink filed an update to its 2019-2021 GTA application primarily to reflect its 2018 actual results and the impact of the AUC's decision on AltaLink's 2014-2015 Deferral Account Reconciliation Application. The application update also included AltaLink's fire mitigation plan and a request for additional capital expenditures and operating expenses to enhance its current practices, operations and maintenance program to reduce the risk of fires. The application requests the approval of revised revenue requirements of C$879 million, C$882 million and C$885 million for 2019, 2020 and 2021 respectively, which are lower than the approved 2018 revenue requirement of C$904 million. The forecast revenue requirement is based on an 8.5% return on equity and 37% deemed equity approved by the AUC for 2019 and 2020 and assumes the same for 2021 as placeholders.

In July 2019, AltaLink filed a 2019-2021 partial negotiated settlement application with the AUC. The application consisted of negotiated reductions from the April 2019 GTA of C$23 million of operating expenses and C$58 million of transmission capital maintenance and information technology capital expenditures over three years, as well as lower forecast interest rates and lower depreciation for the steel poles asset class. These reductions resulted in a C$38 million net decrease to the three-year total revenue requirement applied for in AltaLink's 2019-2021 GTA updated in April 2019. However, this may be partially offset by AltaLink's request for an additional C$20 million of forecast transmission line clearance capital as part of an excluded matter. The 2019-2021 Negotiated Settlement Agreement excluded matters consisting of the new salvage study and salvage recovery approach, additional capital for operations and maintenance and capital programs to reduce risk of fires, and to comply with line clearance code compliance requirements, and certain retirements for towers and fixtures. AltaLink's salvage proposal is estimated to save customers C$267 million between 2019 and 2023. Excluded matters will be examined by the AUC in a hearing scheduled for November 2019. If AltaLink is successful at hearing on the excluded matters and the negotiated settlement is approved, the revised revenue requirements will be C$873 million, C$870 million and C$870 million for 2019, 2020 and 2021, respectively, which are lower than the approved 2018 revenue requirement of C$904 million.

In August 2019, AltaLink responded to information requests with respect to its 2019-2021 negotiated settlement application and the excluded matters as described above. The hearing to examine the excluded matters is now scheduled for November 2019, and a decision from the AUC is expected in the second quarter of 2020.


2021 Generic Cost of Capital Proceeding

In December 2018, the AUC initiated a Generic Cost of Capital ("GCOC") proceeding to consider returning to a formula-based approach to determining the return on equity for a given year, starting with 2021. On April 4, 2019, after receiving comments from interested parties, the AUC expanded the scope of the proceeding to include a traditional non-formulaic GCOC inquiry as well as the consideration of returning to a formula-based approach. The AUC also issued a process timeline for the proceeding to commence in January 2020, with a hearing scheduled in April 2020.

Deferral Account Reconciliation Applications

In April 2017, AltaLink filed its application with the AUC with respect to AltaLink's 2014 projects and deferral accounts and specific 2015 projects. The application included approximately C$2.0 billion in net capital additions. In June 2017, the AUC ruled that the scope of the deferral account proceeding would not be extended to consider the utilization of assets for which final cost approval is sought. However, the AUC will initiate a separate proceeding to address the issue of transmission asset utilization and how the corporate and property law principles applied in the Utility Asset Disposition ("UAD") decision may relate.


49



In December 2017, AltaLink amended its application to include the remaining capital projects completed in 2015. The amended 2014 and 2015 Deferral Account Reconciliation Application includes 110 completed projects with total gross capital additions, including AFUDC, of C$4,017 million. A hearing was held in September 2018 after the completion of an extensive information request process earlier in the year.

In December 2018 and January 2019, the AUC issued decisions approving C$3,833 million out of the C$4,017 million capital project additions, including AFUDC, included in the application. Project costs of C$155 million were deferred to a future hearing. The AUC disallowed capital additions of approximately C$29 million including applicable AFUDC, pending receipt of additional requested supporting documentation for certain specific items. In February 2019, AltaLink filed its 2014-2015 Deferral Account Reconciliation Application compliance filing to reflect the findings, conclusions and directions arising from these decisions. In its compliance filing, AltaLink requested approval of interest in the amount of C$10 million on total outstanding amount of C$110 million to be recovered through a one-time payment from the AESO, upon AUC approval. In addition, the AUC ruled that it will put in placeholder amounts for the approved costs of the assets in the 2014-2015 Deferral Account Reconciliation Application proceeding until the AUC-initiated proceeding to consider the issue of transmission asset utilization.

In March 2019, AltaLink responded to information requests from the AUC. In August 2019, the AUC issued its decision with respect to AltaLink’s 2014-2015 Deferral Account Reconciliation Application compliance filing. The AUC ruled that AltaLink has complied with all directives from the December 2018 and January 2019 decisions with the exception of C$2 million of capital costs that were transferred from a canceled project to a completed one. AltaLink was directed to remove this amount and recover the cost directly from FortisAlberta. The AUC also approved C$9 million of the C$10 million in interest requested by AltaLink in its compliance filing. In September 2019, AltaLink filed a second compliance filing reflecting the directives from the AUC's August 2019 decision. Final AUC approval is expected by the end of 2019.

In July 2019, AltaLink filed its 2016-2018 Deferral Account Reconciliation Application with the AUC after a ruling on confidentiality. The application includes 116 projects with total actual gross capital additions, including AFUDC, of C$976 million.

In October 2019, AltaLink provided responses to a large number of information requests regarding its 2016-2018 Deferral Account Reconciliation Application. The balance of the process steps and related schedule will be established following completion of the information request process. In October 2019, AltaLink filed its Edmonton Region Project as a standalone application. The capital cost of this project was included as a placeholder in its 2016-2018 Deferral Account Reconciliation Application.

Alberta Electric System Operator Tariff Decision

In September 2019, the AUC issued its decision with respect to the 2018 AESO tariff. As part of this decision, the AUC approved AltaLink’s proposal to refund contributions made by distribution facility owners relative to transmission projects built and owned by transmission facility owners. The proposal will benefit distribution customers by flowing through the lower cost of capital of the transmission facility owner rather than the higher cost of capital of the distribution facility owner. As directed by the AUC, AltaLink would pay FortisAlberta the unamortized contribution balance of approximately C$375 million and add the amount to AltaLink's rate base if the decision is upheld. The AUC directed the AESO to consult with AltaLink to provide a joint proposal to implement AltaLink's contribution proposal. In September 2019, FortisAlberta filed a review and variance application with the AUC requesting the AUC re-evaluate its findings with respect to AltaLink's customer contribution proposal relative to distribution facility owners. In October 2019, the AUC granted FortisAlberta's request to proceed to a review and variance with the record expected to be closed in November 2019.


First Nations Asset Transfer Application

In November 2018, the AUC approved, with conditions, AltaLink's application filed in April 2017 to sell and transfer approximately C$91 million of transmission assets located on reserve lands to new limited partnerships with First Nations. The transfers are part of the agreement which allowed AltaLink to route the Southwest Project on reserve land.

In December 2018, AltaLink filed an application with the Alberta Court of Appeal for permission to appeal the conditions imposed by the AUC's decision. In January 2019, AltaLink also filed an application for review and variance with the AUC. The application with the AUC was for review and variance of the conditions imposed by the AUC with respect to no cost recovery of certain incremental costs and no deferral account treatment for annual structure payments. In May 2019, the AUC issued a decision dismissing the application for review and variance on the basis that AltaLink had not met the requirements for a review of the findings in the original decision. In October 2019, the hearing for permission to appeal the AUC's decision was held. The Court of Appeal's decision will be issued in due course.

50




In March 2019, AltaLink filed correspondence informing the AUC that the Blood Tribe intends to proceed with the transfer of assets related to KainaiLink, L.P.

In June 2019, AltaLink closed the transaction with the Piikani Nation by transferring transmission assets of C$53 million and long-term debt of C$33 million to PiikaniLink, L.P. The Piikani Nation purchased a 51% interest in PiikaniLink, L.P. for C$10 million.

BHE Renewables' Counterparty Risk

On January 29, 2019, PG&E Corporation and Pacific Gas and Electric Company (the "PG&E Utility") (together "PG&E") filed voluntary petitions for relief under chapter 11 of the United States Bankruptcy Code in the United States Bankruptcy Court for the Northern District of California ("PG&E Bankruptcy Filing"). The Company owns 100% of Topaz and owns a 49% interest in Agua Caliente. Topaz is a 550-MW solar photovoltaic electric power generating facility located in California. Topaz sells 100% of its energy, capacity and renewable energy credits generated from the facility to PG&E Utility under a 25-year wholesale power purchase agreement ("PPA") that is in effect until October 2039. As of September 30, 2019, the Company's consolidated balance sheet includes $1.0 billion of property, plant and equipment, net and $0.9 billion of non-recourse project debt related to Topaz. Agua Caliente is a 290-MW solar photovoltaic electric power generating facility located in Arizona. Agua Caliente sells 100% of its energy, capacity and renewable energy credits generated from the facility to PG&E Utility under a 25-year wholesale PPA that is in effect until June 2039. As of September 30, 2019, the Company's equity investment in Agua Caliente totals $70 million and the project has $0.8 billion of non-recourse project debt owed to the United States Department of Energy. The PG&E Bankruptcy Filing is an event of default under the Topaz PPA ("PPA Default"). PG&E paid in full the invoices for December deliveries and all amounts invoiced to date for post-petition energy deliveries for both Topaz and Agua Caliente in 2019. PG&E has not paid for the power delivered from January 1 through January 28, 2019. The Company continues to perform on its obligations and deliver renewable energy to the PG&E Utility, and PG&E has publicly stated it will pay suppliers in full under normal terms for post-petition goods and services received. The Company maintains that, in light of the current facts and circumstances, the PPA Default could not reasonably be expected to result in a material adverse effect under the Topaz indenture and, therefore, no default has occurred under the Topaz indenture. In July 2019, the California Governor signed AB 1054 into law. AB 1054 is comprehensive legislation addressing wildfire risk in the state of California that, among other items, authorizes a wildfire fund which would operate as an insurance fund to support the creditworthiness of electrical utilities, if certain utilities, including PG&E, participate by making the required contributions, among other things. In July 2019, PG&E notified the CPUC of its intent to participate in the insurance fund and such participation requires, among other items, PG&E to exit bankruptcy by June 30, 2020. The Company believes it is more likely than not that no impairment exists and current debt obligations will be met, as post-petition contractual revenue payments are expected to be paid by PG&E Utility to the Topaz and Agua Caliente projects. The Company will continue to monitor the situation, including continued receipt of future PG&E payments and the future risk of the PPAs being rejected or modified through the bankruptcy process.

Quad Cities Generating Station Operating Status

Exelon Generation Company, LLC ("Exelon Generation"), the operator of Quad Cities Generating Station Units 1 and 2 ("Quad Cities Station") of which MidAmerican Energy has a 25% ownership interest, announced on June 2, 2016, its intention to shut down Quad Cities Station on June 1, 2018, as a result of Illinois not passing adequate legislation and Quad Cities Station not clearing the 2019-2020 PJM Interconnection, L.L.C. capacity auction. MidAmerican Energy expressed to Exelon Generation its desire for the continued operation of the facility through the end of its operating license in 2032 and worked with Exelon Generation on solutions to that end. In December 2016, Illinois passed legislation creating a zero emission standard, which went into effect June 1, 2017. The zero emission standard requires the Illinois Power Agency to purchase zero emission credits ("ZECs") and recover the costs from certain ratepayers in Illinois, subject to certain limitations. The proceeds from the zero emission credits will provide Exelon Generation additional revenue through 2027 as an incentive for continued operation of Quad Cities Station. For the nuclear assets already in rate base, MidAmerican Energy's customers will not be charged for the subsidy, and MidAmerican Energy will not receive additional revenue from the subsidy.

On February 14, 2017, two lawsuits were filed with the United States District Court for the Northern District of Illinois ("Northern District of Illinois") against the Illinois Power Agency alleging that the state's zero emission credit program violates certain provisions of the United States Constitution. Both lawsuits were dismissed at the Northern District of Illinois, and the United States Court of Appeals for the Seventh Circuit affirmed the dismissals. On April 15, 2019, plaintiffs' petition seeking United States Supreme Court review of the case was denied.


51



On January 9, 2017, the Electric Power Supply Association filed two requests with the FERC seeking to expand Minimum Offer Price Rule ("MOPR") provisions to apply to existing resources receiving zero emission credit compensation. If successful, an expanded MOPR could result in an increased risk of Quad Cities Station not clearing in future capacity auctions and Exelon Generation no longer receiving capacity revenues for the facility. As majority owner and operator of Quad Cities Station, Exelon Generation has filed protests at the FERC in response to each filing. The FERC has not yet issued a decision on the requests.

On April 10, 2019, PJM Interconnection, L.L.C. ("PJM") notified the FERC of its intent to proceed with the next capacity auction in August 2019 under the existing market rules and asked the FERC to clarify that it would not require the PJM to re-run the auction in the event the FERC alters those market rules in its decision on the MOPR complaint. On July 25, 2019, FERC issued an order denying PJM's request to clarify that any alteration of PJM's existing market rules would operate prospectively and directed PJM to not conduct the capacity auction in August 2019. It is too early to predict the final outcome of each of these proceedings or their potential impact on the continued operation of Quad Cities Station.

Environmental Laws and Regulations

Each Registrant is subject to federal, state, local and foreign laws and regulations regarding climate change, RPS, air and water quality, emissions performance standards, coal combustion byproduct disposal, hazardous and solid waste disposal, protected species and other environmental matters that have the potential to impact each Registrant's current and future operations. In addition to imposing continuing compliance obligations, these laws and regulations provide regulators with the authority to levy substantial penalties for noncompliance, including fines, injunctive relief and other sanctions. These laws and regulations are administered by various federal, state, local and international agencies. Each Registrant believes it is in material compliance with all applicable laws and regulations, although many laws and regulations are subject to interpretation that may ultimately be resolved by the courts. The discussion below contains material developments to those matters disclosed in Item 1 of each Registrant's Annual Report on Form 10-K for the year ended December 31, 2018, and new environmental matters occurring in 2019.

Climate Change

In December 2015, an international agreement was negotiated by 195 nations to create a universal framework for coordinated action on climate change in what is referred to as the Paris Agreement. The Paris Agreement reaffirms the goal of limiting global temperature increase well below 2 degrees Celsius, while urging efforts to limit the increase to 1.5 degrees Celsius; establishes commitments by all parties to make nationally determined contributions and pursue domestic measures aimed at achieving the commitments; commits all countries to submit emissions inventories and report regularly on their emissions and progress made in implementing and achieving their nationally determined commitments; and commits all countries to submit new commitments every five years, with the expectation that the commitments will get more aggressive. In the context of the Paris Agreement, the United States agreed to reduce greenhouse gas emissions 26% to 28% by 2025 from 2005 levels. After more than 55 countries representing more than 55% of global greenhouse gas emissions submitted their ratification documents, the Paris Agreement became effective November 4, 2016. Under the terms of the Paris Agreement, ratifying countries are bound for a three-year period and must provide one-year's notice of their intent to withdraw. On June 1, 2017, President Trump announced the United States would withdraw from the Paris Agreement. Under the terms of the agreement, the withdrawal would be effective in November 2020. The cornerstone of the United States' commitment was the Clean Power Plan which was finalized by the EPA in 2015 but has since been proposed for repeal by the EPA.


52



GHG Performance Standards

Under the Clean Air Act, the EPA may establish emissions standards that reflect the degree of emissions reductions achievable through the best technology that has been demonstrated, taking into consideration the cost of achieving those reductions and any non-air quality health and environmental impact and energy requirements. On August 3, 2015, the EPA issued final new source performance standards, establishing a standard of 1,000 pounds of carbon dioxide per MWh for large natural gas-fueled generating facilities and 1,400 pounds of carbon dioxide per MWh for new coal-fueled generating facilities with the "Best System of Emission Reduction" reflecting highly efficient supercritical pulverized coal facilities with partial carbon capture and sequestration or integrated gasification combined-cycle units that are co-fueled with natural gas or pre-combustion slipstream capture of carbon dioxide. The new source performance standards were appealed to the United States Court of Appeals for the District of Columbia Circuit ("D.C. Circuit") and oral argument was scheduled for April 17, 2017. However, oral argument was deferred and the court held the case in abeyance for an indefinite period of time. On December 6, 2018, the EPA announced revisions to new source performance standards for new and reconstructed coal-fueled units. The EPA proposes to revise carbon dioxide emission limits for new coal-fueled facilities to 1,900 pounds per MWh for small units and 2,000 pounds per MWh for large units. The EPA would define the best system of emission reduction for new and modified units as the most efficient demonstrated steam cycle, combined with best operating practices. The EPA accepted comment on the proposal through March 18, 2019. Until such time as the EPA undertakes further action on the proposed reconsideration or the court takes action, any new fossil-fueled generating facilities constructed by the relevant Registrants will be required to meet the GHG new source performance standards.

Clean Power Plan

In June 2014, the EPA released proposed regulations to address GHG emissions from existing fossil-fueled generating facilities, referred to as the Clean Power Plan, under Section 111(d) of the Clean Air Act. The EPA's proposal calculated state-specific emission rate targets to be achieved based on the "Best System of Emission Reduction." In August 2015, the final Clean Power Plan was released, which established the Best System of Emission Reduction as including: (a) heat rate improvements; (b) increased utilization of existing combined-cycle natural gas-fueled generating facilities; and (c) increased deployment of new and incremental non-carbon generation placed in-service after 2012. The compliance period would have begun in 2022, with three interim periods of compliance and with the final goal to be achieved by 2030 and was expected to reduce carbon dioxide emissions in the power sector to 32% below 2005 levels by 2030. On February 9, 2016, the United States Supreme Court ordered that the EPA's emission guidelines for existing sources be stayed pending the disposition of the challenges to the rule in the D.C. Circuit and any action on a writ of certiorari before the United States Supreme Court. Oral argument was heard before the D.C. Circuit on September 27, 2016. The court has not yet issued its decision. On June 19, 2019, the EPA finalized the Affordable Clean Energy rule and fully repealed the Clean Power Plan. Under the Affordable Clean Energy rule, the EPA determined that the best system of emissions reduction for existing coal-fueled power plants is heat rate improvements based on a set of candidate technologies and measures that could improve heat rates. The EPA did not establish state emission limits or budgets. Instead, states will be required to develop unit-specific standards of performance that reflect the emission limitation achievable through application of the best system of emission reduction technologies. Measures taken to meet the standards of performance must be achieved at the source itself and standards of performance will be measured in terms of pounds of carbon dioxide per MWh. State compliance plans are due by September 2022, three years after the effective date of the rule. Litigation challenging the rule has already been filed in the D.C. Circuit and until all litigation is exhausted and state plans are developed, the full impacts on the Registrants cannot be determined. However, PacifiCorp, MidAmerican Energy, Nevada Power and Sierra Pacific have historically pursued cost-effective projects, including plant efficiency improvements, increased diversification of their generating fleets to include deployment of renewable and lower carbon generating resources, and advanced customer energy efficiency programs.

Renewable Portfolio Standards

Each state's RPS described below could significantly impact the relevant Registrant's consolidated financial results. Resources that meet the qualifying electricity requirements under each RPS vary from state to state. Each state's RPS requires some form of compliance reporting and the relevant Registrant can be subject to penalties in the event of noncompliance. Each Registrant believes it is in material compliance with all applicable RPS laws and regulations.

Since 1997, NV Energy has been required to comply with a RPS. Current law requires the Nevada Utilities to meet 18% of their energy requirements with renewable resources for 2014, 20% for 2015 through 2019, 22% for 2020 and 2024, and 25% for 2025 and thereafter. The RPS also requires 5% of the portfolio requirement come from solar resources through 2015 and increasing to 6% in 2016. Nevada law also permits energy efficiency measures to be used to satisfy a portion of the RPS through 2025, subject to certain limitations. In November 2018, Nevada voters approved a measure to increase the state's RPS to 50% by 2030; the measure must be voted on and approved a second time, in November 2020, in order to take effect. In the interim, the Nevada Legislature passed Senate Bill ("SB") 358 in June 2019 which raises Nevada's renewable portfolio standards to 50% by 2030.

53




Washington's Energy Independence Act establishes a renewable energy target for qualifying electric utilities, including PacifiCorp. The requirements are 3% of retail sales by January 1, 2012 through 2015, 9% of retail sales by January 1, 2016 through 2019 and 15% of retail sales by January 1, 2020 and each year thereafter. In April 2013, Washington State Senate Bill No. 5400 ("SB 5400") was signed into law. SB 5400 expands the geographic area in which eligible renewable resources may be located to beyond the Pacific Northwest, allowing renewable resources located in all states served by PacifiCorp to qualify. SB 5400 also provides PacifiCorp with additional flexibility and options to meet Washington's renewable mandates. In May 2019, the state of Washington enacted Senate Bill 5116, the Clean Energy Transformation Act. The legislation, among other things, establishes three targets for reducing and eventually eliminating fossil-fueled generation from Washington retail electricity rates between 2025 and 2045. The coal phase-out standard requires all electric utilities to eliminate from rates, coal-fired resources by December 31, 2025. PacifiCorp has begun discussions with regulators and other Washington investor-owned utilities regarding compliance obligations and implementation.

Clean Air Act Regulations

The Clean Air Act is a federal law administered by the EPA that provides a framework for protecting and improving the nation's air quality and controlling sources of air emissions. The implementation of new standards is generally outlined in SIPs, which are a collection of regulations, programs and policies to be followed. SIPs vary by state and are subject to public hearings and EPA approval. Some states may adopt additional or more stringent requirements than those implemented by the EPA. The major Clean Air Act programs most directly affecting the Registrants' operations are described below.

Mercury and Air Toxics Standards

In March 2011, the EPA proposed a rule that requires coal-fueled generating facilities to reduce mercury emissions and other hazardous air pollutants through the establishment of "Maximum Achievable Control Technology" standards. The final MATS became effective on April 16, 2012, and required that new and existing coal-fueled generating facilities achieve emission standards for mercury, acid gases and other non-mercury hazardous air pollutants. Existing sources were required to comply with the new standards by April 16, 2015 with the potential for individual sources to obtain an extension of up to one additional year, at the discretion of the Title V permitting authority, to complete installation of controls or for transmission system reliability reasons. The relevant Registrants have completed emission reduction projects to comply with the final rule's standards for acid gases and non-mercury metallic hazardous air pollutants.

MidAmerican Energy retired certain coal-fueled generating units as the least-cost alternative to comply with the MATS. Walter Scott, Jr. Energy Center Units 1 and 2 were retired in 2015, and George Neal Energy Center Units 1 and 2 were retired in April 2016. A fifth unit, Riverside Generating Station, was limited to natural gas combustion in March 2015.

Numerous lawsuits have been filed in the D.C. Circuit challenging the MATS. In April 2014, the D.C. Circuit upheld the MATS requirements. In November 2014, the United States Supreme Court agreed to hear the MATS appeal on the limited issue of whether the EPA unreasonably refused to consider costs in determining whether it is appropriate to regulate hazardous air pollutants emitted by electric utilities. Oral argument in the case was held before the United States Supreme Court in March 2015, and a decision was issued by the United States Supreme Court in June 2015, which reversed and remanded the MATS rule to the D.C. Circuit for further action. The United States Supreme Court held that the EPA had acted unreasonably when it deemed cost irrelevant to the decision to regulate generating facilities, and that cost, including costs of compliance, must be considered before deciding whether regulation is necessary and appropriate. The United States Supreme Court's decision did not vacate or stay implementation of the MATS rule. In December 2015, the D.C. Circuit issued an order remanding the rule to the EPA, without vacating the rule. As a result, the relevant Registrants continue to have a legal obligation under the MATS rule and the respective permits issued by the states in which each respective Registrant operates to comply with the MATS rule, including operating all emissions controls or otherwise complying with the MATS requirements.


54



On December 27, 2018, the EPA issued a proposed revised supplemental cost finding for the MATS, as well as the required risk and technology review under Clean Air Act Section 112. EPA proposes to determine that it is not appropriate and necessary to regulate hazardous air pollutant emissions from power plants under Section 112; however, EPA proposes to retain the emission standards and other requirements of the MATS rule, because EPA is not proposing to remove coal- and oil-fueled power plants from the list of sources regulated under Section 112. The public comment period on the proposal closed April 17, 2019. Until EPA takes final action on the rule, the relevant Registrants cannot fully determine the impacts of the proposed changes to the MATS rule.

Cross-State Air Pollution Rule

The EPA promulgated an initial rule in March 2005 to reduce emissions of nitrogen oxides and sulfur dioxide, precursors of ozone and particulate matter, from up-wind states affecting the ability of states in the eastern United States to attain or maintain compliance with NAAQS. After numerous appeals, the CSAPR was promulgated to address interstate transport of sulfur dioxide and nitrogen oxides emissions in 27 eastern and Midwestern states. The first phase of the rule was implemented January 1, 2015. In November 2015, the EPA released a proposed rule that would further reduce nitrogen oxides emissions. The final "CSAPR Update Rule" was published in the Federal Register in October 2016. On December 6, 2018, the EPA finalized a rule to close out the CSAPR, having determined that the CSAPR Update Rule fully addresses Clean Air Act interstate transport obligations for the 2008 ozone NAAQS of 20 eastern states.

The various CSAPR rules have been litigated. In September 2019, the D.C. Circuit Court ruled in State of Wisconsin v. EPA, concerning the CSAPR Update Rule that, because the EPA allowed upwind states to continue their significant contributions to downwind air quality problems beyond the deadline for attainment with the 2008 ozone NAAQS, the CSAPR Update Rule provided only a partial remedy and remanded the CSAPR Update Rule back to the EPA. The court also held that the remaining framework for the CSAPR program was legally sound. The D.C. Circuit Court issued a second opinion in State of New York v. EPA on October 1, 2019, regarding challenges to the CSAPR Close-Out Rule. The court held that the CSAPR Close-Out Rule must also be vacated because it rested on an identical interpretation of the Clean Air Act as the CSAPR Update Rule. The deadline to petition for rehearing in both cases was October 28, 2019.

MidAmerican Energy has installed emissions controls at its coal-fueled generating facilities to comply with the CSAPR and may purchase emissions allowances to meet a portion of its compliance obligations. The cost of these allowances is subject to market conditions at the time of purchase and historically has not been material. MidAmerican Energy believes that the controls installed to date are consistent with the reductions to be achieved from implementation of the rule and does not anticipate that any impacts of the CSAPR update will be significant.

MidAmerican Energy operates natural gas-fueled generating facilities in Iowa and BHE Renewables operates natural gas-fueled generating facilities in Texas, Illinois and New York, all of which are subject to the CSAPR. However, the provisions are not anticipated to have a material impact on Berkshire Hathaway Energy or MidAmerican Energy. None of PacifiCorp's, Nevada Power's or Sierra Pacific's generating facilities are subject to the CSAPR. However, in a Notice of Data Availability published in the January 6, 2017, Federal Register, the EPA provided preliminary estimates of which upwind states may have linkages to downwind states experiencing ozone levels at or exceeding the 2015 ozone national ambient air quality standard of 70 parts per billion, and, using similar methodology to that in the CSAPR, indicated that Utah and Wyoming could have an obligation under the "good neighbor" provisions of the Clean Air Act to reduce nitrogen oxides emissions. Until the EPA takes final action consistent with these judicial orders, the Registrants cannot determine whether additional action may be required.

Regional Haze

The EPA's Regional Haze Rule, finalized in 1999, requires states to develop and implement plans to improve visibility in designated federally protected areas ("Class I areas"). Some of PacifiCorp's coal-fueled generating facilities in Utah, Wyoming, Arizona and Colorado and certain of Nevada Power's and Sierra Pacific's fossil-fueled generating facilities are subject to the Clean Air Visibility Rules. In accordance with the federal requirements, states are required to submit SIPs that address emissions from sources subject to best available retrofit technology ("BART") requirements and demonstrate progress towards achieving natural visibility requirements in Class I areas by 2064.


55



The state of Utah issued a regional haze SIP requiring the installation of sulfur dioxide, nitrogen oxides and particulate matter controls on Hunter Units 1 and 2, and Huntington Units 1 and 2. In December 2012, the EPA approved the sulfur dioxide portion of the Utah regional haze SIP and disapproved the nitrogen oxides and particulate matter portions. Subsequently, the Utah Division of Air Quality completed an alternative BART analysis for Hunter Units 1 and 2, and Huntington Units 1 and 2. In January 2016, the EPA published two alternative proposals to either approve the Utah SIP as written or reject the Utah SIP relating to nitrogen oxides controls and require the installation of selective catalytic reduction ("SCR") controls at Hunter Units 1 and 2 and Huntington Units 1 and 2 within five years. EPA's final action on the Utah regional haze SIP was effective August 4, 2016. The EPA approved in part and disapproved in part the Utah regional haze SIP and issued a federal implementation plan ("FIP") requiring the installation of SCR controls at Hunter Units 1 and 2 and Huntington Units 1 and 2 within five years of the effective date of the rule. PacifiCorp and other parties filed requests with the EPA to reconsider and stay that decision, as well as filed motions for stay and petitions for review with the Tenth Circuit asking the court to overturn the EPA's actions. In July 2017, the EPA issued a letter indicating it would reconsider its FIP decision. In light of the EPA's grant of reconsideration and the EPA's position in the litigation, the Tenth Circuit held the litigation in abeyance and imposed a stay of the compliance obligations of the FIP for the number of days the stay is in effect while the EPA conducts its reconsideration process. To support the reconsideration, PacifiCorp undertook additional air quality modeling using the Comprehensive Air Quality Model with Extensions ("CAMX") air quality dispersion model. On June 24, 2019, the Utah Air Quality Board unanimously voted to approve the Utah regional haze state implementation plan revision, which incorporates a best available retrofit technology alternative into Utah's regional haze state implementation plan. The best available retrofit technology alternative makes the shutdown of PacifiCorp's Carbon plant enforceable under the state implementation plan and removes the requirement to install selective catalytic reduction technology on Hunter Units 1 and 2 and Huntington Units 1 and 2. The Utah Division of Air Quality anticipates submitting the state implementation plan revision to the EPA for approval by the end of 2019.

The state of Wyoming issued two regional haze SIPs requiring the installation of sulfur dioxide, nitrogen oxides and particulate matter controls on certain PacifiCorp coal-fueled generating facilities in Wyoming. The EPA approved the sulfur dioxide SIP in December 2012 and the EPA's approval was upheld on appeal by the Tenth Circuit in October 2014. In addition, the EPA initially proposed in June 2012 to disapprove portions of the nitrogen oxides and particulate matter SIP and instead issue a FIP. The EPA withdrew its initial proposed actions on the nitrogen oxides and particulate matter SIP and the proposed FIP, published a re-proposed rule in June 2013, and finalized its determination in January 2014, which aligns more closely with the SIP proposed by the state of Wyoming. The EPA's final action on the Wyoming SIP approved the state's plan to have PacifiCorp install low-nitrogen oxides burners at Naughton Units 1 and 2, SCR controls at Naughton Unit 3 by December 2014, SCR controls at Jim Bridger Units 1 through 4 between 2015 and 2022, and low-nitrogen oxides burners at Dave Johnston Unit 4. The EPA disapproved a portion of the Wyoming SIP and issued a FIP for Dave Johnston Unit 3, where it required the installation of SCR controls by 2019 or, in lieu of installing SCR controls, a commitment to shut down Dave Johnston Unit 3 by 2027, its currently approved depreciable life. The EPA also disapproved a portion of the Wyoming SIP and issued a FIP for the Wyodak coal-fueled generating facility ("Wyodak Facility"), requiring the installation of SCR controls within five years (i.e., by 2019). The EPA action became final on March 3, 2014. PacifiCorp filed an appeal of the EPA's final action on the Wyodak Facility in March 2014. The state of Wyoming also filed an appeal of the EPA's final action, as did the Powder River Basin Resource Council, National Parks Conservation Association and Sierra Club. In September 2014, the Tenth Circuit issued a stay of the March 2019 compliance deadline for the Wyodak Facility, pending further action by the Tenth Circuit in the appeal. A stay remains in place and the case has not yet been set for oral argument. In June 2014, the Wyoming Department of Environmental Quality issued a revised BART permit allowing Naughton Unit 3 to operate on coal through 2017 and providing for natural gas conversion of the unit in 2018; in October 2016, an application was filed with the Wyoming Department of Environmental Quality requesting a revision of the dates for the end of coal firing and the start of gas firing for Naughton Unit 3 to align with the requirements of the Wyoming SIP. The Wyoming Department of Environmental Quality approved a change to the requirements for Naughton Unit 3, extending the requirement to cease coal firing to no later than January 30, 2019, and complete the gas conversion by June 30, 2019. On March 17, 2017, Wyoming Department of Environmental Quality issued an extension to operate the unit as a coal-fueled unit through January 30, 2019. The Wyoming Department of Environmental Quality submitted a proposed revision to the Wyoming SIP, including a change to the Naughton Unit 3 compliance date, to the EPA for approval on November 28, 2017. On November 7, 2018, the EPA published its proposed approval of the Wyoming SIP relative to the Naughton 3 gas conversion. The comment period closed December 7, 2018. The EPA issued final approval of the Wyoming SIP, including the Naughton Unit 3 gas conversion on March 21, 2019. PacifiCorp removed the unit from coal-fueled service on January 30, 2019, and determined in its 2019 IRP that converting Naughton Unit 3 to a natural gas-fueled generation resource provides economic benefits to customers. PacifiCorp’s 2019 IRP Action Plan incorporates completion of the gas conversion, including all required regulatory notices and filings, by the end of 2020. On February 5, 2019, PacifiCorp submitted a reasonable progress reassessment permit application and reasonable progress determination for Jim Bridger Units 1 and 2, seeking a rescission of the December 2017 permit requiring the installation of selective catalytic reduction, to be replaced with a permit imposing plant-wide emission limits to achieve better modeled visibility, fewer overall environmental impacts and lower costs of compliance. The proposal was issued for public comment in August 2019, and the state of Wyoming held a public hearing on August 23, 2019 to consider the proposal and public input. The state of Wyoming is developing responses to public comment and is anticipated to submit the proposal to EPA by the end of 2019.

56




The state of Arizona issued a regional haze SIP requiring, among other things, the installation of sulfur dioxide, nitrogen oxides and particulate matter controls on Cholla Unit 4. The EPA approved in part, and disapproved in part, the Arizona SIP and issued a FIP for the disapproved portions requiring SCR controls on Cholla Unit 4. PacifiCorp filed an appeal in the United States Court of Appeals for the Ninth Circuit ("Ninth Circuit") regarding the FIP as it relates to Cholla Unit 4, and the Arizona Department of Environmental Quality and other affected Arizona utilities filed separate appeals of the FIP as it relates to their interests. The Ninth Circuit issued an order in February 2015, holding the matter in abeyance while the parties pursued an alternate compliance approach for Cholla Unit 4. The Arizona Department of Environmental Quality's revision of the draft permit and revision to the Arizona regional haze SIP were approved by the EPA through final action published in the Federal Register on March 27, 2017, with an effective date of April 26, 2017. The final action allows Cholla Unit 4 to utilize coal until April 30, 2025 and convert to gas or otherwise cease burning coal by June 30, 2025.

The state of Colorado regional haze SIP requires SCR controls at Craig Unit 2 and Hayden Units 1 and 2, in which PacifiCorp has ownership interests. Each of those regional haze compliance projects are either already in service or currently being constructed. In addition, in February 2015, the state of Colorado finalized an amendment to its regional haze SIP relating to Craig Unit 1, in which PacifiCorp has an ownership interest, to require the installation of SCR controls by 2021. In September 2016, the owners of Craig Units 1 and 2 reached an agreement with state and federal agencies and certain environmental groups that were parties to the previous settlement requiring SCR to retire Unit 1 by December 31, 2025, in lieu of SCR installation, or alternatively to remove the unit from coal-fueled service by August 31, 2021 with an option to convert the unit to natural gas by August 31, 2023, in lieu of SCR installation. The terms of the agreement were approved by the Colorado Air Quality Board in December 2016. The terms of the agreement were incorporated into an amended Colorado regional haze SIP in 2017 and were submitted to the EPA for its review and approval. The EPA's approval of the amended Colorado regional haze SIP was published in the Federal Register on July 5, 2018, with an effective date of August 6, 2018.

Until the EPA takes final action in each state and decisions have been made in the pending appeals, PacifiCorp cannot fully determine the impacts of the Regional Haze Rule on its respective generating facilities.

The Navajo Generating Station, in which Nevada Power is a joint owner with an 11.3% ownership share, is also a source that is subject to the regional haze BART requirements. In January 2013, the EPA announced a proposed FIP addressing BART and an alternative for the Navajo Generating Station that includes a flexible timeline for reducing nitrogen oxides emissions. The EPA issued a final FIP on August 8, 2014 adopting, with limited changes, the Navajo Generating Station proposal as a "better than BART" determination. Nevada Power filed the ERCR Plan in May 2014 that proposed to eliminate its ownership participation in the Navajo Generating Station in 2019, which was approved by the PUCN. In February 2017, the non-federal owners of the Navajo Generating Station announced the facility will shut down on or before December 23, 2019, unless new owners can be found. All current owners have since approved a lease extension with the Navajo Nation to allow operations to continue through 2019. On March 21, 2019, the Navajo Nation Council voted to end efforts to transition ownership and extend facility operations. The plant will cease operations by the end of 2019. Ownership transfer negotiations and closure preparations are ongoing and, until concluded, the relevant Registrant cannot determine whether additional action may be required.


57



Water Quality Standards

The federal Water Pollution Control Act ("Clean Water Act") establishes the framework for maintaining and improving water quality in the United States through a program that regulates, among other things, discharges to and withdrawals from waterways. The Clean Water Act requires that cooling water intake structures reflect the "best technology available for minimizing adverse environmental impact" to aquatic organisms. After significant litigation, the EPA released a proposed rule under §316(b) of the Clean Water Act to regulate cooling water intakes at existing facilities. The final rule was released in May 2014, and became effective in October 2014. Under the final rule, existing facilities that withdraw at least 25% of their water exclusively for cooling purposes and have a design intake flow of greater than two million gallons per day are required to reduce fish impingement (i.e., when fish and other aquatic organisms are trapped against screens when water is drawn into a facility's cooling system) by choosing one of seven options. Facilities that withdraw at least 125 million gallons of water per day from waters of the United States must also conduct studies to help their permitting authority determine what site-specific controls, if any, would be required to reduce entrainment of aquatic organisms (i.e., when organisms are drawn into the facility). PacifiCorp and MidAmerican Energy are assessing the options for compliance at their generating facilities impacted by the final rule and will complete impingement and entrainment studies. PacifiCorp's Dave Johnston generating facility and all of MidAmerican Energy's coal-fueled generating facilities, except Louisa, Ottumwa and Walter Scott, Jr. Unit 4, which have water cooling towers, withdraw more than 125 million gallons per day of water from waters of the United States for once-through cooling applications. PacifiCorp's Jim Bridger, Naughton, Gadsby, Hunter and Huntington generating facilities currently utilize closed cycle cooling towers but are designed to withdraw more than two million gallons of water per day. The standards are required to be met as soon as possible after the effective date of the final rule, but no later than eight years thereafter. The costs of compliance with the cooling water intake structure rule cannot be fully determined until the prescribed studies are conducted and the respective state environmental agencies review the studies to determine whether additional mitigation technologies should be applied. In the event that PacifiCorp's or MidAmerican Energy's existing intake structures require modification, the costs are not anticipated to be significant to the consolidated financial statements. Nevada Power and Sierra Pacific do not utilize once-through cooling water intake or discharge structures at any of their generating facilities. All of the Nevada Power and Sierra Pacific generating stations are designed to have either minimal or zero discharge; therefore, they are not impacted by the §316(b) final rule.

In November 2015, the EPA published final effluent limitation guidelines and standards for the steam electric power generating sector which, among other things, regulate the discharge of bottom ash transport water, fly ash transport water, combustion residual leachate and non-chemical metal cleaning wastes. These guidelines, which had not been revised since 1982, were revised in response to the EPA's concerns that the addition of controls for air emissions has changed the effluent discharged from coal- and natural gas-fueled generating facilities. Under the originally-promulgated guidelines, permitting authorities were required to include the new limits in each impacted facility's discharge permit upon renewal with the new limits to be met as soon as possible, beginning November 1, 2018 and fully implemented by December 31, 2023. On April 5, 2017, a request for reconsideration and administrative stay of the guidelines was filed with the EPA. The EPA granted the request for reconsideration on April 12, 2017, imposed an immediate administrative stay of compliance dates in the rule that had not passed judicial review and requested the court stay the pending litigation over the rule until September 12, 2017. On June 6, 2017, the EPA proposed to extend many of the compliance deadlines that would otherwise occur in 2018 and on September 18, 2017, the EPA issued a final rule extending certain compliance dates for flue gas desulfurization wastewater and bottom ash transport water limits until November 1, 2020. In a separate action, on April 12, 2019, the Fifth Circuit Court of Appeal vacated two aspects of the final effluent limitation guidelines, concerning discharge limits for (1) legacy wastewater from ash transport or treatment systems and (2) combustion residual leachate from landfills or settling ponds. The Firth Circuit found that EPA's own data did not support the agency's conclusion that impoundments were the best technology available for these two waste streams. EPA must now complete a new effluent limitation guideline for these discharge limits. While most of the issues raised by effluent limitation guidelines are already being addressed through the coal combustion residuals rule and are not expected to impose significant additional requirements on the facilities, the impact of the rule cannot be fully determined until the reconsideration and remand actions are complete and any judicial review is conducted.


58



In April 2014, the EPA and the United States Army Corps of Engineers issued a joint proposal to address "waters of the United States" to clarify protection under the Clean Water Act for streams and wetlands. The proposed rule comes as a result of United States Supreme Court decisions in 2001 and 2006 that created confusion regarding jurisdictional waters that were subject to permitting under either nationwide or individual permitting requirements. The final rule was released in May 2015 but is currently under appeal in multiple courts and a nationwide stay on the implementation of the rule was issued in October 2015. On January 13, 2017, the United States Supreme Court granted a petition to address jurisdictional challenges to the rule. The EPA plans to undertake a two-step process, with the first step to repeal the 2015 rule and the second step to carry out a notice-and-comment rulemaking in which a substantive re-evaluation of the definition of the "waters of the United States" will be undertaken. On July 27, 2017, the EPA and the Corps of Engineers issued a proposal to repeal the final rule and recodify the pre-existing rules pending issuance of a new rule, which was finalized on September 12, 2019. On January 22, 2018, the United States Supreme Court issued its decision related to the jurisdictional challenges to the rule, holding that federal district courts, rather than federal appeals courts, have proper jurisdiction to hear challenges to the rule and instructed the Sixth Circuit Court of Appeals to dismiss the petitions for review for lack of jurisdiction, clearing the way for imposition of the rule in certain states barring final action by the EPA to formalize the extension of the compliance deadline. On December 11, 2018, the EPA and the Corps of Engineers proposed a revised definition of "waters of the United States" that is intended to further clarify jurisdictional questions, eliminate case-by-case determinations and narrow Clean Water Act jurisdiction to align with Justice Scalia's 2006 opinion in Rapanos v. United States. The public comment period closed April 15, 2019. Until the rule is fully litigated and finalized, the Registrants cannot determine whether projects that include construction and demolition will face more complex permitting issues, higher costs or increased requirements for compensatory mitigation.

Coal Combustion Byproduct Disposal

In May 2010, the EPA released a proposed rule to regulate the management and disposal of coal combustion byproducts under the RCRA. The final rule was released by the EPA on December 19, 2014, was published in the Federal Register on April 17, 2015 and was effective on October 19, 2015. The final rule regulates coal combustion byproducts as non-hazardous waste under RCRA Subtitle D and establishes minimum nationwide standards for the disposal of coal combustion residuals. Under the final rule, surface impoundments and landfills utilized for coal combustion byproducts may need to be closed unless they can meet the more stringent regulatory requirements. The final rule requires regulated entities to post annual groundwater monitoring and corrective action reports. The first of these reports was posted to the respective Registrant's coal combustion rule compliance data and information websites in March 2018. Based on the results in those reports, additional action may be required under the rule.

At the time the rule was published in April 2015, PacifiCorp operated 18 surface impoundments and seven landfills that contained coal combustion byproducts. Prior to the effective date of the rule in October 2015, nine surface impoundments and three landfills were either closed or repurposed to no longer receive coal combustion byproducts and hence are not subject to the final rule. As PacifiCorp proceeded to implement the final coal combustion rule, it was determined that two surface impoundments located at the Dave Johnston Generating Station were hydraulically connected and effectively constitute a single impoundment. In November 2017, a new surface impoundment was placed into service at the Naughton Generating Station. At the time the rule was published in April 2015, MidAmerican Energy owned or operated nine surface impoundments and four landfills that contain coal combustion byproducts. Prior to the effective date of the rule in October 2015, MidAmerican Energy closed or repurposed six surface impoundments to no longer receive coal combustion byproducts. Five of these surface impoundments were closed on or before December 21, 2017 and the sixth is undergoing closure. At the time the rule was published in April 2015, the Nevada Utilities operated ten evaporative surface impoundments and two landfills that contained coal combustion byproducts. Prior to the effective date of the rule in October 2015, the Nevada Utilities closed four of the surface impoundments, four impoundments discontinued receipt of coal combustion byproducts making them inactive and two surface impoundments remain active and subject to the final rule. The two landfills remain active and subject to the final rule. Refer to Note 13 of the Notes to Consolidated Financial Statements of Berkshire Hathaway Energy in Item 8 of the Form 10-K and Note 10 of the Notes to Consolidated Financial Statements of PacifiCorp in Item 8 of the Form 10-K for the impacts on asset retirement obligations as a result of the final rule.


59



Multiple parties filed challenges over various aspects of the final rule in the D.C. Circuit in 2015, resulting in settlement of some of the issues and subsequent regulatory action by the EPA, including subjecting inactive surface impoundments to regulation. Oral argument was held by the D.C. Circuit on November 20, 2017 over certain portions of the 2015 rule that had not been settled or otherwise remanded. On August 21, 2018, the D.C. Circuit issued its opinion in Utility Solid Waste Activities Group v. EPA, finding it was arbitrary and capricious for EPA to allow unlined ash ponds to continue operating until some unknown point in the future when groundwater contamination could be detected. The D.C. Circuit vacated the closure section of the coal combustion residuals rule and remanded the issue of unlined ponds to EPA for reconsideration with specific instructions to consider harm to the environment, not just to human health. The D.C. Circuit also held EPA's decision to not regulate legacy ponds was arbitrary and capricious. While the D.C. Circuit's decision was pending, the EPA, on March 15, 2018, issued a proposal to address provisions of the final coal combustion residuals rule that were remanded back to the agency on June 14, 2016, by the D.C. Circuit. The proposal included provisions that establish alternative performance standards for owners and operators of coal combustion residuals units located in states that have approved permit programs or are otherwise subject to oversight through a permit program administered by the EPA. The EPA finalized the first phase of the coal combustion residuals rule amendments on July 30, 2018, with an effective date of August 28, 2018 (the "Phase 1, Part 1 rule"). In addition to adopting alternative performance standards and revising groundwater performance standards for certain constituents, EPA extended the deadline by which facilities must initiate closure of unlined ash ponds exceeding a groundwater protection standard and impoundments that do not meet the rule's aquifer location restrictions to October 31, 2020. Following submittal of competing motions from environmental groups and the EPA to stay or remand this deadline extension, on March 13, 2019, the D.C. Circuit granted EPA's request to remand the rule, without vacatur, leaving the October 31, 2020 deadline in place while the agency undertakes a new rulemaking establishing a new deadline for initiating closure. On August 14, 2019, the EPA released its "Phase 2" proposal, which contains targeted amendments to the coal combustion residuals rule in response to court remands and EPA settlement agreements, as well as issues raised in a rulemaking petition. The Phase 2 proposal modifies the definition of "beneficial use" by replacing a mass-based threshold with new location-based criteria for triggering the need to conduct an environmental demonstration; establishes a definition of "CCR storage pile" to address the temporary storage of coal combustion residuals on the ground, depending on whether the material is destined for disposal or beneficial use; makes certain changes to the rule's annual groundwater monitoring and corrective action reports to make it easier for the public to see and understand the data contained within the reports; modifies the requirements related to facilities' publicly available coal combustion residual rule websites to make the information more readily available; and establishes a risk-based groundwater monitoring protection standard for boron in the event the EPA decides to add boron to Appendix IV in the coal combustion residuals rule. The EPA accepted comments on the Phase 2 proposal through October 15, 2019. Additional substantive revisions to the rule are expected to be finalized by the EPA by December 2019 but have not yet been released for public comment. If adopted, certain elements of the proposal have the potential to reduce costs of compliance. Until such time as the additional rulemaking is final, the impacts on the Registrants cannot be determined.

Separately, on August 10, 2017, the EPA issued proposed permitting guidance on how states' coal combustion residuals permit programs should comply with the requirements of the final rule as authorized under the December 2016 Water Infrastructure Improvements for the Nation Act. Utilizing that guidance, the state of Oklahoma submitted an application to the EPA for approval of its state program and, on June 28, 2018, the EPA's approval of the application was published in the Federal Register. Environmental groups, including Waterkeeper Alliance and the Sierra Club, filed suit in the United States District Court for the District of Columbia on September 26, 2018, alleging that the EPA unlawfully approved Oklahoma's permit program. This suit also incorporates claims first identified in a July 26, 2018 notice of intent to sue that alleged the EPA failed to perform nondiscretionary duties related to the development and publication of minimum guidelines for public participation in the approval of state permit programs for coal combustion residuals. To date, none of the states in which the Registrants operate has submitted an application to the EPA for approval of state permitting authority. The state of Utah adopted the federal final rule in September 2016, which required two landfills to submit permit applications by March 2017. It is anticipated that the state of Utah will submit an application for approval of its coal combustion residuals permit program prior to the end of 2020. In 2019, the state of Wyoming proposed to adopt state rules which incorporate the final federal rule by reference. It is anticipated that Wyoming will finalize its state rule in late 2019 and will submit an application to the EPA to implement a state permit program in early 2020. 

Notwithstanding the status of the final coal combustion residuals rule, citizens' suits have been filed against regulated entities seeking judicial relief for contamination alleged to have been caused by releases of coal combustion byproducts. Some of these cases have been successful in imposing liability upon companies if coal combustion byproducts contaminate groundwater that is ultimately released or connected to surface water. In addition, actions have been filed against regulated entities seeking to require that surface impoundments containing coal combustion residuals be subject to closure by removal rather than being allowed to effectuate closure in place as provided under the final rule. The Registrants are not a party to these lawsuits and until they are resolved, the Registrants cannot predict the impact on overall compliance obligations.


60



Critical Accounting Estimates

Certain accounting measurements require management to make estimates and judgments concerning transactions that will be settled several years in the future. Amounts recognized on the Consolidated Financial Statements based on such estimates involve numerous assumptions subject to varying and potentially significant degrees of judgment and uncertainty and will likely change in the future as additional information becomes available. Estimates are used for, but not limited to, the accounting for the effects of certain types of regulation, derivatives, impairment of goodwill and long-lived assets, pension and other postretirement benefits, income taxes and revenue recognition - unbilled revenue. For additional discussion of the Company's critical accounting estimates, see Item 7 of the Company's Annual Report on Form 10-K for the year ended December 31, 2018. There have been no significant changes in the Company's assumptions regarding critical accounting estimates since December 31, 2018.


61



PacifiCorp and its subsidiaries
Consolidated Financial Section


62



PART I
Item 1.
Financial Statements


REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM


To the Board of Directors and Shareholders of
PacifiCorp

Results of Review of Interim Financial Information
We have reviewed the accompanying consolidated balance sheet of PacifiCorp and subsidiaries ("PacifiCorp") as of September 30, 2019, the related consolidated statements of operations and changes in shareholders' equity for the three-month and nine-month periods ended September 30, 2019 and 2018, and of cash flows for the nine-month periods ended September 30, 2019 and 2018, and the related notes (collectively referred to as the "interim financial information"). Based on our reviews, we are not aware of any material modifications that should be made to the accompanying interim financial information for it to be in conformity with accounting principles generally accepted in the United States of America.
 
We have previously audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (PCAOB), the consolidated balance sheet of PacifiCorp as of December 31, 2018, and the related consolidated statements of operations, comprehensive income, changes in shareholders' equity, and cash flows for the year then ended (not presented herein); and in our report dated February 22, 2019, we expressed an unqualified opinion on those consolidated financial statements. In our opinion, the information set forth in the accompanying consolidated balance sheet as of December 31, 2018, is fairly stated, in all material respects, in relation to the consolidated balance sheet from which it has been derived.

Basis for Review Results
This interim financial information is the responsibility of PacifiCorp's management. We are a public accounting firm registered with the PCAOB and are required to be independent with respect to PacifiCorp in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our reviews in accordance with standards of the PCAOB. A review of interim financial information consists principally of applying analytical procedures and making inquiries of persons responsible for financial and accounting matters. It is substantially less in scope than an audit conducted in accordance with the standards of the PCAOB, the objective of which is the expression of an opinion regarding the financial statements taken as a whole. Accordingly, we do not express such an opinion.

/s/ Deloitte & Touche LLP

 
Portland, Oregon
November 1, 2019


63



PACIFICORP AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS (Unaudited)
(Amounts in millions)

 
 
As of
 
 
September 30,
 
December 31,
 
 
2019
 
2018
ASSETS
Current assets:
 
 
 
 
Cash and cash equivalents
 
$
331

 
$
77

Trade receivables, net
 
659

 
640

Other receivables, net
 
55

 
92

Inventories
 
421

 
417

Other current assets
 
137

 
133

Total current assets
 
1,603

 
1,359

 
 
 
 
 
Property, plant and equipment, net
 
20,608

 
19,570

Regulatory assets
 
1,057

 
1,076

Other assets
 
358

 
308

 
 
 
 
 
Total assets
 
$
23,626

 
$
22,313


The accompanying notes are an integral part of these consolidated financial statements.

64



PACIFICORP AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS (Unaudited) (continued)
(Amounts in millions)

 
 
As of
 
 
September 30,
 
December 31,
 
 
2019
 
2018
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
 
 
 
 
Accounts payable
 
$
732

 
$
597

Accrued interest
 
110

 
114

Accrued property, income and other taxes
 
174

 
75

Accrued employee expenses
 
122

 
79

Short-term debt
 

 
30

Current portion of long-term debt
 

 
350

Regulatory liabilities
 
63

 
77

Other current liabilities
 
172

 
193

Total current liabilities
 
1,373

 
1,515

 
 
 
 
 
Long-term debt
 
7,657

 
6,665

Regulatory liabilities
 
2,951

 
2,978

Deferred income taxes
 
2,554

 
2,543

Other long-term liabilities
 
796

 
767

Total liabilities
 
15,331

 
14,468

 
 
 
 
 
Commitments and contingencies (Note 10)
 
 
 
 
 
 
 
 
 
Shareholders' equity:
 
 
 
 
Preferred stock
 
2

 
2

Common stock - 750 shares authorized, no par value, 357 shares issued and outstanding
 

 

Additional paid-in capital
 
4,479

 
4,479

Retained earnings
 
3,826

 
3,377

Accumulated other comprehensive loss, net
 
(12
)
 
(13
)
Total shareholders' equity
 
8,295

 
7,845

 
 
 
 
 
Total liabilities and shareholders' equity
 
$
23,626

 
$
22,313


The accompanying notes are an integral part of these consolidated financial statements.


65



PACIFICORP AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS (Unaudited)
(Amounts in millions)

 
Three-Month Periods
 
Nine-Month Periods
 
Ended September 30,
 
Ended September 30,
 
2019
 
2018
 
2019
 
2018
 
 
 
 
 
 
 
 
Operating revenue
$
1,367

 
$
1,369

 
$
3,793

 
$
3,746

 
 

 
 
 
 
 
 

Operating expenses:
 
 
 
 
 
 
 
Cost of fuel and energy
464

 
465

 
1,313

 
1,300

Operations and maintenance
252

 
266

 
763

 
777

Depreciation and amortization
272

 
203

 
686

 
602

Property and other taxes
46

 
49

 
146

 
150

Total operating expenses
1,034

 
983

 
2,908

 
2,829

 
 

 
 
 
 
 
 

Operating income
333

 
386

 
885

 
917

 
 

 
 
 
 
 
 

Other income (expense):
 

 
 
 
 
 
 

Interest expense
(101
)
 
(96
)
 
(299
)
 
(288
)
Allowance for borrowed funds
11

 
5

 
26

 
13

Allowance for equity funds
21

 
9

 
51

 
24

Interest and dividend income
5

 
4

 
17

 
10

Other, net
6

 
10

 
22

 
26

Total other income (expense)
(58
)
 
(68
)
 
(183
)
 
(215
)
 
 

 
 
 
 
 
 

Income before income tax (benefit) expense
275

 
318

 
702

 
702

Income tax (benefit) expense
(3
)
 
48

 
77

 
100

Net income
$
278

 
$
270

 
$
625

 
$
602


The accompanying notes are an integral part of these consolidated financial statements.


66



PACIFICORP AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CHANGES IN SHAREHOLDERS' EQUITY (Unaudited)
(Amounts in millions)

 
 
 
 
 
 
 
 
 
 
Accumulated
 
 
 
 
 
 
 
 
Additional
 
 
 
Other
 
Total
 
 
Preferred
 
Common
 
Paid-in
 
Retained
 
Comprehensive
 
Shareholders'
 
 
Stock
 
Stock
 
Capital
 
Earnings
 
Loss, Net
 
Equity
 
 
 
 
 
 
 
 
 
 
 
 
 
Balance, June 30, 2018

$
2


$


$
4,479


$
3,071


$
(15
)

$
7,537

Net income
 

 

 

 
270

 

 
270

Common stock dividends declared
 

 

 

 
(50
)
 

 
(50
)
Balance, September 30, 2018
 
$
2

 
$

 
$
4,479

 
$
3,291

 
$
(15
)
 
$
7,757

 
 
 
 
 
 
 
 
 
 
 
 
 
Balance, December 31, 2017
 
$
2

 
$

 
$
4,479

 
$
3,089

 
$
(15
)
 
$
7,555

Net income
 

 

 

 
602

 

 
602

Common stock dividends declared
 

 

 

 
(400
)
 

 
(400
)
Balance, September 30, 2018
 
$
2

 
$

 
$
4,479

 
$
3,291

 
$
(15
)
 
$
7,757

 
 
 

 
 

 
 

 
 

 
 

 
 

Balance, June 30, 2019
 
$
2

 
$

 
$
4,479

 
$
3,548

 
$
(12
)
 
$
8,017

Net income
 

 

 

 
278

 

 
278

Balance, September 30, 2019
 
$
2

 
$

 
$
4,479

 
$
3,826

 
$
(12
)
 
$
8,295

 
 
 
 
 
 
 
 
 
 
 
 
 
Balance, December 31, 2018
 
$
2

 
$

 
$
4,479

 
$
3,377

 
$
(13
)
 
$
7,845

Net income
 

 

 

 
625

 

 
625

Other comprehensive income
 

 

 

 
(1
)
 
1

 

Common stock dividends declared
 

 

 

 
(175
)
 

 
(175
)
Balance, September 30, 2019
 
$
2

 
$

 
$
4,479

 
$
3,826

 
$
(12
)
 
$
8,295


The accompanying notes are an integral part of these consolidated financial statements.


67



PACIFICORP AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS (Unaudited)
(Amounts in millions)

 
Nine-Month Periods
 
Ended September 30,
 
2019
 
2018
Cash flows from operating activities:
 
 
 
Net income
$
625

 
$
602

Adjustments to reconcile net income to net cash flows from operating activities:
 
 
 
Depreciation and amortization
686

 
602

Allowance for equity funds
(51
)
 
(24
)
Changes in regulatory assets and liabilities
(31
)
 
127

Deferred income taxes and amortization of investment tax credits
(78
)
 
(53
)
Other, net
(3
)
 
(1
)
Changes in other operating assets and liabilities:
 
 
 

Trade receivables, other receivables and other assets
21

 
(21
)
Inventories
(4
)
 
4

Derivative collateral, net
5

 
4

Accrued property, income and other taxes, net
99

 
204

Accounts payable and other liabilities
(2
)
 
36

Net cash flows from operating activities
1,267

 
1,480

 
 
 
 

Cash flows from investing activities:
 
 
 

Capital expenditures
(1,449
)
 
(713
)
Other, net
9

 
2

Net cash flows from investing activities
(1,440
)
 
(711
)
 
 
 
 

Cash flows from financing activities:
 
 
 

Proceeds from long-term debt
990

 
593

Repayments of long-term debt
(350
)
 
(586
)
Net repayments of short-term debt
(30
)
 
(80
)
Dividends paid
(175
)
 
(400
)
Other, net
(2
)
 
(2
)
Net cash flows from financing activities
433

 
(475
)
 
 
 
 

Net change in cash and cash equivalents and restricted cash and cash equivalents
260

 
294

Cash and cash equivalents and restricted cash and cash equivalents at beginning of period
92

 
29

Cash and cash equivalents and restricted cash and cash equivalents at end of period
$
352

 
$
323

 
The accompanying notes are an integral part of these consolidated financial statements.


68



PACIFICORP AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)

(1)
General

PacifiCorp, which includes PacifiCorp and its subsidiaries, is a United States regulated electric utility company serving retail customers, including residential, commercial, industrial, irrigation and other customers in portions of Utah, Oregon, Wyoming, Washington, Idaho and California. PacifiCorp owns, or has interests in, a number of thermal, hydroelectric, wind-powered and geothermal generating facilities, as well as electric transmission and distribution assets. PacifiCorp also buys and sells electricity on the wholesale market with other utilities, energy marketing companies, financial institutions and other market participants. PacifiCorp is subject to comprehensive state and federal regulation. PacifiCorp's subsidiaries support its electric utility operations by providing coal mining services. PacifiCorp is an indirect subsidiary of Berkshire Hathaway Energy Company ("BHE"), a holding company based in Des Moines, Iowa that owns subsidiaries principally engaged in energy businesses. BHE is a consolidated subsidiary of Berkshire Hathaway Inc. ("Berkshire Hathaway").

The unaudited Consolidated Financial Statements have been prepared in accordance with accounting principles generally accepted in the United States of America ("GAAP") for interim financial information and the United States Securities and Exchange Commission's rules and regulations for Form 10-Q and Article 10 of Regulation S-X. Accordingly, they do not include all of the disclosures required by GAAP for annual financial statements. Management believes the unaudited Consolidated Financial Statements contain all adjustments (consisting only of normal recurring adjustments) considered necessary for the fair presentation of the unaudited Consolidated Financial Statements as of September 30, 2019 and for the three- and nine-month periods ended September 30, 2019 and 2018. The Consolidated Statements of Comprehensive Income have been omitted as net income materially equals comprehensive income for the three- and nine-month periods ended September 30, 2019 and 2018. The results of operations for the three- and nine-month periods ended September 30, 2019 and 2018 are not necessarily indicative of the results to be expected for the full year.

The preparation of the unaudited Consolidated Financial Statements in conformity with GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities at the date of the unaudited Consolidated Financial Statements and the reported amounts of revenue and expenses during the period. Actual results may differ from the estimates used in preparing the unaudited Consolidated Financial Statements. Note 2 of Notes to Consolidated Financial Statements included in PacifiCorp's Annual Report on Form 10-K for the year ended December 31, 2018 describes the most significant accounting policies used in the preparation of the unaudited Consolidated Financial Statements. There have been no significant changes in PacifiCorp's assumptions regarding significant accounting estimates and policies, except as disclosed in Note 4, during the nine-month period ended September 30, 2019.

(2)
Cash and Cash Equivalents and Restricted Cash and Cash Equivalents

Cash equivalents consist of funds invested in money market mutual funds, United States Treasury Bills and other investments with a maturity of three months or less when purchased. Cash and cash equivalents exclude amounts where availability is restricted by legal requirements, loan agreements or other contractual provisions. Restricted cash and cash equivalents consist substantially of funds representing escrow accounts for disputes, vendor retention, custodial and nuclear decommissioning funds. Restricted amounts are included in other current assets and other assets on the Consolidated Balance Sheets. A reconciliation of cash and cash equivalents and restricted cash and cash equivalents as of September 30, 2019 and December 31, 2018, as presented in the Consolidated Statements of Cash Flows is outlined below and disaggregated by the line items in which they appear on the Consolidated Balance Sheets (in millions):
 
As of
 
September 30,
 
December 31,
 
2019
 
2018
Cash and cash equivalents
$
331

 
$
77

Restricted cash included in other current assets
19

 
13

Restricted cash included in other assets
2

 
2

Total cash and cash equivalents and restricted cash and cash equivalents
$
352

 
$
92



69



(3)
Property, Plant and Equipment, Net

Property, plant and equipment, net consists of the following (in millions):
 
 
 
As of
 
 
 
September 30,
 
December 31,
 
Depreciable Life
 
2019
 
2018
Utility Plant:
 
 
 
 
 
Generation
14 - 67 years
 
$
12,574

 
$
12,606

Transmission
58 - 75 years
 
6,468

 
6,357

Distribution
20 - 70 years
 
7,217

 
7,030

Intangible plant(1)
5 - 75 years
 
1,002

 
970

Other
5 - 60 years
 
1,429

 
1,436

Utility plant in service
 
 
28,690

 
28,399

Accumulated depreciation and amortization
 
 
(10,069
)
 
(10,034
)
Utility plant in-service, net
 
 
18,621

 
18,365

Other non-regulated, net of accumulated depreciation and amortization
47 years
 
10

 
10

Plant, net
 
 
18,631

 
18,375

Construction work-in-progress
 
 
1,977

 
1,195

Property, plant and equipment, net
 
 
$
20,608

 
$
19,570


(1)
Computer software costs included in intangible plant are initially assigned a depreciable life of 5 to 10 years.

(4)    Leases

Adoption

In February 2016, the Financial Accounting Standards Board ("FASB") issued Accounting Standards Update ("ASU") No. 2016-02, which creates FASB Accounting Standards Codification ("ASC") Topic 842, "Leases" and supersedes Topic 840 "Leases." This guidance increases transparency and comparability among entities by recording lease assets and lease liabilities on the balance sheet and disclosing key information about leasing arrangements. A lessee should recognize on the balance sheet a liability to make lease payments (the lease liability) and a right-of-use asset representing its right to use the underlying asset for the lease term. The recognition, measurement and presentation of expenses and cash flows arising from a lease by a lessee have not significantly changed from previous guidance. Following the issuance of ASU No. 2016-02, the FASB issued several ASUs that clarified the implementation guidance for ASU No. 2016-02 but did not change the core principle of the guidance. PacifiCorp adopted this guidance for all applicable contracts in effect as of January 1, 2019 under a modified retrospective method and the adoption did not have a cumulative effect impact at the date of initial adoption.

PacifiCorp has elected to utilize various practical expedients available to adopt ASU No. 2016-02, including (1) the package of three not requiring a reassessment of (i) whether any expired or existing contracts are or contain leases; (ii) the lease classification for any expired or existing leases; and (iii) initial direct costs for any existing leases; (2) using hindsight in determining the lease term; and (3) not requiring a reassessment of whether existing or expired land easements that were not previously accounted for as leases under ASC Topic 840 are or contain a lease under ASC Topic 842.


70



Leases

Lessee

PacifiCorp has non-cancelable operating leases primarily for land, office space, office equipment, and generating facilities and finance leases consisting primarily of office buildings, natural gas pipeline facilities, and generating facilities. These leases generally require PacifiCorp to pay for insurance, taxes and maintenance applicable to the leased property. Given the capital intensive nature of the utility industry, it is common for a portion of lease costs to be capitalized when used during construction or maintenance of assets, in which the associated costs will be capitalized with the corresponding asset and depreciated over the remaining life of that asset. Certain leases contain renewal options for varying periods and escalation clauses for adjusting rent to reflect changes in price indices. PacifiCorp does not include options in its lease calculations unless there is a triggering event indicating PacifiCorp is reasonably certain to exercise the option. PacifiCorp's accounting policy is to not recognize lease obligations and corresponding right-of-use assets for leases with contract terms of one year or less and not separate lease components from non-lease components and instead account for each separate lease component and the non-lease components associated with a lease as a single lease component. Leases will be evaluated for impairment in line with ASC 360, "Property, Plant and Equipment" when a triggering event has occurred that might affect the value and use of the assets being leased.

PacifiCorp's leases of generating facilities generally are for the long-term purchase of electric energy, also known as power purchase agreements ("PPA"). PPAs are generally signed before or during the early stages of project construction and can yield a lease that has not yet commenced. These agreements are primarily for renewable energy and the payments are considered variable lease payments as they are based on the amount of output.

PacifiCorp's operating and finance right-of-use assets are recorded in other assets and the operating and finance lease liabilities are recorded in current and long-term other liabilities accordingly. The right-of-use assets and lease liabilities for finance leases as of December 31, 2018 have been reclassified from property, plant and equipment, net and current portion of long-term and long-term debt, respectively, to conform to the current period presentation. The following table summarizes PacifiCorp's leases recorded on the Consolidated Balance Sheet (in millions):
 
As of
 
September 30,
 
2019
Right-of-use assets:
 
Operating leases
$
13

Finance leases
19

Total right-of-use assets
$
32

 
 
Lease liabilities:
 
Operating leases
$
13

Finance leases
19

Total lease liabilities
$
32



71



The following table summarizes PacifiCorp's lease costs (in millions):
 
Three-Month Period
 
Nine-Month Period
 
Ended September 30,
 
Ended September 30,
 
2019
 
2019
 
 
 
 
Variable
$
10

 
$
36

Operating
1

 
2

Finance:
 
 
 
Amortization

 
1

Interest
1

 
2

Short-term

 
1

Total lease costs
$
12

 
$
42

 
 
 
 
Weighted-average remaining lease term (years):

 
 
Operating leases
 
 
13.6

Finance leases
 
 
9.3

 
 
 
 
Weighted-average discount rate:
 
 
 
Operating leases
 
 
3.7
%
Finance leases
 
 
10.6
%

Cash payments associated with operating and finance lease liabilities approximated lease cost for the three- and nine-month periods ended September 30, 2019 and 2018, respectively.

PacifiCorp has the following remaining lease commitments as of (in millions):
 
September 30, 2019
 
December 31, 2018(1)
 
Operating
 
Finance
 
Total
 
Operating
 
Capital
 
Total
2019
$
1

 
$
1

 
$
2

 
$
3

 
$
4

 
$
7

2020
3

 
3

 
6

 
3

 
4

 
7

2021
2

 
7

 
9

 
3

 
7

 
10

2022
2

 
3

 
5

 
2

 
3

 
5

2023
2

 
2

 
4

 
2

 
2

 
4

Thereafter
7

 
16

 
23

 
7

 
16

 
23

Total undiscounted lease payments
17

 
32

 
49

 
$
20

 
$
36

 
$
56

Less - amounts representing interest
(4
)
 
(13
)
 
(17
)
 
 
 
 
 
 
Lease liabilities
$
13

 
$
19

 
$
32

 
 
 


 
 

(1)     Amounts included for comparability and accounted for in accordance with ASC 840, "Leases".  

(5)
Recent Financing Transactions

Long-Term Debt

In March 2019, PacifiCorp issued $400 million of its 3.50% First Mortgage Bonds due June 2029 and $600 million of its 4.15% First Mortgage Bonds due February 2050. PacifiCorp used a portion of the net proceeds to repay short-term debt that was partially incurred in January 2019 to repay all of PacifiCorp's $350 million 5.50% First Mortgage Bonds due January 2019 and intends to use the remaining net proceeds to fund capital expenditures and for general corporate purposes.


72



Credit Facilities

In May 2019, PacifiCorp extended, with lender consent, the expiration date for each of its two existing $600 million unsecured credit facilities to June 2022 by exercising the remaining one-year extension option for one facility and exercising the first of two available one-year extensions for the second facility.

In March 2019, PacifiCorp completed a re-offering of variable rate tax-exempt bond obligations totaling $168 million, involving the cancellation, at PacifiCorp's request, of $170 million of letters of credit support by the issuing banks. As a result, PacifiCorp's credit facility support for outstanding variable rate tax-exempt bond obligations increased by $168 million.

(6)
Income Taxes

A reconciliation of the federal statutory income tax rate to the effective income tax rate applicable to income before income tax expense is as follows:
 
Three-Month Periods
 
Nine-Month Periods
 
Ended September 30,
 
Ended September 30,
 
2019
 
2018
 
2019
 
2018
 
 
 
 
 
 
 
 
Federal statutory income tax rate
21
 %
 
21
 %
 
21
 %
 
21
 %
State income tax, net of federal income tax benefit
3

 
4

 
3

 
4

Federal income tax credits
(3
)
 
(5
)
 
(4
)
 
(5
)
Effects of ratemaking
(3
)
 
(4
)
 
(2
)
 
(4
)
Amortization of excess deferred income taxes
(18
)
 

 
(7
)
 

Other
(1
)
 
(1
)
 

 
(2
)
Effective income tax rate
(1
)%
 
15
 %
 
11
 %
 
14
 %

Income tax credits relate primarily to production tax credits earned by PacifiCorp's wind-powered generating facilities. Federal renewable electricity production tax credits are earned as energy from qualifying wind-powered generating facilities is produced and sold and are based on a per-kilowatt hour rate pursuant to the applicable federal income tax law. Wind-powered generating facilities are eligible for the credits for 10 years from the date the qualifying generating facilities are placed in-service.

Amortization of excess deferred income taxes relates primarily to the amortization of $49 million of Oregon's allocated excess deferred income taxes pursuant to the Oregon Renewable Adjustment Clause settlement, whereby a portion of Oregon's allocated excess deferred income taxes was used to accelerate depreciation on Oregon's share of replaced equipment associated with certain repowered wind facilities.



73



(7)
Employee Benefit Plans

Net periodic benefit credit for the pension and other postretirement benefit plans included the following components (in millions):
 
Three-Month Periods
 
Nine-Month Periods
 
Ended September 30,
 
Ended September 30,
 
2019
 
2018
 
2019
 
2018
Pension:
 
 
 
 
 
 
 
Service cost
$

 
$

 
$

 
$

Interest cost
11

 
11

 
33

 
32

Expected return on plan assets
(17
)
 
(18
)
 
(50
)
 
(54
)
Net amortization
3

 
3

 
9

 
10

Net periodic benefit credit
$
(3
)
 
$
(4
)
 
(8
)
 
(12
)
 
 
 
 
 
 
 
 
Other postretirement:
 
 
 
 
 
 
 
Service cost
$

 
$

 
$
1

 
$
1

Interest cost
3

 
3

 
9

 
9

Expected return on plan assets
(6
)
 
(5
)
 
(16
)
 
(16
)
Net amortization
1

 
(1
)
 
1

 
(4
)
Net periodic benefit credit
$
(2
)
 
$
(3
)
 
(5
)
 
(10
)

Amounts other than the service cost for pension and other postretirement benefit plans are recorded in Other, net in the Consolidated Statements of Operations. Employer contributions to the pension and other postretirement benefit plans are expected to be $4 million and $- million, respectively, during 2019. As of September 30, 2019, $3 million and $- million of contributions had been made to the pension and other postretirement benefit plans, respectively.

(8)
Risk Management and Hedging Activities

PacifiCorp is exposed to the impact of market fluctuations in commodity prices and interest rates. PacifiCorp is principally exposed to electricity, natural gas, coal and fuel oil commodity price risk as it has an obligation to serve retail customer load in its regulated service territories. PacifiCorp's load and generating facilities represent substantial underlying commodity positions. Exposures to commodity prices consist mainly of variations in the price of fuel required to generate electricity and wholesale electricity that is purchased and sold. Commodity prices are subject to wide price swings as supply and demand are impacted by, among many other unpredictable items, weather, market liquidity, generating facility availability, customer usage, storage, and transmission and transportation constraints. Interest rate risk exists on variable-rate debt and future debt issuances. PacifiCorp does not engage in a material amount of proprietary trading activities.

PacifiCorp has established a risk management process that is designed to identify, assess, manage, mitigate, monitor and report each of the various types of risk involved in its business. To mitigate a portion of its commodity price risk, PacifiCorp uses commodity derivative contracts, which may include forwards, options, swaps and other agreements, to effectively secure future supply or sell future production generally at fixed prices. PacifiCorp manages its interest rate risk by limiting its exposure to variable interest rates primarily through the issuance of fixed-rate long-term debt and by monitoring market changes in interest rates. Additionally, PacifiCorp may from time to time enter into interest rate derivative contracts, such as interest rate swaps or locks, to mitigate PacifiCorp's exposure to interest rate risk. No interest rate derivatives were in place during the periods presented. PacifiCorp does not hedge all of its commodity price and interest rate risks, thereby exposing the unhedged portion to changes in market prices.

There have been no significant changes in PacifiCorp's accounting policies related to derivatives. Refer to Note 9 for additional information on derivative contracts.


74



The following table, which reflects master netting arrangements and excludes contracts that have been designated as normal under the normal purchases or normal sales exception afforded by GAAP, summarizes the fair value of PacifiCorp's derivative contracts, on a gross basis, and reconciles those amounts to the amounts presented on a net basis on the Consolidated Balance Sheets (in millions):
 
Other
 
 
 
Other
 
Other
 
 
 
Current
 
Other
 
Current
 
Long-term
 
 
 
Assets
 
Assets
 
Liabilities
 
Liabilities
 
Total
 
 
 
 
 
 
 
 
 
 
As of September 30, 2019
 
 
 
 
 
 
 
 
 
Not designated as hedging contracts(1):
 
 
 
 
 
 
 
 
 
Commodity assets
$
7

 
$
1

 
$
4

 
$
1

 
$
13

Commodity liabilities
(2
)
 

 
(34
)
 
(59
)
 
(95
)
Total
5

 
1

 
(30
)
 
(58
)
 
(82
)
 
 

 
 

 
 

 
 

 
 

Total derivatives
5

 
1

 
(30
)
 
(58
)
 
(82
)
Cash collateral receivable

 

 
20

 
34

 
54

Total derivatives - net basis
$
5

 
$
1

 
$
(10
)
 
$
(24
)
 
$
(28
)
 
 
 
 
 
 
 
 
 
 
As of December 31, 2018
 
 
 
 
 
 
 
 
 
Not designated as hedging contracts(1):
 
 
 
 
 
 
 
 
 
Commodity assets
$
36

 
$
4

 
$
10

 
$
1

 
$
51

Commodity liabilities
(9
)
 
(1
)
 
(67
)
 
(71
)
 
(148
)
Total
27

 
3

 
(57
)
 
(70
)
 
(97
)
 
 
 
 
 
 
 
 
 
 
Total derivatives
27

 
3

 
(57
)
 
(70
)
 
(97
)
Cash collateral (payable) receivable
(2
)
 

 
16

 
45

 
59

Total derivatives - net basis
$
25

 
$
3

 
$
(41
)
 
$
(25
)
 
$
(38
)

(1)
PacifiCorp's commodity derivatives are generally included in rates and as of September 30, 2019 and December 31, 2018, a regulatory asset of $81 million and $96 million, respectively, was recorded related to the net derivative liability of $82 million and $97 million, respectively.

The following table reconciles the beginning and ending balances of PacifiCorp's net regulatory assets and summarizes the pre-tax gains and losses on commodity derivative contracts recognized in net regulatory assets, as well as amounts reclassified to earnings (in millions):
 
Three-Month Periods
 
Nine-Month Periods
 
Ended September 30,
 
Ended September 30,
 
2019
 
2018
 
2019
 
2018
 
 
 
 
 
 
 
 
Beginning balance
$
101

 
$
116

 
$
96

 
$
101

Changes in fair value
16

 
14

 
(12
)
 
48

Net losses reclassified to operating revenue
(11
)
 
(36
)
 
(27
)
 
(30
)
Net (losses) gains reclassified to cost of fuel and energy
(25
)
 
8

 
24

 
(17
)
Ending balance
$
81

 
$
102

 
$
81

 
$
102



75



Derivative Contract Volumes

The following table summarizes the net notional amounts of outstanding commodity derivative contracts with fixed price terms that comprise the mark-to-market values as of (in millions):
 
Unit of
 
September 30,
 
December 31,
 
Measure
 
2019
 
2018
 
 
 
 
 
 
Electricity sales, net
Megawatt hours
 
(3
)
 
(6
)
Natural gas purchases
Decatherms
 
108

 
117


Credit Risk

PacifiCorp is exposed to counterparty credit risk associated with wholesale energy supply and marketing activities with other utilities, energy marketing companies, financial institutions and other market participants. Credit risk may be concentrated to the extent PacifiCorp's counterparties have similar economic, industry or other characteristics and due to direct or indirect relationships among the counterparties. Before entering into a transaction, PacifiCorp analyzes the financial condition of each significant wholesale counterparty, establishes limits on the amount of unsecured credit to be extended to each counterparty and evaluates the appropriateness of unsecured credit limits on an ongoing basis. To further mitigate wholesale counterparty credit risk, PacifiCorp enters into netting and collateral arrangements that may include margining and cross-product netting agreements and obtains third-party guarantees, letters of credit and cash deposits. If required, PacifiCorp exercises rights under these arrangements, including calling on the counterparty's credit support arrangement.

Collateral and Contingent Features

In accordance with industry practice, certain wholesale derivative contracts contain credit support provisions that in part base certain collateral requirements on credit ratings for senior unsecured debt as reported by one or more of the three recognized credit rating agencies. These derivative contracts may either specifically provide bilateral rights to demand cash or other security if credit exposures on a net basis exceed specified rating-dependent threshold levels ("credit-risk-related contingent features") or provide the right for counterparties to demand "adequate assurance," or in some cases terminate the contract, in the event of a material adverse change in PacifiCorp's creditworthiness. These rights can vary by contract and by counterparty. As of September 30, 2019, PacifiCorp's credit ratings for its senior secured debt and its issuer credit ratings for senior unsecured debt by Moody's Investor Service and Standard & Poor's Rating Services were investment grade.

The aggregate fair value of PacifiCorp's derivative contracts in liability positions with specific credit-risk-related contingent features totaled $92 million and $113 million as of September 30, 2019 and December 31, 2018, respectively, for which PacifiCorp had posted collateral of $54 million and $61 million, respectively, in the form of cash deposits. If all credit-risk-related contingent features for derivative contracts in liability positions had been triggered as of September 30, 2019 and December 31, 2018, PacifiCorp would have been required to post $31 million and $35 million, respectively, of additional collateral. PacifiCorp's collateral requirements could fluctuate considerably due to market price volatility, changes in credit ratings, changes in legislation or regulation, or other factors.


76



(9)
Fair Value Measurements

The carrying value of PacifiCorp's cash, certain cash equivalents, receivables, payables, accrued liabilities and short-term borrowings approximates fair value because of the short-term maturity of these instruments. PacifiCorp has various financial assets and liabilities that are measured at fair value on the Consolidated Financial Statements using inputs from the three levels of the fair value hierarchy. A financial asset or liability classification within the hierarchy is determined based on the lowest level input that is significant to the fair value measurement. The three levels are as follows:

Level 1 Inputs are unadjusted quoted prices in active markets for identical assets or liabilities that PacifiCorp has the ability to access at the measurement date.

Level 2 Inputs include quoted prices for similar assets or liabilities in active markets, quoted prices for identical or similar assets or liabilities in markets that are not active, inputs other than quoted prices that are observable for the asset or liability and inputs that are derived principally from or corroborated by observable market data by correlation or other means (market corroborated inputs).

Level 3 Unobservable inputs reflect PacifiCorp's judgments about the assumptions market participants would use in pricing the asset or liability since limited market data exists. PacifiCorp develops these inputs based on the best information available, including its own data.
 
The following table presents PacifiCorp's financial assets and liabilities recognized on the Consolidated Balance Sheets and measured at fair value on a recurring basis (in millions):
 
 
Input Levels for Fair Value Measurements
 
 
 
 
 
 
Level 1
 
Level 2
 
Level 3
 
Other(1) 
 
Total
As of September 30, 2019
 
 
 
 
 
 
 
 
 
 
Assets:
 
 
 
 
 
 
 
 
 
 
Commodity derivatives
 
$

 
$
13

 
$

 
$
(7
)
 
$
6

Money market mutual funds(2)
 
322

 

 

 

 
322

Investment funds
 
25

 

 

 

 
25

 
 
$
347

 
$
13

 
$

 
$
(7
)
 
$
353

 
 
 
 
 
 
 
 
 
 
 
Liabilities - Commodity derivatives
 
$

 
$
(95
)
 
$

 
$
61

 
$
(34
)
 
 
 
 
 
 
 
 
 
 
 
As of December 31, 2018
 
 
 
 
 
 
 
 
 
 
Assets:
 
 
 
 
 
 
 
 
 
 
Commodity derivatives
 
$

 
$
51

 
$

 
$
(23
)
 
$
28

Money market mutual funds(2)
 
69

 

 

 

 
69

Investment funds
 
24

 

 

 

 
24

 
 
$
93

 
$
51

 
$

 
$
(23
)
 
$
121

 
 
 
 
 
 
 
 
 
 
 
Liabilities - Commodity derivatives
 
$

 
$
(148
)
 
$

 
$
82

 
$
(66
)

(1)
Represents netting under master netting arrangements and a net cash collateral receivable of $54 million and $59 million as of September 30, 2019 and December 31, 2018, respectively.

(2)
Amounts are included in cash and cash equivalents, other current assets and other assets on the Consolidated Balance Sheets. The fair value of these money market mutual funds approximates cost.


77



Derivative contracts are recorded on the Consolidated Balance Sheets as either assets or liabilities and are stated at estimated fair value unless they are designated as normal purchases or normal sales and qualify for the exception afforded by GAAP. When available, the fair value of derivative contracts is estimated using unadjusted quoted prices for identical contracts in the market in which PacifiCorp transacts. When quoted prices for identical contracts are not available, PacifiCorp uses forward price curves. Forward price curves represent PacifiCorp's estimates of the prices at which a buyer or seller could contract today for delivery or settlement at future dates. PacifiCorp bases its forward price curves upon market price quotations, when available, or internally developed and commercial models, with internal and external fundamental data inputs. Market price quotations are obtained from independent energy brokers, exchanges, direct communication with market participants and actual transactions executed by PacifiCorp. Market price quotations for certain major electricity and natural gas trading hubs are generally readily obtainable for the first three years; therefore, PacifiCorp's forward price curves for those locations and periods reflect observable market quotes. Market price quotations for other electricity and natural gas trading hubs are not as readily obtainable for the first three years. Given that limited market data exists for these contracts, as well as for those contracts that are not actively traded, PacifiCorp uses forward price curves derived from internal models based on perceived pricing relationships to major trading hubs that are based on unobservable inputs. The estimated fair value of these derivative contracts is a function of underlying forward commodity prices, interest rates, currency rates, related volatility, counterparty creditworthiness and duration of contracts. Refer to Note 8 for further discussion regarding PacifiCorp's risk management and hedging activities.

PacifiCorp's investments in money market mutual funds and investment funds are stated at fair value. When available, PacifiCorp uses a readily observable quoted market price or net asset value of an identical security in an active market to record the fair value. In the absence of a quoted market price or net asset value of an identical security, the fair value is determined using pricing models or net asset values based on observable market inputs and quoted market prices of securities with similar characteristics.

PacifiCorp's long-term debt is carried at cost on the Consolidated Balance Sheets. The fair value of PacifiCorp's long-term debt is a Level 2 fair value measurement and has been estimated based upon quoted market prices, where available, or at the present value of future cash flows discounted at rates consistent with comparable maturities with similar credit risks. The carrying value of PacifiCorp's variable-rate long-term debt approximates fair value because of the frequent repricing of these instruments at market rates. The following table presents the carrying value and estimated fair value of PacifiCorp's long-term debt (in millions):
 
 
As of September 30, 2019
 
As of December 31, 2018
 
 
Carrying
 
Fair
 
Carrying
 
Fair
 
 
Value
 
Value
 
Value
 
Value
 
 
 
 
 
 
 
 
 
Long-term debt
 
$
7,657

 
$
9,392

 
$
7,015

 
$
7,833


(10)
Commitments and Contingencies

Construction Commitments

During the nine-month period ended September 30, 2019, PacifiCorp entered into firm construction commitments totaling $754 million for the remainder of 2019 through 2021 related to repowering and development of certain existing and new wind facilities in Wyoming, Montana and Washington.

Easements

During the nine-month period ended September 30, 2019, PacifiCorp entered into non-cancelable easements with minimum payments totaling $252 million through 2060 for land in Wyoming and Montana, on which some of its new wind-powered generating facilities will be located.

Maintenance and Service Contracts

During the nine-month period ended September 30, 2019, PacifiCorp entered into non-cancelable maintenance and service contracts related to wind-powered generating facilities with minimum payments totaling $241 million through 2032.

Legal Matters

PacifiCorp is party to a variety of legal actions arising out of the normal course of business. Plaintiffs occasionally seek punitive or exemplary damages. PacifiCorp does not believe that such normal and routine litigation will have a material impact on its consolidated financial results.

78




Environmental Laws and Regulations

PacifiCorp is subject to federal, state and local laws and regulations regarding climate change, renewable portfolio standards, air and water quality, emissions performance standards, coal combustion byproduct disposal, hazardous and solid waste disposal, protected species and other environmental matters that have the potential to impact PacifiCorp's current and future operations. PacifiCorp believes it is in material compliance with all applicable laws and regulations.

Hydroelectric Relicensing

PacifiCorp is a party to the 2016 amended Klamath Hydroelectric Settlement Agreement ("KHSA"), which is intended to resolve disputes surrounding PacifiCorp's efforts to relicense the Klamath Hydroelectric Project. The KHSA does not guarantee dam removal. Instead, it establishes a process for PacifiCorp, the states of Oregon and California ("States") and other stakeholders to assess whether dam removal can occur consistent with the settlement's terms. For PacifiCorp, the key elements of the settlement include: (1) a contribution from PacifiCorp's Oregon and California customers capped at $200 million plus $250 million in California bond funds; (2) complete indemnification from harms associated with dam removal; (3) transfer of the Federal Energy Regulatory Commission ("FERC") license to a third-party dam removal entity, the Klamath River Renewal Corporation ("KRRC"), who would conduct dam removal; and (4) ability for PacifiCorp to operate the facilities for the benefit of customers until dam removal commences.

In September 2016, the KRRC and PacifiCorp filed a joint application with the FERC to transfer the license for the four main-stem Klamath dams from PacifiCorp to the KRRC. Over the past two years, the KRRC has been supplementing the application with additional information about its financial, technical, and legal capacity to become the licensee. In July 2019, the KRRC provided the FERC with additional information about its financial capacity to become a licensee, including updated cost estimates, and its insurance, bonding and liability transfer package. The FERC is evaluating the KRRC's information and the proposed license transfer. The KRRC will continue to refine its insurance, bonding and liability transfer package, and PacifiCorp will review the KRRC's capacity to fulfill its indemnity obligation under the KHSA. If certain conditions in the amended KHSA are not satisfied (e.g., inadequate funding or inability of KRRC to satisfy its indemnification obligation) and the license does not transfer to the KRRC, PacifiCorp will resume relicensing with the FERC.

The United States Court of Appeals for the District of Columbia Circuit issued a decision in the Hoopa Valley Tribe v. FERC litigation, in January 2019, finding that the states of California and Oregon have waived their Clean Water Act, Section 401, water quality certification authority over the Klamath hydroelectric project relicensing. This decision has the potential to limit the ability of the States to impose water quality conditions on new and relicensed projects. Environmental interests, supported by California, Oregon and other states, asked the court to rehear the case, which was denied. Subsequently, environmental groups, supported by numerous states, filed a petition for certiorari before the United States Supreme Court, which remains pending.

Guarantees

PacifiCorp has entered into guarantees as part of the normal course of business and the sale of certain assets. These guarantees are not expected to have a material impact on PacifiCorp's consolidated financial results.


79



(11)
Revenue from Contracts with Customers

The following table summarizes PacifiCorp's revenue from contracts with customers ("Customer Revenue") by customer class (in millions):
 
Three-Month Periods
 
Nine-Month Periods
 
Ended September 30,
 
Ended September 30,
 
2019
 
2018
 
2019
 
2018
Customer Revenue:
 
 
 
 
 
 
 
Retail:
 
 
 
 
 
 
 
Residential
$
478

 
$
478

 
$
1,316

 
$
1,284

Commercial
419

 
418

 
1,152

 
1,129

Industrial
306

 
305

 
887

 
862

Other retail
100

 
106

 
203

 
204

Total retail
1,303

 
1,307

 
3,558

 
3,479

Wholesale (1)
8

 
(10
)
 
47

 
21

Transmission
26

 
30

 
76

 
82

Other Customer Revenue
17

 
16

 
55

 
55

Total Customer Revenue
1,354

 
1,343

 
3,736

 
3,637

Other revenue
13

 
26

 
57

 
109

Total operating revenue
$
1,367

 
$
1,369

 
$
3,793

 
$
3,746


(1)
Includes net payments to counterparties for the financial settlement of certain non-derivative forward contracts for energy sales.


(12)
Related Party

Berkshire Hathaway includes BHE and its subsidiaries in its United States federal income tax return. Consistent with established regulatory practice, PacifiCorp's provision for federal and state income tax has been computed on a stand-alone basis, and substantially all of its currently payable or receivable income tax is remitted to or received from BHE. For the nine-month periods ended September 30, 2019 and 2018, PacifiCorp made net cash payments for federal and state income tax to BHE totaling $128 million and $21 million, respectively.


80



Item 2.
Management's Discussion and Analysis of Financial Condition and Results of Operations

The following is management's discussion and analysis of certain significant factors that have affected the consolidated financial condition and results of operations of PacifiCorp during the periods included herein. Explanations include management's best estimate of the impact of weather, customer growth and other usage factors. This discussion should be read in conjunction with PacifiCorp's historical unaudited Consolidated Financial Statements and Notes to Consolidated Financial Statements in Part I, Item 1 of this Form 10‑Q. PacifiCorp's actual results in the future could differ significantly from the historical results.

Results of Operations for the Third Quarter and First Nine Months of 2019 and 2018

Overview

Net income for the third quarter of 2019 was $278 million, an increase of $8 million, or 3%, compared to 2018. Net income increased primarily due to higher allowances for equity and borrowed funds of $18 million and lower operations and maintenance expense of $14 million, largely due to a decrease in expenses from lower wildfire reserves, partially offset by lower recognized production tax credits of $8 million from expiring production tax credits and higher interest expense of $5 million. Utility margin was relatively unchanged; however, retail customer volumes decreased 1.6% primarily due to lower usage and the unfavorable impact of weather, partially offset by an increase in the average number of customers. Energy generated decreased 10% for the third quarter of 2019 compared to 2018 primarily due to lower coal, natural gas and wind-powered generation, offset by higher hydroelectric generation. Wholesale electricity sales volumes decreased 47% and purchased electricity volumes increased 23%.

Net income for the first nine months of 2019 was $625 million, an increase of $23 million, or 4%, compared to 2018. Net income increased primarily due to higher allowances for equity and borrowed funds of $40 million, higher utility margin of $34 million and lower operations and maintenance expenses of $14 million, mainly due to a decrease in expenses from lower wildfire reserves, partially offset by higher depreciation and amortization expense of $19 million, excluding $65 million of depreciation expense (offset in income tax expense) for Oregon's share of certain retired wind equipment due to repowering, higher interest expense of $11 million, and lower recognized production tax credits of $11 million from expiring production tax credits. Utility margin increased primarily due to higher average retail rates, lower coal-fueled generation costs, higher retail customer volumes and higher net deferrals of incurred net power costs in accordance with established adjustment mechanisms, partially offset by lower wholesale revenue, higher natural gas-fueled generation costs and higher purchased electricity costs. Retail customer volumes increased 0.3% primarily due to an increase in the average number of customers and the favorable impact of weather, partially offset by lower usage. Energy generated decreased 3% for the first nine months of 2019 compared to 2018 primarily due to lower coal, wind-powered, and hydroelectric generation, offset by higher natural gas generation. Wholesale electricity sales volumes decreased 37% and purchased electricity volumes decreased 8%.


81



Non-GAAP Financial Measure

Management utilizes various key financial measures that are prepared in accordance with GAAP, as well as non-GAAP financial measures such as utility margin, to help evaluate results of operations. Utility margin is calculated as operating revenue less cost of fuel and energy, which are captions presented on the Consolidated Statements of Operations.

PacifiCorp's cost of fuel and energy is directly recovered from its customers through regulatory recovery mechanisms and as a result, changes in PacifiCorp's revenue are comparable to changes in such expenses. As such, management believes utility margin more appropriately and concisely explains profitability rather than a discussion of revenue and cost of fuel and energy separately. Management believes the presentation of utility margin provides meaningful and valuable insight into the information management considers important to running the business and a measure of comparability to others in the industry.
Utility margin is not a measure calculated in accordance with GAAP and should be viewed as a supplement to and not a substitute for operating income which is the most comparable financial measure prepared in accordance with GAAP. The following table provides a reconciliation of utility margin to operating income (in millions):
 
Third Quarter
 
First Nine Months
 
2019
 
2018
 
Change
 
2019
 
2018
 
Change
Utility margin:
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Operating revenue
$
1,367

 
$
1,369

 
$
(2
)
 
 %
 
$
3,793

 
3,746

 
$
47

 
1%
Cost of fuel and energy
464

 
465

 
(1
)
 

 
1,313

 
1,300

 
13

 
1
Utility margin
903

 
904

 
(1
)
 

 
2,480

 
2,446

 
34

 
1
Operations and maintenance
252

 
266

 
(14
)
 
(5
)
 
763

 
777

 
(14
)
 
(2)
Depreciation and amortization
272

 
203

 
69

 
34

 
686

 
602

 
84

 
14
Property and other taxes
46

 
49

 
(3
)
 
(6
)
 
146

 
150

 
(4
)
 
(3)
Operating income
$
333

 
$
386

 
$
(53
)
 
(14
)
 
$
885

 
$
917

 
$
(32
)
 
(3)

82




A comparison of PacifiCorp's key operating results is as follows:
 
Third Quarter
 
First Nine Months
 
2019
 
2018
 
Change
 
2019
 
2018
 
Change
Utility margin (in millions):
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Operating revenue
$
1,367

 
$
1,369

 
$
(2
)
 
 %
 
$
3,793

 
$
3,746

 
$
47

 
1
 %
Cost of fuel and energy
464

 
465

 
(1
)
 

 
1,313

 
1,300

 
13

 
1

Utility margin
$
903

 
$
904

 
$
(1
)
 

 
$
2,480

 
$
2,446

 
$
34

 
1

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Sales (GWh):
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Residential
4,298

 
4,347

 
(49
)
 
(1
)%
 
12,213

 
11,996

 
217

 
2
 %
Commercial
4,877

 
4,941

 
(64
)
 
(1
)
 
13,622

 
13,530

 
92

 
1

Industrial, irrigation and other
5,686

 
5,823

 
(137
)
 
(2
)
 
15,693

 
15,889

 
(196
)
 
(1
)
Total retail
14,861

 
15,111

 
(250
)
 
(2
)
 
41,528

 
41,415

 
113

 

Wholesale
962

 
1,802

 
(840
)
 
(47
)
 
3,778

 
5,963

 
(2,185
)
 
(37
)
Total sales
15,823

 
16,913

 
(1,090
)
 
(6
)
 
45,306

 
47,378

 
(2,072
)
 
(4
)
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Average number of retail customers
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
(in thousands)
1,935

 
1,902

 
33

 
2
 %
 
1,928

 
1,896

 
32

 
2
 %
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Average revenue per MWh:
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Retail
$
87.64

 
$
86.29

 
$
1.35

 
2
 %
 
$
85.65

 
$
83.92

 
$
1.73

 
2
 %
Wholesale
$
21.08

 
$
9.12

 
$
11.96

 
131
 %
 
$
26.58

 
$
21.62

 
$
4.96

 
23
 %
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Heating degree days
271

 
208

 
63

 
30
 %
 
6,739

 
5,655

 
1,084

 
19
 %
Cooling degree days
1,462

 
1,532

 
(70
)
 
(5
)%
 
1,773

 
1,980

 
(207
)
 
(10
)%
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Sources of energy (GWh)(1):
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Coal
9,391

 
10,510

 
(1,119
)
 
(11
)%
 
25,059

 
26,231

 
(1,172
)
 
(4
)%
Natural gas
3,619

 
3,841

 
(222
)
 
(6
)
 
8,995

 
7,770

 
1,225

 
16

Hydroelectric(2)
480

 
467

 
13

 
3

 
2,211

 
2,640

 
(429
)
 
(16
)
Wind and other(2)
353

 
569

 
(216
)
 
(38
)
 
1,710

 
2,353

 
(643
)
 
(27
)
Total energy generated
13,843

 
15,387

 
(1,544
)
 
(10
)
 
37,975

 
38,994

 
(1,019
)
 
(3
)
Energy purchased
3,071

 
2,506

 
565

 
23

 
10,357

 
11,279

 
(922
)
 
(8
)
Total
16,914

 
17,893

 
(979
)
 
(5
)
 
48,332

 
50,273

 
(1,941
)
 
(4
)
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Average cost of energy per MWh:
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Energy generated(3)
$
19.17

 
$
19.45

 
$
(0.28
)
 
(1
)%
 
$
19.41

 
$
18.96

 
$
0.45

 
2
 %
Energy purchased
$
62.25

 
$
70.75

 
$
(8.50
)
 
(12
)%
 
$
49.88

 
$
44.43

 
$
5.45

 
12
 %

(1)
GWh amounts are net of energy used by the related generating facilities.

(2)
All or some of the renewable energy attributes associated with generation from these generating facilities may be: (a) used in future years to comply with RPS or other regulatory requirements or (b) sold to third parties in the form of RECs or other environmental commodities.

(3)
The average cost per MWh of energy generated includes only the cost of fuel associated with the generating facilities.

83




Utility margin decreased $1 million for the third quarter of 2019 compared to 2018 primarily due to:
$19 million of lower retail revenue from lower volumes. Retail volumes decreased 1.6% primarily due to lower residential and commercial usage in Utah, lower industrial usage in the eastern service territory, lower irrigation usage in Utah, Oregon and Washington, and the unfavorable impact of weather on residential and commercial customers in Oregon, partially offset by an increase in the average number of residential and commercial customers across the service territory and higher irrigation usage in Idaho;
$16 million of lower net deferrals of incurred net power costs in accordance with established adjustment mechanisms;
$14 million of higher purchased electricity costs, primarily due to higher volumes;
$7 million of lower wholesale revenue due to lower volumes; and
$6 million of lower wheeling revenues and higher wheeling costs.
The decreases above were partially offset by:
$34 million of lower coal and natural gas-fueled generation costs;
$17 million of higher retail revenue primarily due to lower net tax deferrals associated with the 2017 Tax Reform and higher average rates due to product mix; and
$11 million of higher wholesale revenue from higher average market prices.
Operations and maintenance decreased $14 million, or 5%, for the third quarter of 2019 compared to 2018 primarily due to a $10 million decrease in injuries and damages expense due to lower wildfire reserves and higher capitalized labor related to construction projects.

Depreciation and amortization increased $69 million, or 34%, for the third quarter of 2019 compared to 2018 primarily due to accelerated depreciation of $65 million (offset in income tax expense) for Oregon's share of certain retired wind equipment due to repowering and higher plant-in-service.

Property and other taxes decreased $3 million, or 6% for the third quarter of 2019 compared to 2018 due to lower property taxes, primarily in Utah.

Interest expense increased $5 million, or 5% for the third quarter of 2019 compared to 2018 primarily due to higher average long-term debt balances.

Allowance for borrowed and equity funds increased $18 million, or 129%, for the third quarter of 2019 compared to 2018 primarily due to higher qualified construction work-in-progress balances.

Income tax expense decreased $51 million, or 106%, for the third quarter of 2019 compared to 2018. The effective tax rate was (1)% for 2019 and 15% for 2018. The effective tax rate decreased primarily due to the amortization of $49 million of Oregon's allocated excess deferred income taxes pursuant to the Oregon RAC settlement, whereby a portion of Oregon's allocated excess deferred income taxes was used to accelerate depreciation for Oregon's share of certain retired wind equipment due to repowering, partially offset by the impact of the 2017 Tax Reform settlements and expiring production tax credits.


84



Utility margin increased $34 million, or 1%, for the first nine months of 2019 compared to 2018 primarily due to:
$65 million of higher retail revenue from lower net tax deferrals associated with the 2017 Tax Reform and higher average rates due to product mix;
$17 million of higher retail revenue from higher volumes. Retail customer volumes increased 0.3% primarily due to an increase in the average number of residential and commercial customers across the service territory, the favorable impact of weather on residential customers across the service territory except Utah, higher commercial customer usage in Oregon, higher industrial customer usage in Washington and higher irrigation customer usage in Idaho, partially offset by lower residential customer usage in Utah, Oregon and Washington, lower industrial customer usage in Idaho, Oregon and Utah, lower irrigation customer usage in Utah and Oregon, lower commercial customer usage in Utah and Washington, and unfavorable impact of weather on residential and commercial customers in Utah and irrigation customers in Idaho;
$28 million of lower coal-fueled generation costs due to lower average volumes and prices; and
$10 million of higher net deferrals of incurred net power costs in accordance with established adjustment mechanisms.
The increases above were partially offset by:
$29 million of lower wholesale revenues from lower average volumes, partially offset by higher average market prices;
$27 million of higher natural gas-fueled generation costs from higher volumes;
$16 million of higher purchased electricity costs, primarily due to higher average market prices; and
$14 million of lower wheeling revenues and higher wheeling costs.
Operations and maintenance decreased $14 million, or 2% for the first nine months of 2019 compared to 2018 primarily due to a $9 million decrease in injuries and damages expense due to lower wildfire reserves, lower partner operated plant costs, a $5 million decrease in materials and supplies expense, primarily due to usage, and reduced labor and benefits expense primarily due to higher capitalized labor related to construction projects, partially offset by a $9 million increase in vegetation management costs.

Depreciation and amortization increased $84 million, or 14%, for the first nine months of 2019 compared to 2018 primarily due to accelerated depreciation of $65 million (offset in income tax expense) for Oregon's share of certain retired wind equipment due to repowering, an adjustment to the Oregon accelerated depreciation reserve based on the Oregon allocation factor in 2019 and higher plant-in-service.

Property and other taxes decreased $4 million, or 3% for the first nine months of 2019 compared to 2018 due to lower property taxes, primarily in Washington.

Interest expense increased $11 million, or 4% for the first nine months of 2019 compared to 2018 primarily due to higher average long-term debt balances.

Allowance for borrowed and equity funds increased $40 million, or 108%, for the first nine months of 2019 compared to 2018 primarily due to higher qualified construction work-in-progress balances.

Interest and dividend income increased $7 million, or 70% for the first nine months of 2019 compared to 2018 primarily due to higher average cash and cash equivalents balances.

Income tax expense decreased $23 million, or 23%, for the first nine months of 2019 compared to 2018. The effective tax rate was 11% for 2019 and 14% for 2018. The effective tax rate decreased primarily due to the amortization of $49 million of Oregon's allocated excess deferred income taxes pursuant to the Oregon RAC settlement, whereby a portion of Oregon's allocated excess deferred income taxes was used to accelerate depreciation for Oregon's share of certain retired wind equipment due to repowering, partially offset by the impact of the 2017 Tax Reform settlements and expiring production tax credits.


85



Liquidity and Capital Resources
 
As of September 30, 2019, PacifiCorp's total net liquidity was as follows (in millions):
Cash and cash equivalents
 
$
331

 
 
 
Credit facilities
 
1,200

Less:
 
 
Tax-exempt bond support
 
(256
)
Net credit facilities
 
944

 
 
 
Total net liquidity
 
$
1,275

 
 
 
Credit facilities:
 
 
Maturity dates
 
2022

Operating Activities

Net cash flows from operating activities for the nine-month periods ended September 30, 2019 and 2018 were $1,267 million and $1,480 million, respectively. The change was primarily due to increased payments for income taxes, lower collections from retail customers, and increased fuel payments

The timing of PacifiCorp's income tax cash flows from period to period can be significantly affected by the estimated federal income tax payment methods and assumptions for each payment date.

Investing Activities

Net cash flows from investing activities for the nine-month periods ended September 30, 2019 and 2018 were $(1,440) million and $(711) million, respectively. The change is primarily due to an increase in capital expenditures of $736 million. Refer to "Future Uses of Cash" for discussion of capital expenditures.

Financing Activities

Net cash flows from financing activities for the nine-month period ended September 30, 2019 was $433 million. Sources of cash consisted of net proceeds from the issuance of long-term debt of $990 million. Uses of cash consisted substantially of $350 million for the repayment of long term debt, $175 million for common stock dividends paid to PPW Holdings LLC and $30 million for the repayment of short-term debt.

Net cash flows from financing activities for the nine-month period ended September 30, 2018 was $(475) million. Uses of cash consisted substantially of $586 million for the repayment of long-term debt, $400 million for common stock dividends paid to PPW Holdings LLC and $80 million for the repayment of short-term debt, offset by $593 million net proceeds from the issuance of long-term debt.
    
Short-term Debt

Regulatory authorities limit PacifiCorp to $1.5 billion of short-term debt. As of September 30, 2019, PacifiCorp had no short-term debt outstanding. As of December 31, 2018, PacifiCorp had $30 million of short-term debt outstanding at a weighted average interest rate of 2.85%.

Long-term Debt
 
In March 2019, PacifiCorp issued $400 million of its 3.50% First Mortgage Bonds due June 2029 and $600 million of its 4.15% First Mortgage Bonds due February 2050. PacifiCorp used a portion of the net proceeds to repay the short-term debt that was partially incurred in January 2019 to repay all of PacifiCorp's $350 million of its 5.50% First Mortgage Bonds due January 2019. PacifiCorp intends to use the remaining net proceeds to fund capital expenditures and for general corporate purposes.


86



Credit Facilities

In March 2019, PacifiCorp completed a re-offering of variable rate tax-exempt bond obligations totaling $168 million, involving the cancellation, at PacifiCorp's request, of $170 million of letters of credit support by the issuing banks. As a result, PacifiCorp's credit facility support for outstanding variable rate tax-exempt bond obligations increased by $168 million.

Debt Authorizations

PacifiCorp currently has regulatory authority from the OPUC and the IPUC to issue an additional $1 billion of long-term debt. PacifiCorp must make a notice filing with the WUTC prior to any future issuance. PacifiCorp currently has an effective shelf registration statement with the SEC to issue up to $1 billion additional first mortgage bonds through October 2021.

Future Uses of Cash

PacifiCorp has available a variety of sources of liquidity and capital resources, both internal and external, including net cash flows from operating activities, public and private debt offerings, the issuance of commercial paper, the use of unsecured revolving credit facilities, capital contributions and other sources. These sources are expected to provide funds required for current operations, capital expenditures, debt retirements and other capital requirements. The availability and terms under which PacifiCorp has access to external financing depends on a variety of factors, including regulatory approvals, PacifiCorp's credit ratings, investors' judgment of risk and conditions in the overall capital markets, including the condition of the utility industry.

Capital Expenditures

PacifiCorp has significant future capital requirements. Capital expenditure needs are reviewed regularly by management and may change significantly as a result of these reviews, which may consider, among other factors, impacts to customers' rates; changes in environmental and other rules and regulations; outcomes of regulatory proceedings; changes in income tax laws; general business conditions; load projections; system reliability standards; the cost and efficiency of construction labor, equipment and materials; commodity prices; and the cost and availability of capital.

Historical and forecast capital expenditures, each of which exclude amounts for non-cash equity AFUDC and other non-cash items, are as follows (in millions):
 
Nine-Month Periods
 
Annual
 
Ended September 30,
 
Forecast
 
2018
 
2019
 
2019
 
 
 
 
 
 
Transmission system investment
$
34

 
$
370

 
$
497

Wind investment
76

 
687

 
971

Operating and other
603

 
392

 
824

Total
$
713

 
$
1,449

 
$
2,292


PacifiCorp's historical and forecast capital expenditures include the following:

Transmission system investment primarily reflects initial costs for the 140-mile 500-kV Aeolus-Bridger/Anticline transmission line, a major segment of PacifiCorp's Energy Gateway Transmission expansion program expected to be placed in-service in 2020. Planned spending for the Aeolus-Bridger/Anticline line totals $399 million in 2019.

Wind investment includes the following:

Construction of wind-powered generating facilities at PacifiCorp totaling $245 million and $5 million for the nine-month periods ended September 30, 2019 and 2018, respectively. PacifiCorp anticipates costs for these activities will total an additional $104 million for 2019, which includes a new 240 MW wind-powered generating facility. The new wind-powered generating facilities are expected to be placed in-service in 2020. The energy production from the new wind-powered generating facilities is expected to qualify for 100% of the federal production tax credits available for ten years once the equipment is placed in-service.


87



Repowering certain existing wind-powered generating facilities at PacifiCorp totaling $442 million and $70 million for the nine-month periods ended September 30, 2019 and 2018, respectively. PacifiCorp anticipates costs for these activities will total an additional $180 million for 2019. The repowering projects are expected to be placed in-service at various dates in 2019 and 2020. The energy production from such repowered facilities is expected to qualify for 100% of the federal renewable electricity production tax credits available for ten years following each facility's return to service.

Remaining investments relate to operating projects that consist of advanced meter infrastructure costs, routine expenditures for generation, transmission, distribution and other infrastructure needed to serve existing and expected demand.

Integrated Resource Planning

As required by certain state regulations, PacifiCorp uses an IRP to develop a long-term resource plan to ensure that PacifiCorp can continue to provide reliable and cost-effective electric service to its customers while maintaining compliance with existing and evolving environmental laws and regulations. As part of the 2019 IRP, in April 2019, PacifiCorp released an economic study of the coal fleet which informs how PacifiCorp will meet the long-term energy needs of its customers.

In October 2019, PacifiCorp filed its 2019 IRP with its state commissions. The IRP includes new transmission investments that will facilitate growth in new renewable energy resources, new storage resources, and expansion in new energy efficiency measures and demand-response programs. The IRP also includes accelerated coal retirements and the need for incremental flexible capacity resources beginning in 2026. Delivery of new transmission infrastructure that will facilitate approximately 4,400 MW of new renewable energy resources, incremental to new renewable capacity that will come online by the end of 2020, and the addition of approximately 600 MW of new storage capacity is planned through 2023. The IRP outlines PacifiCorp's plan to procure these near-term generating facilities through a request for proposals process that will determine how many of the new resources identified in the IRP will be developed as owned assets or power purchase agreements. Over the next 20 years, the IRP calls for retiring approximately 4,500 MW of coal while adding approximately 9,000 MW of new renewable resources, incremental to new renewable capacity that will come online by the end of 2020, and approximately 2,800 MW of new storage capacity.

Requests for Proposals

PacifiCorp issues individual Request for Proposals ("RFP"), each of which typically focuses on a specific category of generation resources consistent with the IRP or other customer-driven demands. The IRP and the RFPs provide for the identification and staged procurement of resources to meet load or renewable portfolio standard requirements. Depending upon the specific RFP, applicable laws and regulations may require PacifiCorp to file draft RFPs with the UPSC, the OPUC and the WUTC. Approval by the UPSC, the OPUC or the WUTC may be required depending on the nature of the RFPs.

As required by applicable laws and regulations, PacifiCorp filed its draft 2017R RFP with the UPSC in June 2017 and with the OPUC in August 2017. The UPSC and the OPUC approved PacifiCorp's 2017R RFP in September 2017. The 2017R RFP sought up to approximately 1,270 MW of new wind resources that can interconnect to PacifiCorp's transmission system in Wyoming once a proposed high-voltage transmission line is constructed. The 2017R RFP also sought proposals for wind resources located outside of Wyoming capable of delivering all-in economic benefits for PacifiCorp's customers. The proposed high-voltage transmission line and new wind resources must be placed in service by December 31, 2020, to maximize potential federal production tax credit benefits for PacifiCorp's customers. PacifiCorp finalized its bid-selection process and established a final shortlist in February 2018. PacifiCorp plans to deliver 1,150 MW from three new wind facilities under various commercial structures including a power purchase agreement, a build-transfer agreement, and traditional self-build agreements. PacifiCorp has finalized a 200-MW power purchase agreement and a 200-MW build-transfer agreement for one of the three new wind facilities. PacifiCorp has also secured agreements for safe harbor wind turbine equipment, acquisition of development assets and balance-of-plant construction for the two remaining projects; one providing 250 MW and a second providing 500 MW. Agreements for acquisition of follow-on wind turbine equipment for the final two projects was completed in 2019.

Contractual Obligations

As of September 30, 2019, there have been no material changes outside the normal course of business in contractual obligations from the information provided in Item 7 of PacifiCorp's Annual Report on Form 10-K for the year ended December 31, 2018, except as disclosed in Note 10.


88



Regulatory Matters

PacifiCorp is subject to comprehensive regulation. Refer to "Regulatory Matters" in Berkshire Hathaway Energy's Part I, Item 2 of this Form 10-Q for discussion regarding PacifiCorp's current regulatory matters.

Environmental Laws and Regulations

PacifiCorp is subject to federal, state and local regulations regarding climate change, RPS, air and water quality, emissions performance standards, coal combustion byproduct disposal, hazardous and solid waste disposal, protected species and other environmental matters that have the potential to impact PacifiCorp's current and future operations. In addition to imposing continuing compliance obligations, these laws and regulations provide regulators with the authority to levy substantial penalties for noncompliance including fines, injunctive relief and other sanctions. These laws and regulations are administered by the EPA and various state and local agencies. All such laws and regulations are subject to a range of interpretation, which may ultimately be resolved by the courts. Environmental laws and regulations continue to evolve, and PacifiCorp is unable to predict the impact of the changing laws and regulations on its operations and financial results. PacifiCorp believes it is in material compliance with all applicable laws and regulations.

Refer to "Environmental Laws and Regulations" in Berkshire Hathaway Energy's Part I, Item 2 of this Form 10-Q for additional information regarding environmental laws.

Critical Accounting Estimates

Certain accounting measurements require management to make estimates and judgments concerning transactions that will be settled several years in the future. Amounts recognized on the Consolidated Financial Statements based on such estimates involve numerous assumptions subject to varying and potentially significant degrees of judgment and uncertainty and will likely change in the future as additional information becomes available. Estimates are used for, but not limited to, the accounting for the effects of certain types of regulation, derivatives, pension and other postretirement benefits, income taxes and revenue recognition-unbilled revenue. For additional discussion of PacifiCorp's critical accounting estimates, see Item 7 of PacifiCorp's Annual Report on Form 10-K for the year ended December 31, 2018. There have been no significant changes in PacifiCorp's assumptions regarding critical accounting estimates since December 31, 2018.


89



MidAmerican Funding, LLC and its subsidiaries and MidAmerican Energy Company
Consolidated Financial Section


90



PART I
Item 1.
Financial Statements


REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM


To the Board of Directors and Shareholder of
MidAmerican Energy Company

Results of Review of Interim Financial Information

We have reviewed the accompanying balance sheet of MidAmerican Energy Company ("MidAmerican Energy") as of September 30, 2019, the related statements of operations and changes in shareholder's equity for the three-month and nine-month periods ended September 30, 2019 and 2018, and of cash flows for the nine-month periods ended September 30, 2019 and 2018, and the related notes (collectively referred to as the "interim financial information"). Based on our reviews, we are not aware of any material modifications that should be made to the accompanying interim financial information for it to be in conformity with accounting principles generally accepted in the United States of America.

We have previously audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (PCAOB), the balance sheet of MidAmerican Energy as of December 31, 2018, and the related statements of operations, comprehensive income, changes in shareholder's equity, and cash flows for the year then ended (not presented herein); and in our report dated February 22, 2019, we expressed an unqualified opinion on those financial statements. In our opinion, the information set forth in the accompanying balance sheet as of December 31, 2018, is fairly stated, in all material respects, in relation to the balance sheet from which it has been derived.

Basis for Review Results

This interim financial information is the responsibility of MidAmerican Energy's management. We are a public accounting firm registered with the PCAOB and are required to be independent with respect to MidAmerican Energy in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.

We conducted our reviews in accordance with standards of the PCAOB. A review of interim financial information consists principally of applying analytical procedures and making inquiries of persons responsible for financial and accounting matters. It is substantially less in scope than an audit conducted in accordance with the standards of the PCAOB, the objective of which is the expression of an opinion regarding the financial statements taken as a whole. Accordingly, we do not express such an opinion.


/s/ Deloitte & Touche LLP


Des Moines, Iowa
November 1, 2019


91



MIDAMERICAN ENERGY COMPANY
BALANCE SHEETS (Unaudited)
(Amounts in millions)

 
As of
 
September 30,
 
December 31,
 
2019
 
2018
ASSETS
Current assets:
 
 
 
Cash and cash equivalents
$
46

 
$

Trade receivables, net
352

 
367

Inventories
201

 
204

Other current assets
86

 
90

Total current assets
685

 
661

 
 
 
 
Property, plant and equipment, net
17,820

 
16,157

Regulatory assets
301

 
273

Investments and restricted investments
783

 
708

Other assets
105

 
121

 
 
 
 
Total assets
$
19,694

 
$
17,920


The accompanying notes are an integral part of these financial statements.

92



MIDAMERICAN ENERGY COMPANY
BALANCE SHEETS (Unaudited) (continued)
(Amounts in millions)

 
As of
 
September 30,
 
December 31,
 
2019
 
2018
LIABILITIES AND SHAREHOLDER'S EQUITY
Current liabilities:
 
 
 
Accounts payable
$
611

 
$
575

Accrued interest
73

 
53

Accrued property, income and other taxes
273

 
300

Short-term debt

 
240

Current portion of long-term debt

 
500

Other current liabilities
148

 
122

Total current liabilities
1,105

 
1,790

 
 
 
 
Long-term debt
6,342

 
4,879

Regulatory liabilities
1,514

 
1,620

Deferred income taxes
2,546

 
2,322

Asset retirement obligations
789

 
552

Other long-term liabilities
321

 
311

Total liabilities
12,617

 
11,474

 
 
 
 
Commitments and contingencies (Note 10)

 

 
 
 
 
Shareholder's equity:
 
 
 
Common stock - 350 shares authorized, no par value, 71 shares issued and outstanding

 

Additional paid-in capital
561

 
561

Retained earnings
6,516

 
5,885

Total shareholder's equity
7,077

 
6,446

 
 
 
 
Total liabilities and shareholder's equity
$
19,694

 
$
17,920


The accompanying notes are an integral part of these financial statements.


93



MIDAMERICAN ENERGY COMPANY
STATEMENTS OF OPERATIONS (Unaudited)
(Amounts in millions)

 
Three-Month Periods
 
Nine-Month Periods
 
Ended September 30,
 
Ended September 30,
 
2019
 
2018
 
2019
 
2018
Operating revenue:
 
 
 
 
 
 
 
Regulated electric
$
712

 
$
727

 
$
1,792

 
$
1,785

Regulated natural gas and other
84

 
105

 
505

 
510

Total operating revenue
796

 
832

 
2,297

 
2,295

 
 
 
 
 
 
 
 
Operating expenses:
 
 
 
 
 
 
 
Cost of fuel and energy
113

 
140

 
318

 
366

Cost of natural gas purchased for resale and other
45

 
50

 
302

 
296

Operations and maintenance
189

 
201

 
600

 
598

Depreciation and amortization
184

 
133

 
540

 
499

Property and other taxes
31

 
30

 
94

 
92

Total operating expenses
562

 
554

 
1,854

 
1,851

 
 
 
 
 
 
 
 
Operating income
234

 
278

 
443

 
444

 
 
 
 
 
 
 
 
Other income (expense):
 
 
 
 
 
 
 
Interest expense
(68
)
 
(56
)
 
(207
)
 
(170
)
Allowance for borrowed funds
7

 
6

 
20

 
14

Allowance for equity funds
27

 
16

 
59

 
39

Other, net
4

 
13

 
34

 
34

Total other income (expense)
(30
)
 
(21
)
 
(94
)
 
(83
)
 
 
 
 
 
 
 
 
Income before income tax benefit
204

 
257

 
349

 
361

Income tax benefit
(78
)
 
(226
)
 
(282
)
 
(334
)
 
 
 
 
 
 
 
 
Net income
$
282

 
$
483

 
$
631

 
$
695


The accompanying notes are an integral part of these financial statements.


94



MIDAMERICAN ENERGY COMPANY
STATEMENTS OF CHANGES IN SHAREHOLDER'S EQUITY (Unaudited)
(Amounts in millions)

 
Common Stock
 
Additional Paid-in Capital
 
Retained
Earnings
 
Total Shareholder's
Equity
 
 
 
 
 
 
 
 
Balance, June 30, 2018
$

 
$
561

 
$
5,416

 
$
5,977

Net income

 

 
483

 
483

Other equity transactions

 

 
(1
)
 
(1
)
Balance, September 30, 2018
$

 
$
561

 
$
5,898

 
$
6,459

 
 
 
 
 
 
 
 
Balance, December 31, 2017
$

 
$
561

 
$
5,203

 
$
5,764

Net income

 

 
695

 
695

Balance, September 30, 2018
$

 
$
561

 
$
5,898

 
$
6,459

 
 
 
 
 
 
 
 
Balance, June 30, 2019
$

 
$
561

 
$
6,234

 
$
6,795

Net income

 

 
282

 
282

Balance, September 30, 2019
$

 
$
561

 
$
6,516

 
$
7,077

 
 
 
 
 
 
 
 
Balance, December 31, 2018
$

 
$
561

 
$
5,885

 
$
6,446

Net income

 

 
631

 
631

Balance, September 30, 2019
$

 
$
561

 
$
6,516

 
$
7,077


The accompanying notes are an integral part of these financial statements.


95



MIDAMERICAN ENERGY COMPANY
STATEMENTS OF CASH FLOWS (Unaudited)
(Amounts in millions)

 
Nine-Month Periods
 
Ended September 30,
 
2019
 
2018
Cash flows from operating activities:
 
 
 
Net income
$
631

 
$
695

Adjustments to reconcile net income to net cash flows from operating activities:
 
 
 
Depreciation and amortization
540

 
499

Amortization of utility plant to other operating expenses
25

 
26

Allowance for equity funds
(59
)
 
(39
)
Deferred income taxes and amortization of investment tax credits
31

 
(35
)
Other, net
16

 
13

Changes in other operating assets and liabilities:
 
 
 
Trade receivables and other assets
(1
)
 
(46
)
Inventories
3

 
40

Contributions to pension and other postretirement benefit plans, net
(9
)
 
(10
)
Accrued property, income and other taxes, net
(28
)
 
(77
)
Accounts payable and other liabilities
62

 
(38
)
Net cash flows from operating activities
1,211

 
1,028

 
 
 
 
Cash flows from investing activities:
 
 
 
Capital expenditures
(1,909
)
 
(1,466
)
Purchases of marketable securities
(139
)
 
(224
)
Proceeds from sales of marketable securities
126

 
198

Other, net
19

 
29

Net cash flows from investing activities
(1,903
)
 
(1,463
)
 
 
 
 
Cash flows from financing activities:
 
 
 
Proceeds from long-term debt
1,460

 
687

Repayments of long-term debt
(500
)
 
(350
)
Net repayments of short-term debt
(240
)
 

Other, net

 
(1
)
Net cash flows from financing activities
720

 
336

 
 
 
 
Net change in cash and cash equivalents and restricted cash and cash equivalents
28

 
(99
)
Cash and cash equivalents and restricted cash and cash equivalents at beginning of period
56

 
282

Cash and cash equivalents and restricted cash and cash equivalents at end of period
$
84

 
$
183


The accompanying notes are an integral part of these financial statements.


96



MIDAMERICAN ENERGY COMPANY
NOTES TO FINANCIAL STATEMENTS
(Unaudited)

(1)
General

MidAmerican Energy Company ("MidAmerican Energy") is a public utility with electric and natural gas operations and is the principal subsidiary of MHC Inc. ("MHC"). MHC is a holding company that conducts no business other than the ownership of its subsidiaries and related corporate services. MHC's nonregulated subsidiaries include Midwest Capital Group, Inc. and MEC Construction Services Co. MHC is the direct, wholly owned subsidiary of MidAmerican Funding, LLC ("MidAmerican Funding"), which is an Iowa limited liability company with Berkshire Hathaway Energy Company ("BHE") as its sole member. BHE is a holding company based in Des Moines, Iowa that owns subsidiaries principally engaged in energy businesses. BHE is a consolidated subsidiary of Berkshire Hathaway Inc. ("Berkshire Hathaway").

The unaudited Financial Statements have been prepared in accordance with accounting principles generally accepted in the United States of America ("GAAP") for interim financial information and the United States Securities and Exchange Commission's rules and regulations for Form 10-Q and Article 10 of Regulation S-X. Accordingly, they do not include all of the disclosures required by GAAP for annual financial statements. Management believes the unaudited Financial Statements contain all adjustments (consisting only of normal recurring adjustments) considered necessary for the fair presentation of the unaudited Financial Statements as of September 30, 2019, and for the three- and nine-month periods ended September 30, 2019 and 2018. The Statements of Comprehensive Income have been omitted as net income equals comprehensive income for the three- and nine-month periods ended September 30, 2019 and 2018. The results of operations for the three- and nine-month periods ended September 30, 2019, are not necessarily indicative of the results to be expected for the full year.

The preparation of the unaudited Financial Statements in conformity with GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities at the date of the unaudited Financial Statements and the reported amounts of revenue and expenses during the period. Actual results may differ from the estimates used in preparing the unaudited Financial Statements. Note 2 of Notes to Financial Statements included in MidAmerican Energy's Annual Report on Form 10-K for the year ended December 31, 2018, describes the most significant accounting policies used in the preparation of the unaudited Financial Statements. There have been no significant changes in MidAmerican Energy's assumptions regarding significant accounting estimates and policies during the nine-month period ended September 30, 2019.

(2)
Cash and Cash Equivalents and Restricted Cash and Cash Equivalents

Cash equivalents consist of funds invested in money market mutual funds, United States Treasury Bills and other investments with a maturity of three months or less when purchased. Cash and cash equivalents exclude amounts where availability is restricted by legal requirements, loan agreements or other contractual provisions. Restricted cash and cash equivalents as of September 30, 2019 and December 31, 2018, consist substantially of funds restricted for the purpose of constructing solid waste facilities under tax-exempt bond obligation agreements. A reconciliation of cash and cash equivalents and restricted cash and cash equivalents as of September 30, 2019 and December 31, 2018, as presented in the Statements of Cash Flows is outlined below and disaggregated by the line items in which they appear on the Balance Sheets (in millions):
 
As of
 
September 30,
 
December 31
 
2019
 
2018
 
 
 
 
Cash and cash equivalents
$
46

 
$

Restricted cash and cash equivalents in other current assets
38

 
56

Total cash and cash equivalents and restricted cash and cash equivalents
$
84

 
$
56



97



(3)
Property, Plant and Equipment, Net

Property, plant and equipment, net consists of the following (in millions):
 
 
 
As of
 
 
 
September 30,
 
December 31,
 
Depreciable Life
 
2019
 
2018
Utility plant in service, net:
 
 
 
 
 
Generation
20-70 years
 
$
14,492

 
$
13,727

Transmission
52-75 years
 
2,012

 
1,934

Electric distribution
20-75 years
 
3,842

 
3,672

Natural gas distribution
29-75 years
 
1,776

 
1,724

Utility plant in service
 
 
22,122

 
21,057

Accumulated depreciation and amortization
 
 
(6,347
)
 
(5,941
)
Utility plant in service, net
 
 
15,775

 
15,116

Nonregulated property, net:
 
 
 
 
 
Nonregulated property gross
20-50 years
 
7

 
7

Accumulated depreciation and amortization
 
 
(1
)
 
(1
)
Nonregulated property, net
 
 
6

 
6

 
 
 
15,781

 
15,122

Construction work-in-progress
 
 
2,039

 
1,035

Property, plant and equipment, net
 
 
$
17,820

 
$
16,157


(4)
Leases

In February 2016, the Financial Accounting Standards Board ("FASB") issued Accounting Standards Update ("ASU") No. 2016-02, which created FASB Accounting Standards Codification ("ASC") Topic 842, "Leases" and supersedes Topic 840 "Leases." This guidance increases transparency and comparability among entities by recording lease assets and lease liabilities on the balance sheet and disclosing key information about leasing arrangements. A lessee should recognize on the balance sheet a liability to make lease payments (the lease liability) and a right-of-use asset representing its right to use the underlying asset for the lease term. The recognition, measurement, and presentation of expenses and cash flows arising from a lease by a lessee have not significantly changed from previous guidance. Following the issuance of ASU No. 2016-02, the FASB issued several ASUs that clarified the implementation guidance for ASU No. 2016-02 but did not change the core principle of the guidance. MidAmerican Energy adopted this guidance for all applicable contracts in effect as of January 1, 2019 under a modified retrospective method, and the adoption did not have a cumulative effect impact at the date of initial adoption nor a material impact on MidAmerican Energy's Financial Statements and disclosures included within Notes to Financial Statements.

(5)
Recent Financing Transactions

Long-Term Debt

In October 2019, MidAmerican Energy issued $600 million of its 3.15% First Mortgage Bonds due April 2050 and $250 million of its 3.65% First Mortgage Bonds due April 2029, which are part of the same series as the 3.65% First Mortgage Bonds issued in January 2019. An amount equal to the net proceeds was used to finance capital expenditures, disbursed during the period from December 20, 2018 to July 15, 2019, with respect to investments in MidAmerican Energy's 2,000-megawatt (nameplate capacity) Wind XI project, MidAmerican Energy's 591-megawatt (nameplate capacity) Wind XII project and the repowering of certain of MidAmerican Energy's existing wind facilities, which were previously financed with MidAmerican Energy's general funds.

In February 2019, MidAmerican Energy redeemed $500 million of its 2.40% First Mortgage Bonds due in March 2019 at a redemption price of 100% of the principal amount plus accrued interest.


98



In January 2019, MidAmerican Energy issued $600 million of its 3.65% First Mortgage Bonds due April 2029 and $900 million of its 4.25% First Mortgage Bonds due July 2049. An amount equal to the net proceeds was used to finance capital expenditures, disbursed during the period from November 1, 2017 to December 14, 2018, with respect to investments in MidAmerican Energy's 2,000-megawatt (nameplate capacity) Wind XI project, MidAmerican Energy's 591-megawatt (nameplate capacity) Wind XII project and the repowering of certain of MidAmerican Energy's existing wind facilities, which were previously financed with MidAmerican Energy's general funds.

Credit Facilities

In August 2019, MidAmerican Energy entered into a $400 million unsecured credit facility, which expires August 2020 and has a variable rate based on the Eurodollar rate or a base rate, at MidAmerican Energy's option, plus a spread. The facility requires that MidAmerican Energy's ratio of consolidated debt, including current maturities, to total capitalization not exceed 0.65 to 1.0 as of the last day of any quarter.

In May 2019, MidAmerican Energy extended, with lender consent, the expiration date for its existing $900 million unsecured credit facility to June 2022 by exercising the remaining one-year extension option.

(6)
Income Taxes

A reconciliation of the federal statutory income tax rate to MidAmerican Energy's effective income tax rate applicable to income before income tax benefit is as follows:
 
Three-Month Periods
 
Nine-Month Periods
 
Ended September 30,
 
Ended September 30,
 
2019
 
2018
 
2019
 
2018
 
 
 
 
 
 
 
 
Federal statutory income tax rate
21
 %
 
21
 %
 
21
 %
 
21
 %
Income tax credits
(35
)
 
(95
)
 
(75
)
 
(97
)
State income tax, net of federal income tax benefit
(18
)
 
(10
)
 
(19
)
 
(9
)
Effects of ratemaking
(7
)
 
(4
)
 
(7
)
 
(7
)
Other, net
1

 

 
(1
)
 
(1
)
Effective income tax rate
(38
)%
 
(88
)%
 
(81
)%
 
(93
)%

Income tax credits relate primarily to production tax credits from MidAmerican Energy's wind-powered generating facilities. Federal renewable electricity production tax credits are earned as energy from qualifying wind-powered generating facilities is produced and sold and are based on a per-kilowatt hour rate pursuant to the applicable federal income tax law. Wind-powered generating facilities are eligible for the credits for 10 years from the date the qualifying generating facilities are placed in-service.

Due to a combination of declines in pre-tax income and increases in production tax credits in recent years and changes in estimates for these values throughout the year, the volatility of the effective tax rate used to determine the recognition of income tax expense each quarter has similarly increased. MidAmerican Energy concluded that, due to such increased volatility, it was no longer able to reasonably estimate an annual effective tax rate for this purpose. Accordingly, beginning January 1, 2019, production tax credits are recognized in the Statement of Operations as they are earned, and excluded in the determination of the effective tax rate used in the recognition of all other income tax expense. Production tax credits recognized in income for the three-month periods ended September 30, 2019 and 2018 were $69 million and $241 million, respectively, with $185 million lower production tax credits recognized attributable to the change in the method of interim period recognition in 2019. Production tax credits recognized in income for the nine-month periods ended September 30, 2019 and 2018 were $259 million and $349 million, respectively, with $129 million lower production tax credits recognized attributable to the change in the method of interim period recognition in 2019.

Berkshire Hathaway includes BHE and subsidiaries in its United States federal and Iowa state income tax returns. Consistent with established regulatory practice, MidAmerican Energy's provision for income tax has been computed on a stand-alone basis, and substantially all of its currently payable or receivable income tax is remitted to or received from BHE. MidAmerican Energy received net cash payments for income tax from BHE totaling $309 million and $232 million for the nine-month periods ended September 30, 2019 and 2018, respectively.


99



(7)
Employee Benefit Plans

MidAmerican Energy sponsors a noncontributory defined benefit pension plan covering a majority of all employees of BHE and its domestic energy subsidiaries other than PacifiCorp and NV Energy, Inc. MidAmerican Energy also sponsors certain postretirement healthcare and life insurance benefits covering substantially all retired employees of BHE and its domestic energy subsidiaries other than PacifiCorp and NV Energy, Inc.

Net periodic benefit credit for the plans of MidAmerican Energy and the aforementioned affiliates included the following components (in millions):
 
Three-Month Periods
 
Nine-Month Periods
 
Ended September 30,
 
Ended September 30,
 
2019
 
2018
 
2019
 
2018
Pension:
 
 
 
 
 
 
 
Service cost
$
2

 
$
2

 
$
5

 
$
6

Interest cost
7

 
7

 
22

 
21

Expected return on plan assets
(10
)
 
(11
)
 
(31
)
 
(33
)
Net amortization

 
1

 

 
2

Net periodic benefit credit
$
(1
)
 
$
(1
)
 
$
(4
)
 
$
(4
)
 
 
 
 
 
 
 
 
Other postretirement:
 
 
 
 
 
 
 
Service cost
$
1

 
$
1

 
$
4

 
$
4

Interest cost
2

 
2

 
7

 
6

Expected return on plan assets
(3
)
 
(3
)
 
(9
)
 
(10
)
Net amortization
(1
)
 
(1
)
 
(3
)
 
(3
)
Net periodic benefit credit
$
(1
)
 
$
(1
)
 
$
(1
)
 
$
(3
)

Amounts other than the service cost for pension and other postretirement benefit plans are recorded in Other, net in the Statements of Operations. Employer contributions to the pension and other postretirement benefit plans are expected to be $7 million and $1 million, respectively, during 2019. As of September 30, 2019, $5 million and $- million of contributions had been made to the pension and other postretirement benefit plans, respectively.

(8)    Asset Retirement Obligations

In January 2018, MidAmerican Energy completed groundwater testing at its coal combustion residuals ("CCR") surface impoundments. Based on this information, MidAmerican Energy discontinued sending CCR to surface impoundments effective April 2018 and initiated analysis of additional actions to be taken. As a result of that analysis, MidAmerican Energy will remove all CCR material located below the water table and cap the material in such facilities, which is a more extensive closure activity than previously assumed. In the first quarter of 2019, MidAmerican Energy increased the asset retirement obligations for its fossil-fueled generating facilities by $237 million related to the cost of this closure activity. Closure activity on the six existing surface impoundments is estimated to extend through 2023. The following table reconciles the beginning and ending balances of MidAmerican Energy's ARO liabilities for the nine-month period ended September 30, 2019 (in millions):

Beginning balance
 
$
562

Change in estimated costs
 
237

Additions
 
5

Retirements
 
(2
)
Accretion
 
22

Ending balance
 
$
824



100



(9)
Fair Value Measurements

The carrying value of MidAmerican Energy's cash, certain cash equivalents, receivables, payables, accrued liabilities and short-term borrowings approximates fair value because of the short-term maturity of these instruments. MidAmerican Energy has various financial assets and liabilities that are measured at fair value on the Financial Statements using inputs from the three levels of the fair value hierarchy. A financial asset or liability classification within the hierarchy is determined based on the lowest level input that is significant to the fair value measurement. The three levels are as follows:

Level 1 — Inputs are unadjusted quoted prices in active markets for identical assets or liabilities that MidAmerican Energy has the ability to access at the measurement date.

Level 2 — Inputs include quoted prices for similar assets or liabilities in active markets, quoted prices for identical or similar assets or liabilities in markets that are not active, inputs other than quoted prices that are observable for the asset or liability and inputs that are derived principally from or corroborated by observable market data by correlation or other means (market corroborated inputs).

Level 3 — Unobservable inputs reflect MidAmerican Energy's judgments about the assumptions market participants would use in pricing the asset or liability since limited market data exists. MidAmerican Energy develops these inputs based on the best information available, including its own data.

The following table presents MidAmerican Energy's financial assets and liabilities recognized on the Balance Sheets and measured at fair value on a recurring basis (in millions):
 
 
Input Levels for Fair Value Measurements
 
 
 
 
 
 
Level 1
 
Level 2
 
Level 3
 
Other(1)
 
Total
As of September 30, 2019:
 
 
 
 
 
 
 
 
 
 
Assets:
 
 
 
 
 
 
 
 
 
 
Commodity derivatives
 
$

 
$
4

 
$

 
$
(1
)
 
$
3

Money market mutual funds(2)
 
3

 

 

 

 
3

Debt securities:
 
 
 
 
 
 
 
 
 
 
United States government obligations
 
189

 

 

 

 
189

International government obligations
 

 
5

 

 

 
5

Corporate obligations
 

 
57

 

 

 
57

Municipal obligations
 

 
1

 

 

 
1

Agency, asset and mortgage-backed obligations
 

 
1

 

 

 
1

Equity securities:
 
 
 
 
 
 
 
 
 
 
United States companies
 
309

 

 

 

 
309

International companies
 
8

 

 

 

 
8

Investment funds
 
19

 

 

 

 
19

 
 
$
528

 
$
68

 
$

 
$
(1
)
 
$
595

 
 
 
 
 
 
 
 
 
 
 
Liabilities - commodity derivatives
 
$

 
$
(8
)
 
$

 
$
2

 
$
(6
)


101



 
 
Input Levels for Fair Value Measurements
 
 
 
 
 
 
Level 1
 
Level 2
 
Level 3
 
Other(1)
 
Total
As of December 31, 2018:
 
 
 
 
 
 
 
 
 
 
Assets:
 
 
 
 
 
 
 
 
 
 
Commodity derivatives
 
$

 
$
4

 
$
2

 
$
(3
)
 
$
3

Money market mutual funds(2)
 
2

 

 

 

 
2

Debt securities:
 
 
 
 
 
 
 
 
 
 
United States government obligations
 
187

 

 

 

 
187

International government obligations
 

 
4

 

 

 
4

Corporate obligations
 

 
46

 

 

 
46

Municipal obligations
 

 
2

 

 

 
2

Agency, asset and mortgage-backed obligations
 

 
1

 

 

 
1

Equity securities:
 
 
 
 
 
 
 
 
 
 
United States companies
 
256

 

 

 

 
256

International companies
 
6

 

 

 

 
6

Investment funds
 
10

 

 

 

 
10

 
 
$
461

 
$
57

 
$
2

 
$
(3
)
 
$
517

 
 
 
 
 
 
 
 
 
 
 
Liabilities - commodity derivatives
 
$

 
$
(4
)
 
$
(2
)
 
$
3

 
$
(3
)

(1)
Represents netting under master netting arrangements and a net cash collateral receivable of $1 million and $- million as of September 30, 2019 and December 31, 2018, respectively.
(2)
Amounts are included in cash and cash equivalents and investments and restricted investments on the Balance Sheets. The fair value of these money market mutual funds approximates cost.
MidAmerican Energy's investments in money market mutual funds and debt and equity securities are stated at fair value, with debt securities primarily accounted for as available-for-sale securities. When available, a readily observable quoted market price or net asset value of an identical security in an active market is used to record the fair value. In the absence of a quoted market price or net asset value of an identical security, the fair value is determined using pricing models or net asset values based on observable market inputs and quoted market prices of securities with similar characteristics.

MidAmerican Energy's long-term debt is carried at cost on the Balance Sheets. The fair value of MidAmerican Energy's long-term debt is a Level 2 fair value measurement and has been estimated based upon quoted market prices, where available, or at the present value of future cash flows discounted at rates consistent with comparable maturities with similar credit risks. The carrying value of MidAmerican Energy's variable-rate long-term debt approximates fair value because of the frequent repricing of these instruments at market rates. The following table presents the carrying value and estimated fair value of MidAmerican Energy's long-term debt (in millions):
 
As of September 30, 2019
 
As of December 31, 2018
 
Carrying
Value
 
Fair
Value
 
Carrying
Value
 
Fair
Value
 
 
 
 
 
 
 
 
Long-term debt
$
6,342

 
$
7,519

 
$
5,379

 
$
5,644



102



(10)
Commitments and Contingencies

Construction Commitments

During the nine-month period ended September 30, 2019, MidAmerican Energy entered into firm construction commitments totaling $337 million for the remainder of 2019 through 2020 related to the construction of wind-powered generating facilities in Iowa.

Easements

During the nine-month period ended September 30, 2019, MidAmerican Energy entered into non-cancelable easements with minimum payments totaling $341 million through 2059 for land in Iowa on which some of its wind-powered generating facilities will be located.

Maintenance and Service Contracts

During the nine-month period ended September 30, 2019, MidAmerican Energy entered into non-cancelable maintenance and service contracts related to wind-powered generating facilities with minimum payment commitments totaling $377 million through 2029.

Legal Matters

MidAmerican Energy is party to a variety of legal actions arising out of the normal course of business. Plaintiffs occasionally seek punitive or exemplary damages. MidAmerican Energy does not believe that such normal and routine litigation will have a material impact on its financial results.

Environmental Laws and Regulations

MidAmerican Energy is subject to federal, state and local laws and regulations regarding climate change, renewable portfolio standards, air and water quality, emissions performance standards, coal combustion byproduct disposal, hazardous and solid waste disposal, protected species and other environmental matters that have the potential to impact its current and future operations. MidAmerican Energy believes it is in material compliance with all applicable laws and regulations.

Transmission Rates

MidAmerican Energy's wholesale transmission rates are set annually using FERC-approved formula rates subject to true-up for actual cost of service. Prior to September 2016, the rates in effect were based on a 12.38% return on equity ("ROE"). In November 2013 and February 2015, a coalition of intervenors filed successive complaints with the FERC requesting that the 12.38% ROE no longer be found just and reasonable and sought to reduce the base ROE to 9.15% and 8.67%, respectively. MidAmerican Energy is authorized by the FERC to include a 0.50% adder beyond the base ROE effective January 2015. In September 2016, the FERC issued an order for the first complaint, which reduces the base ROE to 10.32% and required refunds, plus interest, for the period from November 2013 through February 2015. Customer refunds relative to the first complaint occurred in February 2017. It is uncertain when the FERC will rule on the second complaint, covering the period from February 2015 through May 2016. MidAmerican Energy believes it is probable that the FERC will order a base ROE lower than 12.38% in the second complaint and, as of September 30, 2019, has accrued a $10 million liability for refunds under the second complaint of amounts collected under the higher ROE from March 2015 through May 2016.


103



(11)
Revenue from Contracts with Customers

The following table summarizes MidAmerican Energy's revenue from contracts with customers ("Customer Revenue") by line of business and customer class, including a reconciliation to MidAmerican Energy's reportable segment information included in Note 12, (in millions):
 
For the Three-Month Periods Ended September 30,
 
2019
 
2018
 
Electric
 
Natural Gas
 
Other
 
Total
 
Electric
 
Natural Gas
 
Other
 
Total
Customer Revenue:
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Retail:
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Residential
$
228

 
$
41

 
$

 
$
269

 
$
233

 
$
54

 
$

 
$
287

Commercial
101

 
10

 

 
111

 
100

 
17

 

 
117

Industrial
274

 
3

 

 
277

 
268

 
3

 

 
271

Natural gas transportation services

 
7

 

 
7

 

 
8

 

 
8

Other retail(1)
48

 

 

 
48

 
46

 
1

 

 
47

Total retail
651

 
61

 

 
712

 
647

 
83

 

 
730

Wholesale
41

 
15

 

 
56

 
62

 
20

 

 
82

Multi-value transmission projects
17

 

 

 
17

 
14

 

 

 
14

Other Customer Revenue

 

 
8

 
8

 

 

 
2

 
2

Total Customer Revenue
709

 
76

 
8

 
793

 
723

 
103

 
2

 
828

Other revenue
3

 

 

 
3

 
4

 

 

 
4

Total operating revenue
$
712

 
$
76

 
$
8

 
$
796

 
$
727

 
$
103

 
$
2

 
$
832

 
For the Nine-Month Periods Ended September 30,
 
2019
 
2018
 
Electric
 
Natural Gas
 
Other
 
Total
 
Electric
 
Natural Gas
 
Other
 
Total
Customer Revenue:
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Retail:
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Residential
$
547

 
$
282

 
$

 
$
829

 
$
567

 
$
287

 
$

 
$
854

Commercial
255

 
95

 

 
350

 
251

 
100

 

 
351

Industrial
641

 
12

 

 
653

 
608

 
13

 

 
621

Natural gas transportation services

 
27

 

 
27

 

 
27

 

 
27

Other retail(1)
118

 

 

 
118

 
113

 
1

 

 
114

Total retail
1,561

 
416

 

 
1,977

 
1,539

 
428

 

 
1,967

Wholesale
168

 
64

 

 
232

 
187

 
75

 

 
262

Multi-value transmission projects
47

 

 

 
47

 
43

 

 

 
43

Other Customer Revenue

 

 
23

 
23

 

 

 
5

 
5

Total Customer Revenue
1,776

 
480

 
23

 
2,279

 
1,769

 
503

 
5

 
2,277

Other revenue
16

 
2

 

 
18

 
16

 
2

 

 
18

Total operating revenue
$
1,792

 
$
482

 
$
23

 
$
2,297

 
$
1,785

 
$
505

 
$
5

 
$
2,295


(1)
Other retail includes provisions for rate refunds, for which any actual refunds will be reflected in the applicable customer classes upon resolution of the related regulatory proceeding.

104



(12)
Segment Information

MidAmerican Energy has identified two reportable segments: regulated electric and regulated natural gas. The regulated electric segment derives most of its revenue from regulated retail sales of electricity to residential, commercial, and industrial customers and from wholesale sales. The regulated natural gas segment derives most of its revenue from regulated retail sales of natural gas to residential, commercial, and industrial customers and also obtains revenue by transporting natural gas owned by others through its distribution system. Pricing for regulated electric and regulated natural gas sales are established separately by regulatory agencies; therefore, management also reviews each segment separately to make decisions regarding allocation of resources and in evaluating performance. Common operating costs, interest income, interest expense and income tax expense are allocated to each segment based on certain factors, which primarily relate to the nature of the cost.

The following tables provide information on a reportable segment basis (in millions):
 
Three-Month Periods
 
Nine-Month Periods
 
Ended September 30,
 
Ended September 30,
 
2019
 
2018
 
2019
 
2018
Operating revenue:
 
 
 
 
 
 
 
Regulated electric
$
712

 
$
727

 
$
1,792

 
$
1,785

Regulated natural gas
76

 
103

 
482

 
505

Other
8

 
2

 
23

 
5

Total operating revenue
$
796

 
$
832

 
$
2,297

 
$
2,295

 
 
 
 
 
 
 
 
Operating income:
 
 
 
 
 
 
 
Regulated electric
$
243

 
$
278

 
$
396

 
$
392

Regulated natural gas
(8
)
 
1

 
45

 
52

Other
(1
)
 
(1
)
 
2

 

Total operating income
234

 
278

 
443

 
444

Interest expense
(68
)
 
(56
)
 
(207
)
 
(170
)
Allowance for borrowed funds
7

 
6

 
20

 
14

Allowance for equity funds
27

 
16

 
59

 
39

Other, net
4

 
13

 
34

 
34

Income before income tax benefit
$
204

 
$
257

 
$
349

 
$
361


 
As of
 
September 30,
2019
 
December 31,
2018
Assets:
 
 
 
Regulated electric
$
18,341

 
$
16,511

Regulated natural gas
1,343

 
1,406

Other
10

 
3

Total assets
$
19,694

 
$
17,920




105





REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM


To the Board of Managers and Member of
MidAmerican Funding, LLC

Results of Review of Interim Financial Information

We have reviewed the accompanying consolidated balance sheet of MidAmerican Funding, LLC and subsidiaries ("MidAmerican Funding") as of September 30, 2019, the related consolidated statements of operations and changes in member's equity for the three-month and nine-month periods ended September 30, 2019 and 2018, and of cash flows for the nine-month periods ended September 30, 2019 and 2018, and the related notes (collectively referred to as the "interim financial information"). Based on our reviews, we are not aware of any material modifications that should be made to the accompanying interim financial information for it to be in conformity with accounting principles generally accepted in the United States of America.

We have previously audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (PCAOB) and in accordance with auditing standards generally accepted in the United States of America, the consolidated balance sheet of MidAmerican Funding as of December 31, 2018, and the related consolidated statements of operations, comprehensive income, changes in member's equity, and cash flows for the year then ended (not presented herein); and in our report dated February 22, 2019, we expressed an unqualified opinion on those consolidated financial statements. In our opinion, the information set forth in the accompanying consolidated balance sheet as of December 31, 2018, is fairly stated, in all material respects, in relation to the consolidated balance sheet from which it has been derived.

Basis for Review Results

This interim financial information is the responsibility of MidAmerican Funding's management. We are a public accounting firm registered with the PCAOB and are required to be independent with respect to MidAmerican Funding in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.

We conducted our reviews in accordance with standards of the PCAOB and with auditing standards generally accepted in the United States of America applicable to reviews of interim financial information. A review of interim financial information consists principally of applying analytical procedures and making inquiries of persons responsible for financial and accounting matters. It is substantially less in scope than an audit conducted in accordance with the standards of the PCAOB and with auditing standards generally accepted in the United States of America, the objective of which is the expression of an opinion regarding the financial statements taken as a whole. Accordingly, we do not express such an opinion.


/s/ Deloitte & Touche LLP


Des Moines, Iowa
November 1, 2019


106



MIDAMERICAN FUNDING, LLC AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS (Unaudited)
(Amounts in millions)

 
As of
 
September 30,
 
December 31,
 
2019
 
2018
ASSETS
Current assets:
 
 
 
Cash and cash equivalents
$
47

 
$
1

Trade receivables, net
352

 
365

Inventories
201

 
204

Other current assets
87

 
89

Total current assets
687

 
659

 
 
 
 
Property, plant and equipment, net
17,831

 
16,169

Goodwill
1,270

 
1,270

Regulatory assets
301

 
273

Investments and restricted investments
785

 
710

Other assets
105

 
121

 
 
 
 
Total assets
$
20,979

 
$
19,202


The accompanying notes are an integral part of these consolidated financial statements.

107



MIDAMERICAN FUNDING, LLC AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS (Unaudited) (continued)
(Amounts in millions)

 
As of
 
September 30,
 
December 31,
 
2019
 
2018
LIABILITIES AND MEMBER'S EQUITY
Current liabilities:
 
 
 
Accounts payable
$
611

 
$
575

Accrued interest
74

 
58

Accrued property, income and other taxes
273

 
300

Note payable to affiliate
173

 
156

Short-term debt

 
240

Current portion of long-term debt

 
500

Other current liabilities
148

 
122

Total current liabilities
1,279

 
1,951

 
 
 
 
Long-term debt
6,582

 
5,119

Regulatory liabilities
1,514

 
1,620

Deferred income taxes
2,543

 
2,319

Asset retirement obligations
789

 
552

Other long-term liabilities
321

 
312

Total liabilities
13,028

 
11,873

 
 
 
 
Commitments and contingencies (Note 10)

 

 
 
 
 
Member's equity:
 
 
 
Paid-in capital
1,679

 
1,679

Retained earnings
6,272

 
5,650

Total member's equity
7,951

 
7,329

 
 
 
 
Total liabilities and member's equity
$
20,979

 
$
19,202


The accompanying notes are an integral part of these consolidated financial statements.


108



MIDAMERICAN FUNDING, LLC AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS (Unaudited)
(Amounts in millions)

 
Three-Month Periods
 
Nine-Month Periods
 
Ended September 30,
 
Ended September 30,
 
2019
 
2018
 
2019
 
2018
Operating revenue:
 
 
 
 
 
 
 
Regulated electric
$
712

 
$
727

 
$
1,792

 
$
1,785

Regulated natural gas and other
85

 
105

 
507

 
512

Total operating revenue
797

 
832

 
2,299

 
2,297

 
 
 
 
 
 
 
 
Operating expenses:
 
 
 
 
 
 
 
Cost of fuel and energy
113

 
140

 
318

 
366

Cost of natural gas purchased for resale and other
45

 
50

 
301

 
297

Operations and maintenance
190

 
201

 
602

 
599

Depreciation and amortization
184

 
133

 
540

 
499

Property and other taxes
31

 
30

 
94

 
92

Total operating expenses
563

 
554

 
1,855

 
1,853

 
 
 
 
 
 
 
 
Operating income
234

 
278

 
444

 
444

 
 
 
 
 
 
 
 
Other income (expense):
 
 
 
 
 
 
 
Interest expense
(74
)
 
(61
)
 
(223
)
 
(185
)
Allowance for borrowed funds
7

 
6

 
20

 
14

Allowance for equity funds
27

 
16

 
59

 
39

Other, net
5

 
12

 
36

 
35

Total other income (expense)
(35
)
 
(27
)
 
(108
)
 
(97
)
 
 
 
 
 
 
 
 
Income before income tax benefit
199

 
251

 
336

 
347

Income tax benefit
(80
)
 
(228
)
 
(286
)
 
(338
)
 
 
 
 
 
 
 
 
Net income
$
279

 
$
479

 
$
622

 
$
685


The accompanying notes are an integral part of these consolidated financial statements.


109



MIDAMERICAN FUNDING, LLC AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CHANGES IN MEMBER'S EQUITY (Unaudited)
(Amounts in millions)

 
Paid-in
Capital
 
Retained
Earnings
 
Total Member's
Equity
 
 
 
 
 
 
Balance, June 30, 2018
$
1,679

 
$
5,187

 
$
6,866

Net income

 
479

 
479

Balance, September 30, 2018
$
1,679

 
$
5,666

 
$
7,345

 
 
 
 
 
 
Balance, December 31, 2017
$
1,679

 
$
4,981

 
$
6,660

Net income

 
685

 
685

Balance, September 30, 2018
$
1,679

 
$
5,666

 
$
7,345

 
 
 
 
 
 
Balance, June 30, 2019
$
1,679

 
$
5,993

 
$
7,672

Net income

 
279

 
279

Balance, September 30, 2019
$
1,679

 
$
6,272

 
$
7,951

 
 
 
 
 
 
Balance, December 31, 2018
$
1,679

 
$
5,650

 
$
7,329

Net income

 
622

 
622

Balance, September 30, 2019
$
1,679

 
$
6,272

 
$
7,951


The accompanying notes are an integral part of these consolidated financial statements.


110



MIDAMERICAN FUNDING, LLC AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS (Unaudited)
(Amounts in millions)

 
Nine-Month Periods
 
Ended September 30,
 
2019
 
2018
Cash flows from operating activities:
 
 
 
Net income
$
622

 
$
685

Adjustments to reconcile net income to net cash flows from operating activities:
 
 
 
Depreciation and amortization
540

 
499

Amortization of utility plant to other operating expenses
25

 
26

Allowance for equity funds
(59
)
 
(39
)
Deferred income taxes and amortization of investment tax credits
30

 
(35
)
Other, net
18

 
17

Changes in other operating assets and liabilities:
 
 
 
Trade receivables and other assets
(6
)
 
(42
)
Inventories
3

 
40

Contributions to pension and other postretirement benefit plans, net
(9
)
 
(10
)
Accrued property, income and other taxes, net
(28
)
 
(65
)
Accounts payable and other liabilities
58

 
(41
)
Net cash flows from operating activities
1,194

 
1,035

 
 
 
 
Cash flows from investing activities:
 
 
 
Capital expenditures
(1,909
)
 
(1,466
)
Purchases of marketable securities
(139
)
 
(224
)
Proceeds from sales of marketable securities
126

 
198

Other, net
19

 
29

Net cash flows from investing activities
(1,903
)
 
(1,463
)
 
 
 
 
Cash flows from financing activities:
 
 
 
Proceeds from long-term debt
1,460

 
687

Repayments of long-term debt
(500
)
 
(350
)
Net change in note payable to affiliate
17

 
(6
)
Net repayments of short-term debt
(240
)
 

Other, net

 
(2
)
Net cash flows from financing activities
737

 
329

 
 
 
 
Net change in cash and cash equivalents and restricted cash and cash equivalents
28

 
(99
)
Cash and cash equivalents and restricted cash and cash equivalents at beginning of period
57

 
282

Cash and cash equivalents and restricted cash and cash equivalents at end of period
$
85

 
$
183


The accompanying notes are an integral part of these consolidated financial statements.


111



MIDAMERICAN FUNDING, LLC AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)

(1)
General

MidAmerican Funding, LLC ("MidAmerican Funding") is an Iowa limited liability company with Berkshire Hathaway Energy Company ("BHE") as its sole member. BHE is a holding company based in Des Moines, Iowa that owns subsidiaries principally engaged in energy businesses. BHE is a consolidated subsidiary of Berkshire Hathaway Inc. ("Berkshire Hathaway"). MidAmerican Funding's direct, wholly owned subsidiary is MHC Inc. ("MHC"), which constitutes substantially all of MidAmerican Funding's assets, liabilities and business activities except those related to MidAmerican Funding's long-term debt securities. MHC conducts no business other than the ownership of its subsidiaries and related corporate services. MHC's principal subsidiary is MidAmerican Energy Company ("MidAmerican Energy"), a public utility with electric and natural gas operations. Direct, wholly owned nonregulated subsidiaries of MHC are Midwest Capital Group, Inc. and MEC Construction Services Co.

The unaudited Consolidated Financial Statements have been prepared in accordance with accounting principles generally accepted in the United States of America ("GAAP") for interim financial information and the United States Securities and Exchange Commission's rules and regulations for Form 10-Q and Article 10 of Regulation S-X. Accordingly, they do not include all of the disclosures required by GAAP for annual financial statements. Management believes the unaudited Consolidated Financial Statements contain all adjustments (consisting only of normal recurring adjustments) considered necessary for the fair presentation of the unaudited Consolidated Financial Statements as of September 30, 2019, and for the three- and nine-month periods ended September 30, 2019 and 2018. The Consolidated Statements of Comprehensive Income have been omitted as net income materially equals comprehensive income for the three- and nine-month periods ended September 30, 2019 and 2018. The results of operations for the three- and nine-month periods ended September 30, 2019, are not necessarily indicative of the results to be expected for the full year.

The preparation of the unaudited Consolidated Financial Statements in conformity with GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities at the date of the unaudited Consolidated Financial Statements and the reported amounts of revenue and expenses during the period. Actual results may differ from the estimates used in preparing the unaudited Consolidated Financial Statements. Note 2 of Notes to Consolidated Financial Statements included in MidAmerican Funding's Annual Report on Form 10-K for the year ended December 31, 2018, describes the most significant accounting policies used in the preparation of the unaudited Consolidated Financial Statements. There have been no significant changes in MidAmerican Funding's assumptions regarding significant accounting estimates and policies during the nine-month period ended September 30, 2019.

(2)
Cash and Cash Equivalents and Restricted Cash and Cash Equivalents

Cash equivalents consist of funds invested in money market mutual funds, United States Treasury Bills and other investments with a maturity of three months or less when purchased. Cash and cash equivalents exclude amounts where availability is restricted by legal requirements, loan agreements or other contractual provisions. Restricted cash and cash equivalents as of September 30, 2019 and December 31, 2018, consist substantially of funds restricted for the purpose of constructing solid waste facilities under tax-exempt bond obligation agreements. A reconciliation of cash and cash equivalents and restricted cash and cash equivalents as of September 30, 2019 and December 31, 2018, as presented in the Consolidated Statements of Cash Flows is outlined below and disaggregated by the line items in which they appear on the Consolidated Balance Sheets (in millions):
 
As of
 
September 30
 
December 31
 
2019
 
2018
 
 
 
 
Cash and cash equivalents
$
47

 
$
1

Restricted cash and cash equivalents in other current assets
38

 
56

Total cash and cash equivalents and restricted cash and cash equivalents
$
85

 
$
57


112




(3)
Property, Plant and Equipment, Net

Refer to Note 3 of MidAmerican Energy's Notes to Financial Statements. In addition to MidAmerican Energy's property, plant and equipment, net, MidAmerican Funding had as of September 30, 2019 and December 31, 2018, nonregulated property gross of $24 million and related accumulated depreciation and amortization of $13 million and $12 million, respectively, which consisted primarily of a corporate aircraft owned by MHC.

(4)
Leases

Refer to Note 4 of MidAmerican Energy's Notes to Financial Statements.

(5)
Recent Financing Transactions

Refer to Note 5 of MidAmerican Energy's Notes to Financial Statements.

(6)
Income Taxes

A reconciliation of the federal statutory income tax rate to MidAmerican Funding's effective income tax rate applicable to income before income tax benefit is as follows:
 
Three-Month Periods
 
Nine-Month Periods
 
Ended September 30,
 
Ended September 30,
 
2019
 
2018
 
2019
 
2018
 
 
 
 
 
 
 
 
Federal statutory income tax rate
21
 %
 
21
 %
 
21
 %
 
21
 %
Income tax credits
(36
)
 
(97
)
 
(78
)
 
(101
)
State income tax, net of federal income tax benefit
(18
)
 
(10
)
 
(20
)
 
(10
)
Effects of ratemaking
(7
)
 
(5
)
 
(7
)
 
(7
)
Other, net

 

 
(1
)
 

Effective income tax rate
(40
)%
 
(91
)%
 
(85
)%
 
(97
)%

Income tax credits relate primarily to production tax credits from MidAmerican Energy's wind-powered generating facilities. Federal renewable electricity production tax credits are earned as energy from qualifying wind-powered generating facilities is produced and sold and are based on a per-kilowatt hour rate pursuant to the applicable federal income tax law. Wind-powered generating facilities are eligible for the credits for 10 years from the date the qualifying generating facilities are placed in-service.

Due to a combination of declines in pre-tax income and increases in production tax credits in recent years and changes in estimates for these values throughout the year, the volatility of the effective tax rate used to determine the recognition of income tax expense each quarter has similarly increased. MidAmerican Energy concluded that, due to such increased volatility, it was no longer able to reasonably estimate an annual effective tax rate for this purpose. Accordingly, beginning January 1, 2019, production tax credits are recognized in the Statement of Operations as they are earned, and excluded in the determination of the effective tax rate used in the recognition of all other income tax expense. Production tax credits recognized in income for the three-month periods ended September 30, 2019 and 2018 were $69 million and $241 million, respectively, with $185 million lower production tax credits recognized attributable to the change in the method of interim period recognition in 2019. Production tax credits recognized in income for the nine-month periods ended September 30, 2019 and 2018 were $259 million and $349 million, respectively, with $129 million lower production tax credits recognized attributable to the change in the method of interim period recognition in 2019.

Berkshire Hathaway includes BHE and subsidiaries in its United States federal and Iowa state income tax returns. Consistent with established regulatory practice, MidAmerican Funding's and MidAmerican Energy's provisions for income tax have been computed on a stand-alone basis, and substantially all of their currently payable or receivable income tax is remitted to or received from BHE. MidAmerican Funding received net cash payments for income tax from BHE totaling $313 million and $248 million for the nine-month period ended September 30, 2019 and 2018, respectively.


113



(7)
Employee Benefit Plans

Refer to Note 7 of MidAmerican Energy's Notes to Financial Statements.

(8)    Asset Retirement Obligations

Refer to Note 8 of MidAmerican Energy's Notes to Financial Statements.

(9)
Fair Value Measurements

Refer to Note 9 of MidAmerican Energy's Notes to Financial Statements. MidAmerican Funding's long-term debt is carried at cost on the Consolidated Financial Statements. The fair value of MidAmerican Funding's long-term debt is a Level 2 fair value measurement and has been estimated based upon quoted market prices, where available, or at the present value of future cash flows discounted at rates consistent with comparable maturities with similar credit risks. The carrying value of MidAmerican Funding's variable-rate long-term debt approximates fair value because of the frequent repricing of these instruments at market rates. The following table presents the carrying value and estimated fair value of MidAmerican Funding's long-term debt (in millions):
 
As of September 30, 2019
 
As of December 31, 2018
 
Carrying
Value
 
Fair
Value
 
Carrying
Value
 
Fair
Value
 
 
 
 
 
 
 
 
Long-term debt
$
6,582

 
$
7,840

 
$
5,619

 
$
5,941


(10)
Commitments and Contingencies

MidAmerican Funding is party to a variety of legal actions arising out of the normal course of business. Plaintiffs occasionally seek punitive or exemplary damages. MidAmerican Funding does not believe that such normal and routine litigation will have a material impact on its consolidated financial results.

Refer to Note 10 of MidAmerican Energy's Notes to Financial Statements.

(11)
Revenue from Contracts with Customers

Refer to Note 11 of MidAmerican Energy's Notes to Financial Statements. Additionally, MidAmerican Funding had other Accounting Standards Codification Topic 606 revenue of $1 million and $- million for the three-month periods ended September 30, 2019 and 2018, respectively, and $2 million for the nine-month periods ended September 30, 2019 and 2018, respectively.

(12)
Segment Information

MidAmerican Funding has identified two reportable segments: regulated electric and regulated natural gas. The regulated electric segment derives most of its revenue from regulated retail sales of electricity to residential, commercial, and industrial customers and from wholesale sales. The regulated natural gas segment derives most of its revenue from regulated retail sales of natural gas to residential, commercial, and industrial customers and also obtains revenue by transporting natural gas owned by others through its distribution system. Pricing for regulated electric and regulated natural gas sales are established separately by regulatory agencies; therefore, management also reviews each segment separately to make decisions regarding allocation of resources and in evaluating performance. Common operating costs, interest income, interest expense and income tax expense are allocated to each segment based on certain factors, which primarily relate to the nature of the cost. "Other" in the tables below consists of the financial results and assets of nonregulated operations, MHC and MidAmerican Funding.


114



The following tables provide information on a reportable segment basis (in millions):
 
Three-Month Periods
 
Nine-Month Periods
 
Ended September 30,
 
Ended September 30,
 
2019
 
2018
 
2019
 
2018
Operating revenue:
 
 
 
 
 
 
 
Regulated electric
$
712

 
$
727

 
$
1,792

 
$
1,785

Regulated natural gas
76

 
103

 
482

 
505

Other
9

 
2

 
25

 
7

Total operating revenue
$
797

 
$
832

 
$
2,299

 
$
2,297

 
 
 
 
 
 
 
 
Operating income:
 
 
 
 
 
 
 
Regulated electric
$
243

 
$
278

 
$
396

 
$
392

Regulated natural gas
(8
)
 
1

 
45

 
52

Other
(1
)
 
(1
)
 
3

 

Total operating income
234

 
278

 
444

 
444

Interest expense
(74
)
 
(61
)
 
(223
)
 
(185
)
Allowance for borrowed funds
7

 
6

 
20

 
14

Allowance for equity funds
27

 
16

 
59

 
39

Other, net
5

 
12

 
36

 
35

Income before income tax benefit
$
199

 
$
251

 
$
336

 
$
347


 
As of
 
September 30,
2019
 
December 31,
2018
Assets(1):
 
 
 
Regulated electric
$
19,532

 
$
17,702

Regulated natural gas
1,422

 
1,485

Other
25

 
15

Total assets
$
20,979

 
$
19,202

(1)
Assets by reportable segment reflect the assignment of goodwill to applicable reporting units.


115



Item 2.
Management's Discussion and Analysis of Financial Condition and Results of Operations

MidAmerican Funding is an Iowa limited liability company whose sole member is BHE. MidAmerican Funding owns all of the outstanding common stock of MHC Inc., which owns all of the common stock of MidAmerican Energy, Midwest Capital Group, Inc. and MEC Construction Services Co. MidAmerican Energy is a public utility company headquartered in Des Moines, Iowa. MHC Inc., MidAmerican Funding and BHE are also headquartered in Des Moines, Iowa.

The following is management's discussion and analysis of certain significant factors that have affected the consolidated financial condition and results of operations of MidAmerican Funding and its subsidiaries and MidAmerican Energy as presented in this joint filing. Information in Management's Discussion and Analysis related to MidAmerican Energy, whether or not segregated, also relates to MidAmerican Funding. Information related to other subsidiaries of MidAmerican Funding pertains only to the discussion of the financial condition and results of operations of MidAmerican Funding. Where necessary, discussions have been segregated under the heading "MidAmerican Funding" to allow the reader to identify information applicable only to MidAmerican Funding. Explanations include management's best estimate of the impact of weather, customer growth and other usage factors. This discussion should be read in conjunction with the historical unaudited Financial Statements and Notes to Financial Statements in Part I, Item 1 of this Form 10-Q. MidAmerican Energy's and MidAmerican Funding's actual results in the future could differ significantly from the historical results.

Results of Operations for the Third Quarter and First Nine Months of 2019 and 2018

Overview

MidAmerican Energy -

MidAmerican Energy's net income for the third quarter of 2019 was $282 million, a decrease of $201 million, or 42%, compared to 2018 primarily due to lower income tax benefit of $148 million primarily due to a $172 million decrease in recognized production tax credits, partially offset by the effects of ratemaking, higher depreciation and amortization expense of $51 million due to $33 million of higher Iowa revenue sharing accruals and greater assets placed in-service and higher interest expense of $12 million, partially offset by higher electric utility margin of $12 million and higher allowances for equity and borrowed funds of $12 million. The decrease in production tax credits recognized was due to a change in the method of interim period recognition of $185 million, partially offset by higher actual generation. Electric utility margin increased due to higher retail customer volumes, higher recoveries through bill riders, net of energy costs, and higher wholesale margins due to lower energy costs, partially offset by lower average retail rates. Electric retail customer volumes increased 1.7% from higher industrial volumes of 2.9% and the favorable impact of weather, partially offset by a decrease from other usage factors.

MidAmerican Energy's net income for the first nine months of 2019 was $631 million, a decrease of $64 million, or 9%, compared to 2018 due to lower income tax benefit of $52 million primarily due to a $90 million decrease in recognized production tax credits, partially offset by the effects of ratemaking, higher depreciation and amortization expense of $41 million due to greater assets placed in-service, partially offset by $15 million of lower Iowa revenue sharing accruals, and higher interest expense of $37 million, partially offset by higher electric utility margin of $55 million and higher allowances for equity and borrowed funds of $26 million. The decrease in production tax credits recognized was due to a change in the method of interim period recognition of $129 million, partially offset by higher actual generation. Electric utility margin increased due to higher recoveries through bill riders, net of energy costs, higher wholesale margins due to lower energy costs and higher sales volumes and higher retail customer volumes, partially offset by lower average retail rates. Electric retail customer volumes increased 0.9% as an increase in industrial volumes of 4.0% was largely offset by lower residential and commercial volumes from the unfavorable impact of weather and other usage factors.

MidAmerican Funding -

MidAmerican Funding's net income for the third quarter of 2019 was $279 million, a decrease of $200 million, or 42%, compared to 2018. MidAmerican Funding's net income for the first nine months of 2019 was $622 million, a decrease of $63 million, or 9%, compared to 2018. The decreases were primarily due to the changes in MidAmerican Energy's earnings discussed above.


116



Non-GAAP Financial Measure

Management utilizes various key financial measures that are prepared in accordance with GAAP, as well as non-GAAP financial measures such as, electric utility margin and natural gas utility margin, to help evaluate results of operations. Electric utility margin is calculated as regulated electric operating revenue less cost of fuel and energy, which are captions presented on the Statements of Operations. Natural gas utility margin is calculated as regulated natural gas operating revenue less regulated cost of natural gas purchased for resale, which are included in regulated natural gas and other and cost of natural gas purchased for resale and other, respectively, on the Statements of Operations.

MidAmerican Energy's cost of fuel and energy and regulated cost of natural gas purchased for resale are generally recovered from its retail customers through regulatory recovery mechanisms, and as a result, changes in those expenses result in comparable changes to revenue from the related recovery mechanisms. As such, management believes electric utility margin and natural gas utility margin more appropriately and concisely explain profitability rather than a discussion of revenue and cost of sales separately. Management believes the presentation of electric utility margin and natural gas utility margin provides meaningful and valuable insight into the information management considers important to running the business and a measure of comparability to others in the industry.

Electric utility margin and natural gas utility margin are not measures calculated in accordance with GAAP and should be viewed as a supplement to and not a substitute for operating income, which is the most comparable financial measure prepared in accordance with GAAP. The following table provides a reconciliation of utility margin to MidAmerican Energy's operating income (in millions):
 
 
Third Quarter
 
First Nine Months
 
 
2019
 
2018
 
Change
 
2019
 
2018
 
Change
Electric utility margin:
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Regulated electric operating revenue
 
$
712

 
$
727

 
$
(15
)
(2
)%
 
$
1,792

 
$
1,785

 
$
7

 %
Cost of fuel and energy
 
113

 
140

 
(27
)
(19
)
 
318

 
366

 
(48
)
(13
)
Electric utility margin
 
599

 
587

 
12

2

 
1,474

 
1,419

 
55

4

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Natural gas utility margin:
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Regulated natural gas operating revenue
 
76

 
103

 
(27
)
(26
)%
 
482

 
505

 
(23
)
(5
)
Cost of natural gas purchased for resale
 
39

 
50

 
(11
)
(22
)
 
287

 
296

 
(9
)
(3
)
Natural gas utility margin
 
37

 
53

 
(16
)
(30
)
 
195

 
209

 
(14
)
(7
)
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Utility margin
 
636

 
640

 
(4
)
(1
)%
 
1,669

 
1,628

 
41

3

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Other operating revenue
 
8

 
2

 
6

*
 
23

 
5

 
18

*
Other cost of sales
 
6

 

 
6

*
 
15

 

 
15

*
Operations and maintenance
 
189

 
201

 
(12
)
(6
)%
 
600

 
598

 
2


Depreciation and amortization
 
184

 
133

 
51

38

 
540

 
499

 
41

8

Property and other taxes
 
31

 
30

 
1

3

 
94

 
92

 
2

2

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Operating income
 
$
234

 
$
278

 
$
(44
)
(16
)%
 
$
443

 
$
444

 
$
(1
)
 %

*    Not meaningful.


117



Regulated Electric Utility Margin

A comparison of key operating results related to regulated electric utility margin is as follows:
 
Third Quarter
 
First Nine Months
 
2019
 
2018
 
Change
 
2019
 
2018
 
Change
Electric utility margin (in millions):
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Operating revenue
$
712

 
$
727

 
$
(15
)
 
(2
)%
 
$
1,792

 
$
1,785

 
$
7

 
 %
Cost of fuel and energy
113

 
140

 
(27
)
 
(19
)
 
318

 
366

 
(48
)
 
(13
)
Electric utility margin
$
599

 
$
587

 
$
12

 
2

 
$
1,474

 
$
1,419

 
$
55

 
4

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Electricity Sales (GWh):
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Residential
1,950

 
1,952

 
(2
)
 
 %
 
5,105

 
5,307

 
(202
)
 
(4
)%
Commercial
1,037

 
1,025

 
12

 
1

 
2,930

 
2,944

 
(14
)
 

Industrial
3,652

 
3,550

 
102

 
3

 
10,567

 
10,158

 
409

 
4

Other
420

 
415

 
5

 
1

 
1,200

 
1,218

 
(18
)
 
(1
)
Total retail
7,059

 
6,942

 
117

 
2

 
19,802

 
19,627

 
175

 
1

Wholesale
1,708

 
2,160

 
(452
)
 
(21
)
 
7,312

 
7,179

 
133

 
2

Total sales
8,767

 
9,102

 
(335
)
 
(4
)
 
27,114

 
26,806

 
308

 
1

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Average number of retail customers (in thousands)
786

 
780

 
6

 
1
 %
 
785

 
778

 
7

 
1
 %
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Average revenue per MWh:
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Retail
$
92.13

 
$
93.39

 
$
(1.26
)
 
(1
)%
 
$
78.83

 
$
78.63

 
$
0.20

 
 %
Wholesale
$
23.00

 
$
27.19

 
$
(4.19
)
 
(15
)%
 
$
22.81

 
$
25.09

 
$
(2.28
)
 
(9
)%
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Heating degree days
12

 
91

 
(79
)
 
(87
)%
 
4,218

 
4,126

 
92

 
2
 %
Cooling degree days
862

 
784

 
78

 
10
 %
 
1,142

 
1,295

 
(153
)
 
(12
)%
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Sources of energy (GWh)(1):
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Coal
3,764

 
4,559

 
(795
)
 
(17
)%
 
10,101

 
11,293

 
(1,192
)
 
(11
)%
Nuclear
962

 
990

 
(28
)
 
(3
)
 
2,846

 
2,838

 
8

 

Natural gas
297

 
275

 
22

 
8

 
361

 
549

 
(188
)
 
(34
)
Wind and other(2)
2,954

 
2,428

 
526

 
22

 
11,252

 
9,693

 
1,559

 
16

Total energy generated
7,977

 
8,252

 
(275
)
 
(3
)
 
24,560

 
24,373

 
187

 
1

Energy purchased
1,026

 
1,054

 
(28
)
 
(3
)
 
3,072

 
3,010

 
62

 
2

Total
9,003

 
9,306

 
(303
)
 
(3
)
 
27,632

 
27,383

 
249

 
1



(1)
GWh amounts are net of energy used by the related generating facilities.

(2)
All or some of the renewable energy attributes associated with generation from these generating facilities may be: (a) used in future years to comply with renewable portfolio standards or other regulatory requirements or (b) sold to third parties in the form of renewable energy credits or other environmental commodities.

118



Regulated electric utility margin increased $12 million for the third quarter of 2019 compared to 2018 primarily due to:
(1)
Higher retail utility margin of $8 million due to -
an increase of $6 million from non-weather-related sales growth, due to higher industrial usage, partially offset by lower residential usage;
an increase of $6 million from the favorable impact of weather;
an increase of $3 million, net of energy costs, from higher recoveries through bill riders, primarily related to ratemaking treatment for the impact of 2017 Tax Reform and the production tax credit component of the energy adjustment clause, partially offset by a decrease of $20 million in electric demand-side management ("DSM") program revenue (offset in operations and maintenance expense);
a decrease of $5 million in average revenue rates due to sales mix; and
a decrease of $2 million from other revenue;
(2)
Higher wholesale utility margin of $2 million due to higher margin per unit, reflecting lower energy costs, partially offset by lower sales volumes; and
(3)
Higher Multi-Value Projects ("MVP") transmission revenue of $2 million due to continued capital additions.

Regulated electric utility margin increased $55 million for the first nine months of 2019 compared to 2018 primarily due to:
(1)
Higher retail utility margin of $28 million primarily due to -
an increase of $42 million from non-weather-related sales growth, primarily higher industrial usage;
an increase of $38 million, net of energy costs, from higher recoveries through bill riders, primarily related to the production tax credit component of the energy adjustment clause and ratemaking treatment for the impact of 2017 Tax Reform, partially offset by a decrease of $30 million in electric DSM program revenue (offset in operations and maintenance expense);
a decrease of $32 million in averages rates, predominantly from sales mix;
a decrease of $17 million from the favorable impact of weather in 2018; and
a decrease of $3 million from other revenue;
(2)
Higher wholesale utility margin of $24 million due to higher margin per unit from lower energy costs and higher wholesale volumes; and
(3)
Higher MVP transmission revenue of $3 million due to continued capital additions.




119



Regulated Natural Gas Utility Margin

A comparison of key operating results related to regulated natural gas utility margin is as follows:
 
Third Quarter
 
First Nine Months
 
2019
 
2018
 
Change
 
2019
 
2018
 
Change
Natural gas utility margin (in millions):
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Operating revenue
$
76

 
$
103

 
$
(27
)
 
(26)
 %
 
$
482

 
$
505

 
$
(23
)
 
(5)
 %
Cost of natural gas purchased for resale
39

 
50

 
(11
)
 
(22
)
 
287

 
296

 
(9
)
 
(3
)
Natural gas utility margin
$
37

 
$
53

 
$
(16
)
 
(30
)
 
$
195

 
$
209

 
$
(14
)
 
(7
)
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Natural gas throughput (000's Dth):
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Residential
2,633

 
2,773

 
(140
)
 
(5)
 %
 
38,130

 
36,493

 
1,637

 
4
 %
Commercial
1,522

 
1,651

 
(129
)
 
(8
)
 
18,103

 
17,661

 
442

 
3

Industrial
929

 
985

 
(56
)
 
(6
)
 
3,424

 
3,690

 
(266
)
 
(7
)
Other
10

 
3

 
7

 
*
 
58

 
33

 
25

 
76

Total retail sales
5,094

 
5,412

 
(318
)
 
(6
)
 
59,715

 
57,877

 
1,838

 
3

Wholesale sales
7,251

 
7,569

 
(318
)
 
(4
)
 
25,856

 
27,940

 
(2,084
)
 
(7
)
Total sales
12,345

 
12,981

 
(636
)
 
(5
)
 
85,571

 
85,817

 
(246
)
 

Natural gas transportation service
27,011

 
21,876

 
5,135

 
23

 
81,378

 
73,968

 
7,410

 
10

Total natural gas throughput
39,356

 
34,857

 
4,499

 
13

 
166,949

 
159,785

 
7,164

 
4

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Average number of retail customers (in thousands)
760

 
754

 
6

 
1
 %
 
761

 
755

 
6

 
1
 %
Average revenue per retail Dth sold
$
10.65

 
$
13.90

 
$
(3.25
)
 
(23)
 %
 
$
6.55

 
$
6.95

 
$
(0.40
)
 
(6)
 %
Average cost of natural gas per retail Dth sold
$
4.83

 
$
5.48

 
$
(0.65
)
 
(12)
 %
 
$
3.74

 
$
3.81

 
$
(0.07
)
 
(2)
 %
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Combined retail and wholesale average cost of natural gas per Dth sold
$
3.17

 
$
3.86

 
$
(0.69
)
 
(18)
 %
 
$
3.35

 
$
3.44

 
$
(0.09
)
 
(3)
 %
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Heating degree days
19

 
92

 
(73
)
 
(79)
 %
 
4,408

 
4,269

 
139

 
3
 %

*    Not meaningful.

Regulated natural gas utility margin decreased $16 million for the third quarter of 2019 compared to 2018 due to:
(1)
A decrease of $10 million from lower natural gas DSM program revenue (offset in operations and maintenance expense); and
(2)
A decrease of $6 million from non-weather rate and usage variances, in part due to sales mix.
Regulated natural gas utility margin decreased $14 million for the first nine months of 2019 compared to 2018 due to:
(1)
A decrease of $16 million from lower natural gas DSM program revenue (offset in operations and maintenance expense); partially offset by
(2)
An increase of $2 million from the favorable impact of weather.

Operating Expenses

MidAmerican Energy -

Operations and maintenance decreased $12 million for the third quarter of 2019 compared to 2018 primarily due to lower DSM program expense of $30 million, which is recoverable through bill riders and offset in operating revenue, partially offset by higher wind-powered generation operations and maintenance of $9 million due to additional wind turbines and easements and higher electric and gas distribution operation and maintenance of $4 million.


120



Operations and maintenance increased $2 million for the first nine months of 2019 compared to 2018 primarily due to higher wind-powered generation operations and maintenance of $25 million due to additional wind turbines and easements, higher electric distribution operations and maintenance of $8 million from emergency outage and tree-trimming costs, higher nonregulated operations costs of $7 million primarily from nonregulated utility construction services, higher transmission costs from MISO of $5 million, which are recoverable through bill riders and offset in operating revenue, higher gas distribution operations and maintenance of $5 million and various other increases, partially offset by lower DSM program expense of $46 million, which is recoverable through bill riders and offset in operating revenue, and lower fossil-fueled generation maintenance of $8 million.

Depreciation and amortization for the third quarter of 2019 increased $51 million compared to 2018 due to higher Iowa revenue sharing accruals of $33 million and wind-powered generating facilities and other plant placed in-service.

Depreciation and amortization for the first nine months of 2019 increased $41 million compared to 2018 due to wind-powered generating facilities and other plant placed in-service, partially offset by lower Iowa revenue sharing accruals of $15 million.

Other Income (Expense)

MidAmerican Energy -

Interest expense increased $12 million and $37 million for the third quarter and first nine months of 2019 compared to 2018 primarily due to higher debt outstanding.

Allowance for borrowed and equity funds increased $12 million and $26 million for the third quarter and first nine months of 2019 compared to 2018 primarily due to higher construction work-in-progress balances related to wind-powered generation.

Other, net decreased $9 million for the third quarter of 2019 compared to 2018 primarily due to higher charitable contributions and lower returns on corporate-owned life insurance policies. For the first nine months of 2019 compared to 2018, higher returns on corporate-owned life insurance policies offset higher charitable contributions.

Income Tax Benefit

MidAmerican Energy -

MidAmerican Energy's income tax benefit decreased $148 million for the third quarter of 2019 compared to 2018, and the effective tax rate was (38)% for 2019 and (88)% for 2018. For the first nine months of 2019 compared to 2018, MidAmerican Energy's income tax benefit decreased $52 million, and the effective tax rate was (81)% for 2019 and (93)% for 2018. The change in the effective tax rates for 2019 compared to 2018 were substantially due to the recognition of production tax credits and the effects of ratemaking.

Federal renewable electricity production tax credits are earned as energy from qualifying wind-powered generating facilities is produced and sold and are based on a per-kilowatt hour rate pursuant to the applicable federal income tax law. Wind-powered generating facilities, including those facilities where a significant portion of the equipment was replaced, commonly referred to as repowered facilities, are eligible for the credits for 10 years from the date the qualifying generating facilities are placed in-service. Due to a combination of declines in pre-tax income and increases in production tax credits in recent years and changes in estimates for these values throughout the year, the volatility of the effective tax rate used to determine the recognition of income tax expense each quarter has similarly increased. MidAmerican Energy concluded that, due to such increased volatility, it was no longer able to reasonably estimate an annual effective tax rate for this purpose. Accordingly, beginning January 1, 2019, production tax credits are recognized in the Statement of Operations as they are earned, and excluded in the determination of the effective tax rate used in the recognition of all other income tax expense. Production tax credits recognized in income for the three-month periods ended September 30, 2019 and 2018 were $69 million and $241 million, respectively, with $185 million lower production tax credits recognized attributable to the change in the method of interim period recognition in 2019. Production tax credits recognized in income for the nine-month periods ended September 30, 2019 and 2018 were $259 million and $349 million, respectively, with $129 million lower production tax credits recognized attributable to the change in the method of interim period recognition in 2019. The impact of the change in the method of interim period recognition was partially offset by increases in production tax credits earned, largely due to greater production in 2019.


121



MidAmerican Funding -

MidAmerican Funding's income tax benefit decreased $148 million for the third quarter of 2019 compared to 2018, and the effective tax rate was (40)% for 2019 and (91)% for 2018. For the first nine months of 2019 compared to 2018, MidAmerican Energy's income tax benefit decreased $52 million, and the effective tax rate was (85)% for 2019 and (97)% for 2018. The changes in the effective tax rates were principally due to the factors discussed for MidAmerican Energy.

Liquidity and Capital Resources

As of September 30, 2019, MidAmerican Energy's and MidAmerican Funding's total net liquidity were as follows (in millions):
 
MidAmerican Energy:
 
 
Cash and cash equivalents
 
$
46

 
 
 
Credit facilities, maturing 2020 and 2022
 
1,305

Less:
 
 
Tax-exempt bond support
 
(370
)
Net credit facilities
 
935

 
 
 
MidAmerican Energy total net liquidity
 
$
981

 
 
 
MidAmerican Funding:
 
 
MidAmerican Energy total net liquidity
 
$
981

Cash and cash equivalents
 
1

MHC, Inc. credit facility, maturing 2020
 
4

MidAmerican Funding total net liquidity
 
$
986


Operating Activities

MidAmerican Energy's net cash flows from operating activities for the nine-month periods ended September 30, 2019 and 2018, were $1,211 million and $1,028 million, respectively. MidAmerican Funding's net cash flows from operating activities for the nine-month periods ended September 30, 2019 and 2018, were $1,194 million and $1,035 million, respectively. Cash flows from operating activities increased primarily due to lower payments to vendors, MidAmerican Energy's income tax cash flows with BHE and higher cash margins for MidAmerican Energy's regulated electric business, partially offset by higher interest paid due to long-term debt issued in January 2019. MidAmerican Energy's income tax cash flows with BHE totaled net cash receipts of $309 million and $232 million in 2019 and 2018, respectively. The timing of MidAmerican Energy's income tax cash flows from period to period can be significantly affected by the estimated federal income tax payment methods and assumptions for each payment date.

Investing Activities

MidAmerican Energy's and MidAmerican Funding's net cash flows from investing activities for the nine-month periods ended September 30, 2019 and 2018, were $(1,903) million and $(1,463) million, respectively. Net cash flows from investing activities consist almost entirely of capital expenditures, which increased due to higher wind-powered generating facility construction and repowering expenditures. Purchases and proceeds related to marketable securities substantially consist of activity within the Quad Cities Generating Station nuclear decommissioning trust and other trust investments.


122



Financing Activities

MidAmerican Energy's net cash flows from financing activities for the nine-month periods ended September 30, 2019 and 2018 were $720 million and $336 million, respectively. MidAmerican Funding's net cash flows from financing activities for the nine-month periods ended September 30, 2019 and 2018, were $737 million and $329 million, respectively. In January 2019, MidAmerican Energy issued $600 million of its 3.65% First Mortgage Bonds due 2029 and $900 million of its 4.25% First Mortgage Bonds due 2049. In February 2019, MidAmerican Energy redeemed $500 million of its 2.40% First Mortgage Bonds due in March 2019 at a redemption price of 100% of the principal amount plus accrued interest. In February 2018, MidAmerican Energy issued $700 million of its 3.65% First Mortgage Bonds due 2048, and in March 2018, MidAmerican Energy repaid $350 million of its 5.30% Senior Notes due March 2018. Through its commercial paper program, MidAmerican Energy made payments totaling $240 million in 2019. MidAmerican Funding received $17 million in 2019 and paid $6 million in 2018 through its note payable with BHE.

Debt Authorizations and Related Matters

MidAmerican Energy has authority from the FERC to issue, through July 31, 2020, commercial paper and bank notes aggregating $1.3 billion at interest rates not to exceed the applicable London Interbank Offered Rate plus a spread of 400 basis points.

MidAmerican Energy currently has an effective automatic shelf registration statement with the SEC to issue an indeterminate amount of long-term debt securities through June 26, 2021. Additionally, following the October 2019 issuance of $850 million of first mortgage bonds, MidAmerican Energy has authorization from the FERC to issue, through June 30, 2021, long-term debt securities up to an aggregate of $850 million at interest rates not to exceed the applicable United States Treasury rate plus a spread of 175 basis points and preferred stock up to an aggregate of $500 million, and from the Illinois Commerce Commission, to issue long-term debt securities up to an aggregate of $850 million through August 20, 2022, and preferred stock up to an aggregate of $500 million through November 1, 2020.

Future Uses of Cash

MidAmerican Energy and MidAmerican Funding have available a variety of sources of liquidity and capital resources, both internal and external, including net cash flows from operating activities, public and private debt offerings, the issuance of commercial paper, the use of unsecured revolving credit facilities and other sources. These sources are expected to provide funds required for current operations, capital expenditures, debt retirements and other capital requirements. The availability and terms under which MidAmerican Energy and MidAmerican Funding have access to external financing depends on a variety of factors, including regulatory approvals, their credit ratings, investors' judgment of risk and conditions in the overall capital markets, including the condition of the utility industry.

Capital Expenditures

MidAmerican Energy has significant future capital requirements. Capital expenditure needs are reviewed regularly by management and may change significantly as a result of these reviews, which may consider, among other factors, impacts to customers' rates; changes in environmental and other rules and regulations; outcomes of regulatory proceedings; changes in income tax laws; general business conditions; load projections; system reliability standards; the cost and efficiency of construction labor, equipment and materials; commodity prices; and the cost and availability of capital.

MidAmerican Energy's historical and forecast capital expenditures, each of which exclude amounts for non-cash equity AFUDC and other non-cash items, are as follows (in millions):
 
Nine-Month Periods
 
Annual
 
Ended September 30,
 
Forecast
 
2018
 
2019
 
2019
 
 
 
 
 
 
Wind-powered generation
$
704

 
$
1,027

 
$
1,447

Wind-powered generation repowering
233

 
332

 
397

Other
529

 
550

 
1,036

Total
$
1,466

 
$
1,909

 
$
2,880



123



MidAmerican Energy's forecast capital expenditures for 2019 include the following:

The construction of wind-powered generating facilities in Iowa. MidAmerican Energy currently has three wind-powered generation construction projects in progress, two of which are subject to ratemaking principles approved by the IUB.
In August 2016, the IUB issued an order approving ratemaking principles related to MidAmerican Energy's construction of up to 2,000 MW (nominal ratings) of additional wind-powered generating facilities ("Wind XI") expected to be placed in service in 2017 through 2019, including a total of 1,345 MW (nominal ratings) placed in-service through September 30, 2019. Wind XI ratemaking principles established a cost cap of $3.6 billion, including AFUDC, a fixed rate of return on equity of 11.0% over the proposed 40-year useful lives of those facilities in any future Iowa rate proceeding and the revenue sharing mechanism that was effective in 2018. In December 2018, the IUB issued an order approving ratemaking principles related to MidAmerican Energy's construction of up to 591 MW (nominal ratings) of additional wind-powered generating facilities ("Wind XII") expected to be placed in-service by the end of 2020. Wind XII ratemaking principles establish a cost cap of $922 million, including AFUDC, establish a fixed rate of return on equity of 11.0% over the proposed 40-year useful lives of those facilities in any future Iowa rate proceeding and provide that all Iowa retail energy benefits from Wind XII will reduce rate base and be excluded from the Iowa energy adjustment clause. Additionally, the ratemaking principles modify the Wind XI revenue sharing mechanism, effective January 1, 2019, such that revenue sharing will be triggered each year by actual equity returns above a threshold calculated annually or 11%, whichever is less, and MidAmerican Energy will share with customers 90% of the revenue in excess of the trigger, instead of 100% sharing. The threshold will be calculated each year-end and will be the weighted average of equity returns authorized via ratemaking principles for certain rate base and, for remaining rate base, interest rates on 30-year single A-rated utility bond yields plus 400 basis points, with a minimum return of 9.5%.The cost caps established by ratemaking principles ensure that as long as total costs for each project are below the cap, the investment will be deemed prudent in any future Iowa rate proceeding. MidAmerican Energy expects all of these wind-powered generating facilities to qualify for 100% of production tax credits available. Production tax credits from these projects are excluded from MidAmerican Energy's Iowa energy adjustment clause until these generation assets are reflected in base rates.
Additionally, MidAmerican Energy is constructing 205 MW (nominal ratings) of wind-powered generating facilities expected to be placed in-service in 2020, with a current forecast of $300 million, including AFUDC. This project is not subject to pre-approved ratemaking principles. MidAmerican Energy expects these wind-powered generating facilities to qualify for 100% of production tax credits available. Production tax credits from this project are expected to be included in MidAmerican Energy's Iowa energy adjustment clause.
The repowering of the oldest of MidAmerican Energy's wind-powered generating facilities in Iowa. The repowering projects entail the replacement of significant components of the facilities, which is expected to qualify such facilities for the re-establishment of production tax credits for ten years following each facility's return to service at rates that depend upon the year in which construction begins. Of the 1,307 MW of current repowering projects not in-service as of September 30, 2019, 136 MW are currently expected to qualify for 100% of the federal production tax credits available for ten years following each facility's return to service, 764 MW are expected to qualify for 80% of such credits and 407 MW are expected to qualify for 60% of such credits.
Remaining costs primarily relate to routine expenditures for generation, transmission, distribution and other infrastructure needed to serve existing and expected demand.

Contractual Obligations

As of September 30, 2019, there have been no material changes outside the normal course of business in MidAmerican Energy's and MidAmerican Funding's contractual obligations from the information provided in Item 7 of their Annual Report on Form 10-K for the year ended December 31, 2018.

Regulatory Matters

MidAmerican Energy is subject to comprehensive regulation. Refer to "Regulatory Matters" in Berkshire Hathaway Energy's Part I, Item 2 of this Form 10-Q for discussion regarding MidAmerican Energy's current regulatory matters.


124



Quad Cities Generating Station Operating Status

Exelon Generation Company, LLC ("Exelon Generation"), the operator of Quad Cities Generating Station Units 1 and 2 ("Quad Cities Station") of which MidAmerican Energy has a 25% ownership interest, announced on June 2, 2016, its intention to shut down Quad Cities Station on June 1, 2018, as a result of Illinois not passing adequate legislation and Quad Cities Station not clearing the 2019-2020 PJM Interconnection, L.L.C. capacity auction. MidAmerican Energy expressed to Exelon Generation its desire for the continued operation of the facility through the end of its operating license in 2032 and worked with Exelon Generation on solutions to that end. In December 2016, Illinois passed legislation creating a zero emission standard, which went into effect June 1, 2017. The zero emission standard requires the Illinois Power Agency to purchase zero emission credits ("ZECs") and recover the costs from certain ratepayers in Illinois, subject to certain limitations. The proceeds from the zero emission credits will provide Exelon Generation additional revenue through 2027 as an incentive for continued operation of Quad Cities Station. For the nuclear assets already in rate base, MidAmerican Energy's customers will not be charged for the subsidy, and MidAmerican Energy will not receive additional revenue from the subsidy.

On February 14, 2017, two lawsuits were filed with the United States District Court for the Northern District of Illinois ("Northern District of Illinois") against the Illinois Power Agency alleging that the state's zero emission credit program violates certain provisions of the United States Constitution. Both lawsuits were dismissed at the Northern District of Illinois, and the United States Court of Appeals for the Seventh Circuit affirmed the dismissals. On April 15, 2019, plaintiffs' petition seeking United States Supreme Court review of the case was denied.

On January 9, 2017, the Electric Power Supply Association filed two requests with the FERC seeking to expand Minimum Offer Price Rule ("MOPR") provisions to apply to existing resources receiving zero emission credit compensation. If successful, an expanded MOPR could result in an increased risk of Quad Cities Station not clearing in future capacity auctions and Exelon Generation no longer receiving capacity revenues for the facility. As majority owner and operator of Quad Cities Station, Exelon Generation has filed protests at the FERC in response to each filing. The FERC has not yet issued a decision on the requests.

On April 10, 2019, PJM Interconnection, L.L.C. ("PJM") notified the FERC of its intent to proceed with the next capacity auction in August 2019 under the existing market rules and asked the FERC to clarify that it would not require the PJM to re-run the auction in the event the FERC alters those market rules in its decision on the MOPR complaint. On July 25, 2019, FERC issued an order denying PJM’s request to clarify that any alteration of PJM’s existing market rules would operate prospectively and directed PJM to not conduct the capacity auction in August 2019. It is too early to predict the final outcome of each of these proceedings or their potential impact on the continued operation of Quad Cities Station.

Environmental Laws and Regulations

MidAmerican Energy is subject to federal, state and local laws and regulations regarding climate change, RPS, air and water quality, emissions performance standards, coal combustion byproduct disposal, hazardous and solid waste disposal, protected species and other environmental matters that have the potential to impact its current and future operations. In addition to imposing continuing compliance obligations and capital expenditure requirements, these laws and regulations provide regulators with the authority to levy substantial penalties for noncompliance including fines, injunctive relief and other sanctions. These laws and regulations are administered by the EPA and various state and local agencies. All such laws and regulations are subject to a range of interpretation, which may ultimately be resolved by the courts. Environmental laws and regulations continue to evolve, and MidAmerican Energy is unable to predict the impact of the changing laws and regulations on its operations and consolidated financial results. MidAmerican Energy believes it is in material compliance with all applicable laws and regulations.

Refer to "Environmental Laws and Regulations" in Berkshire Hathaway Energy's Part I, Item 2 of this Form 10-Q for additional information regarding environmental laws and regulations.

Critical Accounting Estimates

Certain accounting measurements require management to make estimates and judgments concerning transactions that will be settled several years in the future. Amounts recognized on the Financial Statements based on such estimates involve numerous assumptions subject to varying and potentially significant degrees of judgment and uncertainty and will likely change in the future as additional information becomes available. Estimates are used for, but not limited to, the accounting for the effects of certain types of regulation, derivatives, impairment of goodwill and long-lived assets, pension and other postretirement benefits, income taxes and revenue recognition - unbilled revenue. For additional discussion of MidAmerican Energy's and MidAmerican Funding's critical accounting estimates, see Item 7 of their Annual Report on Form 10-K for the year ended December 31, 2018. There have been no significant changes in MidAmerican Energy's and MidAmerican Funding's assumptions regarding critical accounting estimates since December 31, 2018.

125





Nevada Power Company and its subsidiaries
Consolidated Financial Section


126



PART I
Item 1.
Financial Statements


REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM


To the Board of Directors and Shareholder of
Nevada Power Company

Results of Review of Interim Financial Information

We have reviewed the accompanying consolidated balance sheet of Nevada Power Company and subsidiaries ("Nevada Power") as of September 30, 2019, the related consolidated statements of operations and changes in shareholder's equity for the three-month and nine-month periods ended September 30, 2019 and 2018, and of cash flows for the nine-month periods ended September 30, 2019 and 2018, and the related notes (collectively referred to as the "interim financial information"). Based on our reviews, we are not aware of any material modifications that should be made to the accompanying interim financial information for it to be in conformity with accounting principles generally accepted in the United States of America.

We have previously audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (PCAOB), the consolidated balance sheet of Nevada Power as of December 31, 2018, and the related consolidated statements of operations, changes in shareholder's equity, and cash flows for the year then ended (not presented herein); and in our report dated February 22, 2019, we expressed an unqualified opinion on those consolidated financial statements. In our opinion, the information set forth in the accompanying consolidated balance sheet as of December 31, 2018, is fairly stated, in all material respects, in relation to the consolidated balance sheet from which it has been derived.

Basis for Review Results

This interim financial information is the responsibility of Nevada Power's management. We are a public accounting firm registered with the PCAOB and are required to be independent with respect to Nevada Power in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our reviews in accordance with standards of the PCAOB. A review of interim financial information consists principally of applying analytical procedures and making inquiries of persons responsible for financial and accounting matters. It is substantially less in scope than an audit conducted in accordance with the standards of the PCAOB, the objective of which is the expression of an opinion regarding the financial statements taken as a whole. Accordingly, we do not express such an opinion.


/s/ Deloitte & Touche LLP


Las Vegas, Nevada
November 1, 2019


127



NEVADA POWER COMPANY AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS (Unaudited)
(Amounts in millions, except share data)

 
As of
 
September 30,
 
December 31,
 
2019
 
2018
ASSETS
Current assets:
 
 
 
Cash and cash equivalents
$
276

 
$
111

Trade receivables, net
343

 
233

Inventories
60

 
61

Regulatory assets
1

 
39

Other current assets
74

 
75

Total current assets
754

 
519

 
 
 
 
Property, plant and equipment, net
6,475

 
6,418

Finance lease right of use assets, net
442

 
450

Regulatory assets
832

 
878

Other assets
57

 
37

 
 
 
 
Total assets
$
8,560

 
$
8,302

 
 
 
 
LIABILITIES AND SHAREHOLDER'S EQUITY
Current liabilities:
 
 
 
Accounts payable
$
180

 
$
187

Accrued interest
39

 
38

Accrued property, income and other taxes
94

 
30

Current portion of long-term debt
575

 
500

Current portion of finance lease obligations
24

 
20

Regulatory liabilities
82

 
49

Customer deposits
71

 
67

Other current liabilities
63

 
29

Total current liabilities
1,128

 
920

 
 
 
 
Long-term debt
1,775

 
1,853

Finance lease obligations
430

 
443

Regulatory liabilities
1,176

 
1,137

Deferred income taxes
706

 
749

Other long-term liabilities
296

 
296

Total liabilities
5,511

 
5,398

 
 
 
 
Commitments and contingencies (Note 10)

 

 
 
 
 
Shareholder's equity:
 
 
 
Common stock - $1.00 stated value; 1,000 shares authorized, issued and outstanding

 

Additional paid-in capital
2,308

 
2,308

Retained earnings
745

 
600

Accumulated other comprehensive loss, net
(4
)
 
(4
)
Total shareholder's equity
3,049

 
2,904

 
 
 
 
Total liabilities and shareholder's equity
$
8,560

 
$
8,302

 
 
 
 
The accompanying notes are an integral part of the consolidated financial statements.

128



NEVADA POWER COMPANY AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS (Unaudited)
(Amounts in millions)

 
Three-Month Periods
 
Nine-Month Periods
 
Ended September 30,
 
Ended September 30,
 
2019
 
2018
 
2019
 
2018
 
 
 
 
 
 
 
 
Operating revenue
$
806

 
$
820

 
$
1,728

 
$
1,777

 
 
 
 
 
 
 
 
Operating expenses:
 
 
 
 
 
 
 
Cost of fuel and energy
353

 
331

 
752

 
740

Operations and maintenance
109

 
146

 
263

 
344

Depreciation and amortization
89

 
85

 
267

 
253

Property and other taxes
11

 
11

 
34

 
31

Total operating expenses
562

 
573

 
1,316

 
1,368

 
 
 
 
 
 
 
 
Operating income
244

 
247

 
412

 
409

 
 
 
 
 
 
 
 
Other income (expense):
 
 
 
 
 
 
 
Interest expense
(41
)
 
(38
)
 
(129
)
 
(128
)
Allowance for borrowed funds
1

 

 
2

 
1

Allowance for equity funds
2

 
1

 
4

 
2

Other, net
4

 
7

 
17

 
16

Total other income (expense)
(34
)
 
(30
)
 
(106
)
 
(109
)
 
 
 
 
 
 
 
 
Income before income tax expense
210

 
217

 
306

 
300

Income tax expense
45

 
53

 
66

 
72

Net income
$
165

 
$
164

 
$
240

 
$
228

 
 
 
 
 
 
 
 
The accompanying notes are an integral part of these consolidated financial statements.
 
 


129



NEVADA POWER COMPANY AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CHANGES IN SHAREHOLDER'S EQUITY (Unaudited)
(Amounts in millions, except shares)

 
 
 
 
 
 
 
 
 
 
Accumulated
 
 
 
 
 
 
 
 
Additional
 
 
 
Other
 
Total
 
 
Common Stock
 
Paid-in
 
Retained
 
Comprehensive
 
Shareholder's
 
 
Shares
 
Amount
 
Capital
 
Earnings
 
Loss, Net
 
Equity
 
 
 
 
 
 
 
 
 
 
 
 
 
Balance, June 30, 2018
 
1,000

 
$

 
$
2,308

 
$
438

 
$
(4
)
 
$
2,742

Net income
 

 

 

 
164

 

 
164

Other equity transactions
 

 

 

 
(1
)
 

 
(1
)
Balance, September 30, 2018
 
1,000

 
$

 
$
2,308

 
$
601

 
$
(4
)
 
$
2,905

 
 
 
 
 
 
 
 
 
 
 
 
 
Balance, December 31, 2017
 
1,000

 
$

 
$
2,308

 
$
374

 
$
(4
)
 
$
2,678

Net income
 

 

 

 
228

 

 
228

Other equity transactions
 

 

 

 
(1
)
 

 
(1
)
Balance, September 30, 2018
 
1,000

 
$

 
$
2,308

 
$
601

 
$
(4
)
 
$
2,905

 
 
 
 
 
 
 
 
 
 
 
 
 
Balance, June 30, 2019
 
1,000

 
$

 
$
2,308

 
$
580

 
$
(4
)
 
$
2,884

Net income
 

 

 

 
165

 

 
165

Balance, September 30, 2019
 
1,000

 
$

 
$
2,308

 
$
745

 
$
(4
)
 
$
3,049

 
 
 
 
 
 
 
 
 
 
 
 
 
Balance, December 31, 2018
 
1,000

 
$

 
$
2,308

 
$
600

 
$
(4
)
 
$
2,904

Net income
 

 

 

 
240

 

 
240

Dividends declared
 

 

 

 
(95
)
 

 
(95
)
Balance, September 30, 2019
 
1,000

 
$

 
$
2,308

 
$
745

 
$
(4
)
 
$
3,049

 
 
 
 
 
 
 
 
 
 
 
 
 
The accompanying notes are an integral part of these consolidated financial statements.


130



NEVADA POWER COMPANY AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS (Unaudited)
(Amounts in millions)

 
Nine-Month Periods
 
Ended September 30,
 
2019
 
2018
Cash flows from operating activities:
 
 
 
Net income
$
240

 
$
228

Adjustments to reconcile net income to net cash flows from operating activities:
 
 
 
Depreciation and amortization
267

 
253

Allowance for equity funds
(4
)
 
(2
)
Changes in regulatory assets and liabilities
62

 
75

Deferred income taxes and amortization of investment tax credits
(42
)
 
(7
)
Deferred energy
39

 
12

Amortization of deferred energy
37

 
13

Other, net
(4
)
 
8

Changes in other operating assets and liabilities:
 
 
 
Trade receivables and other assets
(110
)
 
(138
)
Inventories
2

 
1

Accrued property, income and other taxes
53

 
54

Accounts payable and other liabilities
15

 
(11
)
Net cash flows from operating activities
555

 
486

 
 
 
 
Cash flows from investing activities:
 
 
 
Capital expenditures
(283
)
 
(203
)
Proceeds from sale of assets
2

 
1

Net cash flows from investing activities
(281
)
 
(202
)
 
 
 
 
Cash flows from financing activities:
 
 
 
Proceeds from long-term debt
495

 
573

Repayments of long-term debt
(500
)
 
(824
)
Dividends paid
(95
)
 

Other, net
(11
)
 
(12
)
Net cash flows from financing activities
(111
)
 
(263
)
 
 
 
 
Net change in cash and cash equivalents and restricted cash and cash equivalents
163

 
21

Cash and cash equivalents and restricted cash and cash equivalents at beginning of period
121

 
66

Cash and cash equivalents and restricted cash and cash equivalents at end of period
$
284

 
$
87

 
 
 
 
The accompanying notes are an integral part of these consolidated financial statements.


131



NEVADA POWER COMPANY AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)

(1)
General

Nevada Power Company, together with its subsidiaries ("Nevada Power"), is a wholly owned subsidiary of NV Energy, Inc. ("NV Energy"), a holding company that also owns Sierra Pacific Power Company ("Sierra Pacific") and certain other subsidiaries. Nevada Power is a United States regulated electric utility company serving retail customers, including residential, commercial and industrial customers, primarily in the Las Vegas, North Las Vegas, Henderson and adjoining areas. NV Energy is an indirect wholly owned subsidiary of Berkshire Hathaway Energy Company ("BHE"). BHE is a holding company based in Des Moines, Iowa that owns subsidiaries principally engaged in energy businesses. BHE is a consolidated subsidiary of Berkshire Hathaway Inc. ("Berkshire Hathaway").

The unaudited Consolidated Financial Statements have been prepared in accordance with accounting principles generally accepted in the United States of America ("GAAP") for interim financial information and the United States Securities and Exchange Commission's rules and regulations for Form 10-Q and Article 10 of Regulation S-X. Accordingly, they do not include all of the disclosures required by GAAP for annual financial statements. Management believes the unaudited Consolidated Financial Statements contain all adjustments (consisting only of normal recurring adjustments) considered necessary for the fair presentation of the unaudited Consolidated Financial Statements as of September 30, 2019 and for the three- and nine-month periods ended September 30, 2019 and 2018. The Consolidated Statements of Comprehensive Income have been omitted as net income equals comprehensive income for the three- and nine-month periods ended September 30, 2019 and 2018. The results of operations for the three- and nine-month periods ended September 30, 2019 are not necessarily indicative of the results to be expected for the full year.

The preparation of the unaudited Consolidated Financial Statements in conformity with GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities at the date of the unaudited Consolidated Financial Statements and the reported amounts of revenue and expenses during the period. Actual results may differ from the estimates used in preparing the unaudited Consolidated Financial Statements. Note 2 of Notes to Consolidated Financial Statements included in Nevada Power's Annual Report on Form 10-K for the year ended December 31, 2018 describes the most significant accounting policies used in the preparation of the unaudited Consolidated Financial Statements. There have been no significant changes in Nevada Power's assumptions regarding significant accounting estimates and policies, except as disclosed in Note 4, during the nine-month period ended September 30, 2019.

(2)
Cash and Cash Equivalents and Restricted Cash and Cash Equivalents

Cash equivalents consist of funds invested in money market mutual funds, United States Treasury Bills and other investments with a maturity of three months or less when purchased. Cash and cash equivalents exclude amounts where availability is restricted by legal requirements, loan agreements or other contractual provisions. Restricted cash and cash equivalents as of September 30, 2019 and December 31, 2018, consist of funds restricted by the Public Utilities Commission of Nevada ("PUCN") for a certain renewable energy contract. A reconciliation of cash and cash equivalents and restricted cash and cash equivalents as of September 30, 2019 and December 31, 2018, as presented in the Consolidated Statements of Cash Flows is outlined below and disaggregated by the line items in which they appear on the Consolidated Balance Sheets (in millions):
 
As of
 
September 30,
 
December 31,
 
2019
 
2018
Cash and cash equivalents
$
276

 
$
111

Restricted cash and cash equivalents included in other current assets
8

 
10

Total cash and cash equivalents and restricted cash and cash equivalents
$
284

 
$
121


Subsequent Event

In October 2019, Nevada Power declared and paid a dividend to NV Energy, Inc. of $200 million.


132



(3)
Property, Plant and Equipment, Net

Property, plant and equipment, net consists of the following (in millions):
 
 
 
As of
 
Depreciable Life
 
September 30,
 
December 31,
 
 
2019
 
2018
Utility plant:
 
 
 
 
 
Generation
30 - 55 years
 
$
3,730

 
$
3,720

Distribution
20 - 65 years
 
3,503

 
3,411

Transmission
45 - 70 years
 
1,453

 
1,439

General and intangible plant
5 - 65 years
 
718

 
716

Utility plant
 
 
9,404

 
9,286

Accumulated depreciation and amortization
 
 
(3,096
)
 
(2,966
)
Utility plant, net
 
 
6,308

 
6,320

Other non-regulated, net of accumulated depreciation and amortization
45 years
 
1

 
1

Plant, net
 
 
6,309

 
6,321

Construction work-in-progress
 
 
166

 
97

Property, plant and equipment, net
 
 
$
6,475

 
$
6,418


(4)
Leases

Adoption

In February 2016, the Financial Accounting Standards Board ("FASB") issued Accounting Standards Update ("ASU") No. 2016-02, which creates FASB Accounting Standards Codification ("ASC") Topic 842, "Leases" and supersedes Topic 840 "Leases." This guidance increases transparency and comparability among entities by recording lease assets and lease liabilities on the balance sheet and disclosing key information about leasing arrangements. A lessee should recognize on the balance sheet a liability to make lease payments (the lease liability) and a right-of-use asset representing its right to use the underlying asset for the lease term. The recognition, measurement, and presentation of expenses and cash flows arising from a lease by a lessee have not significantly changed from previous guidance. Following the issuance of ASU No. 2016-02, the FASB issued several ASUs that clarified the implementation guidance for ASU No. 2016-02 but did not change the core principle of the guidance. Nevada Power adopted this guidance for all applicable contracts in-effect as of January 1, 2019 under a modified retrospective method and the adoption did not have a cumulative-effect impact to the opening balance of retained earnings at the date of initial adoption.

Nevada Power has elected to utilize various practical expedients available to adopt ASU No. 2016-02, including (1) the package of three not requiring a reassessment of (i) whether any expired or existing contracts are or contain leases; (ii) the lease classification for any expired or existing leases; and (iii) initial direct costs for any existing leases; (2) using hindsight in determining the lease term; and (3) not requiring a reassessment of whether existing or expired land easements that were not previously accounted for as leases under ASC Topic 840 are or contain a lease under ASC Topic 842.

133




Leases

Lessee

Nevada Power has non-cancelable operating leases primarily for land, generating facilities, vehicles and office equipment and finance leases consisting primarily of transmission assets, generating facilities, office space and vehicles. These leases generally require Nevada Power to pay for insurance, taxes and maintenance applicable to the leased property. Given the capital intensive nature of the utility industry, it is common for a portion of lease costs to be capitalized when used during construction or maintenance of assets, in which the associated costs will be capitalized with the corresponding asset and depreciated over the remaining life of that asset. Certain leases contain renewal options for varying periods and escalation clauses for adjusting rent to reflect changes in price indices. Nevada Power does not include options in its lease calculations unless there is a triggering event indicating Nevada Power is reasonably certain to exercise the option. Nevada Power's accounting policy is to not recognize lease obligations and corresponding right-of-use assets for leases with contract terms of one year or less and not separate lease components from non-lease components and instead account for each separate lease component and the non-lease components associated with a lease as a single lease component. Leases will be evaluated for impairment in line with ASC Topic 360, "Property, Plant and Equipment" when a triggering event has occurred that might affect the value and use of the assets being leased.

Nevada Power's leases of generating facilities generally are for the long-term purchase of electric energy, also known as power purchase agreements ("PPA"). PPAs are generally signed before or during the early stages of project construction and can yield a lease that has not yet commenced. These agreements are primarily for renewable energy and the payments are considered variable lease payments as they are based on the amount of output.

Nevada Power's operating right-of-use assets are recorded in other assets and the operating lease liabilities are recorded in current and long-term other liabilities accordingly. The right-of-use assets and lease liabilities for finance leases as of December 31, 2018 have been reclassified from property, plant and equipment, net and current portion of long-term and long-term debt, respectively, to conform to the current period presentation. The following table summarizes Nevada Power's leases recorded on the Consolidated Balance Sheet (in millions):
 
As of
 
September 30,
 
2019
Right-of-use assets:
 
Operating leases
$
14

Finance leases
442

Total right-of-use assets
$
456

 
 
Lease liabilities:
 
Operating leases
$
17

Finance leases
454

Total lease liabilities
$
471



134



The following table summarizes Nevada Power's lease costs (in millions):
 
Three-Month Period
 
Nine-Month Period
 
Ended September 30,
 
Ended September 30,
 
2019
 
2019
 
 
 
 
Variable
$
113

 
$
333

Operating
1

 
2

Finance:
 
 
 
Amortization
3

 
9

Interest
8

 
28

Total lease costs
$
125

 
$
372

 
 
 
 
Weighted-average remaining lease term (years):
 
 
 
Operating leases
 
 
7.7

Finance leases
 
 
30.9

 
 
 
 
Weighted-average discount rate:
 
 
 
Operating leases
 
 
4.5
%
Finance leases
 
 
8.7
%

The following table summarizes Nevada Power's supplemental cash flow information relating to leases (in millions):
 
Nine-Month Period
 
Ended September 30,
 
2019
Cash paid for amounts included in the measurement of lease liabilities:
 
Operating cash flows from operating leases
$
(2
)
Operating cash flows from finance leases
(29
)
Financing cash flows from finance leases
(11
)
Right-of-use assets obtained in exchange for lease liabilities:
 
Finance leases
$
8


Nevada Power has the following remaining lease commitments as of (in millions):
 
September 30, 2019
 
December 31, 2018(1)
 
Operating
 
Finance
 
Total
 
Operating
 
Capital
 
Total
2019
$
1

 
$
13

 
$
14

 
$
3

 
$
59

 
$
62

2020
3

 
59

 
62

 
3

 
59

 
62

2021
3

 
63

 
66

 
3

 
61

 
64

2022
2

 
61

 
63

 
3

 
60

 
63

2023
2

 
51

 
53

 
2

 
50

 
52

Thereafter
9

 
715

 
724

 
10

 
709

 
719

Total undiscounted lease payments
20

 
962

 
982

 
$
24

 
$
998

 
$
1,022

Less - amounts representing interest
(3
)
 
(508
)
 
(511
)
 
 
 
 
 
 
Lease liabilities
$
17

 
$
454

 
$
471

 
 
 
 
 
 

(1)     Amounts included for comparability and accounted for in accordance with ASC Topic 840, "Leases".


135



(5)
Regulatory Matters

Deferred Energy

Nevada statutes permit regulated utilities to adopt deferred energy accounting procedures. The intent of these procedures is to ease the effect on customers of fluctuations in the cost of purchased natural gas, fuel and electricity and are subject to annual prudency review by the PUCN. Under deferred energy accounting, to the extent actual fuel and purchased power costs exceed fuel and purchased power costs recoverable through current rates that excess is not recorded as a current expense on the Consolidated Statements of Operations but rather is deferred and recorded as a regulatory asset on the Consolidated Balance Sheets. Conversely, a regulatory liability is recorded to the extent fuel and purchased power costs recoverable through current rates exceed actual fuel and purchased power costs. These excess amounts are reflected in quarterly adjustments to rates and recorded as cost of fuel and energy in future time periods.

2017 Tax Reform

In February 2018, Nevada Power made a filing with the PUCN proposing a tax rate reduction rider for the lower annual income tax expense anticipated to result from 2017 Tax Reform for 2018 and beyond. In March 2018, the PUCN issued an order approving the rate reduction proposed by Nevada Power. The new rates were effective April 1, 2018. The order extended the procedural schedule to allow parties additional discovery relevant to 2017 Tax Reform and a hearing was held in July 2018. In September 2018, the PUCN issued an order directing Nevada Power to record the amortization of any excess protected accumulated deferred income tax arising from the 2017 Tax Reform as a regulatory liability effective January 1, 2018. Subsequently, Nevada Power filed a petition for reconsideration relating to the amortization of protected excess accumulated deferred income tax balances resulting from the 2017 Tax Reform. In November 2018, the PUCN issued an order granting reconsideration and reaffirming the September 2018 order. In December 2018, Nevada Power filed a petition for judicial review. In January 2019, intervening parties filed statements of intent to participate in the petition for judicial review. Nevada Power has filed opening briefs and the intervening parties have filed answering briefs. Oral arguments on the petition have been scheduled for January 2020.

Chapter 704B Applications

Chapter 704B of the Nevada Revised Statutes allows retail electric customers with an average annual load of one megawatt ("MW") or more to file with the PUCN an application to purchase energy from alternative providers of a new electric resource and become distribution only service customers. On a case-by-case basis, the PUCN will assess the application and may deny or grant the application subject to conditions, including paying an impact fee, paying on-going charges and receiving approval for specific alternative energy providers and terms. The impact fee and on-going charges are assessed to alleviate the burden on other Nevada customers for the applicant's share of previously committed investments and long-term renewable contracts and are set at a level designed such that the remaining customers are not subjected to increased costs. In June 2019, the Nevada Legislature passed Senate Bill 547 ("SB 547") which modifies the 704B process. The modifications outlined in SB 547, among others, require a utility to establish limits in their integrated resource plan on the amount of load that can take service under Chapter 704B, customers taking service under Chapter 704B continue to pay for public program costs and requires the alternative energy providers to be licensed by the PUCN. In addition, SB 547 requires customers to file a 704B application with the PUCN in January allowing for alignment with the capacity amount established in the integrated resource plan.

In June 2018, Station Casinos LLC ("Station"), a customer of Nevada Power, filed an application with the PUCN to purchase energy from an alternative provider and become a distribution only service customer of Nevada Power. In October 2018, the PUCN approved an order allowing Station to purchase energy from another energy supplier subject to conditions, including paying an impact fee of $15 million. In November 2018, Station filed a petition for reconsideration with the PUCN to allow Station to pay its share of the Renewable Base Tariff Energy Rate in a single lump sum, receive a credit for a portion of impact fees previously paid by past 704B applicants and receive a credit for a portion of incremental transmission revenue associated with expected sales to others. In December 2018, the PUCN issued an order granting reconsideration and reaffirming the October 2018 order. In February 2019, the PUCN issued an order allowing Station to alter their expected transition date from December 1, 2018 to October 1, 2019. In June 2019, Station withdrew their application.

In November 2018, Boyd Gaming Corporation ("Boyd"), a customer of Nevada Power, filed an application with the PUCN to purchase energy from an alternative provider and become a distribution only service customer of Nevada Power. In June 2019, the PUCN approved an order allowing Boyd to purchase energy from another energy supplier subject to conditions, including paying an impact fee of $11 million. In September 2019, Boyd withdrew their application.


136



(6)
Recent Financing Transactions

Long-Term Debt

In January 2019, Nevada Power issued $500 million of its 3.70% General and Refunding Mortgage Notes, Series CC, due May 2029. Nevada Power used the net proceeds to repay all of Nevada Power's $500 million 7.125% General and Refunding Mortgage Notes, Series V, maturing in March 2019.

Credit Facilities

In May 2019, Nevada Power extended, with lender consent, the expiration date for its $400 million secured credit facility to June 2022 by exercising the remaining one-year extension option.

(7)
Income Taxes

A reconciliation of the federal statutory income tax rate to the effective income tax rate applicable to income before income tax expense is as follows:
 
Three-Month Period
 
Nine-Month Periods
 
Ended September 30,
 
Ended September 30,
 
2019
 
2018
 
2019
 
2018
 
 
 
 
 
 
 
 
Federal statutory income tax rate
21
%
 
21
 %
 
21
%
 
21
%
Nondeductible expenses

 
3




3

Effects of ratemaking

 
1

 

 

Other

 
(1
)
 
1

 

Effective income tax rate
21
%

24
 %

22
%

24
%

(8)    Employee Benefit Plans

Nevada Power is a participant in benefit plans sponsored by NV Energy. The NV Energy Retirement Plan includes a qualified pension plan ("Qualified Pension Plan") and a supplemental executive retirement plan and a restoration plan (collectively, "Non‑Qualified Pension Plans") that provide pension benefits for eligible employees. The NV Energy Comprehensive Welfare Benefit and Cafeteria Plan provides certain postretirement health care and life insurance benefits for eligible retirees ("Other Postretirement Plans") on behalf of Nevada Power. Amounts attributable to Nevada Power were allocated from NV Energy based upon the current, or in the case of retirees, previous, employment location. Offsetting regulatory assets and liabilities have been recorded related to the amounts not yet recognized as a component of net periodic benefit costs that will be included in regulated rates. Net periodic benefit costs not included in regulated rates are included in accumulated other comprehensive loss, net.

Amounts payable to NV Energy are included on the Consolidated Balance Sheets and consist of the following (in millions):
 
As of
 
September 30,
 
December 31,
 
2019
 
2018
Qualified Pension Plan:
 
 
 
Other long-term liabilities
$
26

 
$
26

 
 
 
 
Non-Qualified Pension Plans:
 
 
 
Other current liabilities
1

 
1

Other long-term liabilities
9

 
9

 
 
 
 
Other Postretirement Plans:
 
 
 
Other long-term liabilities
1

 
1



137



(9)
Fair Value Measurements

The carrying value of Nevada Power's cash, certain cash equivalents, receivables, payables, accrued liabilities and short-term borrowings approximates fair value because of the short-term maturity of these instruments. Nevada Power has various financial assets and liabilities that are measured at fair value on the Consolidated Balance Sheets using inputs from the three levels of the fair value hierarchy. A financial asset or liability classification within the hierarchy is determined based on the lowest level input that is significant to the fair value measurement. The three levels are as follows:

Level 1 Inputs are unadjusted quoted prices in active markets for identical assets or liabilities that Nevada Power has the ability to access at the measurement date.
Level 2 Inputs include quoted prices for similar assets or liabilities in active markets, quoted prices for identical or similar assets or liabilities in markets that are not active, inputs other than quoted prices that are observable for the asset or liability and inputs that are derived principally from or corroborated by observable market data by correlation or other means (market corroborated inputs).
Level 3 Unobservable inputs reflect Nevada Power's judgments about the assumptions market participants would use in pricing the asset or liability since limited market data exists. Nevada Power develops these inputs based on the best information available, including its own data.

The following table presents Nevada Power's assets and liabilities recognized on the Consolidated Balance Sheets and measured at fair value on a recurring basis (in millions):
 
Input Levels for Fair Value Measurements
 
 
 
Level 1
 
Level 2
 
Level 3
 
Total
As of September 30, 2019
 
 
 
 
 
 
 
Assets:
 
 
 
 
 
 
 
Money market mutual funds(1)
$
261

 
$

 
$

 
$
261

Investment funds
2

 

 

 
2

 
$
263

 
$

 
$

 
$
263

 
 
 
 
 
 
 
 
Liabilities - commodity derivatives
$

 
$

 
$
(18
)
 
$
(18
)
 
 
 
 
 
 
 
 
As of December 31, 2018
 
 
 
 
 
 
 
Assets:
 
 
 
 
 
 
 
Commodity derivatives
$

 
$

 
$
7

 
$
7

Money market mutual funds(1)
104

 

 

 
104

Investment funds
1

 

 

 
1

 
$
105

 
$

 
$
7

 
$
112

 
 
 
 
 
 
 
 
Liabilities - commodity derivatives
$

 
$

 
$
(4
)
 
$
(4
)

(1)
Amounts are included in cash and cash equivalents on the Consolidated Balance Sheets. The fair value of these money market mutual funds approximates cost.


138



Derivative contracts are recorded on the Consolidated Balance Sheets as either assets or liabilities and are stated at estimated fair value unless they are designated as normal purchases or normal sales and qualify for the exception afforded by GAAP. When available, the fair value of derivative contracts is estimated using unadjusted quoted prices for identical contracts in the market in which Nevada Power transacts. When quoted prices for identical contracts are not available, Nevada Power uses forward price curves. Forward price curves represent Nevada Power's estimates of the prices at which a buyer or seller could contract today for delivery or settlement at future dates. Nevada Power bases its forward price curves upon internally developed models, with internal and external fundamental data inputs. Market price quotations for certain electricity and natural gas trading hubs are not as readily obtainable due to markets that are not active. Given that limited market data exists for these contracts, Nevada Power uses forward price curves derived from internal models based on perceived pricing relationships to major trading hubs that are based on unobservable inputs. The model incorporates a mid-market pricing convention (the mid‑point price between bid and ask prices) as a practical expedient for valuing its assets and liabilities measured and reported at fair value. The determination of the fair value for derivative contracts not only includes counterparty risk, but also the impact of Nevada Power's nonperformance risk on its liabilities, which as of September 30, 2019 and December 31, 2018, had an immaterial impact to the fair value of its derivative contracts. As such, Nevada Power considers its derivative contracts to be valued using Level 3 inputs.

Nevada Power's investments in money market mutual funds and equity securities are stated at fair value. When available, a readily observable quoted market price or net asset value of an identical security in an active market is used to record the fair value.

The following table reconciles the beginning and ending balances of Nevada Power's commodity derivative assets and liabilities measured at fair value on a recurring basis using significant Level 3 inputs (in millions):
 
Three-Month Periods
 
Nine-Month Periods
 
Ended September 30,
 
Ended September 30,
 
2019
 
2018
 
2019
 
2018
 
 
 
 
 
 
 
 
Beginning balance
$
(11
)
 
$
(9
)
 
$
3

 
$
(3
)
Changes in fair value recognized in regulatory assets
(13
)
 
2

 
(30
)
 
(6
)
Settlements
6

 

 
9

 
2

Ending balance
$
(18
)
 
$
(7
)
 
$
(18
)
 
$
(7
)

Nevada Power's long-term debt is carried at cost on the Consolidated Balance Sheets. The fair value of Nevada Power's long‑term debt is a Level 2 fair value measurement and has been estimated based upon quoted market prices, where available, or at the present value of future cash flows discounted at rates consistent with comparable maturities with similar credit risks. The carrying value of Nevada Power's variable-rate long-term debt approximates fair value because of the frequent repricing of these instruments at market rates. The following table presents the carrying value and estimated fair value of Nevada Power's long‑term debt (in millions):
 
As of September 30, 2019
 
As of December 31, 2018
 
Carrying
 
Fair
 
Carrying
 
Fair
 
Value
 
Value
 
Value
 
Value
 
 
 
 
 
 
 
 
Long-term debt
$
2,350

 
$
2,891

 
$
2,353

 
$
2,651


(10)
Commitments and Contingencies

Fuel, Capacity and Transmission Contract Commitments

In October 2019, Nevada Power terminated a power purchase agreement, due to the supplier's failure to satisfy its performance obligations as detailed in the agreement, that had minimum annual payments of approximately $60 million in 2019 through 2023 and $1,145 million in 2024 and thereafter, as of December 31, 2018.


139



Environmental Laws and Regulations

Nevada Power is subject to federal, state and local laws and regulations regarding climate change, renewable portfolio standards, air and water quality, emissions performance standards, coal combustion byproduct disposal, hazardous and solid waste disposal, protected species and other environmental matters that have the potential to impact Nevada Power's current and future operations. Nevada Power believes it is in material compliance with all applicable laws and regulations.

Legal Matters

Nevada Power is party to a variety of legal actions arising out of the normal course of business. Plaintiffs occasionally seek punitive or exemplary damages. Nevada Power does not believe that such normal and routine litigation will have a material impact on its consolidated financial results. Nevada Power is also involved in other kinds of legal actions, some of which assert or may assert claims or seek to impose fines, penalties and other costs in substantial amounts.

(11)
Revenue from Contracts with Customers

The following table summarizes Nevada Power's revenue from contracts with customers ("Customer Revenue") by customer class (in millions):
 
Three-Month Periods
 
Nine-Month Periods
 
Ended September 30,
 
Ended September 30,
 
2019
 
2018
 
2019
 
2018
Customer Revenue:
 
 
 
 

 
 
Retail:
 
 
 
 

 
 
Residential
$
468

 
$
484

 
$
934

 
$
989

Commercial
142

 
135

 
346

 
340

Industrial
169

 
164

 
351

 
351

Other
4

 
7

 
15

 
18

Total fully bundled
783

 
790

 
1,646

 
1,698

Distribution only service
9

 
9

 
24

 
24

Total retail
792

 
799

 
1,670

 
1,722

Wholesale, transmission and other
8

 
15

 
39

 
38

Total Customer Revenue
800

 
814

 
1,709

 
1,760

Other revenue
6

 
6

 
19

 
17

Total revenue
$
806

 
$
820

 
$
1,728

 
$
1,777




140



Item 2.    Management's Discussion and Analysis of Financial Condition and Results of Operations 

Nevada Power's revenues and operating income are subject to fluctuations during the year due to impacts that seasonal weather, rate changes, and customer usage patterns have on demand for electric energy and resources. Nevada Power is a summer peaking utility experiencing its highest retail energy sales in response to the demand for air conditioning. The variations in energy usage due to varying weather, customer growth and other energy usage patterns, including energy efficiency and conservation measures, necessitates a continual balancing of loads and resources and purchases and sales of energy under short- and long-term energy supply contracts. As a result, the prudent management and optimization of available resources has a direct effect on the operating and financial performance of Nevada Power. Additionally, the timely recovery of purchased power, fuel costs and other costs and the ability to earn a fair return on investments through rates are essential to the operating and financial performance of Nevada Power.

The following is management's discussion and analysis of certain significant factors that have affected the consolidated financial condition and results of operations of Nevada Power during the periods included herein. Explanations include management's best estimate of the impact of weather, customer growth and other usage factors. This discussion should be read in conjunction with Nevada Power's historical unaudited Consolidated Financial Statements and Notes to Consolidated Financial Statements in Part I, Item 1 of this Form 10-Q. Nevada Power's actual results in the future could differ significantly from the historical results.


141



Results of Operations for the Third Quarter and First Nine Months of 2019 and 2018

Overview

Net income for the third quarter of 2019 was $165 million, an increase of $1 million, or 1%, compared to 2018 primarily due to $37 million of lower operations and maintenance expense, mainly due to lower political activity expenses and a lower accrual for earnings sharing. This increase is largely offset by $36 million of lower utility margin, mainly due to lower customer volumes from the unfavorable impacts of weather.

Net income for the first nine months of 2019 was $240 million, an increase of $12 million, or 5%, compared to 2018 primarily due to $81 million of lower operations and maintenance expense, mainly due to lower political activity expenses, a lower accrual for earnings sharing and lower settlement costs associated with a personal injury claim in 2018. This increase is partially offset by $61 million of lower utility margin, mainly due to lower customer volumes from the unfavorable impacts of weather and lower average retail rates related to the tax rate reduction rider effective April 2018.

Non-GAAP Financial Measure
Management utilizes various key financial measures that are prepared in accordance with GAAP, as well as non-GAAP financial measures such as, utility margin, to help evaluate results of operations. Utility margin is calculated as electric operating revenue less cost of fuel and energy, which are captions presented on the Consolidated Statements of Operations.
Nevada Power's cost of fuel and energy are directly recovered from its customers through regulatory recovery mechanisms and as a result, changes in Nevada Power's expenses result in comparable changes to revenue. As such, management believes utility margin more appropriately and concisely explains profitability rather than a discussion of revenue and cost of sales separately. Management believes the presentation of utility margin provides meaningful and valuable insight into the information management considers important to running the business and a measure of comparability to others in the industry.
Utility margin is not a measure calculated in accordance with GAAP and should be viewed as a supplement to, and not a substitute for, operating income which is the most directly comparable financial measure prepared in accordance with GAAP. The following table provides a reconciliation of utility margin to operating income (in millions):
 
 
Third Quarter
 
First Nine Months
 
 
2019
 
2018
 
Change
 
2019
 
2018
 
Change
Utility margin:
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Operating revenue
 
$
806

 
$
820

 
$
(14
)
(2
)%
 
$
1,728

 
$
1,777

 
$
(49
)
(3
)%
Cost of fuel and energy
 
353

 
331

 
22

7

 
752

 
740

 
12

2

Utility margin
 
453

 
489

 
(36
)
(7
)
 
976

 
1,037

 
(61
)
(6
)
Operations and maintenance
 
109

 
146

 
(37
)
(25
)
 
263

 
344

 
(81
)
(24
)
Depreciation and amortization
 
89

 
85

 
4

5

 
267

 
253

 
14

6

Property and other taxes
 
11

 
11

 


 
34

 
31

 
3

10

Operating income
 
$
244

 
$
247

 
$
(3
)
(1
)
 
$
412

 
$
409

 
$
3

1



142



A comparison of Nevada Power's key operating results is as follows:
 
 
Third Quarter
 
First Nine Months
 
 
2019
 
2018
 
Change
 
2019
 
2018
 
Change
Utility margin (in millions):
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Operating revenue
 
$
806

 
$
820

 
$
(14
)
(2
)%
 
$
1,728

 
$
1,777

 
$
(49
)
(3
)%
Cost of fuel and energy
 
353

 
331

 
22

7

 
752

 
740

 
12

2

Utility margin
 
$
453

 
$
489

 
$
(36
)
(7
)
 
$
976

 
$
1,037

 
$
(61
)
(6
)
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
GWh sold:
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Residential
 
3,908

 
4,213

 
(305
)
(7
)%
 
7,692

 
8,299

 
(607
)
(7
)%
Commercial
 
1,569

 
1,568

 
1


 
3,698

 
3,759

 
(61
)
(2
)
Industrial
 
1,600

 
1,631

 
(31
)
(2
)
 
4,140

 
4,281

 
(141
)
(3
)
Other
 
49

 
61

 
(12
)
(20
)
 
143

 
157

 
(14
)
(9
)
Total fully bundled(1)
 
7,126

 
7,473

 
(347
)
(5
)
 
15,673

 
16,496

 
(823
)
(5
)
Distribution only service
 
786

 
775

 
11

1

 
2,006

 
1,938

 
68

4

Total retail
 
7,912

 
8,248

 
(336
)
(4
)
 
17,679

 
18,434

 
(755
)
(4
)
Wholesale
 
50

 
53

 
(3
)
(6
)
 
314

 
181

 
133

73

Total GWh sold
 
7,962

 
8,301

 
(339
)
(4
)
 
17,993

 
18,615

 
(622
)
(3
)
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Average number of retail customers (in thousands):
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Residential
 
843

 
828

 
15

2
 %
 
839

 
823

 
16

2
 %
Commercial
 
109

 
108

 
1

1

 
109

 
107

 
2

2

Industrial
 
2

 
2

 


 
2

 
2

 


Total
 
954

 
938

 
16

2

 
950

 
932

 
18

2

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Average per MWh:
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Revenue - fully bundled(1)
 
$
109.94

 
$
105.82

 
$
4.12

4
 %
 
$
105.04

 
$
102.93

 
$
2.11

2
 %
Wholesale
 
$
36.63

 
$
54.80

 
$
(18.17
)
(33
)%
 
$
35.64


$
37.97


$
(2.33
)
(6
)%
Total cost of energy(2)(3)
 
$
48.80

 
$
41.93

 
$
6.87

16
 %
 
$
48.33

 
$
44.14

 
$
4.19

9
 %
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Heating degree days
 

 

 


 
1,108

 
839

 
269

32
 %
Cooling degree days
 
2,392

 
2,580

 
(188
)
(7
)%
 
3,511

 
4,072

 
(561
)
(14
)%
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Sources of energy (GWh)(3)(4):
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Natural gas
 
5,042

 
5,282

 
(240
)
(5
)%
 
10,296

 
11,295

 
(999
)
(9
)%
Coal
 
377

 
403

 
(26
)
(6
)
 
968

 
891

 
77

9

Renewables
 
20

 
20

 


 
50

 
56

 
(6
)
(11
)
Total energy generated
 
5,439

 
5,705

 
(266
)
(5
)
 
11,314

 
12,242

 
(928
)
(8
)
Energy purchased
 
1,787

 
2,214

 
(427
)
(19
)
 
4,958

 
5,209

 
(251
)
(5
)
Total
 
7,226

 
7,919

 
(693
)
(9
)
 
16,272

 
17,451

 
(1,179
)
(7
)
*    Not meaningful
(1)
Fully bundled includes sales to customers for combined energy, transmission and distribution services.
(2)
The average total cost of energy per MWh includes the cost of fuel, purchased power and deferrals and does not include other costs.
(3)
The average total cost of energy per MWh and sources of energy excludes 15 and - GWh of coal and 199 and - GWh of gas generated energy that is purchased at cost by related parties for the third quarter of 2019 and 2018, respectively. The average total cost of energy per MWh and sources of energy excludes 133 and 93 GWh of coal and 1,122 and 1,043 GWh of gas generated energy that is purchased at cost by related parties for the first nine months of 2019 and 2018, respectively.
(4)
GWh amounts are net of energy used by the related generating facilities.

143



Utility margin decreased $36 million, or 7%, for the third quarter of 2019 compared to 2018 primarily due to $31 million of lower customer volumes primarily from the unfavorable impacts of weather and lower transmission revenue of $7 million, partially offset by $4 million of residential customer growth.

Operations and maintenance decreased $37 million, or 25%, for the third quarter of 2019 compared to 2018 primarily due to a lower accrual for earnings sharing, lower political activity expenses and the impacts of adopting ASC 842, "Leases" ("ASC 842").

Depreciation and amortization increased $4 million, or 5%, for the third quarter of 2019 compared to 2018 primarily due to the impacts of adopting ASC 842 and higher plant placed in service.

Other income (expense) is unfavorable $(4) million, or (13)%, for the third quarter of 2019 compared to 2018 primarily due to the impacts of adopting ASC 842 and higher non-service pension expense, partially offset by lower interest expense on long-term debt and higher dividend and interest income.

Income tax expense decreased $8 million, or 15%, for the third quarter of 2019 compared to 2018. The effective tax rate was 21% in 2019 and 24% in 2018 and decreased due to lower nondeductible expenses.

Utility margin decreased $61 million, or 6%, for the first nine months of 2019 compared to 2018 primarily due to:
$49 million in lower customer volumes primarily from the unfavorable impacts of weather,
$11 million in lower retail rates due to the tax rate reduction rider effective April 2018,
$4 million from lower transmission revenue, and
$3 million due to lower retail rates as a result of the 2017 regulatory rate review with rates effective February 2018.
The decrease in utility margin was offset by:
$7 million due to residential and commercial customer growth.

Operations and maintenance decreased $81 million, or 24%, for the first nine months of 2019 compared to 2018 primarily due to the impacts of adopting ASC 842, lower political activity expenses, a lower accrual for earnings sharing and settlement costs associated with a personal injury claim in 2018.

Depreciation and amortization increased $14 million, or 6%, for the first nine months of 2019 compared to 2018 primarily due to the impacts of adopting ASC 842 and higher plant placed in service.

Property and other taxes increased $3 million, or 10%, for the first nine months of 2019 compared to 2018 due to a decrease in available abatements.

Other income (expense) is favorable $3 million, or 3%, for the first nine months of 2019 compared to 2018 primarily due to lower interest expense on long-term debt, higher dividend and interest income and higher other income due to a licensing agreement with a third party, partially offset by the impacts of adopting ASC 842 and higher non-service pension expense.

Income tax expense decreased $6 million, or 8%, for the first nine months of 2019 compared to 2018. The effective tax rate was 22% in 2019 and 24% in 2018 and decreased due to lower nondeductible expenses.

Liquidity and Capital Resources

As of September 30, 2019, Nevada Power's total net liquidity was as follows (in millions):

Cash and cash equivalents
 
$
276

Credit facility
 
400

Total net liquidity
 
$
676

Credit facility:
 
 
Maturity date
 
2022



144



Operating Activities

Net cash flows from operating activities for the nine-month periods ended September 30, 2019 and 2018 were $555 million and $486 million, respectively. The change was due to lower interest payments for long-term debt, lower payments for operating costs, mainly due to lower political activity expenses, lower contributions to the pension plan, increased collections of customer advances, primarily relating to temporary deposits for solar power purchase agreements under construction and proceeds from a licensing agreement with a third party, partially offset by lower collections from customers due to the unfavorable impacts of weather, higher payments for income taxes and increased payment for fuel costs.

Investing Activities

Net cash flows from investing activities for the nine-month periods ended September 30, 2019 and 2018 were $(281) million and $(202) million, respectively. The change was primarily due to increased capital expenditures. Refer to "Future Uses of Cash" for further discussion of capital expenditures.

Financing Activities

Net cash flows from financing activities for the nine-month periods ended September 30, 2019 and 2018 were $(111) million and $(263) million, respectively. The change was due to lower repayments of long-term debt, partially offset by lower proceeds from issuance of long-term debt and higher dividends paid to NV Energy, Inc. of $95 million in 2019.

In October 2019, Nevada Power declared and paid a dividend to NV Energy, Inc. of $200 million.

Long-Term Debt

In January 2019, Nevada Power issued $500 million of its 3.70% General and Refunding Mortgage Notes, Series CC, due May 2029. Nevada Power used the net proceeds to repay all of Nevada Power's $500 million 7.125% General and Refunding Mortgage Notes, Series V, maturing in March 2018.

Debt Authorizations

Nevada Power currently has financing authority from the PUCN consisting of the ability to: (1) issue new long-term debt securities of up to $1.3 billion; (2) refinance up to $156 million of long-term debt securities; and (3) maintain a revolving credit facility of up to $1.3 billion. Nevada Power currently has an effective automatic shelf registration statement with the SEC to issue an indeterminate amount of general and refunding mortgage securities through October 2022.

Future Uses of Cash

Nevada Power has available a variety of sources of liquidity and capital resources, both internal and external, including net cash flows from operating activities, public and private debt offerings, the use of its secured revolving credit facility, capital contributions and other sources. These sources are expected to provide funds required for current operations, capital expenditures, debt retirements and other capital requirements. The availability and terms under which Nevada Power has access to external financing depends on a variety of factors, including regulatory approvals, Nevada Power's credit ratings, investors' judgment of risk and conditions in the overall capital markets, including the condition of the utility industry.

Capital Expenditures

Capital expenditure needs are reviewed regularly by management and may change significantly as a result of these reviews, which may consider, among other factors, changes in environmental and other rules and regulations; impacts to customers' rates; outcomes of regulatory proceedings; changes in income tax laws; general business conditions; load projections; system reliability standards; the cost and efficiency of construction labor, equipment and materials; commodity prices; and the cost and availability of capital. Prudently incurred expenditures for compliance-related items such as pollution control technologies, replacement generation and associated operating costs are generally incorporated into Nevada Power's regulated retail rates. Expenditures for certain assets may ultimately include acquisition of existing assets.


145



Historical and forecast capital expenditures, each of which exclude amounts for non-cash equity AFUDC and other non-cash items are as follows (in millions):
 
Nine-Month Periods
 
Annual
 
Ended September 30,
 
Forecast
 
2018
 
2019
 
2019
 
 
 
 
 
 
Distribution
93

 
148

 
201

Transmission system investment
6

 
18

 
27

Other
104

 
117

 
197

Total
$
203

 
$
283

 
$
425


Nevada Power's forecast capital expenditures include investments related to operating projects that consist of routine expenditures for transmission, distribution, generation and other infrastructure needed to serve existing and expected demand.

Integrated Resource Planning

In June 2019, the Nevada Utilities filed an amendment to their 2018 Joint Integrated Resource Plan requesting approval of three power purchase agreements for 1,190 MW of solar photovoltaic generating resources with an additional 590 MW of co-located battery storage.

Contractual Obligations

As of September 30, 2019, there have been no material changes outside the normal course of business in contractual obligations from the information provided in Item 7 of Nevada Power's Annual Report on Form 10-K for the year ended December 31, 2018 other than the power purchase agreement termination discussed below.

In October 2019, Nevada Power terminated a power purchase agreement, due to the supplier's failure to satisfy its performance obligations as detailed in the agreement, that had annual contractual cash obligations of approximately $60 million in 2019 through 2023 and $1,145 million in 2024 and thereafter, as of December 31, 2018.

Regulatory Matters

Nevada Power is subject to comprehensive regulation. Refer to "Regulatory Matters" in Berkshire Hathaway Energy's Part I, Item 2 of this Form 10-Q for discussion regarding Nevada Power's current regulatory matters.

Environmental Laws and Regulations

Nevada Power is subject to federal, state and local laws and regulations regarding climate change, RPS, air and water quality, emissions performance standards, coal combustion byproduct disposal, hazardous and solid waste disposal, protected species and other environmental matters that have the potential to impact Nevada Power's current and future operations. In addition to imposing continuing compliance obligations and capital expenditure requirements, these laws and regulations provide regulators with the authority to levy substantial penalties for noncompliance including fines, injunctive relief and other sanctions. These laws and regulations are administered by the EPA and various state and local agencies. All such laws and regulations are subject to a range of interpretation, which may ultimately be resolved by the courts. Environmental laws and regulations continue to evolve, and Nevada Power is unable to predict the impact of the changing laws and regulations on its operations and consolidated financial results. Nevada Power believes it is in material compliance with all applicable laws and regulations.

Refer to "Environmental Laws and Regulations" in Berkshire Hathaway Energy's Part I, Item 2 of this Form 10-Q for additional information regarding environmental laws and regulations.


146



Critical Accounting Estimates

Certain accounting measurements require management to make estimates and judgments concerning transactions that will be settled several years in the future. Amounts recognized on the Consolidated Financial Statements based on such estimates involve numerous assumptions subject to varying and potentially significant degrees of judgment and uncertainty and will likely change in the future as additional information becomes available. Estimates are used for, but not limited to, the accounting for the effects of certain types of regulation, derivatives, impairment of long-lived assets, income taxes and revenue recognition - unbilled revenue. For additional discussion of Nevada Power's critical accounting estimates, see Item 7 of Nevada Power's Annual Report on Form 10‑K for the year ended December 31, 2018. There have been no significant changes in Nevada Power's assumptions regarding critical accounting estimates since December 31, 2018.

147



Sierra Pacific Power Company
Financial Section


148



PART I
Item 1.
Financial Statements


REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM


To the Board of Directors and Shareholder of
Sierra Pacific Power Company

Results of Review of Interim Financial Information

We have reviewed the accompanying balance sheet of Sierra Pacific Power Company ("Sierra Pacific") as of September 30, 2019, the related statements of operations and changes in shareholder's equity for the three-month and nine-month periods ended September 30, 2019 and 2018, and of cash flows for the nine-month periods ended September 30, 2019 and 2018, and the related notes (collectively referred to as the "interim financial information"). Based on our reviews, we are not aware of any material modifications that should be made to the accompanying interim financial information for it to be in conformity with accounting principles generally accepted in the United States of America.

We have previously audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (PCAOB), the balance sheet of Sierra Pacific as of December 31, 2018, and the related statements of operations, changes in shareholder's equity, and cash flows for the year then ended (not presented herein); and in our report dated February 22, 2019, we expressed an unqualified opinion on those financial statements. In our opinion, the information set forth in the accompanying balance sheet as of December 31, 2018, is fairly stated, in all material respects, in relation to the balance sheet from which it has been derived.

Basis for Review Results

This interim financial information is the responsibility of Sierra Pacific's management. We are a public accounting firm registered with the PCAOB and are required to be independent with respect to Sierra Pacific in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our reviews in accordance with standards of the PCAOB. A review of interim financial information consists principally of applying analytical procedures and making inquiries of persons responsible for financial and accounting matters. It is substantially less in scope than an audit conducted in accordance with the standards of the PCAOB, the objective of which is the expression of an opinion regarding the financial statements taken as a whole. Accordingly, we do not express such an opinion.


/s/ Deloitte & Touche LLP


Las Vegas, Nevada
November 1, 2019


149



SIERRA PACIFIC POWER COMPANY
BALANCE SHEETS (Unaudited)
(Amounts in millions, except share data)

 
As of
 
September 30,
 
December 31,
 
2019
 
2018
ASSETS
Current assets:
 
 
 
Cash and cash equivalents
$
64

 
$
71

Trade receivables, net
98

 
100

Inventories
59

 
52

Regulatory assets
9

 
7

Other current assets
30

 
33

Total current assets
260

 
263

 
 
 
 
Property, plant and equipment, net
3,026

 
2,947

Regulatory assets
307

 
314

Other assets
75

 
45

 
 
 
 
Total assets
$
3,668

 
$
3,569

 
 
 
 
LIABILITIES AND SHAREHOLDER'S EQUITY
Current liabilities:
 
 
 
Accounts payable
$
100

 
$
116

Accrued interest
11

 
13

Accrued property, income and other taxes
28

 
14

Regulatory liabilities
42

 
18

Customer deposits
21

 
18

Other current liabilities
33

 
18

Total current liabilities
235

 
197

 
 
 
 
Long-term debt
1,135

 
1,120

Regulatory liabilities
487

 
491

Deferred income taxes
334

 
331

Other long-term liabilities
179

 
166

Total liabilities
2,370

 
2,305

 
 
 
 
Commitments and contingencies (Note 10)

 

 
 
 
 
Shareholder's equity:
 
 
 
Common stock - $3.75 stated value, 20,000,000 shares authorized and 1,000 issued and outstanding

 

Additional paid-in capital
1,111

 
1,111

Retained earnings
187

 
153

Total shareholder's equity
1,298

 
1,264

 
 
 
 
Total liabilities and shareholder's equity
$
3,668

 
$
3,569

 
 
 
 
The accompanying notes are an integral part of the financial statements.


150



SIERRA PACIFIC POWER COMPANY
STATEMENTS OF OPERATIONS (Unaudited)
(Amounts in millions)

 
Three-Month Periods
 
Nine-Month Periods
 
Ended September 30,
 
Ended September 30,
 
2019
 
2018
 
2019
 
2018
Operating revenue:
 
 
 
 
 
 
 
Regulated electric
$
232

 
$
225

 
$
586

 
$
575

Regulated natural gas
16

 
14

 
75

 
74

Total operating revenue
248

 
239

 
661

 
649

 
 
 
 
 
 
 
 
Operating expenses:
 
 
 
 
 
 
 
Cost of fuel and energy
93

 
90

 
254

 
245

Cost of natural gas purchased for resale
6

 
4

 
35

 
35

Operations and maintenance
46

 
53

 
130

 
140

Depreciation and amortization
31

 
30

 
94

 
89

Property and other taxes
5

 
6

 
17

 
18

Total operating expenses
181

 
183

 
530

 
527

 
 
 
 
 
 
 
 
Operating income
67

 
56

 
131

 
122

 
 
 
 
 
 
 
 
Other income (expense):
 
 
 
 
 
 
 
Interest expense
(12
)
 
(12
)
 
(36
)
 
(33
)
Allowance for borrowed funds

 

 
1

 
1

Allowance for equity funds

 
1

 
2

 
3

Other, net
1

 
3

 
4

 
8

Total other income (expense)
(11
)
 
(8
)
 
(29
)
 
(21
)
 
 
 
 
 
 
 
 
Income before income tax expense
56

 
48

 
102

 
101

Income tax expense
12

 
13

 
22

 
25

Net income
$
44

 
$
35

 
$
80

 
$
76

 
 
 
 
 
 
 
 
The accompanying notes are an integral part of these financial statements.


151



SIERRA PACIFIC POWER COMPANY
STATEMENTS OF CHANGES IN SHAREHOLDER'S EQUITY (Unaudited)
(Amounts in millions, except shares)

 
 
 
 
 
 
 
 
 
 
Accumulated
 
 
 
 
 
 
 
 
Additional
 
 
 
Other
 
Total
 
 
Common Stock
 
Paid-in
 
Retained
 
Comprehensive
 
Shareholder's
 
 
Shares
 
Amount
 
Capital
 
Earnings
 
Loss, Net
 
Equity
 
 
 
 
 
 
 
 
 
 
 
 
 
Balance, June 30, 2018
 
1,000

 
$

 
$
1,111

 
$
102

 
$
(1
)
 
$
1,212

Net income
 

 

 

 
35

 

 
35

Other equity transactions
 

 

 

 
1

 

 
1

Balance, September 30, 2018
 
1,000

 
$

 
$
1,111

 
$
138

 
$
(1
)
 
$
1,248

 
 
 
 
 
 
 
 
 
 
 
 
 
Balance, December 31, 2017
 
1,000

 
$

 
$
1,111

 
$
62

 
$
(1
)
 
$
1,172

Net income
 

 

 

 
76

 

 
76

Balance, September 30, 2018
 
1,000

 
$

 
$
1,111

 
$
138

 
$
(1
)
 
$
1,248

 
 
 
 
 
 
 
 
 
 
 
 
 
Balance, June 30, 2019
 
1,000

 
$

 
$
1,111

 
$
143

 
$

 
$
1,254

Net income
 

 

 

 
44

 

 
44

Balance, September 30, 2019
 
1,000

 
$

 
$
1,111

 
$
187

 
$

 
$
1,298

 
 
 
 
 
 
 
 
 
 
 
 
 
Balance, December 31, 2018
 
1,000

 
$

 
$
1,111

 
$
153

 
$

 
$
1,264

Net income
 

 

 

 
80

 

 
80

Dividends declared
 

 

 

 
(46
)
 

 
(46
)
Balance, September 30, 2019
 
1,000

 
$

 
$
1,111

 
$
187

 
$

 
$
1,298

 
 
 
 
 
 
 
 
 
 
 
 
 
The accompanying notes are an integral part of these financial statements.


152



SIERRA PACIFIC POWER COMPANY
STATEMENTS OF CASH FLOWS (Unaudited)
(Amounts in millions)

 
Nine-Month Periods
 
Ended September 30,
 
2019
 
2018
Cash flows from operating activities:
 
 
 
Net income
$
80

 
$
76

Adjustments to reconcile net income to net cash flows from operating activities:
 
 
 
Depreciation and amortization
94

 
89

Allowance for equity funds
(2
)
 
(3
)
Changes in regulatory assets and liabilities
30

 
32

Deferred income taxes and amortization of investment tax credits
(5
)
 
9

Deferred energy
7

 
26

Amortization of deferred energy
(5
)
 
(6
)
Other, net
(3
)
 

Changes in other operating assets and liabilities:
 
 
 
Trade receivables and other assets
(3
)
 
(3
)
Inventories
(7
)
 
(5
)
Accrued property, income and other taxes
10

 
(2
)
Accounts payable and other liabilities
(7
)
 
(5
)
Net cash flows from operating activities
189

 
208

 
 
 
 
Cash flows from investing activities:
 
 
 
Capital expenditures
(165
)
 
(139
)
Proceeds from sale of asset
1

 

Net cash flows from investing activities
(164
)
 
(139
)
 
 
 
 
Cash flows from financing activities:
 
 
 
Proceeds from long-term debt
125

 

Repayments of long-term debt
(109
)
 

Dividends paid
(46
)
 

Other, net
(3
)
 
(2
)
Net cash flows from financing activities
(33
)
 
(2
)
 
 
 
 
Net change in cash and cash equivalents and restricted cash and cash equivalents
(8
)
 
67

Cash and cash equivalents and restricted cash and cash equivalents at beginning of period
76

 
8

Cash and cash equivalents and restricted cash and cash equivalents at end of period
$
68

 
$
75

 
 
 
 
The accompanying notes are an integral part of these financial statements.


153



SIERRA PACIFIC POWER COMPANY
NOTES TO FINANCIAL STATEMENTS
(Unaudited)

(1)
General

Sierra Pacific Power Company ("Sierra Pacific"), is a wholly owned subsidiary of NV Energy, Inc. ("NV Energy"), a holding company that also owns Nevada Power Company ("Nevada Power") and certain other subsidiaries. Sierra Pacific is a United States regulated electric utility company serving retail customers, including residential, commercial and industrial customers and regulated retail natural gas customers primarily in northern Nevada. NV Energy is an indirect wholly owned subsidiary of Berkshire Hathaway Energy Company ("BHE"). BHE is a holding company based in Des Moines, Iowa that owns subsidiaries principally engaged in energy businesses. BHE is a consolidated subsidiary of Berkshire Hathaway Inc. ("Berkshire Hathaway").

The unaudited Financial Statements have been prepared in accordance with accounting principles generally accepted in the United States of America ("GAAP") for interim financial information and the United States Securities and Exchange Commission's rules and regulations for Form 10-Q and Article 10 of Regulation S-X. Accordingly, they do not include all of the disclosures required by GAAP for annual financial statements. Management believes the unaudited Financial Statements contain all adjustments (consisting only of normal recurring adjustments) considered necessary for the fair presentation of the unaudited Financial Statements as of September 30, 2019 and for the three- and nine-month periods ended September 30, 2019 and 2018. The Statements of Comprehensive Income have been omitted as net income equals comprehensive income for the three- and nine-month periods ended September 30, 2019 and 2018. The results of operations for the three- and nine-month periods ended September 30, 2019 are not necessarily indicative of the results to be expected for the full year.

The preparation of the unaudited Financial Statements in conformity with GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities at the date of the unaudited Financial Statements and the reported amounts of revenue and expenses during the period. Actual results may differ from the estimates used in preparing the unaudited Financial Statements. Note 2 of Notes to Financial Statements included in Sierra Pacific's Annual Report on Form 10-K for the year ended December 31, 2018 describes the most significant accounting policies used in the preparation of the unaudited Financial Statements. There have been no significant changes in Sierra Pacific's assumptions regarding significant accounting estimates and policies, except as disclosed in Note 4, during the nine-month period ended September 30, 2019.

(2)
Cash and Cash Equivalents and Restricted Cash and Cash Equivalents

Cash equivalents consist of funds invested in money market mutual funds, United States Treasury Bills and other investments with a maturity of three months or less when purchased. Cash and cash equivalents exclude amounts where availability is restricted by legal requirements, loan agreements or other contractual provisions. Restricted cash and cash equivalents as of September 30, 2019 and December 31, 2018, consist of funds restricted by the Public Utilities Commission of Nevada ("PUCN") for a certain renewable energy contract. A reconciliation of cash and cash equivalents and restricted cash and cash equivalents as of September 30, 2019 and December 31, 2018, as presented in the Statements of Cash Flows is outlined below and disaggregated by the line items in which they appear on the Balance Sheets (in millions):
 
As of
 
September 30,
 
December 31,
 
2019
 
2018
Cash and cash equivalents
$
64

 
$
71

Restricted cash and cash equivalents included in other current assets
4

 
5

Total cash and cash equivalents and restricted cash and cash equivalents
$
68

 
$
76



154



(3)
Property, Plant and Equipment, Net

Property, plant and equipment, net consists of the following (in millions):
 
 
 
As of
 
Depreciable Life
 
September 30,
 
December 31,
 
 
2019
 
2018
Utility plant:
 
 
 
 
 
Electric generation
25 - 60 years
 
$
1,133

 
$
1,132

Electric distribution
20 - 100 years
 
1,657

 
1,568

Electric transmission
50 - 100 years
 
831

 
812

Electric general and intangible plant
5 - 70 years
 
175

 
185

Natural gas distribution
35 - 70 years
 
415

 
403

Natural gas general and intangible plant
5 - 70 years
 
14

 
14

Common general
5 - 70 years
 
322

 
321

Utility plant
 
 
4,547

 
4,435

Accumulated depreciation and amortization
 
 
(1,624
)
 
(1,583
)
Utility plant, net
 
 
2,923

 
2,852

Other non-regulated, net of accumulated depreciation and amortization
70 years
 
4

 
5

Plant, net
 
 
2,927

 
2,857

Construction work-in-progress
 
 
99

 
90

Property, plant and equipment, net
 
 
$
3,026

 
$
2,947


(4)
Leases

Adoption

In February 2016, the Financial Accounting Standards Board ("FASB") issued Accounting Standards Update ("ASU") No. 2016-02, which creates FASB Accounting Standards Codification ("ASC") Topic 842, "Leases" and supersedes Topic 840 "Leases." This guidance increases transparency and comparability among entities by recording lease assets and lease liabilities on the balance sheet and disclosing key information about leasing arrangements. A lessee should recognize on the balance sheet a liability to make lease payments (the lease liability) and a right-of-use asset representing its right to use the underlying asset for the lease term. The recognition, measurement, and presentation of expenses and cash flows arising from a lease by a lessee have not significantly changed from previous guidance. Following the issuance of ASU No. 2016-02, the FASB issued several ASUs that clarified the implementation guidance for ASU No. 2016-02 but did not change the core principle of the guidance. Sierra Pacific adopted this guidance for all applicable contracts in-effect as of January 1, 2019 under a modified retrospective method and the adoption did not have a cumulative-effect impact at the date of initial adoption.

Sierra Pacific has elected to utilize various practical expedients available to adopt ASU No. 2016-02, including (1) the package of three not requiring a reassessment of (i) whether any expired or existing contracts are or contain leases; (ii) the lease classification for any expired or existing leases; and (iii) initial direct costs for any existing leases; (2) using hindsight in determining the lease term; and (3) not requiring a reassessment of whether existing or expired land easements that were not previously accounted for as leases under ASC Topic 840 are or contain a lease under ASC Topic 842.


155



Leases

Lessee

Sierra Pacific has non-cancelable operating leases primarily for transmission and delivery assets, generating facilities, vehicles and office equipment and finance leases consisting primarily of transmission assets, generating facilities and vehicles. These leases generally require Sierra Pacific to pay for insurance, taxes and maintenance applicable to the leased property. Given the capital intensive nature of the utility industry, it is common for a portion of lease costs to be capitalized when used during construction or maintenance of assets, in which the associated costs will be capitalized with the corresponding asset and depreciated over the remaining life of that asset. Certain leases contain renewal options for varying periods and escalation clauses for adjusting rent to reflect changes in price indices. Sierra Pacific does not include options in its lease calculations unless there is a triggering event indicating Sierra Pacific is reasonably certain to exercise the option. Sierra Pacific's accounting policy is to not recognize lease obligations and corresponding right-of-use assets for leases with contract terms of one year or less and not separate lease components from non-lease components and instead account for each separate lease component and the non-lease components associated with a lease as a single lease component. Leases will be evaluated for impairment in line with ASC Topic 360, "Property, Plant and Equipment" when a triggering event has occurred that might affect the value and use of the assets being leased.

Sierra Pacific's leases of generating facilities generally are for the long-term purchase of electric energy, also known as power purchase agreements ("PPA"). PPAs are generally signed before or during the early stages of project construction and can yield a lease that has not yet commenced. These agreements are primarily for renewable energy and the payments are considered variable lease payments as they are based on the amount of output.

Sierra Pacific's operating and finance right-of-use assets are recorded in other assets and the operating and finance lease liabilities are recorded in current and long-term other liabilities accordingly. The right-of-use assets and lease liabilities for finance leases as of December 31, 2018 have been reclassified from property, plant and equipment, net and current portion of long-term and long-term debt, respectively, to conform to the current period presentation. The following table summarizes Sierra Pacific's leases recorded on the Balance Sheet (in millions):
 
As of
 
September 30,
 
2019
Right-of-use assets:
 
Operating leases
$
18

Finance leases
41

Total right-of-use assets
$
59

 
 
Lease liabilities:
 
Operating leases
$
18

Finance leases
42

Total lease liabilities
$
60



156



The following table summarizes Sierra Pacific's lease costs (in millions):
 
Three-Month Period
 
Nine-Month Period
 
Ended September 30,
 
Ended September 30,
 
2019
 
2019
 
 
 
 
Variable
$
21

 
$
51

Operating

 
1

Finance:
 
 
 
Amortization

 
1

Interest
1

 
2

Total lease costs
$
22

 
$
55

 
 
 
 
Weighted-average remaining lease term (years):
 
 
 
Operating leases
 
 
26.0

Finance leases
 
 
22.1

 
 
 
 
Weighted-average discount rate:
 
 
 
Operating leases
 
 
5.0
%
Finance leases
 
 
7.2
%

The following table summarizes Sierra Pacific's supplemental cash flow information relating to leases (in millions):
 
Nine-Month Period
 
Ended September 30,
 
2019
Cash paid for amounts included in the measurement of lease liabilities:
 
Operating cash flows from operating leases
$
(2
)
Operating cash flows from finance leases
(2
)
Financing cash flows from finance leases
(2
)
Right-of-use assets obtained in exchange for lease liabilities:
 
Finance leases
$
5


Sierra Pacific has the following remaining lease commitments as of (in millions):
 
September 30, 2019
 
December 31, 2018(1)
 
Operating
 
Finance
 
Total
 
Operating
 
Capital
 
Total
2019
$

 
$
2

 
$
2

 
$
2

 
$
6

 
$
8

2020
2

 
6

 
8

 
2

 
4

 
6

2021
2

 
6

 
8

 
2

 
5

 
7

2022
1

 
5

 
6

 
1

 
4

 
5

2023
1

 
5

 
6

 
1

 
4

 
5

Thereafter
27

 
48

 
75

 
28

 
47

 
75

Total undiscounted lease payments
33

 
72

 
105

 
$
36

 
$
70

 
$
106

Less - amounts representing interest
(15
)
 
(30
)
 
(45
)
 
 
 
 
 
 
Lease liabilities
$
18

 
$
42

 
$
60

 
 
 
 
 
 

(1)     Amounts included for comparability and accounted for in accordance with ASC Topic 840, "Leases".


157



(5)
Regulatory Matters

Deferred Energy

Nevada statutes permit regulated utilities to adopt deferred energy accounting procedures. The intent of these procedures is to ease the effect on customers of fluctuations in the cost of purchased natural gas, fuel and electricity and are subject to annual prudency review by the PUCN. Under deferred energy accounting, to the extent actual fuel and purchased power costs exceed fuel and purchased power costs recoverable through current rates that excess is not recorded as a current expense on the Statements of Operations but rather is deferred and recorded as a regulatory asset on the Balance Sheets. Conversely, a regulatory liability is recorded to the extent fuel and purchased power costs recoverable through current rates exceed actual fuel and purchased power costs. These excess amounts are reflected in quarterly adjustments to rates and recorded as cost of fuel and energy in future time periods.

2017 Tax Reform

In February 2018, Sierra Pacific made a filing with the PUCN proposing a tax rate reduction rider for the lower annual income tax expense anticipated to result from 2017 Tax Reform for 2018 and beyond. In March 2018, the PUCN issued an order approving the rate reduction proposed by Sierra Pacific. The new rates were effective April 1, 2018. The order extended the procedural schedule to allow parties additional discovery relevant to 2017 Tax Reform and a hearing was held in July 2018. In September 2018, the PUCN issued an order directing Sierra Pacific to record the amortization of any excess protected accumulated deferred income tax arising from the 2017 Tax Reform as a regulatory liability effective January 1, 2018. Subsequently, Sierra Pacific filed a petition for reconsideration relating to the amortization of protected excess accumulated deferred income tax balances resulting from the 2017 Tax Reform. In November 2018, the PUCN issued an order granting reconsideration and reaffirming the September 2018 order. In December 2018, Sierra Pacific filed a petition for judicial review. In January 2019, intervening parties filed statements of intent to participate in the petition for judicial review. Sierra Pacific has filed opening briefs and the intervening parties have filed answering briefs. Oral arguments on the petition have been scheduled for January 2020.

Chapter 704B Applications

Chapter 704B of the Nevada Revised Statutes allows retail electric customers with an average annual load of one megawatt ("MW") or more to file with the PUCN an application to purchase energy from alternative providers of a new electric resource and become distribution only service customers. On a case-by-case basis, the PUCN will assess the application and may deny or grant the application subject to conditions, including paying an impact fee, paying on-going charges and receiving approval for specific alternative energy providers and terms. The impact fee and on-going charges are assessed to alleviate the burden on other Nevada customers for the applicant's share of previously committed investments and long-term renewable contracts and are set at a level designed such that the remaining customers are not subjected to increased costs. In June 2019, the Nevada Legislature passed Senate Bill 547 ("SB 547") which modifies the 704B process. The modifications outlined in SB 547, among others, require a utility to establish limits in their integrated resource plan on the amount of load that can take service under Chapter 704B, customers taking service under Chapter 704B continue to pay for public program costs and requires the alternative energy providers to be licensed by the PUCN. In addition, SB 547 requires customers to file a 704B application with the PUCN in January allowing for alignment with the capacity amount established in the integrated resource plan.

(6)    Recent Financing Transactions

Long-Term Debt

In April 2019, Sierra Pacific purchased the following series of bonds that were held by the public: $30 million of its variable-rate tax-exempt Water Facilities Refunding Revenue Bonds, Series 2016C, due 2036; $25 million of its variable-rate tax-exempt Water Facilities Refunding Revenue Bonds, Series 2016D, due 2036; and $25 million of its variable-rate tax-exempt Water Facilities Refunding Revenue Bonds, Series 2016E, due 2036. Sierra Pacific purchased the Series 2016C, Series 2016D and Series 2016E bonds as required by the bond indentures.


158



In April 2019, Sierra Pacific entered into a re-offering of the following series of bonds: $30 million of its variable-rate tax-exempt Humboldt County Pollution Control Refunding Revenue Bonds, Series 2016B, due 2029; the Series 2016D bonds; the Series 2016E bonds; $75 million of its variable-rate tax-exempt Water Facilities Refunding Revenue Bonds, Series 2016F, due 2036; and $20 million of its variable-rate tax-exempt Water Facilities Refunding Revenue Bonds, Series 2016G, due 2036. The Series 2016B and Series 2016G bonds were offered at a fixed rate of 1.85%. The Series 2016D, Series 2016E and Series 2016F bonds were offered at a fixed rate of 2.05%. Sierra Pacific previously purchased the Series 2016B, Series 2016F and Series 2016G bonds on their date of issuance. Sierra Pacific holds the Series 2016C bonds and the bonds could be issued at a future date if required by future regulatory proceedings. Sierra Pacific used the net proceeds of the re-offering for general corporate purposes.

In June 2019, Sierra Pacific purchased the following series of bonds that were held by the public: $59 million of its fixed-rate tax-exempt Gas Facilities Refunding Revenue Bonds, Series 2016A, due 2031 and $20 million of its fixed-rate tax-exempt Humboldt County Pollution Control Refunding Revenue Bonds, Series 2016A, due 2029. Sierra Pacific holds these bonds and the bonds could be issued at a future date if required by future regulatory proceedings.

Credit Facilities

In May 2019, Sierra Pacific extended, with lender consent, the expiration date for its $250 million secured credit facility to June 2022 by exercising the remaining one-year extension option.

(7)    Income Taxes

A reconciliation of the federal statutory income tax rate to the effective income tax rate applicable to income before income tax expense is as follows:
 
Three-Month Periods
 
Nine-Month Periods
 
Ended September 30,
 
Ended September 30,
 
2019
 
2018
 
2019
 
2018
 
 
 
 
 
 
 
 
Federal statutory income tax rate
21
%
 
21
%
 
21
%
 
21
%
Nondeductible expenses


5




4

Effects of ratemaking

 
1

 

 

Other

 

 
1

 

Effective income tax rate
21
%
 
27
%
 
22
%
 
25
%

(8)
Employee Benefit Plans

Sierra Pacific is a participant in benefit plans sponsored by NV Energy. The NV Energy Retirement Plan includes a qualified pension plan ("Qualified Pension Plan") and a supplemental executive retirement plan and a restoration plan (collectively, "Non‑Qualified Pension Plans") that provide pension benefits for eligible employees. The NV Energy Comprehensive Welfare Benefit and Cafeteria Plan provides certain postretirement health care and life insurance benefits for eligible retirees ("Other Postretirement Plans") on behalf of Sierra Pacific. Amounts attributable to Sierra Pacific were allocated from NV Energy based upon the current, or in the case of retirees, previous, employment location. Offsetting regulatory assets and liabilities have been recorded related to the amounts not yet recognized as a component of net periodic benefit costs that will be included in regulated rates. Net periodic benefit costs not included in regulated rates are included in accumulated other comprehensive loss, net.


159



Amounts payable to NV Energy are included on the Balance Sheets and consist of the following (in millions):
 
As of
 
September 30,
 
December 31,
 
2019
 
2018
Qualified Pension Plan:
 
 
 
Other long-term liabilities
$
18

 
$
19

 
 
 
 
Non-Qualified Pension Plans:
 
 
 
Other current liabilities
1

 
1

Other long-term liabilities
7

 
7

 
 
 
 
Other Postretirement Plans:
 
 
 
Other long-term liabilities
13

 
13


(9)
Fair Value Measurements

The carrying value of Sierra Pacific's cash, certain cash equivalents, receivables, payables, accrued liabilities and short-term borrowings approximates fair value because of the short-term maturity of these instruments. Sierra Pacific has various financial assets and liabilities that are measured at fair value on the Balance Sheets using inputs from the three levels of the fair value hierarchy. A financial asset or liability classification within the hierarchy is determined based on the lowest level input that is significant to the fair value measurement. The three levels are as follows:

Level 1 Inputs are unadjusted quoted prices in active markets for identical assets or liabilities that Sierra Pacific has the ability to access at the measurement date.
Level 2 Inputs include quoted prices for similar assets or liabilities in active markets, quoted prices for identical or similar assets or liabilities in markets that are not active, inputs other than quoted prices that are observable for the asset or liability and inputs that are derived principally from or corroborated by observable market data by correlation or other means (market corroborated inputs).
Level 3 Unobservable inputs reflect Sierra Pacific's judgments about the assumptions market participants would use in pricing the asset or liability since limited market data exists. Sierra Pacific develops these inputs based on the best information available, including its own data.

The following table presents Sierra Pacific's assets and liabilities recognized on the Balance Sheets and measured at fair value on a recurring basis (in millions):
 
Input Levels for Fair Value Measurements
 
 
 
Level 1
 
Level 2
 
Level 3
 
Total
As of September 30, 2019
 
 
 
 
 
 
 
Assets - money market mutual funds(1)
$
56

 
$

 
$

 
$
56

 
 
 
 
 
 
 
 
Liabilities - commodity derivatives
$

 
$

 
$
(4
)
 
$
(4
)
 
 
 
 
 
 
 
 
As of December 31, 2018
 
 
 
 
 
 
 
Assets:
 
 
 
 
 
 
 
Commodity derivatives
$

 
$

 
$
2

 
$
2

Money market mutual funds(1)
45

 

 

 
45

 
$
45

 
$

 
$
2

 
$
47


(1)
Amounts are included in cash and cash equivalents on the Balance Sheets. The fair value of these money market mutual funds approximates cost.


160



Sierra Pacific's investments in money market mutual funds and equity securities are stated at fair value. When available, a readily observable quoted market price or net asset value of an identical security in an active market is used to record the fair value.

Sierra Pacific's long-term debt is carried at cost on the Balance Sheets. The fair value of Sierra Pacific's long-term debt is a Level 2 fair value measurement and has been estimated based upon quoted market prices, where available, or at the present value of future cash flows discounted at rates consistent with comparable maturities with similar credit risks. The carrying value of Sierra Pacific's variable-rate long-term debt approximates fair value because of the frequent repricing of these instruments at market rates. The following table presents the carrying value and estimated fair value of Sierra Pacific's long-term debt (in millions):
 
As of September 30, 2019
 
As of December 31, 2018
 
Carrying
 
Fair
 
Carrying
 
Fair
 
Value
 
Value
 
Value
 
Value
 
 
 
 
 
 
 
 
Long-term debt
$
1,135

 
$
1,270

 
$
1,120

 
$
1,167


(10)
Commitments and Contingencies

Environmental Laws and Regulations

Sierra Pacific is subject to federal, state and local laws and regulations regarding climate change, renewable portfolio standards, air and water quality, emissions performance standards, coal combustion byproduct disposal, hazardous and solid waste disposal, protected species and other environmental matters that have the potential to impact Sierra Pacific's current and future operations. Sierra Pacific believes it is in material compliance with all applicable laws and regulations.

Legal Matters

Sierra Pacific is party to a variety of legal actions arising out of the normal course of business. Plaintiffs occasionally seek punitive or exemplary damages. Sierra Pacific does not believe that such normal and routine litigation will have a material impact on its financial results. Sierra Pacific is also involved in other kinds of legal actions, some of which assert or may assert claims or seek to impose fines, penalties and other costs in substantial amounts.

(11)
Revenue from Contracts with Customers

The following table summarizes Sierra Pacific's revenue from contracts with customers ("Customer Revenue") by customer class, including a reconciliation to Sierra Pacific's reportable segment information included in Note 12 (in millions):
 
Three-Month Periods
 
Ended September 30,
 
2019
 
2018
 
Electric

Gas

Total
 
Electric
 
Gas
 
Total
Customer Revenue:





 

 

 
 
Retail:





 

 

 
 
Residential
$
75


$
11


$
86

 
$
76

 
$
9

 
$
85

Commercial
80


3


83

 
75

 
3

 
78

Industrial
58


1


59

 
59

 
1

 
60

Other
2




2

 
2

 

 
2

Total fully bundled
215


15


230

 
212

 
13

 
225

Distribution only service
1




1

 
1

 

 
1

Total retail
216


15


231

 
213

 
13

 
226

Wholesale, transmission and other
16




16

 
12

 
1

 
13

Total Customer Revenue
232


15


247

 
225

 
14

 
239

Other revenue


1


1

 

 

 

Total revenue
$
232


$
16


$
248

 
$
225

 
$
14

 
$
239


161



 
Nine-Month Periods
 
Ended September 30,
 
2019
 
2018
 
Electric
 
Gas
 
Total
 
Electric
 
Gas
 
Total
Customer Revenue:
 
 
 
 
 
 
 
 
 
 
 
Retail:
 
 
 
 
 
 
 
 
 
 
 
Residential
$
201

 
$
49

 
$
250

 
$
203

 
$
48

 
$
251

Commercial
188

 
18

 
206

 
190

 
18

 
208

Industrial
143

 
6

 
149

 
136

 
6

 
142

Other
5

 

 
5

 
5

 

 
5

Total fully bundled
537

 
73

 
610

 
534

 
72

 
606

Distribution only service
3

 

 
3

 
3

 

 
3

Total retail
540

 
73

 
613

 
537

 
72

 
609

Wholesale, transmission and other
44

 

 
44

 
35

 
1

 
36

Total Customer Revenue
584

 
73

 
657

 
572

 
73

 
645

Other revenue
2

 
2

 
4

 
3

 
1

 
4

Total revenue
$
586

 
$
75

 
$
661

 
$
575

 
$
74

 
$
649


(12)
Segment Information

Sierra Pacific has identified two reportable operating segments: regulated electric and regulated natural gas. The regulated electric segment derives most of its revenue from regulated retail sales of electricity to residential, commercial, and industrial customers and from wholesale sales. The regulated natural gas segment derives most of its revenue from regulated retail sales of natural gas to residential, commercial, and industrial customers and also obtains revenue by transporting natural gas owned by others through its distribution system. Pricing for regulated electric and regulated natural gas sales are established separately by the PUCN; therefore, management also reviews each segment separately to make decisions regarding allocation of resources and in evaluating performance.

The following tables provide information on a reportable segment basis (in millions):
 
Three-Month Periods
 
Nine-Month Periods
 
Ended September 30,
 
Ended September 30,
 
2019
 
2018
 
2019
 
2018
Operating revenue:
 
 
 
 
 
 
 
Regulated electric
$
232

 
$
225

 
$
586

 
$
575

Regulated natural gas
16

 
14

 
75

 
74

Total operating revenue
$
248

 
$
239

 
$
661

 
$
649

 
 
 
 
 
 
 
 
Operating income:
 
 
 
 
 
 
 
Regulated electric
$
67

 
$
56

 
$
119

 
$
111

Regulated natural gas

 

 
12

 
11

Total operating income
67

 
56

 
131

 
122

Interest expense
(12
)
 
(12
)
 
(36
)
 
(33
)
Allowance for borrowed funds

 

 
1

 
1

Allowance for equity funds

 
1

 
2

 
3

Other, net
1

 
3

 
4

 
8

Income before income tax expense
$
56

 
$
48

 
$
102

 
$
101


162



 
As of
 
September 30,
 
December 31,
 
2019
 
2018
Assets:
 
 
 
Regulated electric
$
3,282

 
$
3,177

Regulated natural gas
304

 
314

Regulated common assets(1)
82

 
78

Total assets
$
3,668

 
$
3,569


(1)
Consists principally of cash and cash equivalents not included in either the regulated electric or regulated natural gas segments.

163



Item 2.    Management's Discussion and Analysis of Financial Condition and Results of Operations 

Sierra Pacific's revenues and operating income are subject to fluctuations during the year due to impacts that seasonal weather, rate changes, and customer usage patterns have on demand for electric energy, natural gas and resources. Sierra Pacific's electric segment is summer peaking experiencing its highest retail energy sales in response to the demand for air conditioning and its natural gas segment is winter peaking due to sales in response to the demand for heating. The variations in energy usage due to varying weather, customer growth and other energy usage patterns, including energy efficiency and conservation measures, necessitates a continual balancing of loads and resources and purchases and sales of energy under short- and long-term energy supply contracts. As a result, the prudent management and optimization of available resources has a direct effect on the operating and financial performance of Sierra Pacific. Additionally, the timely recovery of purchased power, fuel costs and other costs and the ability to earn a fair return on investments through rates are essential to the operating and financial performance of Sierra Pacific.

The following is management's discussion and analysis of certain significant factors that have affected the financial condition and results of operations of Sierra Pacific during the periods included herein. Explanations include management's best estimate of the impact of weather, customer growth and other usage factors. This discussion should be read in conjunction with Sierra Pacific's historical unaudited Financial Statements and Notes to Financial Statements in Part I, Item 1 of this Form 10-Q. Sierra Pacific's actual results in the future could differ significantly from the historical results.


164



Results of Operations for the Third Quarter and First Nine Months of 2019 and 2018

Overview

Net income for the third quarter of 2019 was $44 million, an increase of $9 million, or 26%, compared to 2018 primarily due to $7 million of lower operations and maintenance expense, mainly due to lower political activity expenses, and $4 million of higher electric utility margin, mainly due to higher transmission revenue.

Net income for the first nine months of 2019 was $80 million, an increase of $4 million, or 5%, compared to 2018 primarily due to $10 million of lower operations and maintenance expense, mainly due to lower political activity expenses, and $2 million of higher electric utility margin, mainly due to $5 million of higher transmission revenue and $3 million of customer growth, partially offset by lower average retail rates related to the tax rate reduction rider effective April 2018. These increases are partially offset by $4 million of unfavorable other, net, mainly due to higher non-service pension expense.

Non-GAAP Financial Measure
Management utilizes various key financial measures that are prepared in accordance with GAAP, as well as non-GAAP financial measures such as, electric utility margin and natural gas utility margin, to help evaluate results of operations. Electric utility margin is calculated as electric operating revenue less cost of fuel and energy while natural gas utility margin is calculated as natural gas operating revenue less cost of natural gas purchased for resale, which are captions presented on the Statements of Operations.
Sierra Pacific's cost of fuel and energy and cost of natural gas purchased for resale are generally recovered from its customers through regulatory recovery mechanisms and as a result, changes in Sierra Pacific's expenses result in comparable changes to revenue. As such, management believes electric utility margin and natural gas utility margin more appropriately and concisely explain profitability rather than a discussion of revenue and cost of sales separately. Management believes the presentation of electric utility margin and natural gas utility margin provides meaningful and valuable insight into the information management considers important to running the business and a measure of comparability to others in the industry.
Electric utility margin and natural gas utility margin are not measures calculated in accordance with GAAP and should be viewed as a supplement to, and not a substitute for, operating income which is the most directly comparable financial measure prepared in accordance with GAAP. The following table provides a reconciliation of utility margin to operating income (in millions):
 
 
Third Quarter
 
First Nine Months
 
 
2019
 
2018
 
Change
 
2019
 
2018
 
Change
Electric utility margin:
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Electric operating revenue
 
$
232

 
$
225

 
$
7

3
 %
 
$
586

 
$
575

 
$
11

2
 %
Cost of fuel and energy
 
93

 
90

 
3

3

 
254

 
245

 
9

4

Electric utility margin
 
139

 
135

 
4

3

 
332

 
330

 
2

1

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Natural gas utility margin:
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Natural gas operating revenue
 
16

 
14

 
2

14
 %
 
75

 
74

 
1

1
 %
Cost of natural gas purchased for resale
 
6

 
4

 
2

50

 
35

 
35

 


Natural gas utility margin
 
10

 
10

 


 
40

 
39

 
1

3

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Utility margin
 
149

 
145

 
4

3
 %
 
372

 
369

 
3

1
 %
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Operations and maintenance
 
46

 
53

 
(7
)
(13
)%
 
130

 
140

 
(10
)
(7
)%
Depreciation and amortization
 
31

 
30

 
1

3

 
94

 
89

 
5

6

Property and other taxes
 
5

 
6

 
(1
)
(17
)
 
17

 
18

 
(1
)
(6
)
Operating income
 
$
67

 
$
56

 
$
11

20
 %
 
$
131

 
$
122

 
$
9

7
 %


165



A comparison of Sierra Pacific's key operating results is as follows:

Electric Utility Margin
 
 
Third Quarter
 
First Nine Months
 
 
2019
 
2018
 
Change
 
2019
 
2018
 
Change
Electric utility margin (in millions):
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Electric operating revenue
 
$
232

 
$
225

 
$
7

3
 %
 
$
586

 
$
575

 
$
11

2
 %
Cost of fuel and energy
 
93

 
90

 
3

3

 
254

 
245

 
9

4

Electric utility margin
 
$
139

 
$
135

 
$
4

3

 
$
332

 
$
330

 
$
2

1

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
GWh sold:
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Residential
 
696

 
737

 
(41
)
(6
)%
 
1,881

 
1,877

 
4

 %
Commercial
 
903

 
874

 
29

3

 
2,281

 
2,282

 
(1
)

Industrial
 
886

 
867

 
19

2

 
2,815

 
2,497

 
318

13

Other
 
4

 
4

 


 
12

 
12

 


Total fully bundled(1)
 
2,489

 
2,482

 
7


 
6,989


6,668


321

5

Distribution only service
 
416

 
375

 
41

11

 
1,212


1,124


88

8

Total retail
 
2,905

 
2,857

 
48

2

 
8,201

 
7,792

 
409

5

Wholesale
 
100

 
109

 
(9
)
(8
)
 
458

 
391

 
67

17

Total GWh sold
 
3,005

 
2,966

 
39

1

 
8,659

 
8,183

 
476

6

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Average number of retail customers (in thousands):
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Residential
 
305

 
300

 
5

2
 %
 
304

 
299

 
5

2
 %
Commercial
 
48

 
48

 


 
48

 
48

 


Total
 
353

 
348

 
5

1

 
352

 
347

 
5

1

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Average per MWh:
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Revenue - fully bundled(1)
 
$
85.85

 
$
84.84

 
$
1.01

1
 %
 
$
76.73

 
$
80.02

 
$
(3.29
)
(4
)%
Revenue - wholesale
 
$
46.68

 
$
58.09

 
$
(11.41
)
(20
)%
 
$
50.03


$
49.92


$
0.11

 %
Total cost of energy(2)
 
$
33.33

 
$
36.76

 
$
(3.43
)
(9
)%
 
$
32.05

 
$
34.57

 
$
(2.52
)
(7
)%
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Heating degree days
 
119

 
14

 
105

*
 
2,882

 
2,639

 
243

9
 %
Cooling degree days
 
891

 
1,043

 
(152
)
(15
)%
 
1,107

 
1,283

 
(176
)
(14
)%
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Sources of energy (GWh)(2)(3):
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Natural gas
 
1,468

 
1,480

 
(12
)
(1
)%
 
3,714


3,615


99

3
 %
Coal
 
376

 
361

 
15

4

 
928

 
558

 
370

66

Renewables(4)
 
13

 
12

 
1

8

 
30


30




Total energy generated
 
1,857

 
1,853

 
4


 
4,672

 
4,203

 
469

11

Energy purchased
 
937

 
785

 
152

19

 
3,243

 
3,090

 
153

5

Total
 
2,794

 
2,638

 
156

6

 
7,915

 
7,293

 
622

9


*     Not meaningful
(1)    Fully bundled includes sales to customers for combined energy, transmission and distribution services.
(2)
The average total cost of energy per MWh and sources of energy excludes - and 35 GWh of coal and - and 136 GWh of gas generated energy that is purchased at cost by related parties for the third quarter of 2019 and 2018, respectively. The average total cost of energy per MWh and sources of energy excludes - and 54 GWh of coal and - and 185 GWh of gas generated energy that is purchased at cost by related parties for the first nine months of 2019 and 2018, respectively.
(3)
GWh amounts are net of energy used by the related generating facilities.
(4)
Includes the Fort Churchill Solar Array which is under lease by Sierra Pacific.

166



Natural Gas Utility Margin
 
 
Third Quarter
 
First Nine Months
 
 
2019
 
2018
 
Change
 
2019
 
2018
 
Change
Natural gas utility margin (in millions):
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Natural gas operating revenue
 
$
16

 
$
14

 
$
2

14
%
 
$
75

 
$
74

 
$
1

1
 %
Cost of natural gas purchased for resale
 
6

 
4

 
2

50

 
35

 
35

 


Natural gas utility margin
 
$
10

 
$
10

 
$


 
$
40

 
$
39

 
$
1

3

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Dths sold (in thousands):
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Residential
 
814

 
740

 
74

10
%
 
7,454

 
6,520

 
934

14
 %
Commercial
 
491

 
464

 
27

6

 
3,878

 
3,364

 
514

15

Industrial
 
278

 
267

 
11

4

 
1,357

 
1,364

 
(7
)
(1
)
Total retail
 
1,583

 
1,471

 
112

8

 
12,689

 
11,248

 
1,441

13

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Average number of retail customers (in thousands)
 
171

 
167

 
4

2
%
 
170

 
167

 
3

2
 %
Average revenue per retail Dth sold
 
$
10.11

 
$
8.98

 
$
1.13

13
%
 
$
5.91

 
$
6.44

 
$
(0.53
)
(8
)%
Average cost of natural gas per retail Dth sold
 
$
3.79

 
$
2.69

 
$
1.10

41
%
 
$
2.76

 
$
3.11

 
$
(0.35
)
(11
)%
Heating degree days
 
119

 
14

 
105

*
 
2,882

 
2,639

 
243

9
 %

*     Not meaningful

Electric utility margin increased $4 million, or 3%, for the third quarter of 2019 compared to 2018 primarily due to higher transmission revenue of $5 million, partially offset by $2 million of lower residential volumes primarily from the impacts of weather.

Operations and maintenance decreased $7 million, or 13%, for the third quarter of 2019 compared to 2018 primarily due to lower political activity expenses and the impacts of adopting ASC 842, "Leases" ("ASC 842").

Depreciation and amortization increased $1 million, or 3%, for the third quarter of 2019 compared to 2018 primarily due to higher plant placed in service and the impacts of adopting ASC 842.

Other income (expense) is unfavorable $3 million, or 38%, for the third quarter of 2019 compared to 2018 primarily due to higher non-service pension expense and the impacts of adopting ASC 842.

Income tax expense decreased $1 million, or 8%, for the third quarter of 2019 compared to 2018. The effective tax rate was 21% in 2019 and 27% in 2018 and decreased due to lower nondeductible expenses.

Electric utility margin increased $2 million, or 1%, for the first nine months of 2019 compared to 2018 primarily due to:
$5 million of higher transmission revenue, and
$3 million of customer growth.
The increase in electric utility margin was offset by:
$6 million in lower retail rates due to the tax rate reduction rider effective April 2018.

Operations and maintenance decreased $10 million, or 7%, for the first nine months of 2019 compared to 2018 primarily due to lower political activity expenses and the impacts of adopting ASC 842, partially offset by higher generation plant costs.


167



Depreciation and amortization increased $5 million, or 6%, for the first nine months of 2019 compared to 2018 primarily due to higher plant placed in service and the impacts of adopting ASC 842.

Other income (expense) is unfavorable $8 million, or 38%, for the first nine months of 2019 compared to 2018 primarily due to higher non-service pension expense and the impacts of adopting ASC 842.

Income tax expense decreased $3 million, or 12%, for the first nine months of 2019 compared to 2018. The effective tax rate was 22% in 2019 and 25% in 2018 and decreased due to lower nondeductible expenses.

Liquidity and Capital Resources

As of September 30, 2019, Sierra Pacific's total net liquidity was as follows (in millions):

Cash and cash equivalents
 
$
64

Credit facility
 
250

Total net liquidity
 
$
314

Credit facility:
 
 
Maturity date
 
2022


Operating Activities

Net cash flows from operating activities for the nine-month periods ended September 30, 2019 and 2018 were $189 million and $208 million, respectively. The change was primarily due to an increase in fuel costs, higher inventory purchases, decreased collections of customer advances, lower collections from customers due to the unfavorable impacts of weather and the refunding of a credit deposit to a customer, partially offset by lower payments for operating costs, mainly due to lower political activity expenses, and lower contributions to the pension plan.

Investing Activities

Net cash flows from investing activities for the nine-month periods ended September 30, 2019 and 2018 were $(164) million and $(139) million, respectively. The change was due to increased capital expenditures. Refer to "Future Uses of Cash" for further discussion of capital expenditures.

Financing Activities

Net cash flows from financing activities for the nine-month periods ended September 30, 2019 and 2018 were $(33) million and $(2) million, respectively. The change was due to higher payments to repurchase long-term debt and dividends paid to NV Energy, Inc. of $46 million, partially offset by higher proceeds from the re-offering of previously repurchased long-term debt.

Long-Term Debt

In April 2019, Sierra Pacific purchased the following series of bonds that were held by the public: $30 million of its variable-rate tax-exempt Water Facilities Refunding Revenue Bonds, Series 2016C, due 2036; $25 million of its variable-rate tax-exempt Water Facilities Refunding Revenue Bonds, Series 2016D, due 2036; and $25 million of its variable-rate tax-exempt Water Facilities Refunding Revenue Bonds, Series 2016E, due 2036. Sierra Pacific purchased the Series 2016C, Series 2016D and Series 2016E bonds as required by the bond indentures.

In April 2019, Sierra Pacific entered into a re-offering of the following series of bonds: $30 million of its variable-rate tax-exempt Pollution Control Refunding Revenue Bonds, Series 2016B, due 2029; the Series 2016D bonds; the Series 2016E bonds; $75 million of its variable-rate tax-exempt Water Facilities Refunding Revenue Bonds, Series 2016F, due 2036; and $20 million of its variable-rate tax-exempt Water Facilities Refunding Revenue Bonds, Series 2016G, due 2036. The Series 2016B and Series 2016G bonds were offered at a fixed rate of 1.85%. The Series 2016D, Series 2016E and Series 2016F bonds were offered at a fixed rate of 2.05%. Sierra Pacific previously purchased the Series 2016B, Series 2016F and Series 2016G bonds on their date of issuance. Sierra Pacific holds the Series 2016C bonds and the bonds could be issued at a future date if required by future regulatory proceedings. Sierra Pacific used the net proceeds of the re-offering for general corporate purposes.

168




In June 2019, Sierra Pacific purchased the following series of bonds that were held by the public: $59 million of its fixed-rate tax-exempt Gas Facilities Refunding Revenue Bonds, Series 2016A, due 2031 and $20 million of its fixed-rate tax-exempt Humboldt County Pollution Control Refunding Revenue Bonds, Series 2016A, due 2029. Sierra Pacific holds these bonds and the bonds could be issued at a future date if required by future regulatory proceedings.

Debt Authorizations

Sierra Pacific currently has financing authority from the PUCN consisting of the ability to: (1) establish debt issuances limited to a debt ceiling of $1.6 billion (excluding borrowings under Sierra Pacific's $250 million secured credit facility); and (2) maintain a revolving credit facility of up to $600 million.

Future Uses of Cash

Sierra Pacific has available a variety of sources of liquidity and capital resources, both internal and external, including net cash flows from operating activities, public and private debt offerings, the use of its secured revolving credit facility, capital contributions and other sources. These sources are expected to provide funds required for current operations, capital expenditures, debt retirements and other capital requirements. The availability and terms under which Sierra Pacific has access to external financing depends on a variety of factors, including regulatory approvals, Sierra Pacific's credit ratings, investors' judgment of risk and conditions in the overall capital markets, including the condition of the utility industry.

Capital Expenditures

Capital expenditure needs are reviewed regularly by management and may change significantly as a result of these reviews, which may consider, among other factors, changes in environmental and other rules and regulations; impacts to customers' rates; outcomes of regulatory proceedings; changes in income tax laws; general business conditions; load projections; system reliability standards; the cost and efficiency of construction labor, equipment and materials; commodity prices; and the cost and availability of capital. Prudently incurred expenditures for compliance-related items such as pollution-control technologies, replacement generation and associated operating costs are generally incorporated into Sierra Pacific's regulated retail rates. Expenditures for certain assets may ultimately include acquisition of existing assets.

Historical and forecast capital expenditures, each of which exclude amounts for non-cash equity AFUDC and other non-cash items are as follows (in millions):
 
Nine-Month Periods
 
Annual
 
Ended September 30,
 
Forecast
 
2018
 
2019
 
2019
 
 
 
 
 
 
Distribution
$
101

 
$
117

 
$
169

Transmission system investment
3

 
10

 
16

Other
35

 
38

 
66

Total
$
139

 
$
165

 
$
251


Sierra Pacific's forecast capital expenditures include investments related to operating projects that consist of routine expenditures for transmission, distribution, generation and other infrastructure needed to serve existing and expected demand.

Contractual Obligations

As of September 30, 2019, there have been no material changes outside the normal course of business in contractual obligations from the information provided in Item 7 of Sierra Pacific's Annual Report on Form 10-K for the year ended December 31, 2018.

Regulatory Matters

Sierra Pacific is subject to comprehensive regulation. Refer to "Regulatory Matters" in Berkshire Hathaway Energy's Part I, Item 2 of this Form 10-Q for discussion regarding Sierra Pacific's current regulatory matters.


169



Environmental Laws and Regulations

Sierra Pacific is subject to federal, state and local laws and regulations regarding climate change, RPS, air and water quality, emissions performance standards, coal combustion byproduct disposal, hazardous and solid waste disposal, protected species and other environmental matters that have the potential to impact Sierra Pacific's current and future operations. In addition to imposing continuing compliance obligations and capital expenditure requirements, these laws and regulations provide regulators with the authority to levy substantial penalties for noncompliance including fines, injunctive relief and other sanctions. These laws and regulations are administered by the EPA and various state and local agencies. All such laws and regulations are subject to a range of interpretation, which may ultimately be resolved by the courts. Environmental laws and regulations continue to evolve, and Sierra Pacific is unable to predict the impact of the changing laws and regulations on its operations and financial results. Sierra Pacific believes it is in material compliance with all applicable laws and regulations.

Refer to "Environmental Laws and Regulations" in Berkshire Hathaway Energy's Part I, Item 2 of this Form 10-Q for additional information regarding environmental laws and regulations.

Critical Accounting Estimates

Certain accounting measurements require management to make estimates and judgments concerning transactions that will be settled several years in the future. Amounts recognized on the Financial Statements based on such estimates involve numerous assumptions subject to varying and potentially significant degrees of judgment and uncertainty and will likely change in the future as additional information becomes available. Estimates are used for, but not limited to, the accounting for the effects of certain types of regulation, derivatives, impairment of long-lived assets, income taxes and revenue recognition - unbilled revenue. For additional discussion of Sierra Pacific's critical accounting estimates, see Item 7 of Sierra Pacific's Annual Report on Form 10‑K for the year ended December 31, 2018. There have been no significant changes in Sierra Pacific's assumptions regarding critical accounting estimates since December 31, 2018.


170



Item 3.
Quantitative and Qualitative Disclosures About Market Risk

For quantitative and qualitative disclosures about market risk affecting the Registrants, see Item 7A of each Registrant's Annual Report on Form 10-K for the year ended December 31, 2018. Each Registrant's exposure to market risk and its management of such risk has not changed materially since December 31, 2018. Refer to Note 8 of the Notes to Consolidated Financial Statements of PacifiCorp in Part I, Item 1 of this Form 10-Q for disclosure of the respective Registrant's derivative positions as of September 30, 2019.

Item 4.
Controls and Procedures

At the end of the period covered by this Quarterly Report on Form 10-Q, each of Berkshire Hathaway Energy Company, PacifiCorp, MidAmerican Funding, LLC, MidAmerican Energy Company, Nevada Power Company and Sierra Pacific Power Company carried out separate evaluations, under the supervision and with the participation of each such entity's management, including its Chief Executive Officer (principal executive officer) and its Chief Financial Officer (principal financial officer), or persons performing similar functions, of the effectiveness of the design and operation of its disclosure controls and procedures (as defined in Rule 13a-15(e) promulgated under the Securities Exchange Act of 1934, as amended). Based upon these evaluations, management of each such entity, including its Chief Executive Officer (principal executive officer) and its Chief Financial Officer (principal financial officer), or persons performing similar functions, in each case, concluded that the disclosure controls and procedures for such entity were effective to ensure that information required to be disclosed by such entity in the reports that it files or submits under the Securities Exchange Act of 1934, as amended, is recorded, processed, summarized and reported within the time periods specified in the United States Securities and Exchange Commission's rules and forms, and is accumulated and communicated to its management, including its Chief Executive Officer (principal executive officer) and its Chief Financial Officer (principal financial officer), or persons performing similar functions, in each case, as appropriate to allow timely decisions regarding required disclosure by it. Each such entity hereby states that there has been no change in its internal control over financial reporting during the quarter ended September 30, 2019 that has materially affected, or is reasonably likely to materially affect, its internal control over financial reporting.


171



PART II

Item 1.
Legal Proceedings

Not applicable.

Item 1A.
Risk Factors

There has been no material change to each Registrant's risk factors from those disclosed in Item 1A of each Registrant's Annual Report on Form 10-K for the year ended December 31, 2018.

Item 2.
Unregistered Sales of Equity Securities and Use of Proceeds

Not applicable.

Item 3.
Defaults Upon Senior Securities

Not applicable.

Item 4.
Mine Safety Disclosures

Information regarding Berkshire Hathaway Energy's and PacifiCorp's mine safety violations and other legal matters disclosed in accordance with Section 1503(a) of the Dodd-Frank Wall Street Reform and Consumer Protection Act is included in Exhibit 95 to this Form 10-Q.

Item 5.
Other Information

Not applicable.

Item 6.
Exhibits

The following is a list of exhibits filed as part of this Quarterly Report.


172



Exhibit No.
Description

BERKSHIRE HATHAWAY ENERGY
4.1
4.2
4.3
10.1
10.2
15.1
31.1
31.2
32.1
32.2

PACIFICORP
15.2
31.3
31.4
32.3
32.4

BERKSHIRE HATHAWAY ENERGY AND PACIFICORP
4.4
10.3
10.4
95

173




MIDAMERICAN ENERGY
15.3
31.5
31.6
32.5
32.6

Exhibit No.
Description

BERKSHIRE HATHAWAY ENERGY AND MIDAMERICAN ENERGY
4.5
4.6
10.5
10.6

MIDAMERICAN FUNDING
31.7
31.8
32.7
32.8

NEVADA POWER
15.4
31.9
31.10
32.9
32.10

BERKSHIRE HATHAWAY ENERGY AND NEVADA POWER
10.7


174



SIERRA PACIFIC
31.11
31.12
32.11
32.12

BERKSHIRE HATHAWAY ENERGY AND SIERRA PACIFIC
10.8

ALL REGISTRANTS
101
The following financial information from each respective Registrant's Quarterly Report on Form 10-Q for the quarter ended September 30, 2019, is formatted in XBRL (eXtensible Business Reporting Language) and included herein: (i) the Consolidated Balance Sheets, (ii) the Consolidated Statements of Operations, (iii) the Consolidated Statements of Comprehensive Income, (iv) the Consolidated Statements of Changes in Equity, (v) the Consolidated Statements of Cash Flows, and (vi) the Notes to Consolidated Financial Statements, tagged in summary and detail.

175



SIGNATURES


Pursuant to the requirements of the Securities Exchange Act of 1934, each registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

 
BERKSHIRE HATHAWAY ENERGY COMPANY
 
 
Date: November 1, 2019
/s/ Patrick J. Goodman
 
Patrick J. Goodman
 
Executive Vice President and Chief Financial Officer
 
(principal financial and accounting officer)
 
 
 
PACIFICORP
 
 
Date: November 1, 2019
/s/ Nikki L. Kobliha
 
Nikki L. Kobliha
 
Vice President, Chief Financial Officer and Treasurer
 
(principal financial and accounting officer)
 
 
 
MIDAMERICAN FUNDING, LLC
 
MIDAMERICAN ENERGY COMPANY
 
 
Date: November 1, 2019
/s/ Thomas B. Specketer
 
Thomas B. Specketer
 
Vice President and Controller
 
of MidAmerican Funding, LLC and
 
Vice President and Chief Financial Officer
 
of MidAmerican Energy Company
 
(principal financial and accounting officer)
 
 
 
NEVADA POWER COMPANY
 
 
Date: November 1, 2019
/s/ Michael E. Cole
 
Michael E. Cole
 
Vice President and Chief Financial Officer
 
(principal financial and accounting officer)
 
 
 
SIERRA PACIFIC POWER COMPANY
 
 
Date: November 1, 2019
/s/ Michael E. Cole
 
Michael E. Cole
 
Vice President and Chief Financial Officer
 
(principal financial and accounting officer)

176


EXHIBIT 4.3
C L I F F O R D
CLIFFORD CHANCE LLP
C H A N C E
 
 
EXECUTION VERSION
 
 
 
 
 
 
NORTHERN POWERGRID (YORKSHIRE) PLC
 
 
£300,000,000 2.250 PER CENT. BONDS DUE 2059
 
 
 
 
 
 
 
 
 
 
 
 
TRUST DEED
 
 
 
 
 



 


CONTENTS
Clause
Page
1.
Interpretation
1
2.
Amount of the Bonds and Covenant to Pay
5
3.
Form and Issue of the Bonds
8
4.
Stamp Duties and Taxes
10
5.
The Trust Deed and the Bonds
11
6.
Application of Moneys Received by the Trustee
11
7.
Covenants by the Issuer
12
8.
Remuneration and Indemnification of the Trustee
16
9.
Provisions Supplemental to the Trustee Act 1925 and the Trustee Act 2000
18
10.
Trustee Liable for Negligence
25
11.
Consequential Loss
25
12.
Waiver
25
13.
Trustee not Precluded from Entering into Contracts
26
14.
Modification and Substitution
26
15.
Appointment, Retirement and Removal of the Trustee
28
16.
Coupons
30
17.
Currency Indemnity
30
18.
Communications
31
19.
Governing Law
31
20.
Jurisdiction
32
21.
Severability
32
22.
Sanctions
32
23.
Contracts (Rights of Third Parties) Act 1999
32
24.
Counterparts
32
Schedule 1 Form of Temporary Global Bond
34
Schedule 2 Form of Permanent Global Bond
43
Schedule 3 Form of Definitive Bond
50
Schedule 4 Terms and Conditions of the Bonds
54
Schedule 5 Provisions for Meetings of Bondholders
70


245021-4-4-v5.0
 
70-40727287





THIS TRUST DEED is made on 9 October 2019
BETWEEN:
(1)
NORTHERN POWERGRID (YORKSHIRE) PLC (the "Issuer"), a public company incorporated in England and Wales with limited liability under registered number 04112320; and
(2)
HSBC CORPORATE TRUSTEE COMPANY (UK) LIMITED (the "Trustee", which expression shall, where the content so admits, include all persons for the time being the trustee or trustees of this Trust Deed (as defined below)).
WHEREAS
(A)
The Issuer has authorised the issue of £300,000,000 in aggregate principal amount of 2.250 per cent. Bonds due 2059 to be constituted by this Trust Deed.
(B)
The Trustee has agreed to act as trustee of this Trust Deed on the following terms and conditions.
NOW THIS DEED WITNESSES AND IT IS HEREBY DECLARED as follows:
1.
INTERPRETATION
1.1
Definitions
The following expressions shall have the following meanings:
"Auditors" means the auditors for the time being of the Issuer and, if there are joint auditors, means all or any one of such joint auditors or, in the event of any of them being unable or unwilling to carry out any action requested of them pursuant to this Trust Deed, means such other firm of chartered accountants in England as may be nominated in writing by the Trustee for the purpose;
"Authorised Signatory" means a director of the Issuer or any person in respect of whom the Issuer has supplied to the Trustee a copy, certified by a director or the secretary of the Issuer, to be a true copy and in full force and effect, of a resolution or resolutions of the board of directors (or a committee of the board of directors) of the Issuer, authorising such person to sign on behalf of the Issuer all such certificates and other documents as are referred to therein, together with a certified specimen signature of such person, and in respect of whom the Trustee has not received written notification from the Issuer, that such person has ceased to be so authorised;
"Bondholder" and (in relation to a Bond) "holder" means the bearer of a Bond;
"Bonds" means the £300,000,000 2.250 per cent. Bonds due 2059 constituted by this Trust Deed and for the time being outstanding or, as the context may require, a specific number of them and includes the Temporary Global Bond (or any part thereof), the Permanent Global Bond (or any part thereof) and the Definitive Bonds (or any of them), including any replacement Definitive Bonds issued pursuant to Condition 13 (Replacement of Bonds and Coupons);

245021-4-4-v5.0
1

70-40727287





"Clearstream, Luxembourg" means Clearstream Banking, S.A.;
"Code" means the U.S. Internal Revenue Code of 1986, as amended.
"Conditions" means the terms and conditions set out in Schedule 4 (Terms and Conditions of the Bonds) as modified, with respect to any Bonds represented by a Global Bond, by the provisions of such Global Bond and as from time to time modified in accordance with this Trust Deed and any reference to a particularly numbered Condition shall be construed accordingly;
"Couponholder" and (in relation to a Coupon) "holder" means the bearer of a Coupon;
"Coupons" means the bearer interest coupons appertaining to the Definitive Bonds in or substantially in the form set out in Schedule 3 (Form of Definitive Bond), or as the context may require, a specific number of them and includes any replacement Coupons issued pursuant to Condition 13 (Replacement of Bonds and Coupons);
"Definitive Bonds" means the Bonds in definitive form to be issued pursuant to, and in the circumstances specified in, Clause 3.3 (Exchange for Definitive Bonds), in or substantially in the form set out in Schedule 3 (Form of Definitive Bond), and includes any replacements therefor issued pursuant to Condition 13 (Replacement of Bonds and Coupons);
"Euroclear" means Euroclear Bank SA/NV, as operator of the Euroclear system;
"Event of Default" means any of the events set out in Condition 10 (Events of Default);
"Extraordinary Resolution" has the meaning set out in paragraph 1 of Schedule 5 (Provisions for Meetings of Bondholders);
"FATCA" means Sections 1471 to 1474 of the Code, any regulations thereunder or official interpretations thereof, an IGA or an agreement described in Section 1471(b) of the Code.
"FCA" means the Financial Conduct Authority in its capacity as competent authority under FSMA;
"FSMA" means the Financial Services and Markets Act 2000;
"Further Bonds" means all further bonds created and issued by the Issuer in accordance with Condition 17 (Further Bonds) and/or for the time being outstanding or, as the context may require, a specific proportion thereof;
"Global Bonds" means the Temporary Global Bond and the Permanent Global Bond and "Global Bond" means either of them;
"IGA" means an intergovernmental agreement between the United States and another jurisdiction to improve tax compliance and to implement FATCA.
"outstanding" means, in relation to the Bonds, all the Bonds issued other than (a) those Bonds which have been redeemed in full and cancelled pursuant to Conditions 7

245021-4-4-v5.0
2

70-40727287





(Redemption and Purchase) or 11 (Restructuring Event) or otherwise pursuant to this Trust Deed; (b) those Bonds in respect of which the date for redemption in accordance with the Conditions has occurred and, in any such case, the redemption moneys for which (including all interest payable thereon) have been duly paid to the Trustee or to the Principal Paying Agent in the manner provided in the Paying Agency Agreement (and, where appropriate, notice to that effect has been given to the Bondholders in accordance with Condition 14 (Notices)) and remain available for payment against presentation of the relevant Bonds and/or Coupons; (c) those Bonds which have been purchased and surrendered for cancellation in accordance with Condition 7(e) (Cancellation); (d) those Bonds which have become void under Condition 9 (Prescription); (e) those mutilated or defaced Definitive Bonds which have been surrendered and cancelled and in respect of which replacements have been issued pursuant to Condition 13 (Replacement of Bonds and Coupons); (f) (for the purpose only of ascertaining the amount of Bonds outstanding and without prejudice to the status for any other purpose of the relevant Bonds) those Definitive Bonds which are alleged to have been lost, stolen or destroyed and in respect of which replacements have been issued pursuant to Condition 13 (Replacement of Bonds and Coupons); (g) the Temporary Global Bond to the extent that it shall have been exchanged for the Permanent Global Bond pursuant to the provisions contained therein and in Clause 3.3 (Exchange for Definitive Bonds), and (h) the Permanent Global Bond to the extent that it shall be exchanged for the Definitive Bonds pursuant to the provisions contained therein and in Clause 3.3 (Exchange for Definitive Bonds),
provided that for each of the following purposes, namely:
(a)
the right to attend and vote at any meeting of the Bondholders;
(b)
the determination of how many and which Bonds are for the time being outstanding for the purposes of the Conditions and Schedule 5 (Provisions for Meetings of Bondholders);
(c)
any discretion, power or authority contained in this Trust Deed which the Trustee is required, expressly or impliedly, to exercise in or by reference to the interests of any of the Bondholders; and
(d)
the determination by the Trustee whether any of the events specified in Condition 10 (Events of Default) is materially prejudicial to the interests of the Bondholders,
those Bonds which are for the time being held beneficially by or for the account of the Issuer or any Subsidiary of the Issuer, or Berkshire Hathaway Energy Company or any other Subsidiary of Berkshire Hathaway Energy Company shall (unless and until ceasing to be so held) be deemed not to remain outstanding;
"Paying Agency Agreement" means the Paying Agency Agreement dated 9 October 2019, as the same may be amended and/or supplemented from time to time, between the Issuer, the Trustee and the Principal Paying Agent and includes any other agreements approved in writing by the Trustee appointing Successor Paying Agents or altering any such agreements;

245021-4-4-v5.0
3

70-40727287





"Paying Agents" means the institutions (including the Principal Paying Agent) at their respective Specified Offices referred to in Condition 6 (Payments) and/or any Successor Paying Agents, in each case at their respective Specified Offices;
"Permanent Global Bond" means the permanent global Bond to be issued by the Issuer pursuant to Clause 3.1 (The Global Bonds) representing the Bonds, in or substantially in the form set out in Schedule 2 (Form of Permanent Global Bond);
"Person" means any person, firm, company or body corporate, corporation, government, state or agency of a state or any association or partnership (whether or not having separate legal personality) or two or more of the foregoing;
"Potential Event of Default" means an event or circumstance which would with the giving of notice and/or lapse of time and/or the issuing of a certificate become an Event of Default;
"principal" and "principal amount" in relation to any payment in respect of Bonds includes, where applicable, the Redemption Price referred to in Condition 7(b) (Redemption at the option of the Issuer);
"Principal Paying Agent" means HSBC Bank plc or any Successor Principal Paying Agent appointed under the Paying Agency Agreement;
"Specified Office" means, in relation to any Paying Agent, either the office identified with its name at the end of the Conditions or any other office approved by the Trustee and notified to the Bondholders pursuant to Clause 7.12 (Change in Agents);
"Subscription Agreement" means the subscription agreement dated 7 October 2019 between the Issuer, Banco Santander, S.A., Lloyds Bank Corporate Markets plc and NatWest Markets Plc;
"Successor" means, in relation to the Paying Agents, such other or further person as may from time to time be appointed by the Issuer as a Paying Agent, with the written approval of, and on terms approved in writing by, the Trustee and notice of whose appointment is given to Bondholders pursuant to Clause 7.12 (Change in Agents);
"Temporary Global Bond" means the temporary global Bond to be issued by the Issuer pursuant to Clause 3.1 (The Global Bonds) representing the Bonds, in or substantially in the form set out in Schedule 1 (Form of Temporary Global Bond);
"this Trust Deed" means this Deed, the Schedules (as from time to time altered in accordance with this Deed), the Conditions, the Bonds and the Coupons and any other document executed in accordance with this Deed (as from time to time altered in accordance with its terms) and expressed to be supplemental to this Deed; and
"trust corporation" means a corporation entitled by rules made under the Public Trustee Act 1906 or entitled pursuant to any other legislation applicable to a trustee in any jurisdiction other than England to carry out the functions of a custodian trustee.
1.2
Terms defined elsewhere

245021-4-4-v5.0
4

70-40727287





Unless otherwise defined herein, terms defined in the Conditions shall have the same meanings in this Trust Deed.
1.3
Construction of Certain References
References to:
1.3.1
costs, charges, remuneration or expenses shall include any value added tax, turnover tax or similar tax charged in respect thereof;
1.3.2
"£", "pounds" and "Sterling" shall be construed as references to the lawful currency for the time being of the United Kingdom;
1.3.3
any action, remedy or method of judicial proceedings for the enforcement of rights of creditors shall include, in respect of any jurisdiction other than England, references to such action, remedy or method of judicial proceedings available or appropriate in such jurisdiction as shall most nearly approximate thereto;
1.3.4
all references in this Trust Deed or the Conditions involving compliance by the Trustee with a test of reasonableness shall be deemed to include a reference to a requirement that such reasonableness shall be determined by reference primarily to the interests of the holders of the Bonds as a class and in the event of any conflict between such interests and the interests of any other person, the former shall prevail as being paramount;
1.3.5
in this Trust Deed references to Coupons and Couponholders shall apply only if Definitive Bonds have been issued by the Issuer in accordance with Clause 3 (Form and Issue of the Bonds); and
1.3.6
any provision of any statute shall be deemed also to refer to any statutory modification or re-enactment thereof or any statutory instrument, order or regulation made thereunder or under such modification or re-enactment.
1.4
Headings
Headings shall be ignored in construing this Trust Deed.
1.5
Schedules
The Schedules are part of this Trust Deed and shall have effect accordingly.
2.
AMOUNT OF THE BONDS AND COVENANT TO PAY
2.1
Amount of the Bonds
The aggregate principal amount of the Bonds is limited to £300,000,000.
2.2
Covenant to pay
The Issuer covenants with the Trustee that it will in accordance with this Trust Deed on any date when the Bonds or any of them become due to be redeemed or any principal on the original Bonds or any of them becomes due to be repaid in accordance with the

245021-4-4-v5.0
5

70-40727287





conditions unconditionally pay or procure to be paid to or to the order of the Trustee in London in Sterling in immediately available funds the principal amount of the Bonds or any of them becoming due for redemption or repayment on that date together with any applicable premium and will (subject to the Conditions) until such payment (both before and after judgment of a court of competent jurisdiction) unconditionally pay to or to the order of the Trustee as aforesaid interest on the principal amount of the Bonds outstanding as set out in the Conditions provided that (1) subject to sub-clause 2.4.2 of Clause 2.4 (Payment after a Default), every payment of any sum due in respect of the Bonds made to the Principal Paying Agent as provided in the Paying Agency Agreement shall, to such extent, satisfy such obligation except to the extent that there is failure in its subsequent payment (in the case of the Global Bonds) to or to the order of the bearer thereof in accordance with the provisions of the Temporary Global Bond or the Permanent Global Bond, as the case may be, or (in the case of the Definitive Bonds) to the relevant Bondholders or (as the case may be) Couponholders under the Conditions and (2) in the case of any payment made after the due date or pursuant to Condition 10 (Events of Default), payment will be deemed to have been made when the full amount due has been received by the Principal Paying Agent or the Trustee and notice to that effect has been given to the Bondholders (if required in accordance with Clause 7.9 (Notice of late payment)), except to the extent that there is failure in the subsequent payment to the relevant Bondholders or (as the case may be) Couponholders under the Conditions. The Trustee will hold the benefit of this covenant and the covenant in Clause 5 on trust for the original Bondholders and original Couponholders.
2.3
Discharge
Subject to Clause 2.4 (Payment after a Default), any payment to be made in respect of the Bonds, the Coupons or this Trust Deed, as the case may be, by the Issuer or the Trustee may be made as provided herein, in the Conditions and the Paying Agency Agreement, and any payment so made will (subject to Clause 2.4 (Payment after a Default)) to such extent be a good discharge to the Issuer or the Trustee, as the case may be.
2.4
Payment after a Default
At any time after an Event of Default or a Potential Event of Default has occurred the Trustee may:
2.4.1
by notice in writing to the Issuer and the Paying Agents (or such of them as are specified by the Trustee), require the Paying Agents (or such of them as are specified by the Trustee):
(a)
to act thereafter, until otherwise instructed by the Trustee, as agents of the Trustee under this Trust Deed and the Bonds on the terms of the Paying Agency Agreement (with consequential amendments as necessary and save that the Trustee's liability for the indemnification, remuneration and all other out-of-pocket expenses of any of the Paying Agents shall be limited to the amounts for the time being held by the Trustee on the trusts of this Trust Deed and available to the Trustee for such purpose) and thereafter to hold all Definitive Bonds and Coupons and all sums,

245021-4-4-v5.0
6

70-40727287





documents and records held by them in respect of the Bonds and the Coupons to the order of the Trustee; and/or
(b)
to deliver all Definitive Bonds and Coupons and all sums, documents and records held by them in respect of the Bonds and Coupons (save for such documents and records which the Paying Agents are obliged not to release by virtue of any applicable law or regulation or by order of any court of competent jurisdiction) to the Trustee or as the Trustee directs in such notice; and
2.4.2
by notice in writing to the Issuer require it to make all subsequent payments in respect of the Bonds and the Coupons to or to the order of the Trustee and not to the Principal Paying Agent.
2.5
Further Issues
2.5.1
The Issuer shall be at liberty from time to time (but subject always to the provisions of this Trust Deed) without the consent of the Bondholders or Couponholders to create and issue Further Bonds (whether in bearer or registered form) ranking pari passu in all respects (or in all respects save for the first payment of interest thereon), and so that the same shall be consolidated and form a single series, with the original Bonds and/or any Further Bonds of any series, provided that:
(a)
the Trustee is satisfied (by means of a confirmation from S&P in the case of any rating by S&P and Fitch in the case of any rating by Fitch) that the rating granted in respect of the Bonds by S&P and Fitch will not thereby be adversely affected; and
(b)
the Issuer shall not create and issue such Further Bonds while any default exists in relation to any payment by the Issuer of any amounts due under this Trust Deed.
2.5.2
Any Further Bonds which are to be created and issued pursuant to the provisions of sub-clause 2.5.1 above shall be constituted by a deed supplemental to this Trust Deed in such form as the Trustee may approve. In such case the Issuer shall, prior to the issue of such Further Bonds, execute and deliver to the Trustee a deed supplemental to this Trust Deed (in relation to which all applicable stamp duties or other documentation fees, duties or taxes have been paid and, if applicable, duly stamped or denoted accordingly) and containing a covenant by the Issuer in the form mutatis mutandis of Clause 2.2 (Covenant to pay) in relation to the principal, premium (if any) and interest in respect of such Further Bonds and such other provisions (corresponding to the provisions contained in this Trust Deed) as the Trustee shall require.
2.5.3
A memorandum of every such supplemental Trust Deed shall be endorsed by the Trustee on this Trust Deed and by the Issuer on its duplicate of this Trust Deed.

245021-4-4-v5.0
7

70-40727287





2.5.4
Whenever it is proposed to create and issue any Further Bonds the Issuer shall give to the Trustee not less than 14 days' notice in writing of its intention so to do stating the amount of Further Bonds proposed to be created and issued.
3.
FORM AND ISSUE OF THE BONDS
3.1
The Global Bonds
The Bonds will initially be represented by the Temporary Global Bond without Coupons in the principal amount at the date hereof of £300,000,000 which, when duly executed and authenticated, will be deposited by the Issuer with HSBC Bank plc (the "Common Depositary") as common depositary for Euroclear and Clearstream, Luxembourg on the date hereof on terms that the Common Depositary shall hold the Temporary Global Bond to or to the order of the Issuer against payment of the net proceeds of the issue of the Bonds in accordance with the Subscription Agreement, following which it shall hold the Temporary Global Bond for the account of the Bondholders. The Issuer shall also deposit on the date hereof the Permanent Global Bond without Coupons in the principal amount of up to £300,000,000 with the Common Depositary who shall hold the Permanent Global Bond pending exchange of the Temporary Global Bond (in whole or in part) therefore in accordance with their respective terms. Following exchange of the Temporary Global Bond in whole for the Permanent Global Bond in accordance with their respective terms the Bonds shall (subject as provided in Clause 3.3 (Exchange for Definitive Bonds) below) thereafter be represented by the Permanent Global Bond.
The procedures as regards the issue, exchange, execution, authentication, delivery, surrender, cancellation, presentation and endorsement of the Temporary Global Bond and the Permanent Global Bond (or part thereof) and any other matters to be carried out by the relevant parties upon such exchange (in whole or in part) shall be made in accordance with this Clause 3, their respective terms and the rules and procedures of Euroclear and Clearstream, Luxembourg for the time being.
3.2
Signature and Authentication
The Global Bonds and the Definitive Bonds will be signed manually or in facsimile by a director of the Issuer. The Issuer may use the facsimile signature of any person who at the date of this Trust Deed is a director of the Issuer even if at the time of issue of any Bonds he/she no longer holds such office. The Issuer shall procure that, prior to the issue and delivery of each Global Bond, each Global Bond will be authenticated by an authorised signatory on behalf of the Principal Paying Agent and no Global Bond shall be valid for any purpose unless and until so authenticated. The Bonds so executed and, if applicable, so authenticated shall be binding and valid obligations of the Issuer. Until it (or part thereof) has been exchanged pursuant to Clauses 3.1 (The Global Bonds) or 3.3 (Exchange for Definitive Bonds) (but without prejudice to the escrow arrangements referred to in Clause 3.1 (The Global Bonds)), each Global Bond (or part thereof) shall in all respects be entitled to the same benefits as a Definitive Bond and each Global Bond shall be subject to the provisions hereof except that the bearer thereof shall be the only person entitled to receive payments of principal and interest as set out therein.

245021-4-4-v5.0
8

70-40727287





3.3
Exchange for Definitive Bonds
If while the Bonds are represented by one or more Global Bonds (i) either Euroclear or Clearstream, Luxembourg is closed for business for a continuous period of 14 days (other than by reason of holiday, statutory or otherwise) or announces an intention permanently to cease business or (ii) as a result of any change in, or amendment to, the laws or regulations of the United Kingdom or of any political sub-division of, or any authority in, the United Kingdom having power to tax or any change in the application or official interpretation of such laws or regulations which becomes effective on or after 7 October 2019, the Issuer or any Paying Agent is or will be required to make any withholding or deduction from any payment in respect of the Bonds which would not be required if the Bonds were in definitive form, then the Issuer shall, (subject as mentioned below), within 30 days of the occurrence of such relevant event but not prior to the expiry of a period of 40 days commencing on the date hereof, issue Definitive Bonds (with all unmatured Coupons attached) in exchange for the whole (or the remaining part(s) outstanding) of the Permanent Global Bond. If either of the events mentioned in (i) or (ii) occurs whilst the Bonds are represented by the Temporary Global Bond (or part thereof) the Temporary Global Bond (or that part) shall forthwith be exchanged for the Permanent Global Bond (or part thereof) in accordance with its terms and Clause 3.1 (The Global Bonds) above so that the Bonds are then represented solely by the Permanent Global Bond. All Definitive Bonds shall be printed, proofed, executed and delivered as aforesaid but shall be held by the Principal Paying Agent until a Bondholder requests the Issuer through the Principal Paying Agent that his interest in the Permanent Global Bond be exchanged for Definitive Bonds whereupon such Definitive Bonds shall be issued to such Bondholder as aforesaid without charge. The procedures to be carried out by the relevant parties upon such exchange shall be made in accordance with the provisions of the Permanent Global Bond and the rules and procedures of Euroclear and Clearstream, Luxembourg for the time being. The Permanent Global Bond shall be endorsed by or on behalf of the Principal Paying Agent in respect of those Definitive Bonds which are so delivered.
3.4
The Definitive Bonds
The Definitive Bonds shall be serially numbered and issued in bearer form in the denominations of £100,000 and integral multiples of £1,000 in excess thereof up to and including £199,000 each with all unmatured Coupons attached. The Definitive Bonds and the Coupons will be security printed in accordance with all applicable stock exchange requirements in or substantially in the respective forms set out in Schedule 3 (Form of Definitive Bond) and the Definitive Bonds will be endorsed with the Conditions.
3.5
Entitlement to treat holder as owner
The Issuer, the Trustee and any Paying Agent may deem and treat the holder of any Bond or Coupon (except as ordered by a court of competent jurisdiction or as otherwise required by law) as the absolute owner of such Bond or Coupon (as the case may be) for all purposes (whether or not it is overdue and regardless of any notice of ownership, trust, or any interest in it, any writing on it, or its theft or loss) and no person will be liable for so treating the holder.
4.
STAMP DUTIES AND TAXES

245021-4-4-v5.0
9

70-40727287





4.1
Stamp Duties
The Issuer will pay any stamp, issue, registration, documentary or other taxes and duties, including interest and penalties, payable in Belgium, Luxembourg and the United Kingdom in respect of the creation, issue and offering of the Bonds and the Coupons and the execution or delivery of this Trust Deed. The Issuer will also indemnify the Trustee, the Bondholders and the Couponholders from and against all stamp, issue, registration, documentary or other taxes paid by any of them in any jurisdiction in connection with any action properly taken by or on behalf of the Trustee or, as the case may be, (where entitled under Condition 12 (Enforcement) to do so) the Bondholders or the Couponholders to enforce the obligations of the Issuer under this Trust Deed, the Bonds or the Coupons.
4.2
Change of taxing jurisdiction
If the Issuer becomes subject generally to the taxing jurisdiction of any territory or any authority of or in that territory having power to tax other than or in addition to the United Kingdom or any such authority of or in the United Kingdom then the Issuer will (unless the Trustee otherwise agrees) in a trust deed supplemental hereto give to the Trustee an undertaking in form and manner satisfactory to the Trustee in terms corresponding to the terms of Condition 8 (Taxation) with the substitution for, or (as the case may be) the addition to, the references in that Condition to the United Kingdom or any authority thereof or therein having power to tax of references to that other or additional territory or authority to whose taxing jurisdiction the Issuer has become so subject and in such event this Trust Deed, the Bonds and the Coupons will be read accordingly. In addition, such supplemental Trust Deed shall also modify Condition 7(c) (Redemption for tax reasons) by the substitution for, or (as the case may be) the addition to, the references in that Condition to the United Kingdom or any authority in or of the United Kingdom having power to tax, of references to that other territory or authority to whose taxing jurisdiction the Issuer has become so subject and in such event this Trust Deed, the Bonds and the Coupons will be read accordingly.
4.3
The Issuer shall, within ten business days of a written request by the Trustee, supply to the Trustee such forms, documentation and other information relating to the Issuer, its operations, or the Bonds as the Trustee reasonably requests for the purposes of the Trustee's compliance with applicable law and shall notify the Trustee reasonably promptly in the event that the Issuer becomes aware that any of the forms, documentation or other information provided by the Issuer is (or becomes) inaccurate in any material respect; provided, however, that the Issuer shall not be required to provide any forms, documentation or other information pursuant to this Clause 5.3 to the extent that: (i) any such form, documentation or other information (or the information required to be provided on such form or documentation) is not reasonably available to the Issuer and cannot be obtained by the Issuer using reasonable efforts; or (ii) doing so would or might in the reasonable opinion of the Issuer constitute a breach of any: (a) applicable law; (b) fiduciary duty; or (c) duty of confidentiality.
4.4
Notwithstanding any other provision of this Trust Deed, the Trustee shall be entitled to make a deduction or withholding from any payment which it makes under the Bonds for or on account of any tax, if and only to the extent so required by applicable law, in which event the Trustee shall make such payment after such deduction or withholding

245021-4-4-v5.0
10

70-40727287





has been made and shall account to the relevant authority within the time allowed for the amount so deducted or withheld or, at its option, shall reasonably promptly after making such payment return to the Issuer the amount so deducted or withheld, in which case, the Issuer shall so account to the relevant authority for such amount. The Trustee shall have no obligation to gross-up any payment hereunder or to pay any additional amount as a result of such withholding or deduction.
5.
THE TRUST DEED AND THE BONDS
5.1
Bonds incorporated by reference
The Issuer hereby covenants with the Trustee that it will perform and comply with those provisions of this Trust Deed and the Conditions which are expressed to be binding on it. Subject to Condition 12 (Enforcement), the Trustee shall be entitled to enforce the obligations of the Issuer under the Bonds and the Coupons in the manner therein provided as if the Bonds and the Coupon were incorporated in this Trust Deed, which shall be read and construed as one document with the Bonds. The provisions contained in Schedule 4 (Terms and Conditions of the Bonds) shall have effect in the same manner as if herein set forth.
5.2
Bonds subject to Trust Deed
The Bonds shall be subject to the provisions of this Trust Deed, all of which shall be binding upon the Issuer, the Bondholders and the Couponholders and all persons claiming through or under them respectively.
5.3
Evidence of Default
If the Trustee makes any claim, institutes any legal proceeding or lodges any proof in a winding up of the Issuer, proof that the Issuer has failed to pay any principal or interest due and payable in respect of any particular Bond or Coupon shall (unless the contrary is proved) be sufficient evidence that the Issuer has made the same default as regards all other Bonds or Coupons in respect of which a corresponding payment is due and payable.
6.
APPLICATION OF MONEYS RECEIVED BY THE TRUSTEE
6.1
Declaration of Trust
All moneys received by the Trustee in respect of the Bonds and all other amounts payable under this Trust Deed will be held by the Trustee upon trust to apply them (subject to Clause 6.2 (Accumulation)):
6.1.1
firstly, in payment of all costs, charges, expenses and liabilities incurred by the Trustee in carrying out the preparation and execution of the trusts of this Trust Deed (including remuneration payable to the Trustee);
6.1.2
secondly, in payment of any interest owing in respect of the Bonds pari passu and rateably;
6.1.3
thirdly, in payment of any principal and premium (if any) owing in respect of the Bonds pari passu and rateably, and

245021-4-4-v5.0
11

70-40727287





6.1.4
fourthly, in payment to the Issuer.
Without prejudice to this Clause 6.1, if the Trustee holds any moneys which represent principal, premium or interest in respect of Bonds or Coupons which have become void under Condition 9 (Prescription), the Trustee will hold such moneys upon the above trusts provided that the Trustee shall be required to treat the payments of interest and/or principal and/or premium as having been satisfied and no amounts as outstanding or owing in respect thereof. The Trustee shall as soon as practicable apply such moneys as aforesaid and promptly thereafter return such moneys (or the balance thereof, as the case may be) to the Issuer.
6.2
Accumulation
The Trustee may, at its discretion, accumulate such moneys until the accumulations, together with any other funds for the time being under the control of the Trustee and available for such purpose, amount to at least 10 per cent. of the principal amount of the Bonds then outstanding and then such accumulations and funds (after deduction of, or provision for, any applicable taxes) shall be applied under Clause 6 (Application of Moneys Received by the Trustee). For the avoidance of doubt, the Trustee shall, in no circumstances, have any discretion to invest any moneys referred to in this Clause 6.2 in any investments or other assets.
6.3
Investment
Moneys held by the Trustee may, at its election, be placed on deposit into an account bearing a market rate of interest (and for the avoidance of doubt, the Trustee shall not be required to obtain best rates, be responsible for any loss occasioned by such deposit or exercise any other form of investment discretion with respect to such deposits) in the name or under the control of the Trustee at such bank or other financial institution and in such currency as the Trustee may think fit in light of the cash needs of the transaction and not for purposes of generating income. If such moneys are placed on deposit with a bank or financial institution which is a Subsidiary, holding company, affiliate or associated company of the Trustee, it need only account for an amount of interest equal to the standard amount of interest payable by it on a deposit to an independent customer.
7.
COVENANTS BY THE ISSUER
The Issuer hereby covenants with the Trustee that so long as any Bond is outstanding, the Issuer will:
7.1
Books of account
Keep proper books of account and, at any time after the occurrence of an Event of Default or a Potential Event of Default or if the Trustee has reasonable grounds to believe that any such event has occurred so far as permitted by applicable law, allow and procure that each of its Subsidiaries (if any) will allow the Trustee and anyone appointed by either of them access to the books of account of the Issuer and/or the relevant Subsidiary respectively at all reasonable times during normal business hours and to discuss the same with a responsible officer of the Issuer.
7.2
Notice of Event of Default

245021-4-4-v5.0
12

70-40727287





Notify the Trustee in writing immediately upon becoming aware of the occurrence of any Event of Default or Potential Event of Default and without waiting for the Trustee to take any further action.
7.3
Information
So far as permitted by applicable law and regulations, give to the Trustee such information, opinions, certificates and/or evidence as it shall require and in such form as it shall require (including without limitation the procurement by the Issuer of all such certificates called for by the Trustee pursuant to Clause 9 (Provisions Supplemental to the Trustee Act 1925 and the Trustee Act 2000)) for the performance or the discharge or exercise of their respective duties, powers, trusts, authorities and discretions vested in it under this Trust Deed, the Bonds or the Paying Agency Agreement or by operation of law.
7.4
Financial statements etc.
Send to the Trustee at the time of their publication and in the case of annual financial statements in any event not more than 180 days after the end of each financial year one copy (in the English language) of every balance sheet and income statement prepared (in either case) in accordance with IFRS applied on a consistent basis (unless otherwise stated in the notes thereto) and one copy of every other document issued or sent by the Issuer to the holders of its publicly held securities generally.
7.5
Certificate of director
So long as any Bonds remain outstanding, send to the Trustee, within 14 days of its annual audited balance sheet and income statement being made available to its members, and also within 14 days after any request by the Trustee, a certificate of the Issuer, signed by two directors on behalf of the Issuer to the effect that, having made all reasonable enquiries, as at a date (the "Certification Date") being not more than five days before the date of the certificate no Event of Default or Potential Event of Default had occurred since the date of this Trust Deed or, if later, the Certification Date of the last such certificate (if any) and is continuing or, if such an event had occurred, giving details of it.
7.6
Notices to Bondholders
Send, or procure to be sent, to the Trustee at least five business days before the date of publication, a copy of the form of each notice to the Bondholders to be published in accordance with Condition 14 (Notices) and upon publication two copies of each notice so published, (such notice to be in a form approved by the Trustee such approval not to be unreasonably withheld or delayed), but such approval shall not, unless so stated, constitute approval of such notice for the purposes of section 21 of the FSMA.
7.7
Further assurance
So far as permitted by applicable law, at all times execute all such further documents and do all such further acts and things as may be necessary in the opinion of the Trustee to give effect to the obligations of the Issuer under this Trust Deed.

245021-4-4-v5.0
13

70-40727287





7.8
Notice of non-payment
Use its best efforts to procure that the Principal Paying Agent notifies the Trustee forthwith in accordance with the Paying Agency Agreement in the event that it does not receive unconditionally the full amount in the relevant currency of the moneys payable on the date on which such amount is to be received by the Principal Paying Agent in accordance with the terms of the Paying Agency Agreement.
7.9
Notice of late payment
Give notice to the Bondholders of any unconditional payment to the Principal Paying Agent or the Trustee of any sum due in respect of the Bonds or Coupons made after the due date for such payment.
7.10
Listing
Use all reasonable endeavours to maintain the admission of the Bonds to listing on the Official List of the FCA and to trading on the Regulated Market of the London Stock Exchange plc. If, however, it is unable to do so, having used such endeavours, or if the maintenance of such listing is agreed by the Trustee to be unduly onerous and the Trustee is satisfied that the interests of the Bondholders would not be thereby materially prejudiced, the Issuer will instead use all reasonable endeavours to obtain and maintain a listing or quotation of the Bonds on such other stock exchange (giving notice to the Bondholders of any such new listing), which shall be in any case a "recognised stock exchange" for the purposes of section 1005 of the UK Income Tax Act 2007, as it may (with the written approval of the Trustee) decide, and the Issuer shall also use all reasonable endeavours to procure that there will at all times be furnished to any stock exchange or listing authority on which the Bonds are for the time being listed such information as such stock exchange or listing authority may require to be furnished in accordance with its normal requirements or in accordance with any arrangements for the time being made with any such stock exchange or listing authority.
7.11
Maintenance of Paying Agents
At all times maintain a principal paying agent.
7.12
Change in Agents
Give not less than 14 days' prior notice to the Bondholders of any future appointment or any resignation or removal of any Paying Agent or of any change by any Paying Agent of its specified office and not make any such appointment or removal or change without the written approval of the Trustee.
7.13
Early Redemption
Give prior notice to the Trustee (within the period set out in such Conditions as applicable) of any proposed redemption pursuant to Condition 7(b) (Redemption at the option of the Issuer) or 7(c) (Redemption for tax reasons) and redeem Bonds accordingly.
7.14
Negative Pledge

245021-4-4-v5.0
14

70-40727287





Give notice to the Trustee as soon as practicable after the Issuer has formed the intention to create or permit to arise or subsist any Security Interest to secure any Relevant Indebtedness or any guarantee of or indemnity in respect of any Relevant Indebtedness or becomes aware of the existence of any such Security Interest, in each case where the creation or existence of which would oblige the Security Interest to be extended to the Bonds pursuant to Condition 4 (Negative Pledge).
7.15
Obligations under Paying Agency Agreement
Comply with and perform all its obligations under the Paying Agency Agreement and use all its best endeavours to procure that the Paying Agents comply with and perform all their respective obligations thereunder and any notice given by the Trustee pursuant to sub-clause 2.4.1 of Clause 2.4 (Payment after a Default) and notify the Trustee forthwith on being notified in writing by the relevant Paying Agent of any material breach of the Paying Agency Agreement by such Paying Agent and not make any amendment or modification to such Agreement without the prior written approval of the Trustee.
7.16
List of authorised signatories
Upon the execution of this Trust Deed and thereafter upon any change of the same, deliver to the Trustee (with a copy to the Principal Paying Agent) a list of the Authorised Signatories of the Issuer, together with a certified specimen signature of each such Authorised Signatory.
7.17
Payments
Pay moneys payable by it to the Trustee for the Trustee's own account hereunder without set off, counterclaim, deduction or withholding, unless otherwise compelled by law and in the event of any deduction or withholding compelled by law will pay such additional amount as will result in the payment to the Trustee of the amount which would otherwise have been payable by it to the Trustee hereunder.
7.18
Directors' certificate
Give to the Trustee a certificate of two directors of the Issuer on which the Trustee may conclusively rely without further enquiry:
7.18.1
specifying the aggregate amount of any Relevant Indebtedness of the Issuer or guaranteed by the Issuer or any of its Subsidiaries in respect of which a Security Interest or Security Interests has or have been created or is or are outstanding, such certificate to be provided before the Issuer or such Subsidiary creates or has outstanding any new Security Interest in respect of Relevant Indebtedness;
7.18.2
specifying details of:
(a)
any revocation or surrender or any modification to the terms and conditions of the Issuer's Electricity Distribution Licence which is requisite to the conduct of the Issuer's business at the relevant time; and
(b)
any legislation enacted which removes, qualifies or amends (other than an amendment which is of a formal, minor or technical nature) the duties

245021-4-4-v5.0
15

70-40727287





of the Secretary of State (or any successor) and/or OFGEM under the Electricity Act as in force on the Issue Date; and
7.18.3
at the request of the Trustee confirming any of the matters set out in Condition 10 (Events of Default).
7.19
Rating of the Bonds
Promptly notify the Trustee of any change in the then current rating of the Bonds.
7.20
Certificate of outstandings
In order to enable the Trustee to ascertain the amount of Bonds for the time being outstanding, deliver to the Trustee promptly upon being requested in writing by the Trustee, a certificate in writing signed by two directors of the Issuer on behalf of the Issuer setting out the total number and principal amount of Bonds which as at the date of such certificate have been purchased and not cancelled and are held by or on behalf of the Issuer or any Subsidiary of the Issuer, or Berkshire Hathaway Energy Company or any other Subsidiary of Berkshire Hathaway Energy Company.
8.
REMUNERATION AND INDEMNIFICATION OF THE TRUSTEE
8.1
Normal remuneration
So long as any Bond is outstanding the Issuer will pay to the Trustee by way of remuneration for its services as Trustee such sum as may from time to time be agreed between them. Such remuneration will accrue from day to day from the date of this Trust Deed and shall be payable on such dates as may from time to time be agreed between the Issuer and the Trustee. However, if any payment to a Bondholder or Couponholder of the moneys due in respect of any Bond or Coupon is improperly withheld or refused upon due presentation of such Bond or Coupon, such remuneration will again accrue as from the date of such presentation until payment to such Bondholder or Couponholder is duly made.
8.2
Extra remuneration
At any time after the occurrence of an Event of Default or if the Trustee finds it expedient or necessary or is requested by the Issuer to undertake duties which the Trustee and the Issuer agree to be of an exceptional nature or otherwise outside the scope of the normal duties of the Trustee under this Trust Deed, the Issuer will pay such additional remuneration as may be agreed between them or, failing agreement as to any of the matters in this Clause 8.2 (or as to such sums referred to in Clause 8.1 (Normal remuneration)) as determined by a merchant or investment bank (acting as an expert) selected by the Trustee and approved by the Issuer or, failing such approval, nominated by the President for the time being of The Law Society of England and Wales, the expenses involved in such nomination and the fee of such merchant or investment bank being paid by the Issuer. The determination of such merchant or investment bank will be conclusive and binding on the Issuer, the Trustee, the Bondholders and the Couponholders, save in the case of manifest error.
8.3
Expenses

245021-4-4-v5.0
16

70-40727287





The Issuer will also pay or discharge all fees, costs, charges, liabilities and expenses properly incurred by the Trustee or any receiver (including any VAT) in relation to the preparation and execution of, the exercise of its powers and the performance of its duties under, and in any other manner in relation to, this Trust Deed, the Paying Agency Agreement and the Bonds or the Coupons including but not limited to, legal and travelling expenses and any stamp, issue, registration, documentary or other taxes or duties paid or payable by the Trustee or any receiver in connection with any action taken or contemplated by or on behalf of the Trustee or any receiver in relation to this transaction for enforcing or resolving any doubt concerning, or for any other purpose in relation to, the Trust Deed or the Paying Agency Agreement, the Bonds or the Coupons.
8.4
Payment of expenses
All costs, charges, liabilities and expenses properly incurred and payments properly made by the Trustee in the lawful performance of its functions under this Trust Deed will be payable or reimbursable by the Issuer on demand by the Trustee and:
8.4.1
in the case of payments made by the Trustee prior to such demand will carry interest from the date on which the demand is made at the rate of 2 per cent. per annum over the Trustee's cost of funds on the date on which such payments were made by the Trustee; and
8.4.2
in all other cases will carry interest at such rate from 30 days after the date on which the demand is made or (where the demand specifies that payment is to be made on an earlier date) from such earlier date.
8.5
Indemnity
Subject to the provisions of Clause 10 (Trustee Liable for Negligence), without prejudice to the right of indemnity given by law to trustees, the Issuer will indemnify the Trustee and every receiver, attorney, manager, agent or other person appointed by the Trustee hereunder and keep it or him indemnified in respect of all liabilities and expenses (including any VAT payable) to which it or he may become subject or which may be incurred by it or him in the negotiation and preparation of this Trust Deed and the Paying Agency Agreement and the Bonds or the Coupons and the execution or purported execution or exercise in relation to this transaction of any of its or his trusts, duties, rights, powers, authorities and discretions under this Trust Deed or the Paying Agency Agreement or the Bonds or the Coupons or its or his functions under any such appointment or in respect of any other matter or thing done or omitted in any way relating to this Trust Deed or the Paying Agency Agreement or the Bonds or the Coupons or any such appointment (including, but not limited to, all liabilities, costs, charges and expenses paid or incurred in disputing or defending any of the foregoing).
8.6
Provisions continuing
The provisions of Clauses 8.3 (Expenses), 8.4 (Payment of Expenses) and 8.5 (Indemnity) will continue in full force and effect in relation to the Trustee even if it may have ceased to be Trustee.

245021-4-4-v5.0
17

70-40727287





9.
PROVISIONS SUPPLEMENTAL TO THE TRUSTEE ACT 1925 AND THE TRUSTEE ACT 2000
By way of supplement to the Trustee Act 1925 and the Trustee Act 2000 it is expressly declared as follows:
9.1
Advice
The Trustee may act on the opinion or advice of or report or information obtained from, any lawyer, valuer, accountant (including the Auditors), surveyor, banker, broker, auctioneer or other expert (whether obtained by the Issuer, the Trustee, the Principal Paying Agent, or any other person whatsoever, whether or not addressed to the Trustee, and whether or not the advice, opinion, report or information, or any engagement letter or other related document, contains a monetary or other limit on liability or limits the scope and/or basis of such advice, opinion, report or information) and which opinion, report, information or advice may be provided on such terms (including as to limitations on liability) as the Trustee may consider in its sole discretion to be consistent with prevailing market practice with regard to advice or opinions of that nature and will not be responsible to anyone for any loss occasioned by so acting. Any such opinion, advice or information may be sent or obtained by letter, telex or facsimile transmission and the Trustee will not be liable to anyone for acting in good faith on any opinion, advice or information purporting to be conveyed by such means even if it contains some error or is not authentic.
9.2
Certificates and reports by valuers, Auditors and other experts
The Trustee shall be entitled to rely on any certificate, valuation or report given by the valuers, accountants, financial advisors, the Auditors or other experts approved by the Trustee under any provision of these presents whether or not such certificate, valuation or report is addressed to the Trustee and, if the Trustee does so rely, such certificate, valuation or report shall, save only for manifest error, be conclusive and binding for all the purposes of these presents as between the Trustee, the Bondholders and the Couponholders. The Issuer hereby covenants with the Trustee that it shall use reasonable endeavours to obtain all such certificates, valuations and reports by the valuers, accountants, financial advisors, the Auditors or other experts as the Trustee may reasonably request for the purposes of these presents. The Trustee shall be at liberty to accept any such certificate, report or confirmation notwithstanding that it, or the terms on which it was provided, may contain a limitation on the liability of the valuers or of the Auditors (whether in time, quantum or otherwise) and the Trustee shall not incur any liability to any Bondholders or Couponholders or any other person in connection with the acceptance by it of any such certificate, report or confirmation.
9.3
Trustee to assume due performance
The Trustee need not notify anyone of the execution of this Trust Deed or any related documents or do anything to ascertain whether any Event of Default, Potential Event of Default, Restructuring Event, Negative Rating Event, Rating Downgrade or any event which could lead to the occurrence of or could constitute an Event of Default, a Potential Event of Default, a Restructuring Event, a Negative Rating Event or a Rating Downgrade has occurred and, until it has actual knowledge or express notice pursuant to this Trust

245021-4-4-v5.0
18

70-40727287





Deed to the contrary, the Trustee may assume that no such event has occurred and that the Issuer is performing all of its obligations under this Trust Deed, the Bonds and the Coupons.
9.4
Resolutions of Bondholders
The Trustee will not be responsible for having acted in good faith upon a resolution purporting to be a written resolution or to have been passed at a meeting of Bondholders in respect of which minutes have been made and signed even though it may later be found that there was a defect in the constitution of such meeting or the passing of such resolution or that such resolution was not valid or binding upon the Bondholders or the Couponholders.
9.5
Reliance on certification of clearing system
The Trustee may call for any certificate or other document issued by Euroclear, Clearstream, Luxembourg or any other relevant clearing system to the effect that at any particular time or throughout any particular period any particular person is, was or will be shown in the relevant clearing systems records as having a particular principal or nominal amount of Bonds credited to his securities account. Any such certificate or other document shall, in the absence of manifest error, be conclusive and binding for all purposes. Any such certificate or other document may comprise any form of statement or print out of electronic records provided by the relevant clearing system (including Euroclear's EUCLID or Clearstream, Luxembourg's Cedcom system) in accordance with its usual procedures and in which the holder of a particular principal or nominal amount of the Bonds is clearly identified together with the amount of such holding. The Trustee shall not be liable to any person by reason of having accepted as valid or not having rejected any certificate or other document to such effect purporting to be issued by Euroclear or Clearstream, Luxembourg or any other relevant clearing system and subsequently found to be forged or not authentic.
9.6
Certificate signed by a director or Authorised Signatory
If the Trustee, in the exercise of its functions, requires to be satisfied or to have information as to any fact or the expediency of any act, it may call for and may accept as sufficient evidence of any fact or matter or of the expediency of any act a certificate by any two directors or Authorised Signatories of the Issuer and the Trustee need not call for further evidence and will not be responsible for any loss that may be occasioned by acting on any such certificate.
9.7
Custodians and nominees
The Trustee may appoint and pay any person to act as a custodian or nominee on any terms in relation to such assets of the trust as the Trustee may determine, including for the purpose of depositing with a custodian this Trust Deed or any document relating to the trust created hereunder and the Trustee shall not be responsible for any loss, liability, expense, demand, cost, claim or proceedings incurred by reason of the misconduct, omission or default on the part of any person appointed by it hereunder or be bound to supervise the proceedings or acts of any such person; the Trustee is not obliged to appoint a custodian if the Trustee invests in securities payable to bearer.

245021-4-4-v5.0
19

70-40727287





9.8
Agents
Whenever it considers it expedient in the interests of the Bondholders, the Trustee may, in the conduct of its trust business, instead of acting personally, employ and pay an agent selected by it, whether or not a lawyer or other professional person, to transact or conduct, or concur in transacting or conducting, any business and to do or concur in doing all acts required to be done by the Trustee (including the receipt and payment of money). Provided that it has exercised reasonable care in the selection of such agent the Trustee will not be responsible to anyone for any misconduct or omission on the part of any such agent so employed by it. In any case the Trustee shall not be bound to supervise the proceedings or acts of any such agent.
9.9
Delegation
Whenever it considers it expedient in the interests of the Bondholders, the Trustee may delegate to any person and on any terms (including power to sub-delegate) all or any of its functions. The Trustee will not be under any obligation to supervise such delegate and if the Trustee exercises reasonable care in the selection of such delegate it will not be responsible for any loss, liability, cost, claim, action, demand or expense incurred by reason of any misconduct or default by any such delegate or sub-delegate.
9.10
No obligation to monitor
The Trustee shall be under no obligation to monitor or supervise the functions of any other person under the Bonds or Coupons or any other agreement or document relating to the transactions herein or therein contemplated and shall be entitled, in the absence of actual knowledge of a breach of obligation, to assume that each such person is properly performing and complying with its obligations.
9.11
Bonds held by the Issuer
In the absence of knowledge or express notice to the contrary, the Trustee may assume without enquiry (other than requesting a certificate of the Issuer under Clause 7.20 (Certificate of outstandings)), that no Bonds are for the time being held by or for the benefit of the Issuer or any Subsidiary of the Issuer, or Berkshire Hathaway Energy Company or any other Subsidiary of Berkshire Hathaway Energy Company.
9.12
Forged Bonds
The Trustee will not be liable to the Issuer or any Bondholder or Couponholder by reason of having accepted as valid or not having rejected any Bond or Coupon purporting to be such and later found to be forged or not authentic.
9.13
Confidentiality
Unless ordered to do so by a court of competent jurisdiction the Trustee shall not be required to disclose to any Bondholder or Couponholder any confidential financial or other information made available to the Trustee by the Issuer or any of its Subsidiaries.
9.14
Determinations conclusive

245021-4-4-v5.0
20

70-40727287





As between itself and the Bondholders and Couponholders the Trustee may determine all questions and doubts arising in relation to any of the provisions of this Trust Deed. Every such determination, whether made upon such a question actually raised or implied in the acts or proceedings of the Trustee, will be conclusive and shall bind the Trustee, the Bondholders and the Couponholders.
9.15
Currency conversion
Where it is necessary or desirable to convert any sum from one currency to another, it will (unless otherwise provided hereby or required by law) be converted at such rate or rates, in accordance with such method and as at such date as may be specified by the Trustee but having regard to current rates of exchange, if available. Any rate, method and date so specified will be binding on the Issuer, the Bondholders and the Couponholders. This Clause 9.15 applies both to actual conversions and to notional conversions made for the purposes of establishing the equivalent of a sum in one currency in another currency.
9.16
Events of Default
The Trustee may determine whether or not a default in the performance or observance by the Issuer of any of its obligations under this Trust Deed or contained in the Bonds or Coupons is in its opinion capable of remedy and/or whether or not any event is in its opinion materially prejudicial to the interests of the Bondholders. Any such determination will be conclusive and binding upon the Issuer, the Bondholders and the Couponholders.
9.17
Right to deduct or withhold
Notwithstanding anything contained in this Trust Deed, to the extent required by any applicable law, if the Trustee is or will be required to make any deduction or withholding from any distribution or payment made by it hereunder or if the Trustee is or will be otherwise charged to, or is or may become liable to, tax as a consequence of performing its duties hereunder whether as principal, agent or otherwise, and whether by reason of any assessment, prospective assessment or other imposition of liability to taxation of whatsoever nature and whensoever made upon the Trustee, and whether in connection with or arising from any sums received or distributed by it or to which it may be entitled under this Trust Deed (other than in connection with its remuneration as provided for herein) or any investments or deposits from time to time representing the same, including any income or gains arising therefrom or any action of the Trustee in connection with the trusts of this Trust Deed (other than the remuneration herein specified) or otherwise, then the Trustee shall be entitled to make such deduction or withholding or, as the case may be, to retain out of sums received by it an amount sufficient to discharge any liability to tax which relates to sums so received or distributed or to discharge any such other liability of the Trustee to tax from the funds held by the Trustee upon the trusts of this Trust Deed.
9.18
Payment for and delivery of Bonds
The Trustee will not be responsible for the receipt or application by the Issuer of the proceeds of the issue of the Bonds, the exchange of the Temporary Global Bond for the

245021-4-4-v5.0
21

70-40727287





Permanent Global Bond or of the Permanent Global Bond for any Definitive Bonds or the delivery of Definitive Bonds to the persons entitled to them.
9.19
Responsibility
The Trustee assumes no responsibility for the correctness of Recital (A) to this Trust Deed which shall be taken as a statement by the Issuer, nor shall the Trustee by the execution of these presents be deemed to make any representation as to the validity, sufficiency or enforceability of this Trust Deed or any part thereof and makes no representation with respect thereto.
9.20
Trustee's discretion
Save as expressly otherwise provided in this Trust Deed (including the Conditions), the Trustee shall have absolute and uncontrolled discretion as to the exercise or non-exercise of its trusts, powers, authorities and discretions under these presents (the exercise or non-exercise of which as between the Trustee, the Bondholders and the Couponholders shall be conclusive and binding on the Bondholders and Couponholders) and, subject to Clause 10 (Trustee Liable for Negligence), shall not be responsible for any loss, liability, cost, claim, action, demand, expense or inconvenience which may result from their exercise or non-exercise.
9.21
Consents
Save as expressly otherwise provided in this Trust Deed (including the Conditions), any consent or approval given by the Trustee for the purposes of this Trust Deed may be given on such terms and subject to such conditions (if any) as the Trustee thinks fit and notwithstanding anything to the contrary in this Trust Deed may be given retrospectively.
9.22
Error of judgement
The Trustee shall not be liable for any error of judgement made in good faith by any officer or employee of the Trustee assigned by the Trustee to administer its corporate trust matters.
9.23
Professional charges
Any trustee of this Trust Deed being a lawyer, accountant, broker or other person engaged in any professional or business shall be entitled to charge and be paid all usual professional and other charges for business transacted and acts done by him or his firm in connection with the trusts of this Trust Deed and also his reasonable charges in addition to disbursements for all other work and business done and all time spent by him or his firm in connection with matters arising in connection with this Trust Deed.
9.24
Bondholders as a class
In connection with the exercise of its trusts, powers or discretions (including but not limited to those in relation to any proposed modification, waiver, authorisation, or substitution) the Trustee shall have regard to the general interests of the Bondholders as a class and, in particular, but without limitation, shall not have regard to the consequences of such exercise for individual Bondholders and Couponholders resulting from their

245021-4-4-v5.0
22

70-40727287





being for any purpose domiciled or resident in, or otherwise connected with, or subject to the jurisdiction of, any particular territory and the Trustee shall not be entitled to require, nor shall any Bondholder or Couponholder be entitled to claim, from the Issuer or the Trustee any indemnification or payment in respect of any tax consequences of any such exercise upon individual Bondholders or Couponholders except to the extent provided for in Condition 8 (Taxation) and/or any undertaking given in addition to, or in substitution for, Condition 8 (Taxation) pursuant to this Trust Deed.
9.25
Ratings
The Trustee shall have no responsibility for the maintenance of any rating of the Bonds by any rating agency or any other person.
9.26
Validity of documents
The Trustee shall not be responsible for, or for investigating any matter which is the subject of, any recital, statement, representation, warranty or covenant of any person contained in this Trust Deed, the Bonds, or any other agreement or document relating to the transactions herein or therein contemplated or for the execution, delivery, legality, effectiveness, adequacy, genuineness, validity enforceability or admissibility in evidence of this Trust Deed or any other document relating or expressed to be supplemental thereto and shall not be liable for any failure to obtain any licence, consent or other authority for the execution, delivery, legality, effectiveness, adequacy, genuineness, validity, performance, enforceability or admissibility in evidence of this Trust Deed or any other document relating to or expressed to be supplemental thereto.
9.27
Listing Rules
Nothing in this Trust Deed shall require the Trustee to assume an obligation of the Issuer arising under any provisions of the listing, prospectus, disclosure or transparency rules (or equivalent rules of any other competent authority besides the FCA).
9.28
FSMA
9.28.1
Notwithstanding anything in the Trust Deed or the Paying Agency Agreement or the Bonds to the contrary, the Trustee shall not do, or be authorised or required to do, anything which might constitute a regulated activity for the purpose of FSMA, unless it is authorised under FSMA to do so.
9.28.2
The Trustee shall have the discretion at any time:
(a)
to delegate any of the functions which fall to be performed by an authorised person under FSMA to any other agent or person which also has the necessary authorisations and licences; and
(b)
to apply for authorisation under FSMA and perform any or all such functions itself if, in its absolute discretion, it considers it necessary, desirable or appropriate to do so.
9.29
Disapplication

245021-4-4-v5.0
23

70-40727287





9.29.1
Section 1 of the Trustee Act 2000 shall not apply to the duties of the Trustee in relation to the trusts constituted by this Trust Deed. Where there are any inconsistencies between the Trustee Acts and the provisions of this Trust Deed, the provisions of this Trust Deed shall, to the extent allowed by law, prevail and, in the case of any such inconsistency with the Trustee Act 2000, the provisions of this Trust Deed shall constitute a restriction or exclusion for the purposes of that Act.
9.29.2
Nothing contained in the Trust Deed or the Paying Agency Agreement or the Bonds shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of its duties or the exercise of any right, power, authority or discretion hereunder if it has grounds for believing the repayment of such funds or adequate indemnity against, or security for, such risk or liability is not reasonably assured to it.
9.29.3
Notwithstanding anything else contained in the Trust Deed or the Paying Agency Agreement or the Bonds, the Trustee may refrain from (a) doing anything which would or might in its opinion be illegal or contrary to any law of any jurisdiction or any directive or regulation of any agency of any state (including, without limitation, Section 619 of the Dodd-Frank Wall Street Reform and Consumer Protection Act), or which would or might otherwise render it liable to any person and may do anything which is, in its opinion, necessary to comply with any such law, directive or regulation or (b) doing anything which may cause the Trustee to be considered a sponsor of a covered fund under Section 619 of the Dodd-Frank Wall Street Reform and Consumer Protection Act and any regulations promulgated thereunder.
9.29.4
In relation to any discretion to be exercised or action to be taken by the Trustee under the Trust Deed or the Paying Agency Agreement or the Bonds, the Trustee may, at its discretion and without further notice or shall, if it has been so directed by an Extraordinary Resolution of the Bondholders then outstanding or so requested in writing by the holders of at least 25 per cent. in principal amount of such Bonds, exercise such discretion or take such action, provided that, in either case, the Trustee shall not be obliged to exercise such discretion or take such action unless it shall have been indemnified, secured and/or prefunded to its satisfaction against all liabilities and provided that the Trustee shall not be held liable to the Bondholders for the consequences of exercising its discretion or taking any such action and may do so without having regard to the effect of such action on individual Bondholders or Couponholders.
10.
TRUSTEE LIABLE FOR NEGLIGENCE
Subject to Sections 750 and 751 of the Companies Act 2006 (if applicable) and notwithstanding anything to the contrary in this Trust Deed, the Bonds or the Paying Agency Agreement:
10.1.1
the Trustee shall not be liable to any person for any matter or thing done or omitted in any way in connection with or in relation to this Trust Deed, the Bonds or the Paying Agency Agreement save in relation to its own gross negligence, wilful default, or fraud; and

245021-4-4-v5.0
24

70-40727287





10.1.2
nothing in this Trust Deed, the Bonds or the Paying Agency Agreement shall relieve the Trustee of any liability which would otherwise attach to it in respect of its own gross negligence, wilful default, or fraud,
in each case having regard to the provisions of this Trust Deed, the Bonds and the Paying Agency Agreement conferring on it any trusts, powers, authorities or discretions.
11.
CONSEQUENTIAL LOSS
Any liability of the trustee arising out of the Trust Deed, the Bonds, the Coupons and the Paying Agency Agreement shall be limited to the amount of actual loss suffered (such loss shall be determined as at the date of default of the Trustee or, if later, the day on which the loss arises as a result of such default) but without reference to any special conditions or circumstances known to the Trustee at the time of entering into the Trust Deed, the Bonds, the Coupons and the Paying Agency Agreement, or at the time of accepting any relevant instructions, which increases the amount of the loss. In no event shall the Trustee be liable for any loss of profits, goodwill, reputation, business opportunity or anticipated saving, or for special, punitive or consequential damages, whether or not the Trustee has been advised of the possibility of such loss or damages.
12.
WAIVER
12.1
Waiver
The Trustee may, other than in respect of Reserved Matters (as specified and defined in Schedule 5 (Provisions for Meetings of Bondholders)), without the consent of the Bondholders or Couponholders and without prejudice to its rights in respect of any subsequent breach, from time to time and at any time, if in its opinion the interests of the Bondholders will not be materially prejudiced thereby, waive or authorise, on such terms and conditions as seems expedient to it, any breach or proposed breach by the Issuer of any of the provisions of this Trust Deed or the Conditions or determine that any event, condition or act which would otherwise be an Event of Default or Potential Event of Default or Restructuring Event shall not be treated as such provided that it will not do so in contravention of any express direction given by any Extraordinary Resolution or a written request made pursuant to Condition 10 (Events of Default) but no such direction or request will affect any previous waiver, authorisation or determination. Any such waiver, authorisation or determination will be binding on the Bondholders and the Couponholders and, if the Trustee so requires, will be notified to the Bondholders as soon as practicable.
12.2
Enforcement proceedings
At any time after amounts in respect of principal of and interest on the Bonds shall have become due and payable but are unpaid, the Trustee may, at its discretion, and without further notice but subject as mentioned below, take such proceedings against, the Issuer as it may think fit to enforce the provisions of this Trust Deed in accordance with the terms hereof.
The Trustee shall only be bound to take proceedings pursuant to this Clause 12.2 if (i) it has been indemnified and/or prefunded and/or secured to its satisfaction against all

245021-4-4-v5.0
25

70-40727287





liabilities, proceedings, claims and demands to which it may thereby become liable and all costs, charges and expenses which may be incurred by it in connection therewith and provided that the Trustee shall not be held liable for the consequence of taking any such action on individual Bondholders or Couponholders and (ii) it has been so requested in writing by the holders of not less than 25 per cent. of the principal amount outstanding of the Bonds or has been so directed by an Extraordinary Resolution.
12.3
No action by Bondholders or Couponholders
Only the Trustee may pursue the remedies available under general law or under this Trust Deed to enforce the rights of the Bondholders or Couponholders and no such holder will be entitled to proceed against the Issuer unless the Trustee, having become bound to act in accordance with the terms of this Trust Deed, fails to do so within a reasonable amount of time and such failure is continuing.
13.
TRUSTEE NOT PRECLUDED FROM ENTERING INTO CONTRACTS
No person, whether acting for itself or in any other capacity, will be precluded from becoming the owner of, or acquiring any interest in, holding or disposing of any Bond or Coupon or any shares or securities of the Issuer or any of its subsidiaries, holding or associated companies with the same rights as it would have had if the Trustee were not Trustee or from entering into or being interested in any contracts or transactions with the Issuer or its Subsidiary, holding or associated companies or from acting on, or as depositary or agent for, any committee or body of holders of any securities of the Issuer or its Subsidiary, holding or associated companies and will not be liable to account for any profit.
14.
MODIFICATION AND SUBSTITUTION
14.1
Modification
The Trustee may, without the consent of the Bondholders or Couponholders, agree (i) to any modification to the provisions of this Trust Deed or the Conditions which is of a formal, minor or technical nature or is made to correct a manifest error or (ii) other than in respect of Reserved Matters (as specified and defined in Schedule 5 (Provisions for Meetings of Bondholders)) to any modification to the provisions of this Trust Deed or the Conditions which is in its opinion not materially prejudicial to the interests of the Bondholders provided that it will not do so in contravention of any express direction given by any Extraordinary Resolution or a written request made pursuant to Condition 10 (Events of Default) but no such direction or request will affect any previous waiver, authorisation or determination. Any such modification shall be binding on the Bondholders and the Couponholders and, unless the Trustee agrees otherwise, the Issuer shall cause such modification to be notified to the Bondholders as soon as practicable thereafter in accordance with the Conditions.
14.2
Substitution
14.2.1
The Trustee may, without the consent of the Bondholders or Couponholders, agree with the Issuer to the substitution of any wholly-owned Subsidiary of the Issuer (the "Substituted Obligor") in place of the Issuer (or of any previous

245021-4-4-v5.0
26

70-40727287





substitute under this sub-clause 14.2.1) as the principal debtor under this Trust Deed, the Bonds and the Coupons provided that, in the opinion of the Trustee, the interests of the Bondholders will not be materially prejudiced thereby and also provided that:
(a)
a trust deed is executed or some other form of undertaking is given by the Substituted Obligor to the Trustee, in form and manner satisfactory to the Trustee, agreeing to be bound by the terms of this Trust Deed, the Bonds and the Coupons with any consequential amendments which the Trustee may deem appropriate as fully as if the Substituted Obligor had been named in this Trust Deed and on the Bonds and Coupons as the principal debtor in place of the Issuer (or any previous substitute under this Clause);
(b)
the Issuer and the Substituted Obligor execute such other deeds, documents and instruments (if any) as the Trustee may require in order that the substitution is fully effective in relation to the obligations of the Substituted Obligor and comply with such other requirements as the Trustee may direct in the interests of the Bondholders;
(c)
the Trustee is satisfied that (i) the Substituted Obligor has obtained all governmental and regulatory approvals and consents necessary for its assumption of liability as principal debtor in respect of the Bonds and the Coupons in place of the Issuer (or such previous substitute as aforesaid) and (ii) such approvals and consents are at the time of substitution in full force and effect;
(d)
where the Substituted Obligor is subject generally to the taxing jurisdiction of any territory or any authority of or in that territory having power to tax (the "Substituted Territory") other than the territory to the taxing jurisdiction of which (or to any such authority of or in which) the Issuer is subject generally (the "Issuer's Territory") the Substituted Obligor will (unless the Trustee otherwise agrees) give to the Trustee an undertaking in form and manner satisfactory to the Trustee in terms corresponding to the terms of Condition 8 (Taxation) with the substitution for the references in that Condition to the Issuer's Territory of references to the Substituted Territory and Condition 7(c) (Redemption for tax reasons) shall be modified accordingly; and in such event the Trust Deed, the Bonds and the Coupons will be read accordingly;
(e)
if any two of the directors of the Substituted Obligor certify that it will be solvent immediately after such substitution, the Trustee need not have regard to the financial condition, profits or prospects of the Substituted Obligor or compare them with those of the Issuer; and
(f)
(unless the Issuer's successor in business is the Substituted Obligor) the obligations of the Substituted Obligor under this Trust Deed, the Bonds and the Coupons are unconditionally and irrevocably guaranteed by the Issuer in form and manner satisfactory to the Trustee.

245021-4-4-v5.0
27

70-40727287





14.2.2
Release of Substituted Issuer: Any such agreement by the Trustee pursuant to this Clause 14.2 will, if so expressed, operate to release the Issuer (or any such previous substitute) from any or all of its obligations under this Trust Deed, the Bonds and the Coupons. Not later than 14 days after the execution of any such documents and after compliance with such requirements, notice of the substitution will be given to the Bondholders.
14.2.3
Completion of Substitution: Upon the execution of such documents and compliance with such requirements, the Substituted Obligor will be deemed to be named in this Trust Deed and on the Bonds and Coupons as the principal debtor in place of the Issuer (or of any previous substitute under this Clause 14.2) and this Trust Deed, the Bonds, the Coupons and the Paying Agency Agreement will be deemed to be modified in such manner as shall be necessary to give effect to the substitution and without prejudice to the generality of the foregoing any references in this Trust Deed, the Bonds, the Coupons or the Paying Agency Agreement to the Issuer shall be deemed to be references to the Substituted Obligor.
15.
APPOINTMENT, RETIREMENT AND REMOVAL OF THE TRUSTEE
15.1
Appointment
The Issuer will have the power of appointing new trustees but no person will be so appointed unless previously approved by an Extraordinary Resolution. A trust corporation may be appointed sole trustee hereof but subject thereto there shall be at least two trustees hereof one at least of which shall be a trust corporation. Any appointment of a new Trustee will be notified by the Issuer to the Bondholders as soon as practicable. The Bondholders shall together have the power exercisable by an Extraordinary Resolution, to remove any trustee or trustees for the time being hereof. The removal of any trustee shall not become effective unless there remains a trustee hereof (being a trust corporation) in office after such removal.
15.2
Retirement and removal
Any Trustee for the time being of this Trust Deed may retire at any time giving not less than three calendar months' notice in writing to the Issuer without assigning any reason therefor and without being responsible for any costs occasioned by such retirement. The Trustee may not resign its appointment unless there remains a trustee hereof (being a trust corporation) in office after such retirement. If a sole trustee or sole trust corporation gives notice of retirement or an Extraordinary Resolution is passed for its removal under this Clause 15.2, the Issuer will use its best endeavours to procure that another trust corporation be appointed as Trustee provided that if, having given notice in writing to the Issuer of its intention to resign its appointment, a successor is not appointed within 30 days before the expiry of such notice then, in that case, the Trustee shall be entitled to procure forthwith a new Trustee. The Bondholders may by Extraordinary Resolution remove any Trustee provided that the retirement or removal of any sole trustee or sole trust corporation will not become effective until a trust corporation is appointed as successor Trustee.
15.3
Co-Trustees

245021-4-4-v5.0
28

70-40727287





The Trustee may, despite Clause 15.1 (Appointment), by notice in writing to the Issuer but without the consent of the Issuer or the Bondholders appoint anyone to act as a separate trustee or as a co-trustee in either case jointly with the Trustee:
15.3.1
if the Trustee considers such appointment to be in the interests of the Bondholders and/or the Couponholders;
15.3.2
for the purpose of conforming with any legal requirement, restriction or condition in any jurisdiction in which any particular act is to be performed; or
15.3.3
for the purpose of obtaining a judgment in any jurisdiction or the enforcement in any jurisdiction against the Issuer of either a judgment already obtained or any of the provisions of this Trust Deed.
Subject to the provisions of this Trust Deed the Trustee may confer on any person so appointed such functions as it thinks fit. The Trustee may by notice in writing to the Issuer and such person remove any person so appointed. At the request of the Trustee, the Issuer, as applicable, will forthwith do all things as may be required to perfect such appointment or removal and it irrevocably appoints the Trustee to be its attorney in its name and on its behalf to do so. Such proper remuneration as the Trustee may pay to such separate trustee or co-trustee, together with any attributable costs, charges and expenses incurred by it in performing its function as a separate trustee or co-trustee, shall for the purposes of this Trust Deed be treated as costs and expenses incurred by the Trustee.
15.4
Competence of a majority of Trustees
If there are more than two Trustees the majority of such Trustees will (provided such majority includes a trust corporation) be competent to carry out all or any of the Trustee's functions.
15.5
Powers additional
The powers conferred by this Trust Deed upon the Trustee shall be in addition to any powers which may from time to time be vested in it by general law or as the holder of any of the Bonds or Coupons.
16.
COUPONS
16.1
Notices
Neither the Trustee nor the Issuer need give any notice to the Couponholders and the Couponholders will be deemed to have notice of the contents of any notice given to the Bondholders in accordance with the Conditions.
16.2
Bondholders assumed to hold Coupons
Even if it has express notice to the contrary, whenever the Trustee is required to exercise any of its functions by reference to the interests of the Bondholders, the Trustee will assume that each Bondholder is the holder of all Coupons appertaining to each Bond of which he is the bearer. The holders of Coupons shall be bound by and subject to the

245021-4-4-v5.0
29

70-40727287





terms of this Trust Deed to the same extent as if they were Bondholders; provided that no holder of a Coupon shall have any right of action by virtue of this Trust Deed or its holding of such Coupon.
17.
CURRENCY INDEMNITY
17.1
Currency of account and payment
Sterling (the "Contractual Currency") is the sole currency of account and payment for all sums payable by the Issuer under or in connection with this Trust Deed, the Bonds and the Coupons, including damages.
17.2
Extent of discharge
Any amount received or recovered in a currency other than the Contractual Currency (whether as a result of, or of the enforcement of, a judgment or order of a court of any jurisdiction, in the winding-up or dissolution of the Issuer or otherwise), by the Trustee any Bondholder or Couponholder in respect of any sum expressed to be due to it from the Issuer will only constitute a discharge to the Issuer to the extent of the Contractual Currency amount which the recipient is able to purchase with the amount so received or recovered in that other currency on the date of that receipt or recovery (or, if it is not practicable to make that purchase on that date, on the first date on which it is practicable to do so).
17.3
Indemnities
If that Contractual Currency amount is less than the Contractual Currency amount expressed to be due to the recipient under this Trust Deed, the Bonds or the Coupons, the Issuer will indemnify it against any loss sustained by it as a result. In any event, the Issuer will indemnify the recipient against the cost of making any such purchases.
17.4
Indemnities separate
These indemnities constitute a separate and independent obligation from the other obligations in this Trust Deed, will give rise to a separate and independent cause of action, will apply irrespective of any indulgence granted by the Trustee and/or any Bondholder or Couponholder and will continue in full force and effect despite any judgment, order, claim or proof for a liquidated amount in respect of any sum due under this Trust Deed, the Bonds and/or the Coupons or any judgment or order. No proof of evidence of any actual loss may be required.
17.5
Merger
Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this Trust Deed, without the execution or filing of any paper or any further act on the part of any of the parties hereto.

245021-4-4-v5.0
30

70-40727287





18.
COMMUNICATIONS
Any notices and communications hereunder shall be made in writing (by letter or fax) and shall be sent as follows:
18.1.1
in the case of the Issuer, to it:
Lloyds Court
78 Grey Street
Newcastle-upon-Tyne NE1 6AF
Fax no:    + 44 191 223 5165
Attention:    Finance Director
18.1.2
in the case of the Trustee, to it at:
8 Canada Square
London
E14 5HQ
United Kingdom
Fax no.    +44 20 7991 4350
Attention:    Issuer Services Trustee Administration
or, in any case, to such other address or fax number or for the attention of such other person or department as the addressee has by prior notice to the sender specified for the purpose.
Every notice or communication sent in accordance with this Clause 18 shall be effective, if sent by letter or fax, upon receipt by the addressee; provided, however, that any such notice or communication which would otherwise take effect after 4.00 p.m. on any particular day, or on a non-business day in the place of the addressee, shall not take effect until 10.00 a.m. on the immediately succeeding business day in the place of the addressee.
19.
GOVERNING LAW
This Trust Deed, and any issues or disputes arising out of or in connection with it (whether such disputes are contractual or non-contractual in nature) should be governed by and construed in accordance with English law.
20.
JURISDICTION
20.1
English courts
The courts of England have exclusive jurisdiction to settle any dispute (a "Dispute"), arising from or connected with this Trust Deed or the Bonds (including a dispute relating to non-contractual obligations arising from or in connection with this Trust Deed or the Bonds, or a dispute regarding the existence, validity or termination of this Trust Deed or the Bonds) or the consequences of their nullity.
20.2
Appropriate forum

245021-4-4-v5.0
31

70-40727287





The parties agree that the courts of England are the most appropriate and convenient courts to settle any Dispute and, accordingly, that they will not argue to the contrary.
20.3
Rights of the Trustee and Bondholders to take proceedings outside England
Clause 20.1 (English courts) is for the benefit of the Trustee and the Bondholders only. As a result, nothing in this Clause 20 prevents the Trustee or, without prejudice to Clause 12.3, any of the Bondholders from taking proceedings relating to a Dispute ("Proceedings") in any other courts with jurisdiction. To the extent allowed by law, the Trustee or any of the Bondholders may take concurrent Proceedings in any number of jurisdictions.
21.
SEVERABILITY
In case any provision in or obligation under this Trust Deed shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby.
22.
SANCTIONS
22.1
In connection with HSBC Group's commitment to comply with all applicable sanctions regimes, the Trustee and any affiliate or subsidiary of HSBC Holdings plc may take any action in its sole and absolute discretion that it considers appropriate to comply with any law, regulation, request of a public or regulatory authority, any agreement between any member of the HSBC Group and any government authority or any HSBC Group policy that relates to the prevention of fraud, money laundering, terrorism, tax evasion, evasion of economic or trade sanctions or other criminal activities (collectively the "Relevant Requirements").
Such action may include, but is not limited to,
22.1.1
screening, intercepting and investigating any transaction, instruction or communication, including the source of, or intended recipient of, funds;
22.1.2
delaying or preventing the processing of instructions or transactions or the Trustee's performance of its obligations under this Deed;
22.1.3
the blocking of any payment; or
22.1.4
requiring the Issuer to enter into a financial crime compliance representations letter from time to time in a form and substance reasonably acceptable to the HSBC Group.
22.2
Where possible and permitted, the Trustee will endeavour to notify the Issuer of the existence of such circumstances. To the extent permissible by law, neither the Trustee nor any member of the HSBC Group will be liable for loss (whether direct or consequential and including, without limitation, loss of profit or interest) or damage suffered by any party arising out of, or caused in whole or in part by, any actions that are taken by the Trustee or any other member of the HSBC Group to comply with any Relevant Requirement.

245021-4-4-v5.0
32

70-40727287





In this Clause 22, "HSBC Group" means HSBC Holdings plc together with its subsidiary undertakings from time to time.
23.
CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
No person shall have any right to enforce any provision of this Trust Deed under the Contracts (Rights of Third Parties) Act 1999.
24.
COUNTERPARTS
This Trust Deed may be executed in any number of counterparties and by the parties hereto on separate counterparts, each of which shall be an original, but all the counterparts shall together constitute one and the same instrument.
IN WITNESS WHEREOF this Trust Deed has been executed as a deed by the parties hereto and is intended to be and is hereby delivered the day and year first before written.

245021-4-4-v5.0
33

70-40727287





Schedule 1
FORM OF TEMPORARY GLOBAL BOND
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
ISIN: XS2063285923
NORTHERN POWERGRID (YORKSHIRE) PLC
(incorporated with limited liability under
the laws of England and Wales with registered number 04112320)
£300,000,000
2.250 per cent. Bonds due 2059
TEMPORARY GLOBAL BOND
1.
INTRODUCTION
This Temporary Global Bond is issued in respect of the £300,000,000 2.250 per cent. Bonds due 2059 (the "Bonds") of Northern Powergrid (Yorkshire) plc (the "Issuer"). The Bonds are subject to, and have the benefit of, a trust deed dated 9 October 2019 (as amended or supplemented from time to time, the "Trust Deed") between the Issuer and HSBC Corporate Trustee (UK) Limited as trustee (the "Trustee", which expression includes all persons for the time being appointed trustee or trustees under the Trust Deed) and are the subject of a paying agency agreement dated 9 October 2019 (as amended or supplemented from time to time, the "Paying Agency Agreement") and made between the Issuer, HSBC Bank plc as principal paying agent (the "Principal Paying Agent", which expression includes any successor principal paying agent appointed from time to time in connection with the Bonds), the other paying agent named therein (together with the Principal Paying Agent, the "Paying Agents", which expression includes any successor or additional paying agents appointed from time to time in connection with the Bonds) and the Trustee.
2.
REFERENCES TO CONDITIONS
Any reference herein to the "Conditions" is to the terms and conditions of the Bonds set out in Schedule 4 (Terms and Conditions of the Bonds) of the Trust Deed and any reference to a numbered "Condition" is to the correspondingly numbered provision thereof. Words and expressions defined in the Conditions shall have the same meanings when used in this Temporary Global Bond.
3.
PROMISE TO PAY
The Issuer, for value received, promises to pay to the bearer of this Temporary Global Bond the principal sum of

245021-4-4-v5.0
34

70-40727287





£300,000,000
(Three Hundred Million Pounds Sterling)
on 9 October 2059 or on such earlier date or dates as the same may become payable in accordance with the Conditions, and to pay interest on such principal sum in arrear on the dates and at the rate specified in the Conditions, together with any additional amounts payable in accordance with the Conditions, all subject to and in accordance with the Conditions; provided, however, that such interest shall be payable only:
3.1
in the case of interest falling due before the Exchange Date (as defined below), to the extent that a certificate or certificates issued by Euroclear Bank SA/NV as operator of the Euroclear System ("Euroclear") and/or Clearstream Banking, S.A. ("Clearstream, Luxembourg") dated not earlier than the date on which such interest falls due and in substantially the form set out in Schedule 3 (Form of Euroclear/Clearstream, Luxembourg Certification) hereto is/are delivered to the Specified Office (as defined in the Conditions) of the Principal Paying Agent; or
3.2
in the case of interest falling due at any time, to the extent that the Issuer has failed to procure the exchange for a permanent global bond of that portion of this Temporary Global Bond in respect of which such interest has accrued.
4.
NEGOTIABILITY
This Temporary Global Bond is negotiable and, accordingly, title to this Temporary Global Bond shall pass by delivery.
5.
EXCHANGE
On or after the day following the expiry of 40 days after the date of issue of this Temporary Global Bond (the "Exchange Date"), the Issuer shall procure (in the case of first exchange) the delivery of a permanent global bond (the "Permanent Global Bond") in substantially the form set out in Schedule 2 (Form of Permanent Global Bond) to the Trust Deed to the bearer of this Temporary Global Bond or (in the case of any subsequent exchange) an increase in the principal amount of the Permanent Global Bond in accordance with its terms against:
5.1
presentation and (in the case of final exchange) surrender of this Temporary Global Bond at the specified office of the Principal Paying Agent; and
5.2
receipt by the Principal Paying Agent of a certificate or certificates issued by Euroclear and/or Clearstream, Luxembourg dated not earlier than the Exchange Date and in substantially the form set out in Schedule 3 (Form of Euroclear/Clearstream, Luxembourg Certification) hereto.
The principal amount of the Permanent Global Bond shall be equal to the aggregate of the principal amounts specified in the certificates issued by Euroclear and/or Clearstream, Luxembourg and received by the Principal Paying Agent; provided, however, that in no circumstances shall the principal amount of the Permanent Global Bond exceed the initial principal amount of this Temporary Global Bond.

245021-4-4-v5.0
35

70-40727287





6.
WRITING DOWN
On each occasion on which:
6.1
the Permanent Global Bond is delivered or the principal amount thereof is increased in accordance with its terms in exchange for a further portion of this Temporary Global Bond; or
6.2
Bonds represented by this Temporary Global Bond are to be cancelled in accordance with Condition 7(e) (Redemption and Purchase - Cancellation),
the Issuer shall procure that (a) the principal amount of the Permanent Global Bond, the principal amount of such increase or (as the case may be) the aggregate principal amount of such Bonds and (b) the remaining principal amount of this Temporary Global Bond (which shall be the previous principal amount hereof less the aggregate of the amounts referred to in (a)) are noted in Schedule 1 (Payments, Exchange and Cancellation of Bonds) hereto, whereupon the principal amount of this Temporary Global Bond shall for all purposes be as most recently so noted.
7.
PAYMENTS
All payments in respect of this Temporary Global Bond shall be made against presentation and (in the case of payment of principal in full with all interest accrued thereon) surrender of this Temporary Global Bond at the Specified Office of any Paying Agent and shall be effective to satisfy and discharge the corresponding liabilities of the Issuer in respect of the Bonds. On each occasion on which a payment of interest is made in respect of this Temporary Global Bond, the Issuer shall procure that the same is noted in Schedule 1 (Payments, Exchange and Cancellation of Bonds) hereto.
8.
CONDITIONS APPLY
Until this Temporary Global Bond has been exchanged as provided herein or cancelled in accordance with the Paying Agency Agreement, the bearer of this Temporary Global Bond shall be subject to the Conditions and, subject as otherwise provided herein, shall be entitled to the same rights and benefits under the Conditions as if the bearer were the holder of Bonds in definitive form in substantially the form set out in Schedule 3 (Form of Definitive Bond) to the Trust Deed and the related interest coupons in the denomination of £100,000 and integral multiples of £1,000 in excess thereof and in an aggregate principal amount equal to the principal amount of this Global Bond.
9.
NOTICES
Notwithstanding Condition 14 (Notices), while all the Bonds are represented by this Temporary Global Bond (or by this Temporary Global Bond and the Permanent Global Bond) and this Temporary Global Bond is (or this Temporary Global Bond and the Permanent Global Bond are) deposited with a common depositary for Euroclear and Clearstream, Luxembourg, notices to Bondholders may be given by delivery of the relevant notice to Euroclear and Clearstream, Luxembourg and, in any case, such notices shall be deemed to have been given to the Bondholders in accordance with the Condition 14 (Notices) on the date of delivery to Euroclear and Clearstream, Luxembourg.

245021-4-4-v5.0
36

70-40727287





10.
AUTHENTICATION
This Temporary Global Bond shall not be valid for any purpose until it has been authenticated for and on behalf of HSBC Bank plc as principal paying agent.
11.
GOVERNING LAW
This Temporary Global Bond and all matters arising from or connected with it are governed by, and shall be construed in accordance with, English law.
AS WITNESS the manual or facsimile signature of a duly authorised person on behalf of the Issuer.
NORTHERN POWERGRID (YORKSHIRE) PLC

By:        
(duly authorised)

ISSUED on 9 October 2019
AUTHENTICATED for and on behalf of
HSBC BANK PLC
as principal paying agent
without recourse, warranty or liability

By:        
(duly authorised)

245021-4-4-v5.0
37

70-40727287





Schedule 1
PAYMENTS, EXCHANGE AND CANCELLATION OF BONDS
Date of payment, delivery or cancellation
Amount of interest then paid
Principal amount of Permanent Global Bond then delivered or by which Permanent Global Bond then increased
Aggregate principal amount of Bonds then cancelled
Remaining principal amount of this Temporary Global Bond
Authorised Signature
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

Schedule 2
FORM OF ACCOUNTHOLDER'S CERTIFICATION
NORTHERN POWERGRID (YORKSHIRE) PLC

245021-4-4-v5.0
38

70-40727287





(incorporated with limited liability under
the laws of England and Wales with registered number 04112320)
£300,000,000
2.250 per cent. Bonds due 2059
This is to certify that as of the date hereof, and except as set forth below, the above-captioned Securities held by you for our account (a) are owned by persons that are not citizens or residents of the United States, domestic partnerships, domestic corporations or any estate or trust the income of which is subject to United States Federal income taxation regardless of its source ("United States persons"), (b) are owned by United States person(s) that (i) are foreign branches of a United States financial institution (as defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(iv)) ("financial institutions") purchasing for their own account or for resale, or (ii) acquired the Securities through foreign branches of United States financial institutions and who hold the Securities through such United States financial institutions on the date hereof (and in either case (i) or (ii), each such United States financial institution hereby agrees, on its own behalf or through its agent, that you may advise the issuer or the issuer's agent that it will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as amended, and the regulations thereunder), or (c) are owned by United States or foreign financial institution(s) for purposes of resale during the restricted period (as defined in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and in addition if the owner of the Securities is a United States or foreign financial institution described in clause (c) (whether or not also described in clause (a) or (b)) this is to further certify that such financial institution has not acquired the Securities for purposes of resale directly or indirectly to a United States person or to a person within the United States or its possessions.
If the Securities are of the category contemplated in Section 903(b)(3) of Regulation S under the Securities Act of 1933, as amended (the "Act"), then this is also to certify that, except as set forth below, the Securities are beneficially owned by (1) non-U.S. person(s) or (2) U.S. person(s) who purchased the Securities in transactions which did not require registration under the Act. As used in this paragraph the term "U.S. person" has the meaning given to it by Regulation S under the Act.
As used herein, "United States" means the United States of America (including the States and the District of Columbia); and its "possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the date on which you intend to submit your certification relating to the Securities held by you for our account in accordance with your operating procedures if any applicable statement herein is not correct on such date, and in the absence of any such notification it may be assumed that this certification applies as of such date.
This certification excepts and does not relate to £[      ] of such interest in the above Securities in respect of which we are not able to certify and as to which we understand exchange and delivery of definitive Securities (or, if relevant, exercise of any rights or collection of any interest) cannot be made until we do so certify.

245021-4-4-v5.0
39

70-40727287





We understand that this certification is required in connection with certain tax laws and, if applicable, certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certification is or would be relevant, we irrevocably authorise you to produce this certification to any interested party in such proceedings.
Dated:    [                                ]
[name of account holder]
as, or as agent for,
the beneficial owner(s) of the Securities
to which this certificate relates.

By:        
(Authorised signatory)

245021-4-4-v5.0
40

70-40727287





Schedule 3
FORM OF EUROCLEAR/CLEARSTREAM, LUXEMBOURG CERTIFICATION
NORTHERN POWERGRID (YORKSHIRE) PLC
(incorporated with limited liability under
the laws of England and Wales with registered number 04112320)
£300,000,000
2.250 per cent. Bonds due 2059
This is to certify that, based solely on certifications we have received in writing, by tested telex or by electronic transmission from member organisations appearing in our records as persons being entitled to a portion of the principal amount set forth below (our "Member Organisations") substantially to the effect set forth in the temporary global bond issued in respect of the securities, as of the date hereof, £[      ] principal amount of the above-captioned Securities (a) is owned by persons that are not citizens or residents of the United States, domestic partnerships, domestic corporations or any estate or trust the income of which is subject to United States Federal income taxation regardless of its source ("United States persons"), (b) is owned by United States persons that (i) are foreign branches of United States financial institutions (as defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(iv)) ("financial institutions") purchasing for their own account or for resale, or (ii) acquired the Securities through foreign branches of United States financial institutions and who hold the Securities through such United States financial institutions on the date hereof (and in either case (i) or (ii), each such United States financial institution has agreed, on its own behalf or through its agent, that we may advise the Issuer or the Issuer's agent that it will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as amended, and the regulations thereunder), or (c) is owned by United States or foreign financial institutions for purposes of resale during the restricted period (as defined in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and to the further effect that United States or foreign financial institutions described in clause (c) (whether or not also described in clause (a) or (b)) have certified that they have not acquired the Securities for purposes of resale directly or indirectly to a United States person or to a person within the United States or its possessions.
If the Securities are of the category contemplated in Section 903(b)(3) of Regulation S under the Securities Act of 1933, as amended (the "Act"), then this is also to certify with respect to the principal amount of Securities set forth above that, except as set forth below, we have received in writing, by tested telex or by electronic transmission, from our Member Organisations entitled to a portion of such principal amount, certifications with respect to such portion substantially to the effect set forth in the temporary global bond issued in respect of the Securities.
We further certify (1) that we are not making available herewith for exchange (or, if relevant, exercise of any rights or collection of any interest) any portion of the temporary global security excepted in such certifications and (2) that as of the date hereof we have not received any notification from any of our Member Organisations to the effect that the statements made by such Member Organisations with respect to any portion of the part submitted herewith for exchange (or, if relevant, exercise of any rights or collection of any interest) are no longer true and cannot be relied upon as of the date hereof.

245021-4-4-v5.0
41

70-40727287





We understand that this certification is required in connection with certain tax laws and, if applicable, certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certification is or would be relevant, we irrevocably authorise you to produce this certification to any interested party in such proceedings.
Dated:    [                          ]
EUROCLEAR BANK SA/NV
as operator of the Euroclear System
or
CLEARSTREAM BANKING, S.A.

By:        
(Authorised signatory)

245021-4-4-v5.0
42

70-40727287





SCHEDULE 2    
FORM OF PERMANENT GLOBAL BOND
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
ISIN: XS2063285923
NORTHERN POWERGRID (YORKSHIRE) PLC
(incorporated with limited liability under
the laws of England and Wales with registered number 04112320)
£300,000,000
2.250 per cent. Bonds due 2059
PERMANENT GLOBAL BOND
1.
INTRODUCTION
This Permanent Global Bond is issued in respect of the £300,000,000 2.250 per cent. Bonds due 2059 (the "Bonds") of Northern Powergrid (Yorkshire) plc (the "Issuer"). The Bonds are subject to, and have the benefit of, a trust deed dated 9 October 2019 (as amended or supplemented from time to time, the "Trust Deed") between the Issuer and HSBC Corporate Trustee Company (UK) Limited as trustee (the "Trustee", which expression includes all persons for the time being appointed trustee or trustees under the Trust Deed) and are the subject of a paying agency agreement dated 9 October 2019 (as amended or supplemented from time to time, the "Paying Agency Agreement") and made between the Issuer, HSBC Bank plc as principal paying agent (the "Principal Paying Agent", which expression includes any successor principal paying agent appointed from time to time in connection with the Bonds), the other paying agent named therein (together with the Principal Paying Agent, the "Paying Agents", which expression includes any successor or additional paying agents appointed from time to time in connection with the Bonds) and the Trustee.
2.
REFERENCES TO CONDITIONS
Any reference herein to the "Conditions" is to the terms and conditions of the Bonds set out in Schedule 2 (Terms and Conditions of the Bonds) hereto and any reference to a numbered "Condition" is to the correspondingly numbered provision thereof. Words and expressions defined in the Conditions shall have the same meanings when used in this Global Bond.
3.
PROMISE TO PAY
The Issuer, for value received, promises to pay to the bearer of this Global Bond, in respect of each Bond represented by this Global Bond, its principal amount on 9 October 2059 or on such earlier date or dates as the same may become payable in accordance

245021-4-4-v5.0
43

70-40727287





with the Conditions, and to pay interest on each such Bond on the dates and in the manner specified in the Conditions, together with any additional amounts payable in accordance with the Conditions, all subject to and in accordance with the Conditions. The Issuer shall procure that the initial aggregate principal amount of Bonds represented by this Global Bond is noted in Schedule 1 (Payments, Exchanges against Temporary Global Bond, Delivery of Definitive Bonds and Cancellation of Bonds) hereto, whereupon the principal amount of this Global Bond shall for all purposes be such amount, subject as provided in paragraph 7 (Writing Down) and paragraph 8 (Writing Up) below.
4.
NEGOTIABILITY
This Global Bond is negotiable and, accordingly, title to this Global Bond shall pass by delivery.
5.
EXCHANGE
This Global Bond will be exchanged, in whole but not in part only, for Bonds in definitive form ("Definitive Bonds") in substantially the form set out in Schedule 3 (Form of Definitive Bond) to the Trust Deed if any of the events specified in Clause 3.3 (Exchange for Definitive Bonds) of the Trust Deed occurs.
6.
DELIVERY OF DEFINITIVE BONDS
Whenever this Global Bond is to be exchanged for Definitive Bonds, the Issuer shall procure the prompt delivery of such Definitive Bonds, duly authenticated and with interest coupons ("Coupons") attached, in an aggregate principal amount equal to the principal amount of this Global Bond to the bearer of this Global Bond against the surrender of this Global Bond at the Specified Office (as defined in the Conditions) of the Principal Paying Agent within 30 days of the occurrence of the relevant Exchange Event.
7.
WRITING DOWN
On each occasion on which:
7.1
a payment of principal is made in respect of this Global Bond;
7.2
Definitive Bonds are delivered; or
7.3
Bonds represented by this Global Bond are to be cancelled in accordance with Condition 7(e) (Redemption and Purchase - Cancellation),
the Issuer shall procure that (i) the amount of such payment and the aggregate principal amount of such Bonds and (ii) the remaining principal amount of this Global Bond (which shall be the previous principal amount hereof less the aggregate of the amounts referred to in (i) above) are noted in Schedule 1 (Payments, Exchanges against Temporary Global Bond, Delivery of Definitive Bonds and Cancellation of Bonds) hereto, whereupon the principal amount of this Global Bond shall for all purposes be as most recently so noted.

245021-4-4-v5.0
44

70-40727287





8.
WRITING UP
If this Global Bond was originally issued in exchange for part only of a temporary global bond representing the Bonds, then all references in this Global Bond to its principal amount shall be construed as references to the principal amount of the part of the temporary global bond in exchange for which this Global Bond was originally issued which the Issuer shall procure is noted in Schedule 1 (Payments, Exchanges against Temporary Global Bond, Delivery of Definitive Bonds and Cancellation of Bonds) hereto. If at any subsequent time any further portion of such temporary global bond is exchanged for an interest in this Global Bond, the principal amount of this Global Bond shall be increased by the amount of such further portion, and the Issuer shall procure that the principal amount of this Global Bond (which shall be the previous principal amount hereof plus the amount of such further portion) is noted in Schedule 1 (Payments, Exchanges against Temporary Global Bond, Delivery of Definitive Bonds and Cancellation of Bonds) hereto, whereupon the principal amount of this Global Bond shall for all purposes be as most recently so noted.
9.
PAYMENTS
All payments in respect of this Global Bond shall be made against presentation and (in the case of payment of principal in full with all interest accrued thereon) surrender of this Global Bond at the specified office of any Paying Agent and shall be effective to satisfy and discharge the corresponding liabilities of the Issuer in respect of the Bonds. On each occasion on which a payment of interest is made in respect of this Global Bond, the Issuer shall procure that the same is noted in Schedule 1 (Payments, Exchanges against Temporary Global Bond, Delivery of Definitive Bonds and Cancellation of Bonds) hereto.
10.
CONDITIONS APPLY
Until this Global Bond has been exchanged as provided herein or cancelled in accordance with the Paying Agency Agreement, the bearer of this Global Bond shall be subject to the Conditions and, subject as otherwise provided herein, shall be entitled to the same rights and benefits under the Conditions as if it were the holder of Definitive Bonds and the related Coupons in the denomination of £100,000 and integral multiples of £1,000 in excess thereof and in an aggregate principal amount equal to the principal amount of this Global Bond.
11.
EXERCISE OF PUT OPTION
In order to exercise the option contained in Condition 11 (Restructuring Event) (the "Put Option"), the bearer of this Global Bond must, within the period specified in the Conditions for the deposit of the relevant Bond and Put Event Notice (as defined in Condition 11), give written notice (or electronic notice in accordance with the rules and procedures of Euroclear and Clearstream, Luxembourg) of such exercise to the Principal Paying Agent specifying the principal amount of Bonds in respect of which the Put Option is being exercised. Any such notice shall be irrevocable and may not be withdrawn.

245021-4-4-v5.0
45

70-40727287





12.
EXERCISE OF CALL OPTION
In connection with an exercise of the option contained in Condition 7(b) (Redemption at the option of the Issuer) in relation to some only of the Bonds, this Global Bond may be redeemed in part in the principal amount specified by the Issuer in accordance with the Conditions, and the Bonds to be redeemed will not be selected as provided in the Conditions but in accordance with the rules and procedures of Euroclear and Clearstream, Luxembourg and the notice of redemption will not specify the serial numbers of the Bonds called for redemption or the serial numbers of the Bonds previously called for redemption and not presented for payment. The rules and procedures of Euroclear and Clearstream, Luxembourg provide that a partial redemption will be reflected in the records of Euroclear and Clearstream Luxembourg as either a pool factor or a reduction in nominal amount, at their discretion.
13.
NOTICES
Notwithstanding Condition 14 (Notices), while all the Bonds are represented by this Global Bond (or by this Global Bond and a temporary global bond) and this Global Bond is (or this Global Bond and a temporary global bond are) deposited with a common depositary for Euroclear and Clearstream, Luxembourg, notices to Bondholders may be given by delivery of the relevant notice to Euroclear and Clearstream, Luxembourg and, in any case, such notices shall be deemed to have been given to the Bondholders in accordance with the Condition 14 (Notices) on the date of delivery to Euroclear and Clearstream, Luxembourg.
14.
AUTHENTICATION
This Global Bond shall not be valid for any purpose until it has been authenticated for and on behalf of HSBC Bank plc as principal paying agent.
15.
GOVERNING LAW
This Global Bond and all matters arising from or connected with it are governed by, and shall be construed in accordance with, English law.
AS WITNESS the manual or facsimile signature of a duly authorised person on behalf of the Issuer.
NORTHERN POWERGRID (YORKSHIRE) PLC

By:        
(duly authorised)


245021-4-4-v5.0
46

70-40727287





ISSUED as of 9 October 2019
AUTHENTICATED for and on behalf of
HSBC BANK PLC
as principal paying agent
without recourse, warranty or liability

By:        
(duly authorised)

245021-4-4-v5.0
47

70-40727287





Schedule 1
Payments, Exchanges against Temporary Global Bond, Delivery of Definitive Bonds and Cancellation of Bonds
Date of payment, exchange, delivery or cancellation
Amount of interest then paid
Principal amount of Temporary Global Bond then exchanged
Aggregate principal amount of Definitive Bonds then delivered
Aggregate principal amount of Bonds then cancelled

New principal amount of this Global Bond
Authorised signature
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 


245021-4-4-v5.0
48

70-40727287





Schedule 2
Terms and Conditions of the Bonds
To be included in the Permanent Global Bond as set out in Schedule 4 (Terms and Conditions of the Bonds) of the Trust Deed.


245021-4-4-v5.0
49

70-40727287





SCHEDULE 3    
FORM OF DEFINITIVE BOND
[On the face of the Bond:]
[currency][denomination]
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
NORTHERN POWERGRID (YORKSHIRE) PLC
(incorporated with limited liability under
the laws of England and Wales with registered number 04112320)
£300,000,000
2.250 per cent. Bonds due 2059
The Issuer, for value received, promises to pay to the bearer the principal sum of
£100,000
(ONE HUNDRED THOUSAND POUNDS)
on 9 October 2059, or on such earlier date or dates as the same may become payable in accordance with the conditions endorsed hereon (the "Conditions"), and to pay interest on such principal sum in arrear on the dates and at the rate specified in the Conditions, together with any additional amounts payable in accordance with the Conditions, all subject to and in accordance with the Conditions.
Interest is payable on the above principal sum at the rate of 2.250 per cent. per annum, payable annually in arrear on 9 October in each year, all subject to and in accordance with the Conditions.
This Bond and the interest coupons relating hereto shall not be valid for any purpose until this Bond has been authenticated for and on behalf of HSBC Bank plc as principal paying agent.
AS WITNESS the facsimile signature of a duly authorised person on behalf of the Issuer.
NORTHERN POWERGRID (YORKSHIRE) PLC

By:        
[facsimile signature]
(duly authorised)


245021-4-4-v5.0
50

70-40727287





ISSUED as of [•]
AUTHENTICATED for and on behalf of
HSBC BANK PLC
as principal paying agent
without recourse, warranty or liability

By:        
[manual signature]
(duly authorised)

245021-4-4-v5.0
51

70-40727287





[On the reverse of the Bond:]
TERMS AND CONDITIONS
[As set out in Schedule 4 (Terms and Conditions of the Bonds) of the Trust Deed]
[At the foot of the Terms and Conditions:]
PRINCIPAL PAYING AGENT
HSBC Bank plc
Level 28
8 Canada Square
London E14 5HQ

245021-4-4-v5.0
52

70-40727287





Form of Coupon
[On the face of the Coupon:]
NORTHERN POWERGRID (YORKSHIRE) PLC
£300,000,000 2.250 per cent. Bonds due 2059
Coupon for £[amount of interest payment] due on [interest payment date].
Such amount is payable, subject to the terms and conditions (the "Conditions") endorsed on the Bond to which this Coupon relates (which are binding on the holder of this Coupon whether or not it is for the time being attached to such Bond), against presentation and surrender of this Coupon at the specified office for the time being of any of the agents shown on the reverse of this Coupon (or any successor or additional agents appointed from time to time in accordance with the Conditions).
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
[On the reverse of the Coupon:]
Principal Paying Agent: HSBC Bank plc, Level 28, 8 Canada Square, London E14 5HQ

245021-4-4-v5.0
53

70-40727287





SCHEDULE 4    
TERMS AND CONDITIONS OF THE BONDS
The £300,000,000 2.250 per cent Bonds due 2059 (the "Bonds", which expression shall, unless the context otherwise requires, include any Further Bonds (as defined in Condition 3 (Definitions)) of Northern Powergrid (Yorkshire) plc (the "Issuer") are constituted by and subject to a trust deed dated 9 October 2019 (as the same may be amended and/or supplemented from time to time, the "Trust Deed") between the Issuer and HSBC Corporate Trustee Company (UK) Limited (the "Trustee", which expression shall, wherever the context so admits, include its successors as trustee under the Trust Deed) as trustee for the holders of the Bonds (the "Bondholders"). The statements in these Terms and Conditions include summaries of and are subject to, the detailed provisions of the Trust Deed. The Issuer has entered into a paying agency agreement dated 9 October 2019 (the "Paying Agency Agreement") with HSBC Bank plc (the "Principal Paying Agent") and any paying agent appointed thereunder (each a "Paying Agent" and together with the Principal Paying Agent, the "Paying Agents") and the Trustee. Copies of the Trust Deed and the Paying Agency Agreement will be available for inspection by Bondholders and the holders of the interest coupons appertaining to the Bonds (respectively, the "Couponholders" and the "Coupons") at the specified office(s) of each of the Paying Agents. The Bondholders and the Couponholders are entitled to the benefit of, are bound by, and are deemed to have notice of, all the provisions of the Trust Deed and the provisions of the Paying Agency Agreement applicable to them.
1.    Form, Denomination and Title
The Bonds are serially numbered and in bearer form in the denominations of £100,000 and integral multiples of £1,000 in excess thereof up to and including £199,000, each with Coupons attached on issue. No definitive Bonds will be issued with a denomination above £199,000. Title to the Bonds and to the Coupons will pass by delivery. Bonds of one denomination may not be exchanged for Bonds of the other denomination. The holder of any Bond or Coupon will (except as otherwise required by law) be treated as its absolute owner for all purposes (whether or not it is overdue and regardless of any notice of ownership, trust, or any interest in it, any writing on it, or its theft or loss) and no person will be liable for so treating the holder. No person shall have any right to enforce any term or condition of the Bonds or the Trust Deed under the Contracts (Rights of Third Parties) Act 1999.
2.    Status of the Bonds
The Bonds and Coupons constitute direct, unconditional and (subject to the provisions of Condition 4(a) (Negative Pledge)) unsecured obligations of the Issuer and rank pari passu and without any preference among themselves. The payment obligations of the Issuer under the Bonds and the Coupons shall, subject as aforesaid and save for such obligations as may be preferred by laws that are both mandatory and of general application, at all times rank at least equally with all its present and future unsecured and unsubordinated obligations.
3.    Definitions
"Business Day" means any day (other than a Saturday or Sunday) on which banks and other financial institutions are open for business in London.
"Companies Act" means the Companies Act 2006 as amended or re-enacted from time to time and all subordinate legislation made pursuant thereto.

245021-4-4-v5.0
54

70-40727287





"Electricity Act" means the Electricity Act 1989 as amended or re-enacted from time to time and all subordinate legislation made pursuant thereto.
"Electricity Distribution Licence" means the electricity distribution licence granted or treated as granted to the Issuer under section 6(1)(c) of the Electricity Act.
"Energy Act" means the Energy Act 2004 as amended or re-enacted from time to time and all subordinate legislation made pursuant thereto.
"Energy Administrator" means an energy administrator appointed pursuant to Part 3 of the Energy Act.
"Event of Default" means any of the events set out in Condition 10 (Events of Default).
"Final Determination" means the final determination document published by Ofgem for each electricity distribution price control review.
"Fitch" means Fitch Ratings Limited.
"Further Bonds" means all further bonds created and issued by the Issuer in accordance with Condition 17 (Further Bonds) and/or for the time being outstanding or, as the context may require, a specific proportion thereof.
"Indebtedness For Borrowed Money" means any indebtedness (whether being principal, premium, interest or other amounts) for (i) money borrowed, (ii) payment obligations under or in respect of any acceptance or acceptance credit, or (iii) any notes, bonds, debentures, debenture stock, loan stock or other debt securities offered, issued or distributed whether by way of public offer, private placing, acquisition consideration or otherwise and whether issued for cash or in whole or in part for a consideration other than cash.
"Investment Grade Rating" means a credit rating assigned by a Rating Agency of BBB- (in the case of such ratings assigned by S&P and/or Fitch) or Baa3 (in the case of such ratings assigned by Moody's) or the equivalents of such ratings for the time being, or better.
"Issue Date" means 9 October 2019.
"Moody's" means Moody's Investors Service Limited.
A "Negative Rating Event" shall be deemed to have occurred if (i) the Issuer does not, either prior to or no later than 14 days after the date of a Negative Certification (as defined in Condition 11 (Restructuring Event)) in respect of the relevant Restructuring Event, seek, and thereupon use all reasonable endeavours to obtain, from a Rating Agency, a rating of the Reference Rated Securities or these Bonds or any other unsecured and unsubordinated debt of the Issuer having an initial maturity of five years or more or (ii) if it does so seek and use such endeavours, it is unable, as a result of such Restructuring Event, to obtain such a rating which is an Investment Grade Rating.
"Ofgem" means the Gas and Electricity Markets Authority and/or the Office of Gas and Electricity Markets, including their successor office or body, as appropriate.
"Potential Event of Default" means an event or circumstance which would with the giving of notice and/or lapse of time and/or the issuing of a certificate become an Event of Default.

245021-4-4-v5.0
55

70-40727287





A "Put Event" occurs on the date of the last to occur of (i) a Restructuring Event, (ii) either a Rating Downgrade or, as the case may be, a Negative Rating Event, and (iii) the relevant Negative Certification.
"Rating Agencies" means S&P and Fitch, and "Rating Agency" means any one of them.
A "Rating Downgrade" shall be deemed to have occurred (i) if the then current rating assigned to any Reference Rated Securities by any Rating Agency (whether provided by a Rating Agency at the invitation of the Issuer or by its own volition) is withdrawn or reduced from an Investment Grade Rating to a non-Investment Grade Rating (BB+/Ba1, or their respective equivalents for the time being, or worse) or, (ii) if any Rating Agency shall then have already assigned a non-Investment Grade Rating (as described above) to the Reference Rated Securities, such rating is lowered one full rating category, provided that, in the case of (i) or (ii), if during the Restructuring Period the Reference Rated Securities have at least one Investment Grade Rating then it shall be deemed that no Rating Downgrade shall have occurred.
"Reference Gilt" means the 1.75 per cent Treasury Stock due July 2057 or such other conventional (i.e. not index linked) UK Government Stock as the Issuer (with the advice of an independent financial institution of international repute appointed by the Issuer) may determine to be the most appropriate benchmark conventional UK Government Stock.
"Reference Rated Securities" means the Bonds for so long as they have a rating from a Rating Agency, and otherwise any other unsecured and unsubordinated debt securities of the Issuer having an initial maturity of five years or more which are rated by a Rating Agency.
"Regulated Asset Value" means the regulatory asset value of the Issuer as set out in the most recent Final Determination or, if any electricity distribution price control financial model has been published on Ofgem's website since the most recent Final Determination, the regulatory asset value of the Issuer as set out in such financial model, in each case, adjusted for inflation, as of the 31 March nearest to the date of determination, provided that if at any time Ofgem alters its methodology of determining Regulated Asset Value in a manner which results in a change in Regulated Asset Value, appropriate adjustments to this definition (and to other terms defined or described herein solely for the purposes of this definition) so as to preserve the original intent of Condition 10(c) (Events of Default) shall be determined by an independent accountant experienced in the regulated electricity distribution market selected by the Issuer.
"Relevant Indebtedness" means any indebtedness (whether being principal, premium, interest or other amounts) in the form of or represented by notes, bonds, debentures, debenture stock, loan stock or other securities, whether issued for cash or in whole or in part for a consideration other than cash, and which, with the agreement of the person issuing the same, are quoted, listed or ordinarily dealt in on any stock exchange or recognised over-the-counter or other securities market.
"Restructuring Event" means the occurrence of any one or more of the following events:
(i)
(a) written notice being given to the Issuer of revocation of its Electricity Distribution Licence which is requisite to the conduct of the Issuer's business at the relevant time or (b) the Issuer agreeing in writing to any revocation or surrender of its Electricity Distribution Licence which is requisite to the conduct of the Issuer's business at the relevant time or (c) any legislation (whether primary

245021-4-4-v5.0
56

70-40727287





or subordinate) being enacted terminating or revoking its Electricity Distribution Licence which is requisite to the conduct of the Issuer's business at the relevant time, except in any such case in circumstances where a licence or licences is or are granted to the Issuer or a Subsidiary of the Issuer 100 per cent of the ordinary share capital of which is owned directly or indirectly by the Issuer (the "Relevant Transferee") and provided that the terms of such licence or licences are substantially no less favourable than the Electricity Distribution Licence in which event all references in these Terms and Conditions to the Electricity Distribution Licence and the Issuer in its capacity as holder of the Electricity Distribution Licence shall hereafter be deemed to be references to the licence or licences on substantially no less favourable terms and the Relevant Transferee respectively; or
(ii)
any modification (other than a modification which is of a formal, minor or technical nature) being made to the terms and conditions of the Electricity Distribution Licence on or after the Issue Date unless two Directors of the Issuer have certified in good faith to the Trustee (and the Trustee may rely absolutely on such certification) that the modified terms and conditions are not materially less favourable to the business of the Issuer. For the purposes of this paragraph (ii) a modification which (a) results in a licence or licences being granted to the Issuer or a Subsidiary of the Issuer 100 per cent of the ordinary share capital of which is owned directly or indirectly by the Issuer (collectively, the "Applicable Transferees") and provided that the terms of such licence or licences are substantially no less favourable than the terms of the Electricity Distribution Licence or (b) results in a licence or licences being granted to an Applicable Transferee provided that the terms of such licence or licences are substantially no less favourable than the terms of the Electricity Distribution Licence, shall not be deemed to be a modification within this paragraph (ii). In the event of such a modification as is referred to in (a) or (b), all references in these Terms and Conditions to the Electricity Distribution Licence and the Issuer in its capacity as holder of the Electricity Distribution Licence shall thereafter be deemed to be references to the licence or licences granted to the Applicable Transferee and to the Applicable Transferee, respectively; or
(iii)
any legislation (whether primary or subordinate) is enacted which removes, qualifies or amends (other than an amendment which is of a formal, minor or technical nature) the duties of the Secretary of State (or any successor) and/or Ofgem under the Electricity Act as in force on the Issue Date, unless two Directors of the Issuer have certified in good faith to the Trustee (and the Trustee may rely absolutely on such certification) that such removal, qualification or amendment does not have a materially adverse effect on the financial condition of the Issuer.
"Restructuring Period" means:
(i)
if at the time a Restructuring Event occurs there are Reference Rated Securities, the period of 90 days starting from and including the day on which the Restructuring Event occurs; or
(ii)
if at the time a Restructuring Event occurs there are not Reference Rated Securities, the period starting from and including the day on which the Restructuring Event occurs and ending on the day 90 days following the later of (a) the date on which the Issuer shall seek to obtain a rating pursuant to the

245021-4-4-v5.0
57

70-40727287





definition of Negative Rating Event prior to the expiry of the 14 days referred to in the definition of Negative Rating Event and (b) the date on which a Negative Certification shall have been given to the Issuer in respect of the Restructuring Event.
"S&P" means S&P Global Ratings Europe Limited, a division of The McGraw-Hill Companies, Inc.
"Security Interest" means a mortgage, charge, lien, pledge or other security interest.
"Subsidiary" means a subsidiary or subsidiary undertaking within the meaning of the Companies Act.
4.    Negative Pledge
So long as any of the Bonds remain outstanding (as defined in the Trust Deed), the Issuer will ensure that none of its Relevant Indebtedness or the Relevant Indebtedness of any of its Subsidiaries nor any guarantee given by it or by any such Subsidiary of the Relevant Indebtedness of any other person will be secured by a Security Interest upon, or with respect to, any of the present or future business, undertaking, assets or revenues (including any uncalled capital) of the Issuer or any of its Subsidiaries unless the Issuer shall, before or at the same time as the creation of the Security Interest, take any and all action necessary to ensure that:
(a)
all amounts payable by the Issuer under the Bonds, the Coupons and the Trust Deed are secured to the satisfaction of the Trustee equally and rateably with the Relevant Indebtedness or guarantee of Relevant Indebtedness, as the case may be, by such Security Interest; or
(b)
such other Security Interest or guarantee or other arrangement (whether or not including the giving of a Security Interest) is provided in respect of all amounts payable by the Issuer under the Bonds, the Coupons and the Trust Deed either (i) as the Trustee shall in its absolute discretion deem not materially less beneficial to the interests of the Bondholders, or (ii) as shall be approved by an Extraordinary Resolution (as defined in the Trust Deed) of the Bondholders.
5.    Interest
The Bonds bear interest from (and including) the Issue Date at the rate of 2.250 per cent per annum payable annually in arrear on 9 October in each year (each, an "Interest Payment Date"). Each Bond will cease to bear interest from the due date for redemption thereof, unless upon due presentation, payment of principal or premium (if any) is improperly withheld or refused. In such event, each Bond shall continue to bear interest at such rate (both before and after judgment) until whichever is the earlier of (i) the day on which all sums due in respect of such Bond up to that day are received by or on behalf of the relevant holder and (ii) the day falling seven days after the Trustee or the Principal Paying Agent has notified Bondholders in accordance with Condition 14 (Notices) of receipt of all sums then due in respect of all the Bonds up to that seventh day (except to the extent that there is failure in the subsequent payment to the relevant holder under these Terms and Conditions). In these Conditions, the period beginning on and including 9 October 2019 and ending on but excluding the first Interest Payment Date and each successive period beginning on and including an Interest Payment Date and ending on but excluding the next succeeding Interest Payment Date is called an "Interest Period". Where interest is to be calculated in respect of a period which is equal to or shorter than

245021-4-4-v5.0
58

70-40727287





an Interest Period the day-count fraction used will be the number of days in the relevant period, from and including the date from which interest begins to accrue to but excluding the date on which it falls due, divided by the number of days in the Interest Period in which the relevant period falls (including the first such day but excluding the last). Interest in respect of each £1,000 in principal amount of the Bonds (the "Calculation Amount") for any period shall be equal to the product of 2.250 per cent, the Calculation Amount and the day-count fraction for the relevant period, rounding the resulting figure to the nearest pence (half a pence being rounded upwards).
6.    Payments
Payments of principal, premium (if any) or interest in respect of the Bonds will be made against surrender of Bonds or, in the case of payments of interest due on an Interest Payment Date, against surrender of Coupons, at the specified office of any Paying Agent by a sterling cheque drawn on, or at the option of the holder, by transfer to a sterling account maintained by the payee with a branch of a bank in the City of London, subject in all cases to (i) any fiscal or other laws and regulations applicable thereto in the place of payment, but without prejudice to the provisions of Condition 8 (Taxation) and (ii) any withholding or deduction required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986 (the "Code") or otherwise imposed pursuant to Sections 1471 through 1474 of the Code, any regulations or agreements thereunder, any official interpretations thereof, or (without prejudice to the provisions of Condition 8 (Taxation)) any law implementing an intergovernmental approach thereto.
Upon the due date for redemption of any Bond, all unmatured Coupons relating to such Bond (whether or not attached) shall become void and no payment shall be made in respect of them. Where any Bond is presented for redemption without all unmatured Coupons relating to it, redemption shall be made only against the provision of such indemnity as the Issuer may require.
If the due date for redemption of any Bond is not 9 October in any year, interest accrued in respect of such Bond from (and including) the last preceding 9 October will be paid only against presentation and surrender of such Bond.
If the due date for payment of any amount in respect of any Bond or Coupon is not a business day, then the holder thereof shall not be entitled to payment of the amount due until the next following business day nor to any further interest or other payment in respect of such delay. The expression "business day" in this Condition means a day other than a Saturday or Sunday on which banks are open for business in the place where the Bond or Coupon is presented and, in the case of payment by transfer to a sterling account as referred to above, in the City of London.
The names of the initial Principal Paying Agent and the other initial Paying Agents and their initial specified offices are set out at the end of these Terms and Conditions. The Issuer reserves the right, subject to the prior written approval of the Trustee, at any time to vary or terminate the appointment of any Paying Agent and to appoint additional or other Paying Agents provided that the Issuer will at all times maintain a principal paying agent. Notice of any such termination or appointment and of any changes in the specified offices of the Paying Agents will be given to the Bondholders in accordance with Condition 14 (Notices) as soon as practicable thereafter. Under no circumstances will interest be payable in the United States of America or any possession of the United States of America.

245021-4-4-v5.0
59

70-40727287





7.    Redemption and Purchase
(a)
Scheduled redemption: Unless previously redeemed, or purchased and cancelled, the Issuer will redeem the Bonds on 9 October 2059 (the "Maturity Date") at their outstanding principal amount.
(b)
Redemption at the option of the Issuer: The Issuer may, having given not less than 30 nor more than 45 days' notice in accordance with Condition 14 (Notices) (which notice shall be irrevocable), redeem the whole or part (in principal amount of £5,000,000 or integral multiples thereof) of the Bonds at any time prior to the Maturity Date at a price equal to the Redemption Price together with interest accrued up to and including the date of redemption.
In this Condition, "Redemption Price" means:
(i)
in relation to any date fixed for redemption which falls in the period up to and including the date falling three months prior to the Maturity Date, the higher of the following:
(1)
par; and
(2)
that price, expressed as a percentage (rounded to three decimal places, 0.0005 being rounded upwards), at which the Gross Real Redemption Yield (calculated as described below) on the Bonds, if they were to be purchased at such price on the third dealing day prior to the publication of the notice of redemption, would be equal to the Gross Real Redemption Yield on such dealing day of the Reference Gilt, on the basis of the middle market price of the Reference Gilt prevailing at 11:00 a.m. on such dealing day, as determined by NatWest Markets Plc (or such other investment bank of international repute as the Trustee may approve); and
(ii)
in relation to any date fixed for redemption which falls in the period from but excluding the date falling three months prior to the Maturity Date to but excluding the Maturity Date, par.
Any reference in these Terms and Conditions to principal shall be deemed to include any sum payable as the Redemption Price.
Notices of redemption will specify the date fixed for redemption, the applicable Redemption Price and, in the case of partial redemption, the aggregate principal amount of the Bonds to be redeemed, the serial numbers of the Bonds called for redemption, the serial numbers of the Bonds previously called for redemption and not presented for payment and the aggregate principal amount of the Bonds to remain outstanding after the redemption. No such notice of redemption may be given by the Issuer unless it shall have presented to the Trustee a certificate signed by two Directors of the Issuer (upon which the Trustee may rely absolutely) that it will have the funds, not subject to the interest of any other person, required to redeem the Bonds at the Redemption Price plus accrued interest on the date specified for redemption. Upon the expiry of any notice of redemption the Issuer shall be bound to redeem the Bonds called for redemption at the applicable Redemption Price. Any partial redemption of the Bonds shall be on the basis of selection by drawings (the method of such drawings to be approved by the Trustee in its absolute discretion).

245021-4-4-v5.0
60

70-40727287





"Gross Real Redemption Yield" means a yield expressed as a percentage and calculated on a basis consistent with the basis indicated by the United Kingdom Debt Management Office publication "Formulae for calculating Gilt Prices from Yields" published on 8 June 1998 with effect from 1 November 1998, page 5 and updated on 15 January 2002 and 16 March 2005 and as further updated or amended from time to time.
(c)
Redemption for tax reasons: If, as a result of any change in, or amendment to, the laws or regulations of the United Kingdom or any political sub-division of, or any authority in, or of, the United Kingdom having power to tax, or any change in the application or official interpretation of such laws or regulations, which change or amendment becomes effective after 7 October 2019, the Issuer has or will become obliged to pay additional amounts as provided or referred to in Condition 8 (Taxation) (and such amendment or change has been evidenced by the delivery by the Issuer to the Trustee (who shall accept such certificate as sufficient evidence thereof) of a certificate signed by two Directors of the Issuer stating that such amendment or change has occurred (irrespective of whether such amendment or change is then effective), describing the facts leading thereto and stating that such obligation cannot be avoided by the Issuer taking reasonable measures available to it) the Issuer may at its option, having given not less than 30 nor more than 60 days' notice to the Bondholders in accordance with Condition 14 (Notices) (which notice shall be irrevocable), redeem all the Bonds (other than Bonds in respect of which the Issuer shall have given a notice of redemption pursuant to Condition 7(b) (Redemption at the option of the Issuer) prior to any notice being given under this Condition 7(c)), but not some only, at their outstanding principal amount together with interest accrued to (but excluding) the date of redemption, provided that no notice of redemption shall be given earlier than 90 days before the earliest date on which the Issuer would be required to pay the additional amounts were a payment in respect of the Bonds then due and provided further that no notice of redemption may be given by the Issuer unless two Directors of the Issuer shall have certified to the Trustee that it will have the funds, not subject to the interest of any other person, required to redeem the Bonds at their principal amounts outstanding plus accrued interest on the date specified for redemption (the Trustee being able to rely on such certificate absolutely).
(d)
Purchase: The Issuer or any of its Subsidiaries may at any time purchase or otherwise acquire Bonds (provided that all unmatured Coupons are attached thereto or are surrendered therewith) at any price in the open market or otherwise.
(e)
Cancellation: All Bonds which are redeemed pursuant to this Condition by the Issuer shall be cancelled (together with all relative unmatured Coupons attached thereto or surrendered therewith) and accordingly may not be reissued or resold. Bonds purchased by or on behalf of the Issuer or any of its Subsidiaries may be held or reissued or resold or surrendered for cancellation.
8.    Taxation
(a)
All payments in respect of the Bonds and Coupons by or on behalf of the Issuer shall be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature ("Taxes") imposed or levied by or on behalf of the United Kingdom, or any

245021-4-4-v5.0
61

70-40727287





political subdivision of, or authority in, or of, the United Kingdom having power to tax, unless the withholding or deduction of the Taxes is required by law. In that event, the Issuer will pay such additional amounts as may be necessary in order that the net amounts received by the Bondholders and Couponholders after the withholding or deduction shall equal the respective amounts which would have been receivable in respect of the Bonds or, as the case may be, Coupons in the absence of the withholding or deduction; except that no additional amounts shall be payable in relation to any payment in respect of any Bond or Coupon:
(i)
to, or to a third party on behalf of, a holder who is liable to the Taxes in respect of the Bond or Coupon by reason of such holder having some connection with the United Kingdom other than the mere holding of the Bond or Coupon; or
(ii)
to, or to a third party on behalf of, a holder who would not be liable or subject to the withholding or deduction by making a declaration of non-residence or other similar claim for exemption to the relevant tax authority; or
(iii)
presented for payment more than 30 days after the Relevant Date except to the extent that the holder would have been entitled to additional amounts on presenting the same for payment on the last day of the period of 30 days.
(b)
In these Terms and Conditions, "Relevant Date" means the date on which the payment first becomes due, but if the full amount of the money payable has not been received in London by the Principal Paying Agent or the Trustee on or before the due date, it means the date on which, the full amount of the money having been so received, notice to that effect shall have been duly given to the Bondholders by the Issuer in accordance with Condition 14 (Notices).
(c)
Any reference in these Terms and Conditions to any amounts in respect of the Bonds shall be deemed also to refer to any additional amounts which may be payable under this Condition or under any undertakings given in addition to, or in substitution for, this Condition 8 pursuant to the Trust Deed.
9.    Prescription
Bonds and Coupons will become void unless presented for payment within periods of ten years and five years, respectively, from the Relevant Date for payment in respect thereof, subject to the provisions of Condition 6 (Payments).
10.    Events of Default
If:
(a)
default is made in the payment of any principal or premium (if any) in respect of any Bond pursuant to Condition 7 (Redemption and Purchase), or for a period of 14 days or more in the payment of any interest due in respect of the Bonds; or
(b)
the Issuer fails to perform or observe any of its other obligations, covenants, conditions or provisions under the Bonds or the Trust Deed and (except where the Trustee shall have certified to the Issuer in writing that it considers such failure to be incapable of remedy in which case no such notice or continuation

245021-4-4-v5.0
62

70-40727287





as is hereinafter mentioned will be required) such failure continues for the period of 60 days (or such longer period as the Trustee may permit) following the service by the Trustee on the Issuer of notice requiring the same to be remedied; or
(c)
(i) any other Indebtedness For Borrowed Money of the Issuer or any of its Subsidiaries becomes due and repayable prior to its stated maturity by reason of an event of default (however described) or (ii) any such Indebtedness For Borrowed Money is not paid when due or (iii) the Issuer or any of its Subsidiaries fails to pay when due any amount payable by it under any present or future guarantee for, or indemnity in respect of any Indebtedness For Borrowed Money of, any person or (iv) any security given by the Issuer or any of its Subsidiaries for any Indebtedness For Borrowed Money of any person or any guarantee or indemnity of Indebtedness For Borrowed Money of any person becomes enforceable by reason of default in relation thereto and steps are taken to enforce such security save in any such case referred to in (i), (ii), (iii) or (iv) where there is a bona fide dispute as to whether the relevant Indebtedness For Borrowed Money or any such guarantee or indemnity as aforesaid shall be due and payable, and provided that the aggregate amount of the relevant Indebtedness For Borrowed Money in respect of which any one or more of the events mentioned above in this sub-paragraph (c) has or have occurred equals or exceeds 5 per cent of Regulated Asset Value and such event shall continue unremedied or unwaived for more than 14 days (or such longer grace period as may have been originally provided in the applicable instrument) and the time for payment of such amount has not been expressly extended (until such time as any payment default is remedied, cured or waived); or
(d)
any order shall be made by any competent court or any resolution shall be passed for the winding up or dissolution of the Issuer, save for the purposes of amalgamation, merger, consolidation, reorganisation, reconstruction or other similar arrangement on terms previously approved by an Extraordinary Resolution of the Bondholders; or
(e)
the Issuer or any of its Subsidiaries shall cease to carry on the whole or substantially the whole of its business, save in each case for the purposes of amalgamation, merger, consolidation, reorganisation, reconstruction or other arrangement (i) not involving or arising out of the insolvency of the Issuer or such Subsidiary and under which all or substantially all of its assets are transferred, in the case of the Issuer, to a Subsidiary of the Issuer or, in the case of a Subsidiary, to the Issuer or another Subsidiary of the Issuer, or in either case, to a transferee which is, or immediately upon such transfer becomes a Subsidiary of the Issuer or (ii) under which all or substantially all of its assets are transferred to a third party or parties (whether a Subsidiary or Subsidiaries of the Issuer or not) for full consideration by the Issuer or any such Subsidiary on an arm's length basis or (iii) the terms of which have previously been approved by an Extraordinary Resolution of the Bondholders provided that if the Issuer shall cease to hold or shall transfer the Electricity Distribution Licence (other than where the Electricity Distribution Licence is revoked, terminated or surrendered in the circumstances envisaged by paragraph (i)(a), (b) or (c) of the definition of Restructuring Event in Condition 3 (Definitions) and such revocation, termination or surrender does not constitute a Restructuring Event pursuant to paragraph (i) of such definition) the Issuer shall be deemed to have ceased to

245021-4-4-v5.0
63

70-40727287





carry on the whole or substantially the whole of its business (and neither of exceptions (i) and (ii) above shall apply) unless the transferee of the Electricity Distribution Licence is the Issuer or a Subsidiary of the Issuer, at least 51 per cent of the ordinary share capital of which is owned directly or indirectly by the Issuer (the "YE Transferee") and in such event all references in these Terms and Conditions to the Issuer in its capacity as holder of the Electricity Distribution Licence shall thereafter be deemed to be references to the YE Transferee; or
(f)
the Issuer or any of its Subsidiaries shall suspend or shall threaten to suspend payment of its debts generally or shall be declared or adjudicated by a competent court to be unable, or shall admit in writing its inability, to pay its debts (within the meaning of Section 123(1) or (2) of the Insolvency Act 1986) as they fall due, or shall be adjudicated or found insolvent by a competent court or shall enter into any composition or other similar arrangement with its creditors under Part I of the Insolvency Act 1986; or
(g)
a receiver, administrative receiver, Energy Administrator, administrator or other similar official shall be appointed in relation to the Issuer or any of its Subsidiaries or in relation to the whole or a substantial part of the undertaking or assets of any of them or a distress, execution or other process shall be levied or enforced upon or sued out against, or any encumbrancer shall take possession of, the whole or a substantial part of the assets of any of them and in any of the foregoing cases it or he shall not be paid out or discharged within 120 days (or such longer period as the Trustee may in its absolute discretion permit),
and, in the case of sub-paragraphs (b), (c) and (e) to (g) (inclusive) the Trustee shall have certified in writing that the relevant event is in its opinion materially prejudicial to the interests of the Bondholders, the Trustee may at its discretion (and the Trustee shall on the request in writing of the holders of at least one quarter in principal amount of the Bonds then outstanding or upon being so directed by an Extraordinary Resolution of the Bondholders), by notice in writing to the Issuer declare that the Bonds are, and they shall accordingly thereby forthwith become, immediately due and repayable at their principal amount together with accrued interest (as provided in the Trust Deed), provided always that the giving of any notice in relation to any Event of Default shall not operate as a waiver of any of the Trustee's rights (including the right to give a further notice) or prevent the Trustee from giving a further notice in the manner referred to above in relation to that Event of Default at any time thereafter.
So long as any of the Bonds remain outstanding the Issuer will, forthwith upon becoming aware of any Event of Default or Potential Event of Default, give notice in writing thereof to the Trustee.
For the purpose of sub-paragraph (f) above, Section 123(1)(a) of the Insolvency Act 1986 shall have effect as if for "£750" there was substituted "£250,000" or such higher figure as Ofgem may from time to time determine by notice in writing to the Issuer for the purposes of Schedule 2 (Revocation) of its Electricity Distribution Licence.
Neither the Issuer nor any Subsidiary shall be deemed to be unable to pay its debts for the purposes of sub-paragraph (f) above if any such demand as is mentioned in Section 123(1)(a) of the Insolvency Act 1986 is being contested in good faith by the Issuer or the relevant Subsidiary with recourse to all appropriate measures and procedures.

245021-4-4-v5.0
64

70-40727287





11.    Restructuring Event
(a)
(i)
If, at any time while any of the Bonds remains outstanding, a Restructuring Event occurs and during the Restructuring Period an Independent Financial Adviser (as defined below) shall have certified in writing to the Trustee that such Restructuring Event is not, in its opinion, materially prejudicial to the interests of the Bondholders, the following provisions of this Condition shall cease to have any further effect in relation to such Restructuring Event.
(ii)
If, at any time while any of the Bonds remains outstanding, a Restructuring Event occurs and (subject to paragraph (a)(i) above):
(1)
within the Restructuring Period, either:
(A)
if at the time such Restructuring Event occurs there are Reference Rated Securities, a Rating Downgrade in respect of such Restructuring Event also occurs; or
(B)
if at such time there are not Reference Rated Securities, a Negative Rating Event in respect of such Restructuring Event also occurs; and
(2)
an Independent Financial Adviser shall have certified in writing to the Trustee that such Restructuring Event is, in its opinion, materially prejudicial to the interests of the Bondholders (a "Negative Certification"),
then, unless at any time the Issuer shall have given a notice under Condition 7(b) (Redemption at the option of the Issuer) or Condition 7(c) (Redemption for tax reasons), in each case expiring prior to the Put Date (as defined below), the holder of each Bond will, upon the giving of a Put Event Notice (as defined below), have the option (the "Put Option") to require the Issuer to redeem or, at the option of the Issuer, purchase (or procure the purchase of) that Bond on the Put Date at its principal amount together with (or, where purchased, together with an amount equal to) interest (if any) accrued to (but excluding) the Put Date.
Notwithstanding the occurrence of a Rating Downgrade or a Negative Rating Event, no Bondholder shall be entitled to exercise the Put Option and to serve a Put Notice if the rating assigned to the Reference Rated Securities or these Bonds by any Rating Agency is subsequently increased to, or, as the case may be, there is assigned to the Reference Rated Securities or these Bonds by any Rating Agency an Investment Grade Rating or, in the event that the rating assigned to the Reference Rated Securities immediately prior to the occurrence of the Rating Downgrade or Negative Rating Event was not an Investment Grade Rating, if such rating is restored, in either case prior to any Negative Certification being issued.
Any certification by an Independent Financial Adviser as aforesaid as to whether or not, in its opinion, any Restructuring Event is materially prejudicial to the interest of the Bondholders shall, in the absence of manifest error, be conclusive and binding on the Trustee, the Issuer and the Bondholders. For the purposes of this Condition, an "Independent Financial Adviser" means a financial adviser

245021-4-4-v5.0
65

70-40727287





appointed by the Issuer and approved by the Trustee or, if the Issuer shall not have appointed such an adviser within 21 days after becoming aware of the occurrence of such Restructuring Event and the Trustee is indemnified and/or prefunded and/or secured to its satisfaction against the costs of such adviser, appointed by the Trustee.
A Rating Downgrade or a Negative Rating Event or a non-Investment Grade Rating shall be deemed not to have occurred as a result of or in respect of a Restructuring Event if the Rating Agency making the relevant reduction in rating or, where applicable, declining to assign an Investment Grade Rating as provided in this Condition does not announce or publicly confirm or inform the Trustee in writing at its request that the reduction or, where applicable, declining to assign a rating of at least investment grade was the result, in whole or in part, of any event or circumstance comprised in or arising as a result of the applicable Restructuring Event.
The Trust Deed provides that the Trustee is under no obligation to ascertain whether a Restructuring Event, a Negative Rating Event, a Rating Downgrade or any event which could lead to the occurrence of or could constitute a Restructuring Event, a Negative Rating Event or a Rating Downgrade has occurred and until it shall have actual knowledge or express notice pursuant to the Trust Deed to the contrary the Trustee may assume that no Restructuring Event, Negative Rating Event, Rating Downgrade or other such event has occurred.
(b)
Promptly upon the Issuer becoming aware that a Put Event (as defined in Condition 3 (Definitions)) has occurred, and in any event not later than 14 days after the occurrence of a Put Event, the Issuer shall, and at any time upon the Trustee becoming similarly so aware the Trustee may, and (subject to it being indemnified and/or prefunded and/or secured to its satisfaction) if so requested by the holders of at least one-quarter in principal amount of the Bonds then outstanding shall, give notice (a "Put Event Notice") to the Bondholders in accordance with Condition 14 (Notices) specifying the nature of the Put Event and the procedure for exercising the Put Option.
(c)
To exercise the Put Option, the holder of a Bond must deliver such Bond to the specified office of any Paying Agent, on a day which is a business day (as defined in Condition 6 (Payments)) in London and in the place of such specified office falling within the period (the "Put Period") of 45 days after that on which a Put Event Notice is given, accompanied by a duly completed and signed notice of exercise in the form (for the time being current) obtainable from any specified office of any Paying Agent (a "Put Notice") and in which the holder may specify a bank account complying with the requirements of Condition 6 (Payments) to which payment is to be made under this Condition. Each Bond should be delivered together with all Coupons appertaining thereto maturing after the day (the "Put Date") being the fifteenth day after the date of expiry of the Put Period, failing which any such missing Coupon will become void and no payment shall be made in respect of it. The Paying Agent to which such Bond and Put Notices are delivered shall issue to the Bondholder concerned a non-transferable receipt in respect of the Bond so delivered. Payment in respect of any Bond so delivered shall be made, if the holder duly specifies a bank account in the Put Notice to

245021-4-4-v5.0
66

70-40727287





which payment is to be made on the Put Date, by transfer to that bank account and, in every other case, on or after the Put Date, in each case against presentation and surrender or (as the case may be) endorsement of such receipt at any specified office of any Paying Agent, subject in any such case as provided in Condition 6 (Payments). A Put Notice, once given, shall be irrevocable. For the purposes of Conditions 9 (Prescription), 10 (Events of Default), 12 (Enforcement), 13 (Replacement of Bonds and Coupons) and 15 (Meetings of Bondholders, Modification and Waiver) receipts issued pursuant to this Condition shall be treated as if they were Bonds. The Issuer shall redeem or, at the option of the Issuer, purchase (or procure the purchase of) the relevant Bond on the applicable Put Date unless previously redeemed or purchased.
12.    Enforcement
(a)
Limitation on Bondholders: Only the Trustee may pursue the remedies available under general law or under the Trust Deed to enforce the rights of the Bondholders and Couponholders and no such holder will be entitled to proceed against the Issuer unless the Trustee, having become bound to act in accordance with the terms of the Trust Deed, fails to do so within a reasonable amount of time and such failure is continuing.
(b)
Enforcement Proceedings: At any time after amounts in respect of principal of and interest on the Bonds shall have become due and payable but are unpaid, the Trustee may, at its discretion, and without further notice but subject as mentioned below, take such proceedings against the Issuer as it may think fit to enforce the provisions of the Trust Deed in accordance with the terms thereof.
The Trustee shall only be bound to take proceedings pursuant to this Condition 12(b) if it has been indemnified and/or prefunded and/or secured to its satisfaction by the Bondholders and if it has been so requested in writing by the holders of not less than 25 per cent of the principal amount outstanding (as defined in the Trust Deed) of the Bonds or has been so directed by an Extraordinary Resolution (as defined in the Trust Deed)).
13.    Replacement of Bonds and Coupons
Should any Bond or Coupon be lost, stolen, mutilated, defaced or destroyed it may, subject to all applicable laws and stock exchange requirements, be replaced at the specified office of the Principal Paying Agent (or such other Paying Agent as may be approved by the Trustee for such purpose) upon payment by the claimant of the expenses, taxes and duties incurred in connection therewith and on such terms as to evidence and indemnity as the Issuer may reasonably require. Mutilated or defaced Bonds or Coupons must be surrendered before replacements will be issued.
14.    Notices
All notices to Bondholders shall be valid if published in a leading English language national daily newspaper (which is expected to be the Financial Times) or, if this is not practicable, in a leading English language daily newspaper with a circulation in Europe. Such notices shall be deemed to have been given on the date of such publication or, if published more than once or on different dates, on the date of the first such publication. If publication is not practicable, notice shall be given in such other manner, and shall be deemed to have been given on such date, as the Trustee may approve.

245021-4-4-v5.0
67

70-40727287





Couponholders will be deemed for all purposes to have notice of the contents of any notice given to the Bondholders in accordance with this Condition.
15.    Meetings of Bondholders, Modification and Waiver
(a)
The Trust Deed contains provisions for convening meetings of the Bondholders to consider any matter affecting their interests, including modification by Extraordinary Resolution of these Terms and Conditions or the provisions of the Trust Deed. The quorum at any such meeting for passing an Extraordinary Resolution shall be two or more persons holding or representing more than half in principal amount of the Bonds for the time being outstanding, or at any adjourned such meeting two or more persons being or representing Bondholders whatever the principal amount of the Bonds so held or represented, except that, at any meeting the business of which includes the modification of certain of these Terms and Conditions and certain of the provisions of the Trust Deed (including altering the currency of payment of the Bonds or Coupons), the necessary quorum for passing an Extraordinary Resolution will be two or more persons holding or representing not less than two-thirds, or at any adjourned such meeting not less than one-third, in principal amount of the Bonds for the time being outstanding. An Extraordinary Resolution passed at any meeting of Bondholders shall be binding on all Bondholders, whether or not they are present or represented at the meeting, and on all Couponholders.
(b)
The Trustee may, without the consent of the Bondholders or Couponholders, agree (i) other than in respect of Reserved Matters (as specified and defined in Schedule 5 to the Trust Deed), to any modification to these Terms and Conditions or to any of the provisions of the Trust Deed or to any waiver or authorisation of any breach or proposed breach by the Issuer of these Terms and Conditions or of any of the provisions of the Trust Deed or determine that any event, condition or act which would otherwise be an Event of Default, Potential Event of Default or Restructuring Event shall not be so treated provided that, in the opinion of the Trustee, so to do would not be materially prejudicial to the interests of the Bondholders, and provided further that the Trustee will not do so in contravention of any express direction given by any Extraordinary Resolution or a written request made pursuant to Condition 10 (Events of Default) but no such direction or request will affect any previous waiver, authorisation or determination, or (ii) to any modification to these Terms and Conditions or to any of the provisions of the Trust Deed which is made to correct a manifest error or which is of a formal, minor or technical nature.
(c)
In connection with the exercise of its trusts, powers, authorities or discretions (including, but not limited to, any modification, waiver, authorisation or substitution) the Trustee shall have regard to the interests of Bondholders as a class and, in particular, but without limitation, shall not have regard to the consequences of the exercise of its trusts, powers or discretions for individual Bondholders and Couponholders resulting from their being for any purpose domiciled or resident in, or otherwise connected with, or subject to the jurisdiction of, any particular territory and the Trustee shall not be entitled to require, nor shall any Bondholder or Couponholder be entitled to claim, from the Issuer or any other person any indemnification or payment in respect of any tax consequence of any such exercise upon individual Bondholders or

245021-4-4-v5.0
68

70-40727287





Couponholders, except to the extent already provided for in Condition 8 (Taxation) and/or any undertaking given to, or in substitution for, Condition 8 (Taxation) pursuant to the Trust Deed.
(d)
Any modification to these Terms and Conditions or to any of the provisions of the Trust Deed or any waiver or authorisation of any breach or proposed breach by the Issuer of these Terms and Conditions or any of the provisions of the Trust Deed shall be binding on the Bondholders and the Couponholders and, unless the Trustee agrees otherwise, any modification shall be notified by the Issuer to the Bondholders as soon as practicable thereafter in accordance with Condition 14 (Notices) .
16.    Substitution
The Trustee may, without the consent of the Bondholders or Couponholders, agree with the Issuer to the substitution of any wholly-owned Subsidiary of the Issuer (the "Substituted Obligor") in place of the Issuer (or of any previous substitute under this Condition) as the principal debtor under the Bonds, the Coupons and the Trust Deed, subject to the Trustee being of the opinion that the interests of the Bondholders will not be materially prejudiced thereby and certain other conditions set out in the Trust Deed being complied with, including that (unless the Issuer's successor in business is the Substituted Obligor) the obligations of the Substituted Obligor under the Trust Deed, the Bonds and the Coupons are unconditionally and irrevocably guaranteed by the Issuer in form and manner satisfactory to the Trustee.
17.    Further Bonds
(a)
Subject as mentioned below, power will be reserved to the Issuer to create and issue Further Bonds forming (or so as to form after the first payment of interest thereon) a single series with the Bonds provided that:
(i)
the Trustee is satisfied that the rating granted in respect of the Bonds by S&P and Fitch will not thereby be adversely affected; and
(ii)
such issue shall be constituted by a deed supplemental to the Trust Deed (in such form as the Trustee may approve).
(b)
The Issuer shall not be entitled to exercise the power reserved in this Condition 17 (Further Bonds) while any default exists in relation to any payment by the Issuer of any amounts due under the Trust Deed.
18.    Trustee
The Trust Deed contains provisions governing the responsibility of the Trustee and providing for its indemnification and relief from responsibility in certain circumstances, (including provisions relieving it from taking proceedings against the Issuer unless indemnified and/or secured and/or prefunded to its satisfaction) and to be paid its costs and expenses in priority to the claims of the Bondholders. The Trustee may not resign its appointment unless a successor, willing to act in such capacity, has been appointed by the Issuer and the Bondholders by Extraordinary Resolution, provided that the Trustee shall not be prevented from resigning its appointment if, having given notice in writing to the Issuer of its intention to so resign its appointment, a successor is not appointed within the period of three months from the date of such notice.

245021-4-4-v5.0
69

70-40727287





19.    Governing Law
The Trust Deed and the Bonds and any non-contractual obligations arising out of or in connection with the Trust Deed and the Bonds are governed by, and shall be construed in accordance with, English law.


245021-4-4-v5.0
70

70-40727287





SCHEDULE 5    
PROVISIONS FOR MEETINGS OF BONDHOLDERS
1.
DEFINITIONS
In this Trust Deed and the Conditions, the following expressions have the following meanings:
"Block Voting Instruction" means, in relation to any Meeting, a document in the English language issued by a Paying Agent:
(a)
certifying that certain specified Bonds (each a "Deposited Bond") have been deposited with such Paying Agent (or to its order at a bank or other depositary) or blocked in an account with a clearing system and will not be released until the earlier of:
(i)
the conclusion of the Meeting; and
(ii)
the surrender to such Paying Agent, not less than 48 hours before the time fixed for the Meeting (or, if the Meeting has been adjourned, the time fixed for its resumption), of the receipt for the deposited or blocked Bonds and notification thereof by such Paying Agent to the Issuer and the Trustee; and
(b)
certifying that the depositor of each Deposited Bond or a duly authorised person on its behalf has instructed the relevant Paying Agent that the votes attributable to such Deposited Bond are to be cast in a particular way on each resolution to be put to the Meeting and that, during the period of 48 hours before the time fixed for the Meeting, such instructions may not be amended or revoked;
(c)
listing the total number and (if in definitive form) the certificate numbers of the Deposited Bonds, distinguishing for each resolution between those in respect of which instructions have been given to vote for, or against, the resolution; and
(d)
authorising a named individual or individuals to vote in respect of the Deposited Bonds in accordance with such instructions;
"Chairman" means, in relation to any Meeting, the individual who takes the chair in accordance with paragraph 7 (Chairman);
"Extraordinary Resolution" means a resolution passed at a Meeting duly convened and held in accordance with this Schedule by a majority of not less than three quarters of the votes cast;
"Meeting" means a meeting of Bondholders (whether originally convened or resumed following an adjournment);

245021-4-4-v5.0
71

70-40727287





"Proxy" means, in relation to any Meeting, a person appointed to vote under a Block Voting Instruction other than:
(a)
any such person whose appointment has been revoked and in relation to whom the relevant Paying Agent has been notified in writing of such revocation by the time which is 48 hours before the time fixed for such Meeting; and
(b)
any such person appointed to vote at a Meeting which has been adjourned for want of a quorum and who has not been re‑appointed to vote at the Meeting when it is resumed;
"Relevant Fraction" means:
(a)
for all business other than voting on an Extraordinary Resolution, one tenth;
(b)
for voting on any Extraordinary Resolution other than one relating to a Reserved Matter, more than half; and
(c)
for voting on any Extraordinary Resolution relating to a Reserved Matter, two thirds;
provided, however, that, in the case of a Meeting which has resumed after adjournment for want of a quorum, it means:
(i)
for all business other than voting on an Extraordinary Resolution relating to a Reserved Matter, the fraction of the aggregate principal amount of the outstanding Bonds represented or held by the Voters actually present at the Meeting; and
(ii)
for voting on any Extraordinary Resolution relating to a Reserved Matter, one third;
"Reserved Matter" means any proposal:
(a)
to effect the exchange or substitution of the Bonds for, or the conversion of the Bonds into, shares, bonds or other obligations or securities of the Issuer or any other person or body corporate formed or to be formed (other than as permitted under Clause 14.2 of this Trust Deed);
(b)
(other than as permitted under Clause 14.2 of this Trust Deed) to approve the substitution of any person for the Issuer (or any previous substitute) as principal debtor under the Bonds;
(c)
to postpone the maturity of the Bonds or the dates on which interest is payable in respect of the Bonds;
(d)
to reduce or cancel the principal amount of, any premium payable on redemption of, or interest on the Bonds;
(e)
to change the currency in which amounts due in respect of the Bonds are payable;

245021-4-4-v5.0
72

70-40727287





(f)
to change the quorum required at any Meeting or the majority required to pass an Extraordinary Resolution; or
(g)
to amend this definition;
"Voter" means, in relation to any Meeting, the bearer of a Voting Certificate, a Proxy or the bearer of a definitive Bond who produces such definitive Bond at the Meeting;
"Voting Certificate" means, in relation to any Meeting, a certificate in the English language issued by a Paying Agent and dated in which it is stated:
(a)
that the Deposited Bonds have been deposited with such Paying Agent (or to its order at a bank or other depositary) or blocked in an account with a clearing system and will not be released until the earlier of:
(i)
the conclusion of the Meeting; and
(ii)
the surrender of such certificate to such Paying Agent; and
(b)
that the bearer of such certificate is entitled to attend and vote at the Meeting in respect of the Deposited Bonds;
"Written Resolution" means a resolution in writing signed by or on behalf of all holders of Bonds who for the time being are entitled to receive notice of a Meeting in accordance with the provisions of this Schedule, whether contained in one document or several documents in the same form, each signed by or on behalf of one or more such holders of the Bonds;
"24 hours" means a period of 24 hours including all or part of a day (disregarding for this purpose the day upon which such Meeting is to be held) upon which banks are open for business in both the place where the relevant Meeting is to be held and in each of the places where the Paying Agents have their Specified Offices and such period shall be extended by one period or, to the extent necessary, more periods of 24 hours until there is included as aforesaid all or part of a day upon which banks are open for business as aforesaid; and
"48 hours" means 2 consecutive periods of 24 hours.
2.
ISSUE OF VOTING CERTIFICATES AND BLOCK VOTING INSTRUCTIONS
The holder of a Bond may obtain a Voting Certificate from any Paying Agent or require any Paying Agent to issue a Block Voting Instruction by depositing such Bond with such Paying Agent or arranging for such Bond to be (to its satisfaction) held to its order or under its control or blocked in an account with a clearing system not later than 48 hours before the time fixed for the relevant Meeting. A Voting Certificate or Block Voting Instruction shall be valid until the release of the Deposited Bonds to which it relates. So long as a Voting Certificate or Block Voting Instruction is valid, the bearer thereof (in the case of a Voting Certificate) or any Proxy named therein (in the case of a Block Voting Instruction) shall be deemed to be the holder of the Bonds to which it relates for

245021-4-4-v5.0
73

70-40727287





all purposes in connection with the Meeting. A Voting Certificate and a Block Voting Instruction cannot be outstanding simultaneously in respect of the same Bond.
3.
REFERENCES TO DEPOSIT/RELEASE OF BONDS
Where Bonds are within Euroclear or Clearstream, Luxembourg or any other clearing system, references to the deposit, or release, of Bonds shall be construed in accordance with the usual practices (including blocking the relevant account) of Euroclear or Clearstream, Luxembourg or such other clearing system.
4.
VALIDITY OF BLOCK VOTING INSTRUCTIONS
Block Voting Instruction shall be valid only if deposited at the Specified Office of the relevant Paying Agent or at some other place approved by the Trustee, at least 24 hours before the time fixed for the relevant Meeting unless the Chairman decides otherwise before the Meeting proceeds to business. If the Trustee requires, a notarised copy (or copy certified to the satisfaction of the Trustee) of each Block Voting Instruction and satisfactory proof of the identity of each Proxy named therein shall be produced at the Meeting, but the Trustee shall not be obliged to investigate the validity of any Block Voting Instruction or the authority of any Proxy.
5.
CONVENING OF MEETING
The Issuer or the Trustee may convene a Meeting at any time, and the Trustee shall be obliged to do so subject to its being indemnified and/or secured to its satisfaction upon the request in writing of Bondholders holding not less than one tenth of the aggregate principal amount of the outstanding Bonds. Every Meeting shall be held on a date, and at a time and place, approved by the Trustee.
6.
NOTICE
At least 21 days' notice (exclusive of the day on which the notice is given and of the day on which the relevant Meeting is to be held) specifying the date, time and place of the Meeting shall be given to the Bondholders and the Paying Agents (with a copy to the Issuer) where the Meeting is convened by the Trustee or, where the Meeting is convened by the Issuer, the Trustee. The notice shall set out the full text of any resolutions to be proposed unless the Trustee agrees that the notice shall instead specify the nature of the resolutions without including the full text and shall state that the Bonds may be deposited with, or to the order of, any Paying Agent for the purpose of obtaining Voting Certificates or appointing Proxies not later than 48 hours before the time fixed for the Meeting.
7.
CHAIRMAN
An individual (who may, but need not, be a Bondholder) nominated in writing by the Trustee may take the chair at any Meeting but, if no such nomination is made or if the individual nominated is not present within 15 minutes after the time fixed for the Meeting, those present shall elect one of themselves to take the chair failing which, the Issuer may appoint a Chairman. The Chairman of an adjourned Meeting need not be the same person as was the Chairman of the original Meeting.

245021-4-4-v5.0
74

70-40727287





8.
QUORUM
The quorum at any Meeting shall be at least two Voters representing or holding not less than the Relevant Fraction of the aggregate principal amount of the outstanding Bonds; provided, however, that, so long as at least the Relevant Fraction of the aggregate principal amount of the outstanding Bonds is represented by the Temporary Global Bond and/or the Permanent Global Bond, a single Voter appointed in relation thereto or being the holder of the Bonds represented thereby shall be deemed to be two Voters for the purpose of forming a quorum.
9.
ADJOURNMENT FOR WANT OF QUORUM
If within 15 minutes after the time fixed for any Meeting a quorum is not present, then:
(a)
in the case of a Meeting requested by Bondholders, it shall be dissolved; and
(b)
in the case of any other Meeting (unless the Issuer and the Trustee otherwise agree), it shall be adjourned for such period (which shall be not less than 14 days and not more than 42 days) and to such place as the Chairman determines (with the approval of the Trustee); provided, however, that:
(i)
the Meeting shall be dissolved if the Issuer and the Trustee together so decide; and
(ii)
no Meeting may be adjourned more than once for want of a quorum.
10.
ADJOURNED MEETING
The Chairman may, with the consent of, and shall if directed by, any Meeting adjourn such Meeting from time to time and from place to place, but no business shall be transacted at any adjourned Meeting except business which might lawfully have been transacted at the Meeting from which the adjournment took place.
11.
NOTICE FOLLOWING ADJOURNMENT
Paragraph 6 (Notice) shall apply to any Meeting which is to be resumed after adjournment for want of a quorum save that:
(a)
10 days' notice (exclusive of the day on which the notice is given and of the day on which the Meeting is to be resumed) shall be sufficient; and
(b)
the notice shall specifically set out the quorum requirements which will apply when the Meeting resumes.
It shall not be necessary to give notice of the resumption of a Meeting which has been adjourned for any other reason.
12.
PARTICIPATION
The following may attend and speak at a Meeting:
(a)
Voters;

245021-4-4-v5.0
75

70-40727287





(b)
representatives of the Issuer and the Trustee;
(c)
the financial advisers of the Issuer and the Trustee;
(d)
the legal counsel to the Issuer and the Trustee and such advisers; and
(e)
any other person approved by the Meeting or the Trustee.
13.
SHOW OF HANDS
Every question submitted to a Meeting shall be decided in the first instance by a show of hands. Unless a poll is validly demanded before or at the time that the result is declared, the Chairman's declaration that on a show of hands a resolution has been passed, passed by a particular majority, rejected or rejected by a particular majority shall be conclusive, without proof of the number of votes cast for, or against, the resolution. Where there is only one Voter, this paragraph shall not apply and the resolution will immediately be decided by means of a poll.
14.
POLL
A demand for a poll shall be valid if it is made by the Chairman, the Issuer, the Trustee or one or more Voters representing or holding not less than one fiftieth of the aggregate principal amount of the outstanding Bonds. The poll may be taken immediately or after such adjournment as the Chairman directs, but any poll demanded on the election of the Chairman or on any question of adjournment shall be taken at the Meeting without adjournment. A valid demand for a poll shall not prevent the continuation of the relevant Meeting for any other business as the Chairman directs.
15.
VOTES
Every Voter shall have:
(a)
on a show of hands, one vote; and
(b)
on a poll, one vote in respect of each £100,000 in aggregate face amount of the outstanding Bond(s) represented or held by him.
Unless the terms of any Block Voting Instruction state otherwise, a Voter shall not be obliged to exercise all the votes to which he is entitled or to cast all the votes which he exercises in the same way. In the case of a voting tie the Chairman shall have a casting vote.
16.
VALIDITY OF VOTES BY PROXIES
Any vote by a Proxy in accordance with the relevant Block Voting Instruction shall be valid even if such Block Voting Instruction or any instruction pursuant to which it was given has been amended or revoked, provided that neither the Issuer, the Trustee nor the Chairman has been notified in writing of such amendment or revocation by the time which is 24 hours before the time fixed for the relevant Meeting. Unless revoked, any appointment of a Proxy under a Block Voting Instruction in relation to a Meeting shall remain in force in relation to any resumption of such Meeting following an adjournment;

245021-4-4-v5.0
76

70-40727287





provided, however, that no such appointment of a Proxy in relation to a Meeting originally convened which has been adjourned for want of a quorum shall remain in force in relation to such Meeting when it is resumed. Any person appointed to vote at such a Meeting must be re-appointed under a Block Voting Instruction to vote at the Meeting when it is resumed.
17.
POWERS
A Meeting shall have power (exercisable only by Extraordinary Resolution), without prejudice to any other powers conferred on it or any other person:
(a)
to approve any Reserved Matter proposed or accepted by the Issuer;
(b)
to approve any proposal by the Issuer for any modification, abrogation, variation or compromise of, or arrangement in respect of, the rights of the Bondholders and/or the Couponholders against the Issuer (whether such rights shall arise under the Trust Deed or otherwise);
(c)
to waive or authorise any breach by the Issuer of its obligations under this Trust Deed;
(d)
to assent to any modification of this Trust Deed, the Bonds or the Paying Agency Agreement proposed or accepted by the Issuer;
(e)
to approve a person proposed to be appointed as a new Trustee and to remove any Trustee;
(f)
to authorise the Trustee (subject to its being indemnified and/or secured and/or prefunded) or any other persons to execute all documents and do all things necessary to carry out and give effect to any Extraordinary Resolution;
(g)
to discharge or exonerate the Trustee from any liability in respect of any act or omission for which it may become responsible under this Trust Deed, the Bonds or the Coupons;
(h)
to give any authority, direction or sanction which under this Trust Deed or the Bonds is required to be given by Extraordinary Resolution; and
(i)
to appoint any persons (whether Bondholders or not) as a committee or committees to represent the interests of the Bondholders and to confer upon such committee or committees any powers which the Bondholders could themselves exercise by Extraordinary Resolution.
18.
EXTRAORDINARY RESOLUTION BINDS ALL HOLDERS
An Extraordinary Resolution shall be binding upon all Bondholders and Couponholders, whether or not present at the relevant Meeting (if any), and each of the Bondholders and Couponholders shall be bound to give effect to it accordingly. Notice of the result of every vote on an Extraordinary Resolution shall be given to the Bondholders and the Paying Agents (with a copy to the Issuer and the Trustee) within 14 days of the conclusion of the Meeting.

245021-4-4-v5.0
77

70-40727287





19.
MINUTES
Minutes of all resolutions and proceedings at each Meeting shall be made. The Chairman shall sign the minutes, which shall be prima facie evidence of the proceedings recorded therein. Unless and until the contrary is proved, every such Meeting in respect of the proceedings of which minutes have been summarised and signed shall be deemed to have been duly convened and held and all resolutions passed or proceedings transacted at it to have been duly passed and transacted.
20.
WRITTEN RESOLUTION
A Written Resolution shall take effect as if it were an Extraordinary Resolution.
21.
FURTHER REGULATIONS
Subject to all other provisions contained in this Trust Deed, the Trustee may with the consent of the Issuer (such consent not to be unreasonably withheld or delayed) but without the consent of the Bondholders prescribe such further regulations regarding the holding of Meetings of Bondholders and attendance and voting at them as the Trustee may in its sole discretion determine.

245021-4-4-v5.0
78

70-40727287





SIGNATURES

EXECUTED as a DEED and delivered by    )
NORTHERN POWERGRID (YORKSHIRE) PLC    )
acting by a director and the secretary    )
 
/s/ Tom Fielden
Director

 
/s/ Jenny Riley
Secretary

245021-4-4-v5.0
79

70-40727287





EXECUTED and DELIVERED as a DEED    )

By HSBC CORPORATE TRUSTEE (UK) LIMITED    )
in the presence of: )
 
/s/ Simon Lazarus
Authorised Signatory
 
/s/ James McComb
Witness


245021-4-4-v5.0
80

70-40727287




EXHIBIT 10.2
 
 
 
 
 
EXECUTION VERSION
 
AMENDMENT AND RESTATEMENT AGREEMENT
DATED 18 OCTOBER 2019
FOR
NORTHERN POWERGRID HOLDINGS COMPANY
NORTHERN POWERGRID (YORKSHIRE) PLC
AND
NORTHERN POWERGRID (NORTHEAST) LIMITED 
WITH
SANTANDER UK PLC
LLOYDS BANK PLC
NATIONAL WESTMINSTER BANK PLC
ACTING AS ARRANGER

AND

LLOYDS BANK PLC
ACTING AS AGENT
 
RELATING TO A MULTICURRENCY REVOLVING FACILITY AGREEMENT ORIGINALLY DATED 20 AUGUST 2012 AS AMENDED AND RESTATED ON 30 APRIL 2015
 
 


93954-4-33-v4.0
 
70-40529536


 


 
CONTENTS
 
Clause
Page

1.
Definitions and Interpretation
1

2.
Representations
2

3.
Restatement
2

4.
Continuity and Further Assurance
3

5.
Costs and Expenses
3

6.
Fees
3

7.
Miscellaneous
4

8.
Governing Law
4

Schedule 1 Amended and Restated Facility Agreement
5



93954-4-33-v4.0
 
70-40529536




THIS AGREEMENT is dated 18 October 2019 and made between:
(1)
NORTHERN POWERGRID HOLDINGS COMPANY (the "Company" and the "Guarantor");
(2)
THE SUBSIDIARIES of the Company listed in part I of schedule 1 (The Original Parties) of the form of amended and restated facility agreement contained in Schedule 1 (Amended and Restated Facility Agreement) as borrowers (the "Borrowers");
(3)
SANTANDER UK PLC, LLOYDS BANK PLC and NATIONAL WESTMINSTER BANK PLC as mandated lead arranger(s) (whether acting individually or together the "Arranger");
(4)
THE FINANCIAL INSTITUTIONS listed in part II of schedule 1 (The Original Parties) of the form of amended and restated facility agreement contained in Schedule 1 (Amended and Restated Facility Agreement) as lenders (the "Original Lenders"); and
(5)
LLOYDS BANK PLC as agent of the other Finance Parties (the "Agent").
IT IS AGREED as follows:
1.
DEFINITIONS AND INTERPRETATION
1.1
Definitions
In this Agreement:
"Amended and Restated Facility Agreement" means the Original Facility Agreement, as amended and restated by this Agreement.
"ARA Fee Letter" means any letter or letters dated on or about the date of this Agreement between the Arranger and the Company (or the Agent and the Company) setting out any of the fees referred to in clause 12 (Fees) of the form of amended and restated facility agreement contained in Schedule 1 (Amended and Restated Facility Agreement).
"Effective Date" means the date on which the Agent confirms in writing to the Original Lenders and the Company that it has received each of the documents and other evidence listed in schedule 2 (Conditions Precedent) of the form of amended and restated facility agreement contained in Schedule 1 (Amended and Restated Facility Agreement) in a form and substance satisfactory to the Agent.
"Guarantee Obligations" means the guarantee and indemnity obligations of the Guarantor contained in the Original Facility Agreement.
"Original Facility Agreement" means the facility agreement originally dated 20 August 2012 between the Company, the Borrowers, the Agent, the Arranger and the Original Lenders, as amended and restated on 30 April 2015 and as otherwise amended from time to time prior to the date of this Agreement.
1.2
Incorporation of defined terms

93954-4-33-v4.0
1

70-40529536





(a)
Unless a contrary indication appears, a term defined in the Original Facility Agreement has the same meaning in this Agreement.
(b)
The principles of construction set out in the Original Facility Agreement shall have effect as if set out in this Agreement.
1.3
Clauses
In this Agreement any reference to a "Clause" or a "Schedule" is, unless the context otherwise requires, a reference to a Clause in or a Schedule to this Agreement.
1.4
Third party rights
A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term of this Agreement.
1.5
Designation
In accordance with the Original Facility Agreement, the Company and the Agent designate this Agreement as a Finance Document for the purposes of the Amended and Restated Facility Agreement on and from the Effective Date.
2.
REPRESENTATIONS
Each of the representations and warranties set out in clause 19 (Representations) of the form of amended and restated facility agreement contained in Schedule 1 (Amended and Restated Facility Agreement) are deemed to be made by each Obligor (by reference to the facts and circumstances then existing) on:
(a)
the date of this Agreement; and
(b)
the Effective Date,
and references in clause 19 (Representations) of the form of amended and restated facility agreement contained in Schedule 1 (Amended and Restated Facility Agreement) to "this Agreement" in the Representations should be construed as references to this Agreement and, on the Effective Date, to the Amended and Restated Facility Agreement.
3.
RESTATEMENT
3.1
Amendment and Restatement of the Original Facility Agreement
With effect from the Effective Date the Original Facility Agreement shall be amended and restated so that it shall be read and construed for all purposes as set out in Schedule 1 (Amended and Restated Facility Agreement).
4.
CONTINUITY AND FURTHER ASSURANCE
4.1
Continuing obligations

93954-4-33-v4.0
2

70-40529536





The provisions of the Original Facility Agreement and the other Finance Documents shall, save as amended by this Agreement, continue in full force and effect.
4.2
Confirmation of Guarantee Obligations
For the avoidance of doubt, the Guarantor confirms for the benefit of the Finance Parties that all Guarantee Obligations owed by it under the Amended and Restated Facility Agreement shall (a) remain in full force and effect notwithstanding the amendments referred to in Clause 3.1 (Amendment and Restatement of the Original Facility Agreement) and (b) extend to any new obligations assumed by any Obligor under the Finance Documents as a result of this Agreement (including, but not limited to, under the Amended and Restated Facility Agreement).
4.3
Further assurance
Each Obligor, shall, at the request of the Agent and at such Obligor's own expense, do all such acts and things necessary or desirable to give effect to the amendments effected or to be effected pursuant to this Agreement.
5.
COSTS AND EXPENSES
5.1
Transaction expenses
An Obligor shall promptly on demand pay the Agent and the Arranger the amount of all out of pocket costs and expenses (including legal fees up to the amount of any cap agreed in respect thereof) reasonably incurred by any of them in connection with the negotiation, preparation, printing and execution of:
(a)
this Agreement, the Amended and Restated Facility Agreement and any other documents referred to in this Agreement or the Amended and Restated Facility Agreement; and
(b)
any other Finance Documents executed after:
(i)
the date of this Agreement; or
(ii)
the Effective Date.
6.
FEES
The Company will pay (or will procure payment) to the relevant Finance Party/ies fees in the amount and at the times set out in the relevant ARA Fee Letter.
7.
MISCELLANEOUS
7.1
Incorporation of terms
The provisions of clause 30 (Notices), clause 32 (Partial invalidity), clause 33 (Remedies and waivers) and clause 39 (Enforcement) of the Original Facility Agreement shall be incorporated into this Agreement as if set out in full in this Agreement and as if references

93954-4-33-v4.0
3

70-40529536





in those clauses to "this Agreement" or "the Finance Documents" are references to this Agreement.
7.2
Counterparts
This Agreement may be executed in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on a single copy of this Agreement.
8.
GOVERNING LAW
This Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law.
This Agreement has been entered into on the date stated at the beginning of this Agreement.

93954-4-33-v4.0
4

70-40529536





Schedule 1
AMENDED AND RESTATED FACILITY AGREEMENT

93954-4-33-v4.0
5

70-40529536





 
EXECUTION VERSION
 
 
£150,000,000
FACILITY AGREEMENT
ORIGINALLY DATED 20 AUGUST 2012
(AS AMENDED AND RESTATED ON 30 APRIL 2015 AND AS AMENDED AND RESTATED ON THE EFFECTIVE DATE)
FOR
NORTHERN POWERGRID HOLDINGS COMPANY
WITH
SANTANDER UK PLC
LLOYDS BANK PLC
NATIONAL WESTMINSTER BANK PLC
AND
LLOYDS BANK PLC
ACTING AS AGENT
 
MULTICURRENCY REVOLVING
FACILITY AGREEMENT
 
 
 
 
 






 
CONTENTS
 
Clause
Page

1.
Definitions and Interpretation
3

2.
The Facility
21

3.
Purpose
23

4.
Conditions of Utilisation
23

5.
Utilisation
26

6.
Optional Currencies
30

7.
Repayment
31

8.
Prepayment and cancellation
32

9.
Interest
36

10.
Interest Periods
37

11.
Changes to the calculation of interest
37

12.
Fees
38

13.
Tax Gross Up and Indemnities
40

14.
Increased costs
49

15.
Other indemnities
50

16.
Mitigation by the Lenders
51

17.
Costs and expenses
52

18.
Guarantee and indemnity
53

19.
Representations
56

20.
Information undertakings
60

21.
Financial Covenants
64

22.
General undertakings
68

23.
Events of Default
71

24.
Changes to the Parties
75

25.
Role of the Agent and the Arranger
81

26.
Conduct of business by the Finance Parties
88

27.
Sharing among the Finance Parties
88

28.
Set-off
91

29.
Notices
94

30.
Calculations and certificates
95

31.
Partial invalidity
97

32.
Remedies and waivers
97

33.
Payment mechanics
98

34.
Amendments and waivers
98

35.
Confidential Information
101

36.
Confidentiality of Funding Rates
105

37.
Counterparts
107

38.
Governing law
108

39.
Enforcement
108

Schedule 1 The Parties
109

Part I The Obligors
109

Part II The Original Lenders
110


93954-4-34-v4.0
 
70-40529536





Schedule 2 Conditions Precedent
111

Schedule 3 Requests
113

Schedule 4 Form of Transfer Certificate
114

Schedule 5 Conversion Notice
117

Schedule 6 Form of Compliance Certificate
118

Schedule 7 LMA Form of Confidentiality Undertaking
120

Schedule 8 Timetables
126

Schedule 9 Form of Increase Confirmation
127


93954-4-34-v4.0
 
70-40529536





THIS AGREEMENT is dated originally 20 August 2012, as amended and restated on 30 April 2015 and on the Effective Date and made between:
(1)
NORTHERN POWERGRID HOLDINGS COMPANY (the "Company" and the "Guarantor");
(2)
THE SUBSIDIARIES of the Company listed in Part I of Schedule 1 (The Parties) as borrowers (the "Borrowers");
(3)
SANTANDER UK PLC, LLOYDS BANK PLC and NATIONAL WESTMINSTER BANK PLC as mandated lead arranger(s) (whether acting individually or together the "Arranger");
(4)
THE FINANCIAL INSTITUTIONS listed in Part II of Schedule 1 (The Parties) as lenders (the "Original Lenders"); and
(5)
LLOYDS BANK PLC as agent of the other Finance Parties (the "Agent").
IT IS AGREED as follows:
SECTION 1
INTERPRETATION
1.
DEFINITIONS AND INTERPRETATION
1.1
Definitions
In this Agreement:
"Acceptable Bank" means a Lender or bank or financial institution which has a rating for its long-term unsecured and non credit-enhanced debt obligations of A+ or higher by Standard & Poor's Rating Services or Fitch Ratings Ltd or A1 or higher by Moody's Investor Services Limited or a comparable rating from an internationally recognised credit rating agency.
"Affiliate" means, in relation to any person, a Subsidiary of that person or a Holding Company of that person or any other Subsidiary of that Holding Company. For the purposes of National Westminster Bank Plc, "Affiliates" shall not include: (i) the UK government or any member or instrumentality thereof, including Her Majesty's Treasury and UK Financial Investments Limited (or any directors, officers, employees or entities thereof); or (ii) any persons or entities controlled by or under common control with the UK government or any member or instrumentality thereof (including Her Majesty's Treasury and UK Financial Investments Limited).
"Agent's Spot Rate of Exchange" means the Agent's spot rate of exchange for the purchase of the relevant currency with the Base Currency in the London foreign exchange market at or about 11:00 a.m. on a particular day.
"Aggregate RAV" means the aggregate of Northeast RAV and Yorkshire RAV.

93954-4-34-v4.0
3

70-40529536




"Amendment and Restatement Agreement" means the amendment and restatement agreement in relation to this Agreement dated ___ October 2019 between the Company, the Borrowers, the Arranger, the Original Lenders and the Agent.
"Assignment Agreement" means an agreement in the form agreed between the relevant assignor and assignee.
"Authorisation" means an authorisation, consent, approval, resolution, licence, exemption, filing, notarisation or registration.
"Authority" means the Gas and Electricity Markets Authority (including Ofgem).
"Availability Period" means the period from and including the Effective Date to and including one Month prior to the Termination Date.
"Available Tranche A Commitment" means a Lender's Tranche A Commitment minus:
(a)
the Base Currency Amount of its participation in any outstanding Tranche A Loans; and
(b)
in relation to any proposed Utilisation, the Base Currency Amount of its participation in any Tranche A Loans that are due to be made on or before the proposed Utilisation Date,
other than that Lender's participation in any Tranche A Loans that are due to be repaid or prepaid on or before the proposed Utilisation Date.
"Available Tranche A Facility" means the aggregate for the time being of each Lender's Available Tranche A Commitment.
"Available Tranche B Commitment" means a Lender's Tranche B Commitment minus:
(a)
the Base Currency Amount of its participation in any outstanding Tranche B Loans; and
(b)
in relation to any proposed Utilisation, the Base Currency Amount of its participation in any Tranche B Loans that are due to be made on or before the proposed Utilisation Date,
other than that Lender's participation in any Tranche B Loans that are due to be repaid or prepaid on or before the proposed Utilisation Date.
"Available Tranche B Facility" means the aggregate for the time being of each Lender's Available Tranche B Commitment.
"Base Currency" means sterling.
"Base Currency Amount" means, in relation to a Loan, the amount specified in the Utilisation Request delivered by a Borrower for that Loan (or, if the amount requested is not denominated in the Base Currency, that amount converted into the Base Currency at the Agent's Spot Rate of Exchange on the date which is three Business Days before

93954-4-34-v4.0
4

70-40529536




the Utilisation Date or, if later, on the date the Agent receives the Utilisation Request) adjusted to reflect any repayment or prepayment of the Loan.
"Basel III" means:
(a)
the agreements on capital requirements, a leverage ratio and liquidity standards contained in "Basel III: A global regulatory framework for more resilient banks and banking systems", "Basel III: International framework for liquidity risk measurement, standards and monitoring" and "Guidance for national authorities operating the countercyclical capital buffer" published by the Basel Committee on Banking Supervision on 16 December 2010, each as amended, supplemented or restated;
(b)
the rules for global systemically important banks contained in "Global systemically important banks: assessment methodology and the additional loss absorbency requirement – Rules text" published by the Basel Committee on Banking Supervision in November 2011, as amended, supplemented or restated; and
(c)
any further guidance or standards published by the Basel Committee on Banking Supervision relating to Basel III.
"Break Costs" means the amount (if any) by which:
(a)
the interest which a Lender should have received for the period from the date of receipt of all or any part of its participation in a Loan or Unpaid Sum to the last day of the current Interest Period in respect of that Loan or Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period;
exceeds:
(b)
the amount which that Lender would be able to obtain by placing an amount equal to the principal amount or Unpaid Sum received by it on deposit with a leading bank in the Relevant Market for a period starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period.
"Business Day" means a day (other than a Saturday or Sunday) on which banks are open for general business in London and:
(a)
(in relation to any date for payment or purchase of a currency other than euro) the principal financial centre of the country of that currency; or
(b)
(in relation to any date for payment or purchase of euro) any TARGET Day.
"Cash Equivalent Investments" means at any time investments in sterling demand or time deposits, UK Government stock, certificates of deposit and short term debt obligations (including commercial paper), synthetic sterling deposits, shares in money market liquidity funds and guaranteed investment contracts, provided that in all cases

93954-4-34-v4.0
5

70-40529536




such investments have a maturity of no longer than nine months from the date of their acquisition.
"Code" means the US Internal Revenue Code of 1986.
"Commitment" means the aggregate for the time being of each Lender's Tranche A Commitment and Tranche B Commitment.
"Commitment Fee Percentage" means in respect of any Borrower on any day, 35 per cent. of the Margin applicable to that Borrower on such day (or that would have been applicable had such Borrower drawn a Loan on such day).
"Compliance Certificate" means a certificate substantially in the form set out in Schedule 6 (Form of Compliance Certificate).
"Competition Act" means the Competition Act 1998.
"Confidential Information" means all information relating to the Company, any Obligor, the Group, the Finance Documents or the Facility of which a Finance Party becomes aware in its capacity as, or for the purpose of becoming, a Finance Party or which is received by a Finance Party in relation to, or for the purpose of becoming a Finance Party under, the Finance Documents or the Facility from either:
(a)
any member of the Group or any of its advisers; or
(b)
another Finance Party, if the information was obtained by that Finance Party directly or indirectly from any member of the Group or any of its advisers,
in whatever form, and includes information given orally and any document, electronic file or any other way of representing or recording information which contains or is derived or copied from such information but excludes:
(c)
information that:
(i)
is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of Clause 35 (Confidential Information); or
(ii)
is identified in writing at the time of delivery as non-confidential by any member of the Group or any of its advisers; or
(iii)
is known by that Finance Party before the date the information is disclosed to it in accordance with paragraphs (a) or (b) above or is lawfully obtained by that Finance Party after that date, from a source which is, as far as that Finance Party is aware, unconnected with the Group and which, in either case, as far as that Finance Party is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality; and
(iv)
any Funding Rate.

93954-4-34-v4.0
6

70-40529536




"Confidentiality Undertaking" means a confidentiality undertaking substantially in a recommended form of the LMA as set out in Schedule 7 (LMA Form of Confidentiality Undertaking) or in any other form agreed between the Company and the Agent.
"Contribution Notice" means a contribution notice issued by the Pensions Regulator under section 38 or section 47 of the Pensions Act 2004.
"Conversion Date" means the date specified as such in the Conversion Notice.
"Conversion Notice" means a notice substantially in the form set out in Schedule 5 (Conversion Notices).
"CRD IV" means:
(a)
Regulation (EU) No. 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms; and
(b)
Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms.
"CTA" means the Corporation Tax Act 2009.
"Default" means an Event of Default or any event or circumstance specified in Clause 23 (Events of Default) which would (with the expiry of a grace period, the giving of notice, the making of any determination under the Finance Documents or any combination of any of the foregoing) be an Event of Default.
"Defaulting Lender" means any Lender:
(a)
which has failed to make its participation in a Loan available or has notified the Agent or the Company (which has notified the Agent) that it will not make its participation in a Loan available by the Utilisation Date of that Loan in accordance with Clause 5.4 (Lenders' participation);
(b)
which has otherwise rescinded or repudiated a Finance Document; or
(c)
with respect to which an Insolvency Event has occurred and is continuing,
unless, in the case of paragraph (a) above:
(i)
its failure to pay is caused by:
(A)
administrative or technical error; or
(B)
a Disruption Event; and,
payment is made within 5 Business Days of its due date; or

93954-4-34-v4.0
7

70-40529536




(ii)
the Lender is disputing in good faith whether it is contractually obliged to make the payment in question.
"Disruption Event" means either or both of:
(a)
a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Facility (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties; or
(b)
the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a Party preventing that, or any other Party:
(i)
from performing its payment obligations under the Finance Documents; or
(ii)
from communicating with other Parties in accordance with the terms of the Finance Documents,
(and which (in either such case)) is not caused by, and is beyond the control of, the Party whose operations are disrupted.
"DNO Licence" means in relation to each Borrower the distribution licence as amended from time to time, granted or treated as granted to it by the Authority under section 6(1)(c) of the Electricity Act.
"Effective Date" has the meaning given to that term in the Amendment and Restatement Agreement.
"Electricity Act" means the Electricity Act 1989.
"Enterprise Act" means the Enterprise Act 2002.
"Environmental Claim" means any claim, proceeding or investigation by any person in respect of any Environmental Law.
"Environmental Law" means any applicable law in any jurisdiction in which any member of the Group conducts business which relates to the pollution or protection of the environment or harm to or the protection of human health or the health of animals or plants.
"Environmental Permits" means any permit, licence, consent, approval and other authorisation and the filing of any notification, report or assessment required under any Environmental Law for the operation of the business of any member of the Group conducted on or from the properties owned or used by the relevant member of the Group.

93954-4-34-v4.0
8

70-40529536




"EURIBOR" means, in relation to any Loan in euro:
(a)
the applicable Screen Rate as of the Specified Time for euro and for a period equal in length to the Interest Period of that Loan; or
(b)
as otherwise determined pursuant to Clause 11.1 (Unavailability of Screen Rate),
and if, in either case, that rate is less than zero, EURIBOR shall be deemed to be zero.
"Event of Default" means any event or circumstance specified as such in Clause 23 (Events of Default).
"Existing Facility" means the £150,000,000 revolving loan facility made available pursuant to a multicurrency revolving facility agreement originally dated 20 August 2012 between, amongst others, Northern Powergrid Holdings Company as the company and guarantor, Abbey National Treasury Services plc, Lloyds Bank plc and The Royal Bank of Scotland plc as arrangers and Lloyds Bank plc as agent, as amended and restated on 30 April 2015.
"Facility" means the revolving loan facility made available under this Agreement as described in Clause 2 (The Facility).
"Facility Office" means the office or offices notified by a Lender to the Agent in writing on or before the date it becomes a Lender (or, following that date, by not less than five Business Days' written notice) as the office or offices through which it will perform its obligations under this Agreement.
"FATCA" means:
(a)
sections 1471 to 1474 of the Code or any associated regulations;
(b)
any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to in paragraph (a) above; or
(c)
any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraphs (a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction.
"FATCA Application Date" means:
(a)
in relation to a "withholdable payment" described in section 1473(1)(A)(i) of the Code (which relates to payments of interest and certain other payments from sources within the US), 1 July 2014; or
(b)
in relation to a "passthru payment" described in section 1471(d)(7) of the Code not falling within paragraph (a) above, the first date from which such payment may become subject to a deduction or withholding required by FATCA.

93954-4-34-v4.0
9

70-40529536




"FATCA Deduction" means a deduction or withholding from a payment under a Finance Document required by FATCA.
"FATCA Exempt Party" means a Party that is entitled to receive payments free from any FATCA Deduction.
"Fee Letter" means any letter or letters dated on or about the date of this Agreement between the Arranger and the Company (or the Agent and the Company) setting out any of the fees referred to in Clause 12 (Fees).
"Final Determination" means the final determination document published by Ofgem for each electricity distribution price control review.
"Finance Document" means this Agreement, the Amendment and Restatement Agreement, any Fee Letter and any other document designated as such by the Agent and the Company.
"Finance Party" means the Agent, the Arranger or a Lender.
"Financial Indebtedness" means any indebtedness for or in respect of:
(a)
moneys borrowed;
(b)
any amount raised by acceptance under any acceptance credit facility or dematerialised equivalent;
(c)
any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument;
(d)
any finance or capital lease;
(e)
receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis);
(f)
any amount raised under any other transaction (including any forward sale or purchase agreement) having the commercial effect of a borrowing;
(g)
any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price (and, when calculating the value of any derivative transaction, only the marked to market value shall be taken into account);
(h)
any counter-indemnity obligation in respect of a guarantee, indemnity, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution;
(i)
any amount raised by the issue of redeemable shares which are by their terms capable of redemption before the Termination Date; and
(j)
without double counting) the amount of any liability in respect of any guarantee or indemnity for any of the items referred to in paragraphs (a) to (i) above.

93954-4-34-v4.0
10

70-40529536




"Financial Support Direction" means a financial support direction issued by the Pensions Regulator under section 43 of the Pensions Act 2004.
"Funding Rate" means any individual rate notified by a Lender to the Agent pursuant to paragraph (a)(ii) of Clause 11.4 (Cost of funds).
"Group" means the Company and its Subsidiaries for the time being.
"Holding Company" means, in relation to a company or corporation, any other company or corporation in respect of which it is a Subsidiary.
"IFRS" means the international accounting standards within the meaning of the IAS Regulation 1606/2002.
"Impaired Agent" means the Agent at any time when:
(a)
it has failed to make (or has notified a Party that it will not make) a payment required to be made by it under the Finance Documents by the due date for payment;
(b)
the Agent otherwise rescinds or repudiates a Finance Document;
(c)
(if the Agent is also a Lender) it is a Defaulting Lender under paragraph (a) or (b) of the definition of "Defaulting Lender"; or
(d)
an Insolvency Event has occurred and is continuing with respect to the Agent;
unless, in the case of paragraph (a) above:
(i)
its failure to pay is caused by:
(A)
administrative or technical error; or
(B)
a Disruption Event; and
payment is made within 5 Business Days of its due date; or
(ii)
the Agent is disputing in good faith whether it is contractually obliged to make the payment in question.
"Increase Confirmation" means a confirmation substantially in the form set out in Schedule 9 (Form of Increase Confirmation).
"Increase Lender" has the meaning given to that term in Clause 2.2 (Increase).
"Insolvency Event" means in relation to a Finance Party:
(a)
any receiver, administrative receiver, administrator, liquidator, compulsory manager or other similar officer is appointed in respect of that Finance Party or all or substantially all of its assets;

93954-4-34-v4.0
11

70-40529536




(b)
that Finance Party is subject to any event which has an analogous effect to any of the events specified in paragraph (a) above under the applicable laws of any jurisdiction; or
(c)
that Finance Party suspends making payments on all or substantially all of its debts or publicly announces an intention to do so.
"Interest Period" means, in relation to a Loan, each period determined in accordance with Clause 10 (Interest Periods) and in relation to an Unpaid Sum, each period determined in accordance with Clause 9.3 (Default interest).
"Interpolated Screen Rate" means, in relation to any Loan, the rate (rounded to the same number of decimal places as the two relevant Screen Rates), which results from interpolating on a linear basis between:
(a)
the applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the Interest Period of that Loan; and
(b)
the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Interest Period of that Loan,
each as of the Specified Time for the currency of that Loan.
"ITA" means the Income Tax Act 2007.
"Lender" means:
(a)
any Original Lender; and
(b)
any bank, financial institution, trust, fund or other entity which has become a Party in accordance with Clause 2.2 (Increase) or Clause 24 (Changes to the Parties),
which in each case has not ceased to be a Party in accordance with the terms of this Agreement.
"LIBOR" means, in relation to any Loan:
(a)
the applicable Screen Rate as of the Specified Time for the currency of that Loan and for a period equal in length to the Interest Period of that Loan; or
(b)
as otherwise determined pursuant to Clause 11.1 (Unavailability of Screen Rate),
and if, in either case, that rate is less than zero, LIBOR shall be deemed to be zero.
"LMA" means the Loan Market Association.
"Loan" means a Tranche A Loan or a Tranche B Loan.

93954-4-34-v4.0
12

70-40529536




"Majority Lenders" means:
(a)
if there are no Loans then outstanding, a Lender or Lenders whose Commitments aggregate more than 662/3% of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated more than 662/3% of the Total Commitments immediately prior to the reduction); or
(b)
at any other time, a Lender or Lenders whose participations in the Loans then outstanding aggregate more than 662/3% of all the Loans then outstanding.
"Margin" for a Loan shall be determined on the basis of the Moody's Rating and/or S&P Rating of the relevant Borrower of that Loan as set out in the following grid:
Moody's Rating/S&P Rating
Margin
(bps. per annum)
A2/A or above
20
A3/A–
35
Baa1/BBB+
50
Baa2/BBB
65
Baa3/BBB– or below
80
If the Moody's Rating and the S&P Rating in respect of a Borrower differ, the Margin for each Loan borrowed by that Borrower shall be determined on the basis of the higher of the two ratings and, while a Default is continuing or while no Moody's Rating or S&P Rating is assigned in respect of that Borrower, the Margin for each Loan borrowed by that Borrower shall be the percentage per annum set out above based on the assumption that the Moody's Rating and the S&P Rating were Ba1 or BB+ or below. If a rating has been assigned by either Moody's or S&P but not both then the Margin shall be determined on the basis of that rating. The changes to the Margin for a Loan as set out above shall take effect 5 Business Days after the Agent has received written notice in accordance with paragraph (b) of Clause 20.4 (Information: miscellaneous).
"Material Adverse Effect" means a material adverse effect on:
(a)
the business, operations, property or condition (financial or otherwise) of the Group taken as a whole;
(b)
the ability of an Obligor to perform its payment obligations and comply with the requirements of Clause 21 (Financial Covenants) under the Finance Documents; or
(c)
the validity or enforceability of the Finance Documents or the rights or remedies of any Finance Party under the Finance Documents.

93954-4-34-v4.0
13

70-40529536




"Month" means a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month, except that:
(a)
(subject to paragraph (c) below) if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day;
(b)
if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month; and
(c)
if an Interest Period begins on the last Business Day of a calendar month, that Interest Period shall end on the last Business Day in the calendar month in which that Interest Period is to end.
The above rules will only apply to the last Month of any period.
"Moody's" means Moody's Investors Service Limited.
"Moody's Rating" means, in respect of each Borrower, the senior unsecured debt rating of that Borrower assigned by Moody's from time to time.
"Northeast" means Northern Powergrid (Northeast) Limited.
"Northeast RAV" means at any date, the regulatory asset value of Northeast as set out in the most recent Final Determination or, if any electricity distribution price control financial model has been published on Ofgem's website since the most recent Final Determination, the regulatory asset value of Northeast as set out in such financial model, in each case, as at 31 March nearest to the Calculation Date and adjusted for inflation as at the Calculation Date.
"Obligor" means a Borrower or the Guarantor.
"Ofgem" means the Office of Gas and Electricity Markets operating under the direction and governance of the Authority.
"Optional Currency" means a currency (other than the Base Currency) which complies with the conditions set out in Clause 4.3 (Conditions relating to Optional Currencies).
"Original Financial Statements" means:
(a)
in relation to the Guarantor, the audited consolidated financial statements of the Group for the financial year ended 31 December 2018; and
(b)
in relation to each Borrower, its audited financial statements for its financial year ended 31 December 2018.
"Participating Member State" means any member state of the European Union that has the euro as its lawful currency in accordance with legislation of the European Union relating to Economic and Monetary Union.

93954-4-34-v4.0
14

70-40529536




"Party" means a party to this Agreement.
"Pensions Regulator" means the body corporate called the Pensions Regulator established under Part I of the Pensions Act 2004.
"Project Finance Borrowings" has the meaning given to it in Clause 21.1 (Financial definitions).
"Qualifying Lender" has the meaning given to it in Clause 13 (Tax gross-up and indemnities).
"Quotation Day" means, in relation to any period for which an interest rate is to be determined:
(a)
(if the currency is domestic sterling) the first day of that period;
(b)
(if the currency is euro) two TARGET Days before the first day of that period; or
(c)
(for any other currency), two Business Days before the first day of that period,
unless market practice differs in the Relevant Market for that currency, in which case the Quotation Day for that currency will be determined by the Agent in accordance with market practice in the Relevant Market (and if quotations would normally be given on more than one day, the Quotation Day will be the last of those days).
"Relevant Market" means, in relation to euro, the European interbank market, and, in relation to any other currency, the London interbank market.
"Relevant Nominating Body" means any applicable central bank, regulator or other supervisory authority or a group of them, or any working group or committee sponsored or chaired by, or constituted at the request of, any of them or the Financial Stability Board.
"Repeating Representations" means each of the representations set out in sub-paragraphs (a) and (b) of Clause 19.1 (Status), Clauses 19.2 (Binding obligations) to 19.6 (Governing law and enforcement) (inclusive), Clause 19.9 (No default), sub-paragraph (a) of Clause 19.10 (No misleading information), Clause 19.12 (Pari passu ranking), Clause 19.13 (No proceedings pending or threatened), Clause 19.14 (Environmental compliance), Clause 19.15 (Environmental Claims), Clause 19.16 (Sanctions) and paragraph (a) of Clause 19.17 (Anti-corruption).
"Replacement Benchmark" means a benchmark rate which is:
(a)
formally designated, nominated or recommended as the replacement for a Screen Rate by:
(i)
the administrator of that Screen Rate (provided that the market or economic reality that such benchmark rate measures is the same as that measured by that Screen Rate); or

93954-4-34-v4.0
15

70-40529536




(ii)
any Relevant Nominating Body,
and if replacements have, at the relevant time, been formally designated, nominated or recommended under both paragraphs, the "Replacement Benchmark" will be the replacement under paragraph (ii) above;
(b)
in the opinion of the Majority Lenders and the Obligors, generally accepted in the international or any relevant domestic syndicated loan markets as the appropriate successor to a Screen Rate; or
(c)
in the opinion of the Majority Lenders and the Obligors, an appropriate successor to a Screen Rate.
"Representative" means any delegate, agent, manager, administrator, nominee, attorney, trustee or custodian.
"Rollover Loan" means one or more Loans:
(a)
made or to be made on the same day that a maturing Loan is due to be repaid;
(b)
the aggregate amount of which is equal to or less than the amount of the maturing Loan;
(c)
in the same currency as the maturing Loan (unless it arose as a result of the operation of Clause 6.2 (Unavailability of a currency)); and
(d)
made or to be made to the same Borrower for the purpose of refinancing a maturing Loan.
"Screen Rate" means:
(a)
in relation to LIBOR, the London interbank offered rate administered by ICE Benchmark Administration Limited (or any other person which takes over the administration of that rate) for the relevant currency and period displayed (before any correction, recalculation or republication by the administrator) on pages LIBOR01 or LIBOR02 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate); and
(b)
in relation to EURIBOR, the euro interbank offered rate administered by the European Money Markets Institute (or any other person which takes over the administration of that rate) for the relevant period displayed (before any correction, recalculation or republication by the administrator) on page EURIBOR01 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate),
or, in each case on the appropriate page of such other information service which publishes that rate from time to time in place of Thomson Reuters. If such page or service ceases to be available, the Agent may specify another page or service displaying the relevant rate after consultation with the Company.

93954-4-34-v4.0
16

70-40529536




"Security" means a mortgage, charge, pledge, lien or other security interest securing any obligation of any person or any other agreement or arrangement having a similar effect.
"Separate Loan" has the meaning given to that term in Clause 7.1(c) (Repayment of Loans).
"S&P" means Standard & Poor's Ratings Services, a division of McGraw Hill Inc., a New York corporation.
"S&P Rating" means in respect of each Borrower, the senior, unsecured debt rating of that Borrower assigned by S&P from time to time.
"Specified Time" means a day or time determined in accordance with Schedule 8 (Timetables).
"Subsidiary" means a subsidiary undertaking within the meaning of section 1162 of the Companies Act 2006.
"TARGET2" means the Trans-European Automated Real-time Gross Settlement Express Transfer payment system which utilises a single shared platform and which was launched on 19 November 2007.
"TARGET Day" means any day on which TARGET2 is open for the settlement of payments in euro.
"Tax" means any tax, levy, impost, duty or other charge or withholding of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same).
"Taxes Act" means the Income and Corporation Taxes Act 1988.
"Termination Date" means, subject to Clause 5.6 (Extension Option), the date falling 36 Months after the Effective Date.
"Total Commitments" means the aggregate of the Commitments being £150,000,000 at the Effective Date.
"Tranche" means Tranche A or Tranche B.
"Tranche A" has the meaning ascribed to it in paragraph (a) of Clause 2.1 (The Facility).
"Tranche A Commitment" means:
(a)
in relation to an Original Lender, the amount in the Base Currency set opposite its name under the heading "Tranche A Commitment" in Part II of Schedule 1 (The Parties) and the amount of any other Tranche A Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase) or to be transferred to it following delivery of a Conversion Notice; and

93954-4-34-v4.0
17

70-40529536




(b)
in relation to any other Lender, the amount in the Base Currency of any Tranche A Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase),
to the extent not cancelled, reduced or transferred by it under this Agreement (or to be reduced or transferred by it following delivery of a Conversion Notice.
"Tranche A Loan" means a loan made under Tranche A or the principal amount outstanding for the time being of that loan.
"Tranche B" has the meaning ascribed to it in paragraph (b) of Clause 2.1 (The Facility).
"Tranche B Commitment" means:
(a)
in relation to an Original Lender, the amount in the Base Currency set opposite its name under the heading "Tranche B Commitment" in Part II of Schedule 1 (The Parties) and the amount of any other Tranche B Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase) or to be transferred to it following delivery of a Conversion Notice; and
(b)
in relation to any other Lender, the amount in the Base Currency of any Tranche B Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase),
to the extent not cancelled, reduced or transferred by it under this Agreement (or to be reduced or transferred by it following delivery of a Conversion Notice.
"Tranche B Loan" means a loan made under Tranche B or the principal amount outstanding for the time being of that loan.
"Transfer Certificate" means a certificate substantially in the form set out in Schedule 4 (Form of Transfer Certificate) or any other form agreed between the Agent and the Company.
"Transfer Date" means, in relation to an assignment or a transfer, the later of:
(a)
the proposed Transfer Date specified in the Transfer Certificate or Assignment Agreement; and
(b)
the date on which the Agent executes the Transfer Certificate or Assignment Agreement.
"Unpaid Sum" means any sum due and payable but unpaid by an Obligor under the Finance Documents.
"US" means the United States of America.
"Utilisation" means a utilisation of the Facility.

93954-4-34-v4.0
18

70-40529536




"Utilisation Date" means the date of a Utilisation, being the date on which the relevant Loan is to be made.
"Utilisation Request" means a notice substantially in the form set out in Schedule 3 (Requests).
"VAT" means value added tax as provided for in the Value Added Tax Act 1994 and any other tax of a similar nature.
"Yorkshire" means Northern Powergrid (Yorkshire) plc.
"Yorkshire RAV" means at any date, the regulatory asset value of Yorkshire as set out in the most recent Final Determination or, if any electricity distribution price control financial model has been published on Ofgem's website since the most recent Final Determination, the regulatory asset value of Yorkshire as set out in such financial model, in each case, as at 31 March nearest to the Calculation Date and adjusted for inflation as at the Calculation Date.
1.2
Construction
(a)
Unless a contrary indication appears any reference in this Agreement to:
(i)
the "Agent", the "Arranger", any "Finance Party", any "Lender", any "Obligor" or any "Party" shall be construed so as to include its successors in title, permitted assigns and permitted transferees;
(ii)
"assets" includes present and future properties, revenues and rights of every description;
(iii)
a "Finance Document" or any other agreement or instrument is a reference to that Finance Document or other agreement or instrument as amended, novated, supplemented, extended or restated;
(iv)
"indebtedness" includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent;
(v)
a "person" includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium or partnership (whether or not having separate legal personality);
(vi)
a "regulation" includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, intergovernmental or supranational body, agency, department or of any regulatory, self-regulatory or other authority or organisation;
(vii)
a provision of law is a reference to that provision as amended or re-enacted; and
(viii)
a time of day is a reference to London time.

93954-4-34-v4.0
19

70-40529536




(b)
The determination of the extent to which a rate is "for a period equal in length" to an Interest Period shall disregard any inconsistency arising from the last day of that Interest Period being determined pursuant to the terms of this Agreement.
(c)
Section, Clause and Schedule headings are for ease of reference only.
(d)
Unless a contrary indication appears, a term used in any other Finance Document or in any notice given under or in connection with any Finance Document has the same meaning in that Finance Document or notice as in this Agreement.
(e)
A Default (other than an Event of Default) is "continuing" if it has not been remedied or waived and an Event of Default is "continuing" if it has not been remedied or waived.
1.3
Currency Symbols and Definitions
"$" and "dollars" denote the lawful currency of the United States of America, "£" and "sterling" denote the lawful currency of the United Kingdom and "EUR" and "euro" denote the single currency unit of the Participating Member States.
1.4
Third party rights
(a)
Unless expressly provided to the contrary in a Finance Document, a person who is not a Party has no right under the Contracts (Rights of Third Parties) Act 1999 (the "Third Parties Act") to enforce or to enjoy the benefit of any term of this Agreement.
(b)
Subject to paragraph (b) of Clause 34.2 (Exceptions) but otherwise notwithstanding any term of any Finance Document, the consent of any person who is not a Party is not required to rescind or vary this Agreement at any time.

93954-4-34-v4.0
20

70-40529536




SECTION 2
THE FACILITY
2.
THE FACILITY
2.1
The Facility
Subject to the terms of this Agreement (including, without limitation, Clause 4.5 (Reallocation), the Lenders make available a multicurrency revolving loan facility in an aggregate amount equal to the Total Commitments in two tranches in maximum principal amounts as follows:
(a)
to Yorkshire, Loans in an aggregate amount equal to the Tranche A Commitments ("Tranche A"); and
(b)
to Northeast, Loans in an aggregate amount equal to the Tranche B Commitments ("Tranche B").
2.2
Increase
(a)
The relevant Obligor may by giving prior notice to the Agent after the effective date of a cancellation of:
(i)
the Available Tranche A Commitments or the Available Tranche B Commitments (as appropriate) of a Defaulting Lender in accordance with paragraph (g) of Clause 8.5 (Right of replacement, repayment and cancellation in relation to a single Lender); or
(ii)
the Commitments of a Lender in accordance with:
(A)
Clause 8.1 (Illegality); or
(B)
paragraph (a) of Clause 8.5 (Right of replacement, repayment and cancellation in relation to a single Lender),
request that the Total Commitments and the relevant Tranche A Commitments and/or Tranche B Commitments be increased (and the Total Commitments and the relevant Commitments under that Facility shall be so increased) in an aggregate amount in the Base Currency of up to the amount of the Available Tranche A Commitments and the Available Tranche B Commitments or Commitments so cancelled as follows:
(iii)
the increased Commitments will be assumed by one or more Lenders or other banks, financial institutions, trusts, funds or other entities (each an "Increase Lender") selected by the relevant Obligor (each of which shall not be a member of the Group) and each of which confirms its willingness to assume and does assume all the obligations of a Lender corresponding to that part of the increased Commitments which it is to assume, as if it had been an Original Lender;

93954-4-34-v4.0
21

70-40529536




(iv)
each of the Obligors and any Increase Lender shall assume obligations towards one another and/or acquire rights against one another as the Obligors and the Increase Lender would have assumed and/or acquired had the Increase Lender been an Original Lender;
(v)
any Increase Lender which is not a Lender immediately prior to the relevant increase shall become a Party as a "Lender" and any Increase Lender and each of the other Finance Parties shall assume obligations towards one another and acquire rights against one another as that Increase Lender and those Finance Parties would have assumed and/or acquired had the Increase Lender been an Original Lender;
(vi)
the Commitments of the other Lenders shall continue in full force and effect; and
(vii)
any increase in the Total Commitments and the relevant Commitment shall take effect on the date specified by the relevant Obligor in the notice referred to above or any later date on which the conditions set out in paragraph (b) below are satisfied.
(b)
An increase in the Total Commitments and the relevant Commitment will only be effective on:
(i)
the execution by the Agent of an Increase Confirmation from the relevant Increase Lender;
(ii)
in relation to an Increase Lender which is not a Lender immediately prior to the relevant increase, the performance by the Agent of all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to the assumption of the increased Commitments by that Increase Lender, the completion of which the Agent shall promptly notify to the Obligors and the Increase Lender.
(c)
Each Increase Lender, by executing the Increase Confirmation, confirms (for the avoidance of doubt) that the Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the increase becomes effective.
(d)
Unless the Agent otherwise agrees or the increased Commitment is assumed by an existing Lender, the relevant Obligor shall, on the date upon which the increase takes effect, pay to the Agent (for its own account) a fee of £1,500 and the Company shall promptly on demand pay the Agent the amount of all costs and expenses (including legal fees) reasonably incurred by it in connection with any increase in Commitments under this Clause 2.2.
(e)
The relevant Obligor may pay to the Increase Lender a fee in the amount and at the times agreed between the relevant Obligor and the Increase Lender in a letter between the relevant Obligor and the Increase Lender setting out that fee. A

93954-4-34-v4.0
22

70-40529536




reference in this Agreement to a Fee Letter shall include any letter referred to in this paragraph.
(f)
Clause 24.4 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this Clause 2.2 in relation to an Increase Lender as if references in that Clause to:
(i)
an "Existing Lender" were references to all the Lenders immediately prior to the relevant increase;
(ii)
the "New Lender" were references to that "Increase Lender"; and
(iii)
a "re-transfer" and "re-assignment" were references to respectively a "transfer" and "assignment".
2.3
Finance Parties' rights and obligations
(a)
The obligations of each Finance Party under the Finance Documents are several. Failure by a Finance Party to perform its obligations under the Finance Documents does not affect the obligations of any other Party under the Finance Documents. No Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents.
(b)
The rights of each Finance Party under or in connection with the Finance Documents are separate and independent rights and any debt arising under the Finance Documents to a Finance Party from an Obligor shall be a separate and independent debt.
(c)
A Finance Party may, except as otherwise stated in the Finance Documents, separately enforce its rights under the Finance Documents.
3.
PURPOSE
3.1
Purpose
Each Borrower shall apply all amounts borrowed by it under the Facility firstly towards refinancing the Existing Facility and thereafter towards its general corporate purposes.
3.2
Monitoring
No Finance Party is bound to monitor or verify the application of any amount borrowed pursuant to this Agreement.
4.
CONDITIONS OF UTILISATION
4.1
Initial conditions precedent
(a)
No Borrower may deliver a Utilisation Request unless the Agent has received all of the documents and other evidence listed in Schedule 2 (Conditions Precedent) in form and substance satisfactory to the Agent. The Agent shall notify the Company and the Lenders promptly upon being so satisfied.

93954-4-34-v4.0
23

70-40529536




(b)
Other than to the extent that the Majority Lenders notify the Agent in writing to the contrary before the Agent gives the notification described in paragraph (a) above, the Lenders authorise (but do not require) the Agent to give that notification. The Agent shall not be liable for any damages, costs or losses whatsoever as a result of giving any such notification.
4.2
Further conditions precedent
The Lenders will only be obliged to comply with Clause 5.4 (Lenders' participation) if on the date of the Utilisation Request and on the proposed Utilisation Date:
(a)
in the case of a Rollover Loan, no Event of Default is continuing or would result from the proposed Loan, and, in the case of any other Loan, no Default is continuing or would result from the proposed Loan; and
(b)
the Repeating Representations to be made by each Obligor are true in all material respects.
4.3
Conditions relating to Optional Currencies
(a)
A currency will constitute an Optional Currency in relation to a Loan if:
(i)
it is readily available in the amount required and freely convertible into the Base Currency in the Relevant Market on the Quotation Day and the Utilisation Date for that Loan; and
(ii)
it is dollars or euro or has been approved by the Agent (acting on the instructions of all the Lenders) on or prior to receipt by the Agent of the relevant Utilisation Request for that Loan.
(b)
If the Agent has received a written request from the Company for a currency to be approved under paragraph (a)(ii) above, the Agent will confirm to the Company by the Specified Time:
(i)
whether or not the Lenders have granted their approval; and
(ii)
if approval has been granted, the minimum amount for any subsequent Utilisation in that currency.
4.4
Maximum number of Loans
(a)
A Borrower may not deliver a Utilisation Request if as a result of the proposed Utilisation eleven or more Loans would be outstanding.
(b)
Any Loan made by a single Lender under Clause 6.2 (Unavailability of a currency) shall not be taken into account in this Clause 4.4.
(c)
Any Separate Loan shall not be taken into account in this Clause 4.4.
4.5
Reallocation

93954-4-34-v4.0
24

70-40529536




(a)
Subject to paragraph (b) below, the Borrowers may not less than 5 Business Days prior to the Conversion Date (as defined below) and thereafter on each anniversary of such Conversion Date, deliver a Conversion Notice to the Agent requesting that a Base Currency amount of up to £25,000,000 be reallocated between Tranche A and Tranche B in the proportions specified in the Conversion Notice on the date (the "Conversion Date") determined in accordance with paragraph (c) below.
(b)
Upon delivery of a Conversion Notice, the Agent shall promptly notify the Lenders and on the Conversion Date:
(i)
each Lender's Commitments under a relevant Tranche (a "Reducing Tranche") shall be cancelled on a pro rata basis in an aggregate amount equal to the amount specified in the Conversion Notice (the "Reduced Amount"); and
(ii)
each Lender's Tranche A Commitment or Tranche B Commitment (as applicable) under a relevant Tranche (an "Increasing Tranche") shall be increased on a pro rata basis by an amount equal to the amount specified in the Conversion Notice.
(c)
If the Reduced Amount under a Reducing Tranche:
(i)
exceeds the Available Tranche A Commitments or Available Tranche B Commitments (as applicable) under that Reducing Tranche, the Conversion Date shall (if there is only one Loan outstanding under the relevant Tranche) be the last day of the Interest Period for the Loan under that Reducing Tranche outstanding on the date of the Conversion Notice and (otherwise) shall be the last day of the Interest Period for a Loan outstanding under that Reducing Tranche which has a maturity date falling after the maturity date of any other Interest Period for Loans under that Reducing Tranche outstanding on the date of the Conversion Notice (and prior to the Conversion Date each subsequent Interest Period for a Loan under that Reducing Tranche shall be of such duration that it ends on or before the Conversion Date); or
(ii)
is equal to or less than the Available Tranche A Commitments or Available Tranche B Commitments (as applicable) under that Reducing Tranche, the Conversion Date shall be the date falling 5 Business Days after the date of the Conversion Notice.

93954-4-34-v4.0
25

70-40529536




SECTION 3
UTILISATION
5.
UTILISATION
5.1
Delivery of a Utilisation Request
A Borrower may utilise the Facility by delivery to the Agent of a duly completed Utilisation Request not later than the Specified Time.
5.2
Completion of a Utilisation Request
(a)
Each Utilisation Request is irrevocable and will not be regarded as having been duly completed unless:
(i)
the proposed Utilisation Date is a Business Day within the Availability Period;
(ii)
the Borrower which has delivered the Utilisation Request is permitted by the terms of this Agreement to borrow the amount requested therein;
(iii)
the currency and amount of the Utilisation comply with Clause 5.3 (Currency and amount); and
(iv)
the proposed Interest Period complies with Clause 10 (Interest Periods).
(b)
Only one Loan may be requested in each Utilisation Request.
5.3
Currency and amount
(a)
The currency specified in a Utilisation Request must be the Base Currency or an Optional Currency.
(b)
The amount of the proposed Loan must be:
(i)
if the currency selected is the Base Currency, a minimum of £1,000,000 or if less, the Available Tranche A Facility or Available Tranche B Facility (as applicable); or
(ii)
if the currency selected is dollars or euros, a minimum of $1,000,000 or EUR1,000,000 respectively or if less, the Available Tranche A Facility or Available Tranche B Facility (as applicable); or
(iii)
if the currency selected is an Optional Currency, the minimum amount specified by the Agent pursuant to paragraph (b) (ii) of Clause 4.3 (Conditions relating to Optional Currencies) or, if less, the Available Tranche A Facility or Available Tranche B Facility (as applicable); and
(iv)
in any event such that its Base Currency Amount is less than or equal to the Available Tranche A Facility or Available Tranche B Facility (as applicable).

93954-4-34-v4.0
26

70-40529536




5.4
Lenders' participation
(a)
If the conditions set out in this Agreement have been met, and subject to Clause 7.1 (Repayment of Loans), each Lender shall make its participation in each Loan available by the Utilisation Date through its Facility Office.
(b)
The amount of each Lender's participation in each Tranche A Loan will be equal to the proportion borne by its Available Tranche A Commitment to the Available Tranche A Facility immediately prior to making the Loan.
(c)
The amount of each Lender's participation in each Tranche B Loan will be equal to the proportion borne by its Available Tranche B Commitment to the Available Tranche B Facility immediately prior to making the Loan.
(d)
The Agent shall determine the Base Currency Amount of each Loan which is to be made in an Optional Currency and shall notify each Lender of the amount, currency and the Base Currency Amount of each Loan and the amount of its participation in that Loan and, if different, the amount of that participation to be made available in cash, in each case by the Specified Time.
5.5
Cancellation of Commitment
The Commitments which, at that time, are unutilised shall be immediately cancelled at the end of the Availability Period.
5.6
Extension Option
(a)
The Company may, by notice to the Agent (the "Initial Extension Request") not more than 60 days and not less than 30 days before the first anniversary of the date of this Agreement (the "First Anniversary"), request that the Termination Date in respect of the Facility be extended for a further period of one year.
(b)
The Company may, by notice to the Agent (the "Second Extension Request") not more than 60 days and not less than 30 days before the second anniversary of the date of this Agreement (the "Second Anniversary"), request that the Termination Date in respect of the Facility:
(i)
with respect to Lenders who have agreed to the Initial Extension Request, be extended for a further period of one year; and/or
(ii)
if no Initial Extension Request has been made, or with respect to Lenders who refused the Initial Extension Request be extended for a period of two years.
(c)
The Agent must promptly notify the Lenders of any Initial Extension Request or Second Extension Request (an "Extension Request").
(d)
Each Lender may, in its sole discretion, agree to any Extension Request (each such Lender, a "Consenting Lender"). Each Lender that agrees to an Extension

93954-4-34-v4.0
27

70-40529536




Request by the date falling 15 days before the First Anniversary or the Second Anniversary (as applicable) (each such date being an "Extension Request Long Stop Date") will, subject to paragraph (i) below, extend its Commitment for a further period of one year or two years (as applicable), from the then current Termination Date in respect of that Lender's Commitment and the relevant Termination Date with respect to the Commitment of that Lender will, subject to paragraph (i) below, be extended accordingly (an "Extension").
(e)
The Company shall, on or prior to, in the case of the Initial Extension Request, the First Anniversary, or, in the case of the date of the Second Extension Request, the Second Anniversary, pay to Agent for the account of the relevant Lenders (or procure the payment of) an extension fee in the amount and at the time agreed in a Fee Letter between the Company and that Lender.
(f)
If any Lender fails to reply to an Extension Request on or before an Extension Request Long Stop Date, it will be deemed to have refused that Extension Request and its Commitment will not be extended (each a "Deemed Declining Lender").
(g)
Subject to paragraph (i) below, each Extension Request is irrevocable.
(h)
If one or more (but not all) of the Lenders agree to an Extension Request, then on an Extension Request Long Stop Date and in any case within 10 days of the relevant Extension Request Long Stop Date, the Agent must notify the Company (a "Declining Lender Notice"), identifying in that notification which Lenders have not agreed to the Extension Request (each a "Notified Declining Lender" and, together with any Deemed Declining Lender, a "Declining Lender").
(i)
The Company may, on the basis that one or more of the Lenders have not agreed to the Extension Request and no later than the date falling 5 days before the First Anniversary or the Second Anniversary (as applicable), withdraw the Extension Request by notice to the Agent which will promptly notify the Lenders.
(j)
Any extension of the Termination Date in respect of the Revolving Facility under this Clause 5.6 will only take effect if on the date of the Extension Request, and in the case of the Initial Extension Request, on the First Anniversary or, in the case of the Second Extension Request, on the Second Anniversary:
(i)
no Default is continuing or would result from the proposed extension;
(ii)
the Company has paid (or has procured payment of) the extension fee to each relevant Lender pursuant to paragraph (e) above; and
(iii)
the Repeating Representations are true in all material respects.
5.7
Replacement of Declining Lenders
(a)
The Company may, within 60 days of receipt of a Declining Lender Notice, replace a Declining Lender as follows, provided that it has not withdrawn the relevant Extension Request in accordance with paragraph (i) of Clause 5.6 above:

93954-4-34-v4.0
28

70-40529536




(i)
by requiring such Declining Lender to (and such Declining Lender shall) transfer pursuant to Clause 24 (Changes to Parties) all (and not part only) of its rights and obligations under the Facility to a Consenting Lender or another bank, financial institution, trust fund or other entity (to the extent not a Consenting Lender, a "Replacement Lender") selected by the Company and each of which confirms its willingness to assume and does assume all the obligations of a Lender corresponding to that part of the Commitments to which it is to assume, as if it had been an Original Lender;
(ii)
each of the Obligors and any Replacement Lender shall assume obligations towards one another and/or acquire rights against one another as the Obligors and the Replacement Lender would have assumed and/or acquired had the Replacement Lender been an Original Lender.
(iii)
any Replacement Lender shall become a Party as a "Lender" and any Replacement Lender and each of the other Finance Parties shall assume obligations towards one another and acquire rights against one another as that Replacement Lender and those Finance Parties would have assumed and/or acquired had the Replacement Lender been an Original Lender; and
(iv)
the Commitments of the other Lenders shall continue in full force and effect.
(b)
Each Replacement Lender, by executing the Transfer Certificate, confirms (for the avoidance of doubt) that the Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the transfer becomes effective.
(c)
The replacement of a Declining Lender pursuant to this Clause ‎5.7 shall be subject to the following conditions:
(i)
none of the Agent, any Arranger or any Lender shall have any obligation to find a Replacement Lender;
(ii)
in no event shall the relevant Declining Lender be required to pay or surrender to the relevant Replacement Lender any of the fees or other amounts received by such Declining Lender pursuant to the Finance Documents prior to the date of such replacement; and
(iii)
any Transfer Certificate executed by the relevant Declining Lender and the relevant Replacement Lender shall include a confirmation from the Replacement Lender that it has agreed to the extension of the Termination Date requested by the Borrower in accordance with Clause ‎5.6 (Extension Option).
6.
OPTIONAL CURRENCIES
6.1
Selection of currency

93954-4-34-v4.0
29

70-40529536




A Borrower shall select the currency of a Loan in a Utilisation Request.
6.2
Unavailability of a currency
If before the Specified Time on any Quotation Day:
(a)
a Lender notifies the Agent that the Optional Currency requested is not readily available to it in the amount required; or
(b)
a Lender notifies the Agent that compliance with its obligation to participate in a Loan in the proposed Optional Currency would contravene a law or regulation applicable to it,
the Agent will give notice to the relevant Borrower to that effect by the Specified Time on that day. In this event, any Lender that gives notice pursuant to this Clause 6.2 will be required to participate in the Loan in the Base Currency (in an amount equal to that Lender's proportion of the Base Currency Amount or, in respect of a Rollover Loan, an amount equal to that Lender's proportion of the Base Currency Amount of the Rollover Loan that is due to be made) and its participation will be treated as a separate Loan denominated in the Base Currency during that Interest Period.
6.3
Participation in a Loan
Each Lender's participation in a Loan will be determined in accordance with paragraph (a), (b) or (c) (as applicable) of Clause 5.4 (Lenders' participation).

93954-4-34-v4.0
30

70-40529536




SECTION 4
REPAYMENT, PREPAYMENT AND CANCELLATION
7.
REPAYMENT
7.1
Repayment of Loans
(a)
Subject to paragraph (b) below, each Borrower which has drawn a Loan shall repay that Loan on the last day of its Interest Period.
(b)
Without prejudice to each Borrower's obligation under paragraph (a) above, if one or more Loans are to be made available to a Borrower under a particular Tranche (a "new Loan"):
(i)
on the same day that a maturing Loan made under the same Tranche (a "maturing Loan") is due to be repaid by that Borrower;
(ii)
in the same currency as the maturing Loan (unless it arose as a result of the operation of Clause 6.2 (Unavailability of a currency));
(iii)
in whole or in part for the purpose of refinancing the maturing Loan; and
(iv)
the proportion borne by each Lender's participation in the maturing Loan to the amount of that maturing Loan is the same as the proportion borne by that Lender's participation in the new Loans to the aggregate amount of those new Loans,
the aggregate amount of the new Loans shall, unless a Borrower notifies the Agent to the contrary in the relevant Utilisation Request, be treated as if applied in or towards repayment of the maturing Loan so that:
(A)
if the amount of the maturing Loan exceeds the aggregate amount of the new Loans:
(1)
the relevant Borrower will only be required to pay an amount in cash in the relevant currency equal to that excess; and
(2)
each Lender's participation (if any) in the new Loans shall be treated as having been made available and applied by the Borrower in or towards repayment of that Lender's participation (if any) in the maturing Loan and that Lender will not be required to make its participation in the new Loans available in cash; and
(B)
if the amount of the maturing Loan is equal to or less than the aggregate amount of the new Loans:
(1)
the relevant Borrower will not be required to make any payment in cash; and

93954-4-34-v4.0
31

70-40529536




(2)
each Lender will be required to make its participation in the new Loans available in cash only to the extent that its participation (if any) in the new Loans exceeds that Lender's participation (if any) in the maturing Loan and the remainder of that Lender's participation in the new Loans shall be treated as having been made available and applied by the Borrower in or towards repayment of that Lender's participation in the maturing Loan.
(c)
At any time when a Lender becomes a Defaulting Lender, the maturity date of each of the participations of that Lender in the Loans then outstanding will be automatically extended to the Termination Date and will be treated as separate Loans (the "Separate Loans") denominated in the currency in which the relevant participations are outstanding.
(d)
A Borrower to whom a Separate Loan is outstanding may prepay that Loan by giving 3 Business Days' prior notice to the Agent. The Agent will forward a copy of a prepayment notice received in accordance with this paragraph (d) to the Defaulting Lender concerned as soon as practicable on receipt.
(e)
Interest in respect of a Separate Loan will accrue for successive Interest Periods selected by the Borrower by the time and date specified by the Agent (acting reasonably) and will be payable by that Borrower to the Agent (for the account of the Defaulting Lender) on the last day of each Interest Period of that Loan.
(f)
The terms of this Agreement relating to Loans generally shall continue to apply to Separate Loans other than to the extent inconsistent with paragraphs (c) to (e) above, in which case those paragraphs shall prevail in respect of any Separate Loan.
8.
PREPAYMENT AND CANCELLATION
8.1
Illegality
If, at any time, it is or will become unlawful in any applicable jurisdiction for a Lender to perform any of its obligations as contemplated by this Agreement or to fund or maintain its participation in any Loan:
(a)
that Lender shall promptly notify the Agent upon becoming aware of that event;
(b)
upon the Agent notifying the Company, the Commitment of that Lender will be immediately cancelled; and
(c)
each Borrower shall repay that Lender's participation in the Loans made to that Borrower on the last day of the Interest Period for each Loan occurring after the Agent has notified the Company or, if earlier, the date specified by the Lender in the notice delivered to the Agent (being no earlier than the last day of any applicable grace period permitted by law).
8.2
Change of control

93954-4-34-v4.0
32

70-40529536




(a)
If a Change of Control occurs:
(i)
the Company shall promptly notify the Agent upon becoming aware of that event; and
(ii)
if a Lender so requires, the Agent shall, by notifying each Borrower and the Company not more than 30 days after the date on which it received notification from the Company in accordance with paragraph (a)(i) above, cancel the Commitment of that Lender and declare the participation of that Lender in all outstanding Loans, together with accrued interest and all other amounts accrued under the Finance Documents due and payable, whereupon the Commitment of that Lender will be cancelled and all such outstanding amounts will become immediately due and payable on the date specified in such notice.
(b)
For the purposes of paragraph (a) above, a "Change of Control" shall occur if:
(i)
Berkshire Hathaway Energy Company ceases to own, directly or indirectly, the entire issued share capital of the Guarantor; or
(ii)
the Guarantor ceases to own directly or indirectly the entire issued share capital of each Borrower.
8.3
Voluntary cancellation
(a)
The Borrower under Tranche A may, if it gives the Agent not less than 5 Business Days (or such shorter period as the Majority Lenders may agree) prior notice, cancel the whole or any part (being a minimum amount of £5,000,000) of the Available Tranche A Facility. Any cancellation under this paragraph (a) shall reduce the Tranche A Commitments of the Lenders rateably.
(b)
The Borrower under Tranche B may, if it gives the Agent not less than 5 Business Days (or such shorter period as the Majority Lenders may agree) prior notice, cancel the whole or any part (being a minimum amount of £5,000,000) of the Available Tranche B Facility. Any cancellation under this paragraph (b) shall reduce the Tranche B Commitments of the Lenders rateably.
8.4
Voluntary prepayment of Loans
The Borrower to which a Loan has been made may, if it gives the Agent not less than 5 Business Days' (or such shorter period as the Majority Lenders may agree) prior notice, prepay the whole or any part of a Loan (but, if in part, being an amount that reduces the Base Currency Amount of the Loan by a minimum amount of £1,000,000).
8.5
Right of replacement, repayment and cancellation in relation to a single Lender
(a)
If:
(i)
any sum payable to any Lender by an Obligor is required to be increased under paragraph (c) of Clause 13.2 (Tax gross-up); or

93954-4-34-v4.0
33

70-40529536




(ii)
any Lender claims indemnification from an Obligor under Clause 13.3 (Tax indemnity) or Clause 14.1 (Increased costs); or
(iii)
at any time on or after the date which is six months before the earliest FATCA Application Date for any payment by a Party to a Lender, that Lender is not, or has ceased to be, a FATCA Exempt Party,
the relevant Obligor may, whilst the circumstance giving rise to the requirement or indemnification continues or that Lender continues not to be a FATCA Exempt Party, give the Agent notice of cancellation of the Commitment of that Lender and its intention to procure the repayment of that Lender's participation in the Loans.
(b)
On receipt of a notice referred to in paragraph (a) above, the Commitment of that Lender shall immediately be reduced to zero.
(c)
On the last day of each Interest Period which ends after the relevant Obligor has given notice under paragraph (a) above (or, if earlier, the date specified by the Obligor in that notice), each Borrower to which a Loan is outstanding shall repay that Lender's participation in that Loan.
(d)
The relevant Obligor may, in the circumstances set out in paragraph (a) above, on 10 Business Days' prior notice to the Agent and that Lender, replace that Lender by requiring that Lender to (and to the extent permitted by law, that Lender shall) transfer pursuant to Clause 24 (Changes to the Parties) all (and not part only) of its rights and obligations under this Agreement to a Lender or other bank, financial institution, trust, fund or other entity selected by the relevant Obligor which confirms its willingness to assume and does assume all the obligations of the transferring Lender in accordance with Clause 24 (Changes to the Parties) for a purchase price in cash or other cash payment payable at the time of the transfer equal to the outstanding principal amount of such Lender's participation in the outstanding Loans and all accrued interest (to the extent that the Agent has not given a notification under Clause 24.9 (Pro rata interest settlement), Break Costs and other amounts payable in relation thereto under the Finance Documents.
(e)
The replacement of a Lender pursuant to paragraph (d) above shall be subject to the following conditions:
(i)
the relevant Obligor shall have no right to replace the Agent;
(ii)
neither the Agent nor any Lender shall have any obligation to find a replacement Lender;
(iii)
in no event shall the Lender replaced under paragraph (d) above be required to pay or surrender any of the fees received by such Lender pursuant to the Finance Documents; and
(iv)
the Lender shall only be obliged to transfer its rights and obligations pursuant to paragraph (d) above once it is satisfied that it has complied

93954-4-34-v4.0
34

70-40529536




with all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to that transfer.
(f)
A Lender shall perform the checks described in paragraph (e)(iv) above as soon as reasonably practicable following delivery of a notice referred to in paragraph (d) above and shall notify the Agent and the Company when it is satisfied that it has complied with those checks.
(g)    
(i)
If any Lender becomes a Defaulting Lender, the relevant Obligor may, at any time whilst the Lender continues to be a Defaulting Lender, give the Agent 5 Business Days' notice of cancellation of the Available Tranche A Commitment and the Available Tranche B Commitment of that Lender.
(ii)
On the notice referred to in paragraph (g)(i) above becoming effective, the Available Tranche A Commitment and/or the Available Tranche B Commitment, as applicable, of the Defaulting Lender shall immediately be reduced to zero.
(iii)
The Agent shall as soon as practicable after receipt of a notice referred to in paragraph (g)(i) above, notify all the Lenders.
8.6
Restrictions
(a)
Any notice of cancellation or prepayment given by any Party under this Clause 8 shall be irrevocable and, unless a contrary indication appears in this Agreement, shall specify the date or dates upon which the relevant cancellation or prepayment is to be made and the amount of that cancellation or prepayment.
(b)
Any prepayment under this Agreement shall be made together with accrued interest on the amount prepaid and, subject to any Break Costs, without premium or penalty.
(c)
Unless a contrary indication appears in this Agreement any part of the Facility which is prepaid may be reborrowed in accordance with the terms of this Agreement.
(d)
The Borrowers shall not repay or prepay all or any part of the Loans or cancel all or any part of the Commitments except at the times and in the manner expressly provided for in this Agreement.
(e)
Subject to Clause 2.2 (Increase) and Clause 4.5 (Reallocation) no amount of the Total Commitments cancelled under this Agreement may be subsequently reinstated.
(f)
If the Agent receives a notice under this Clause 8 it shall promptly forward a copy of that notice to either the Company or the affected Lender, as appropriate.

93954-4-34-v4.0
35

70-40529536




SECTION 5
COSTS OF UTILISATION
9.
INTEREST
9.1
Calculation of interest
The rate of interest on each Loan for each Interest Period is the percentage rate per annum which is the aggregate of the applicable:
(a)
Margin; and
(b)
LIBOR or, in relation to any Loan in euro, EURIBOR.
9.2
Payment of interest
The Borrower to which a Loan has been made shall pay accrued interest on that Loan on the last day of each Interest Period (and, if the Interest Period is longer than six Months, on the dates falling at six Monthly intervals after the first day of the Interest Period).
9.3
Default interest
(a)
If an Obligor fails to pay any amount payable by it under a Finance Document on its due date, interest shall accrue on the overdue amount from the due date up to the date of actual payment (both before and after judgment) at a rate which, subject to paragraph (b) below, is one per cent higher than the rate which would have been payable if the overdue amount had, during the period of non-payment, constituted a Loan in the currency of the overdue amount for successive Interest Periods, each of a duration selected by the Agent (acting reasonably). Any interest accruing under this Clause 9.3 shall be immediately payable by the Obligor on demand by the Agent.
(b)
If any overdue amount consists of all or part of a Loan which became due on a day which was not the last day of an Interest Period relating to that Loan:
(i)
the first Interest Period for that overdue amount shall have a duration equal to the unexpired portion of the current Interest Period relating to that Loan; and
(ii)
the rate of interest applying to the overdue amount during that first Interest Period shall be one per cent. higher than the rate which would have applied if the overdue amount had not become due.
(c)
Default interest (if unpaid) arising on an overdue amount will be compounded with the overdue amount at the end of each Interest Period applicable to that overdue amount but will remain immediately due and payable.
9.4
Notification of rates of interest

93954-4-34-v4.0
36

70-40529536




(a)
The Agent shall promptly notify the relevant Lenders and the relevant Borrower of the determination of a rate of interest under this Agreement.
(b)
The Agent shall promptly notify the relevant Borrower of each Funding Rate relating to a Loan.
10.
INTEREST PERIODS
10.1
Selection of Interest Periods
(a)
A Borrower may select an Interest Period for a Loan in the Utilisation Request for that Loan.
(b)
Subject to this Clause 10 and to Clause 4.5 (Reallocation), a Borrower may select an Interest Period of one, three or six Months or any other period agreed between the relevant Borrower and the Agent (acting on the instructions of all the Lenders).
(c)
An Interest Period for a Loan shall not extend beyond the Termination Date.
(d)
Each Interest Period for a Loan shall start on the Utilisation Date.
(e)
A Loan has one Interest Period only.
10.2
Non-Business Days
If an Interest Period would otherwise end on a day which is not a Business Day, that Interest Period will instead end on the next Business Day in that calendar month (if there is one) or the preceding Business Day (if there is not).
11.
CHANGES TO THE CALCULATION OF INTEREST
11.1
Unavailability of Screen Rate
(a)
Interpolated Screen Rate: If no Screen Rate is available for LIBOR or, if applicable, EURIBOR for the Interest Period of a Loan, the applicable LIBOR or EURIBOR shall be the Interpolated Screen Rate for a period equal in length to the Interest Period of that Loan.
(b)
Cost of funds: If paragraph (a) above applies but it is not possible to calculate the Interpolated Screen Rate, there shall be no LIBOR or EURIBOR for that Loan and Clause 11.3 (Cost of funds) shall apply to that Loan for that Interest Period.
11.2
Market disruption
If before close of business in London on the Quotation Day for the relevant Interest Period, the Agent receives notifications from a Lender or Lenders (whose participations in a Loan exceed 35 per cent. of that Loan) that the cost to it of funding its participation in that Loan from whatever source it may reasonably select would be in excess of LIBOR or, if applicable, EURIBOR then Clause 11.4 (Cost of funds) shall apply to that Loan for the relevant Interest Period.

93954-4-34-v4.0
37

70-40529536




11.3
Cost of funds
(a)
If this Clause 11.4 applies, the rate of interest on each Lender's share of the relevant Loan for the relevant Interest Period shall be the percentage rate per annum which is the sum of:
(i)
the Margin; and
(ii)
the rate notified to the Agent by that Lender as soon as practicable and in any event before interest is due to be paid in respect of that Interest Period, to be that which expresses as a percentage rate per annum the cost to the relevant Lender of funding its participation in that Loan from whatever source it may reasonably select.
(b)
If this Clause 11.4 applies and the Agent or the relevant Borrower so requires, the Agent and the relevant Borrower(s) shall enter into negotiations (for a period of not more than thirty days) with a view to agreeing a substitute basis for determining the rate of interest.
(c)
Any alternative basis agreed pursuant to paragraph (b) above shall, with the prior consent of all the Lenders and the relevant Borrower(s), be binding on all Parties.
11.4
Break Costs
(a)
Each Borrower shall, within three Business Days of demand by a Finance Party, pay to that Finance Party its Break Costs attributable to all or any part of a Loan or Unpaid Sum being paid by that Borrower on a day other than the last day of an Interest Period for that Loan or Unpaid Sum.
(b)
Each Lender shall, as soon as reasonably practicable after a demand by the Agent, provide a certificate confirming the amount of its Break Costs for any Interest Period in which they accrue.
12.
FEES
12.1
Commitment fee
(a)
Yorkshire shall pay to the Agent (for the account of each Lender) a fee in the Base Currency computed at the rate of the Commitment Fee Percentage applicable to it on the daily amount of that Lender's Available Tranche A Commitment for the Availability Period.
(b)
Northeast shall pay to the Agent (for the account of each Lender) a fee in the Base Currency computed at the rate of the Commitment Fee Percentage applicable to it on the daily amount of that Lender's Available Tranche B Commitment for the Availability Period.
(c)
The accrued commitment fee is payable on the last day of each successive period of three Months which ends during the Availability Period, on the Conversion Date, on the last day of the Availability Period and, if cancelled in full, on the

93954-4-34-v4.0
38

70-40529536




cancelled amount of the relevant Lender's Commitment at the time the cancellation is effective.
(d)
No commitment fee is payable to the Agent (for the account of a Lender) on any Available Tranche A Commitment or any Available Tranche B Commitment of that Lender for any day on which that Lender is a Defaulting Lender.
12.2
Utilisation fee
(a)
The Company shall pay to the Agent (for the account of each Lender) a utilisation fee calculated as follows;
(i)
for any day on which more than 33 per cent. (but less than or equal to 66 per cent.) of the Facility is drawn, computed at a rate of 0.15 per cent. per annum on the Loans outstanding at that time; and
(ii)
for any day on which more than 66 per cent. of the Facility is drawn computed at a rate of 0.30 per cent. per annum on the Loans outstanding at that time.
(b)
The accrued utilisation fee is payable on the last day of each successive period of three Months which ends during the term of the Facility and on the Termination Date.
12.3
Agency fee
The Company shall pay to the Agent (for its own account) an agency fee in the amount and at the times agreed in a Fee Letter.
12.4
Arrangement fee
The Company shall pay to the Agent (for the account of the Arranger) an arrangement fee in the amount agreed in a Fee Letter.
12.5
Coordination fee
The Company shall pay to the Agent (for the account of the Arranger) a coordination fee in the amount agreed in a Fee Letter.


93954-4-34-v4.0
39

70-40529536




SECTION 6
ADDITIONAL PAYMENT OBLIGATIONS
13.
TAX GROSS UP AND INDEMNITIES
13.1
Definitions
(a)
In this Agreement:
"Borrower DTTP Filing" means an HM Revenue & Customs' Form DTTP2 duly completed and filed by the relevant Borrower, which:
(i)
where it relates to a Treaty Lender that is an Original Lender, contains the scheme reference number and jurisdiction of tax residence stated opposite that Lender's name in Part II of ‎‎Schedule 1 (The Parties), and is filed with HM Revenue & Customs within 30 Business Days of the Effective Date; or
(ii)
where it relates to a Treaty Lender that is not an Original Lender, contains the scheme reference number and jurisdiction of tax residence stated in respect of that Lender in the documentation which it executes on becoming a Party as a Lender, and is filed with HM Revenue & Customs within 30 days of that Transfer Date or date on which the increase in Commitments described in the relevant Increase Confirmation takes effect.
"Protected Party" means a Finance Party which is or will be subject to any liability, or required to make any payment, for or on account of Tax in relation to a sum received or receivable (or any sum deemed for the purposes of Tax to be received or receivable) under a Finance Document.
"Qualifying Lender" means:
(i)
a Lender which is beneficially entitled to interest payable to that Lender in respect of an advance under a Finance Document and is:
(A)
a Lender:
(1)
which is a bank (as defined for the purpose of section 879 of the ITA) making an advance under a Finance Document and is within the charge to United Kingdom corporation tax as respects any payments of interest made in respect of that advance or would be within such charge as respects such payments apart from section 18A of the CTA; or
(2)
in respect of an advance made under a Finance Document by a person that was a bank (as defined for the purpose of section 879 of the ITA) at the time that that advance was made and which is within the charge to United Kingdom

93954-4-34-v4.0
40

70-40529536




corporation tax as respects any payments of interest made in respect of that advance; or
(B)
a Lender which is:
(1)
a company resident in the United Kingdom for United Kingdom tax purposes;
(2)
a partnership each member of which is:
(1)
a company so resident in the United Kingdom; or
(2)
a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA; or
(3)
a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company; or
(C)
a Treaty Lender; or
(ii)
a Lender which is a building society (as defined for the purpose of section 880 of the ITA) making an advance under a Finance Document.
"Tax Confirmation" means a confirmation by a Lender that the person beneficially entitled to interest payable to that Lender in respect of an advance under a Finance Document is either:
(i)
a company resident in the United Kingdom for United Kingdom tax purposes;
(ii)
a partnership each member of which is:
(A)
a company so resident in the United Kingdom; or
(B)
a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA; or

93954-4-34-v4.0
41

70-40529536




(iii)
a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company.
"Tax Credit" means a credit against, relief or remission for, or repayment of any Tax.
"Tax Deduction" means a deduction or withholding for or on account of Tax from a payment under a Finance Document other than a FATCA Deduction.
"Tax Payment" means either the increase in a payment made by an Obligor to a Finance Party under Clause 13.2 (Tax gross-up) or a payment under Clause 13.3 (Tax indemnity).
"Treaty Lender" means a Lender which:
(i)
is treated as a resident of a Treaty State for the purposes of the Treaty;
(ii)
does not carry on a business in the United Kingdom through a permanent establishment with which that Lender's participation in the Loan is effectively connected; and
(iii)
meets all other conditions in the appropriate double taxation agreement (subject to completion of any procedural formalities) for full exemption from taxation imposed by the United Kingdom on interest.
"Treaty State" means a jurisdiction having a double taxation agreement (a "Treaty") with the United Kingdom which makes provision for full exemption from tax imposed by the United Kingdom on interest.
"UK Non-Bank Lender" means, where a Lender becomes a Party after the day on which this Agreement is entered into, a Lender which gives a Tax Confirmation in the documentation which it executes on becoming a Party as a Lender.
(b)
Unless a contrary indication appears, in this Clause 13 a reference to "determines" or "determined" means a determination made in the absolute discretion of the person making the determination.
13.2
Tax gross-up
(a)
Each Obligor shall make all payments to be made by it without any Tax Deduction, unless a Tax Deduction is required by law.
(b)
Each Obligor shall promptly upon becoming aware that it must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction) notify the Agent accordingly. Similarly, a Lender shall notify the Agent on becoming so aware in respect of a payment payable to that Lender. If the Agent

93954-4-34-v4.0
42

70-40529536




receives such notification from a Lender it shall notify the Company and that Obligor.
(c)
If a Tax Deduction is required by law to be made by an Obligor, the amount of the payment due from that Obligor shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required.
(d)
A payment shall not be increased under paragraph (c) above by reason of a Tax Deduction on account of Tax imposed by the United Kingdom, if on the date on which the payment falls due:
(i)
the payment could have been made to the relevant Lender without a Tax Deduction if the Lender had been a Qualifying Lender, but on that date that Lender is not or has ceased to be a Qualifying Lender other than as a result of any change after the date it became a Lender under this Agreement in (or in the interpretation, administration, or application of) any law or Treaty, or any published practice or published concession of any relevant taxing authority; or
(ii)
the relevant Lender is a Qualifying Lender solely by virtue of paragraph (i)(B) of the definition of Qualifying Lender; and
(A)
an officer of HM Revenue & Customs has given (and not revoked) a direction (a "Direction") under section 931 of the ITA which relates to the payment and that Lender has received from the Obligor making the payment or from the Company a certified copy of that Direction; and
(B)
the payment could have been made to the Lender without any Tax Deduction if that Direction had not been made; or
(iii)
the relevant Lender is a Qualifying Lender solely by virtue of paragraph (i)(B) of the definition of Qualifying Lender; and
(A)
the relevant Lender has not given a Tax Confirmation to the Obligors; and
(B)
the payment could have been made to the Lender without any Tax Deduction if the Lender had given a Tax Confirmation to the Obligors, on the basis that the Tax Confirmation would have enabled the relevant Obligor to have formed a reasonable belief that the payment was an "excepted payment" for the purpose of section 930 of the ITA; or
(iv)
the relevant Lender is a Treaty Lender and the Obligor making the payment is able to demonstrate that the payment could have been made to the Lender without the Tax Deduction had that Lender complied with its obligations under paragraph (g) or (h) (as applicable) below.

93954-4-34-v4.0
43

70-40529536




(e)
If an Obligor is required to make a Tax Deduction, that Obligor shall make that Tax Deduction and any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required by law.
(f)
Within thirty days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Obligor making that Tax Deduction shall deliver to the Agent for the Finance Party entitled to the payment a statement under Section 975 of the ITA, or other evidence reasonably satisfactory to that Finance Party that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority.
(g)    
(i)
Subject to paragraph (ii) below, a Treaty Lender and each Obligor which makes a payment to which that Treaty Lender is entitled shall co-operate in completing any procedural formalities necessary for that Obligor to obtain authorisation to make that payment without a Tax Deduction.
(ii)    
(A)
A Treaty Lender which becomes a Party on the day on which this Agreement is entered into that holds a passport under the HMRC DT Treaty Passport scheme, and which wishes that scheme to apply to this Agreement, shall confirm its scheme reference number and its jurisdiction of tax residence opposite its name in Part II of ‎‎Schedule 1 (The Parties); and
(B)
a Treaty Lender which is not an Original Lender and that holds a passport under the HMRC DT Treaty Passport scheme, and which wishes that scheme to apply to this Agreement, shall confirm its scheme reference number and its jurisdiction of tax residence in the documentation which it executes on becoming a Party as a Lender,
and, having done so, that Lender shall be under no obligation pursuant to paragraph (i) above.
(h)
If a Lender has confirmed its scheme reference number and its jurisdiction of tax residence in accordance with paragraph (g)(ii) above and:
(i)
a Borrower making a payment to that Lender has not made a Borrower DTTP Filing in respect of that Lender; or
(ii)
a Borrower making a payment to that Lender has made a Borrower DTTP Filing in respect of that Lender but:
(A)
that Borrower DTTP Filing has been rejected by HM Revenue & Customs; or

93954-4-34-v4.0
44

70-40529536




(B)
HM Revenue & Customs has not given the Borrower authority to make payments to that Lender without a Tax Deduction within 60 days of the date of the Borrower DTTP Filing,
and in each case, the Borrower has notified that Lender in writing, that Lender and the Borrower shall co-operate in completing any additional procedural formalities necessary for that Borrower to obtain authorisation to make that payment without a Tax Deduction.
(i)
If a Lender has not confirmed its scheme reference number and jurisdiction of tax residence in accordance with paragraph ‎(g)(ii) above, no Obligor shall make a Borrower DTTP Filing or file any other form relating to the HMRC DT Treaty Passport scheme in respect of that Lender's Commitment or its participation in any Loan unless the Lender otherwise agrees.
(j)
A Borrower shall, promptly on making a Borrower DTTP Filing, deliver a copy of that Borrower DTTP Filing to the Agent for delivery to the relevant Lender.
(k)
A UK Non-Bank Lender shall promptly notify the Obligors and the Agent if there is any change in the position from that set out in the Tax Confirmation.
13.3
Tax indemnity
(a)
An Obligor shall (within three Business Days of demand by the Agent) pay to a Protected Party an amount equal to the loss, liability or cost which that Protected Party determines will be or has been (directly or indirectly) suffered for or on account of Tax by that Protected Party in respect of a Finance Document.
(b)
Paragraph (a) above shall not apply:
(i)
with respect to any Tax assessed on a Finance Party:
(A)
under the law of the jurisdiction in which that Finance Party is incorporated or, if different, the jurisdiction (or jurisdictions) in which that Finance Party is treated as resident for tax purposes; or
(B)
under the law of the jurisdiction in which that Finance Party's Facility Office is located in respect of amounts received or receivable in that jurisdiction,
if that Tax is imposed on or calculated by reference to the net income received or receivable (but not any sum deemed to be received or receivable) by that Finance Party; or
(ii)
to the extent a loss, liability or cost:
(A)
is compensated for by an increased payment under Clause 13.2 (Tax gross-up);

93954-4-34-v4.0
45

70-40529536




(B)
would have been compensated for by an increased payment under Clause 13.2 (Tax gross-up) but was not so compensated solely because one of the exclusions in paragraph (d) of Clause 13.2 (Tax gross-up) applied; or
(C)
relates to a FATCA Deduction required to be made by a Party.
(c)
A Protected Party making, or intending to make a claim under paragraph (a) above shall promptly notify the Agent of the event which will give, or has given, rise to the claim, following which the Agent shall notify the Obligor.
(d)
A Protected Party shall, on receiving a payment from an Obligor under this Clause 13.3, notify the Agent.
13.4
Tax Credit
If an Obligor makes a Tax Payment and the relevant Finance Party determines that:
(a)
a Tax Credit is attributable to an increased payment of which that Tax Payment forms part, to that Tax Payment or to a Tax Deduction in consequence of which that Tax Payment was required; and
(b)
that Finance Party has obtained and utilised that Tax Credit,
the Finance Party shall pay an amount to the Obligor which that Finance Party determines will leave it (after that payment) in the same after-Tax position as it would have been in had the Tax Payment not been required to be made by the Obligor.
13.5
Lender Status Confirmation
Each Lender which becomes a Party to this Agreement after the Effective Date shall indicate, in the documentation which it executes on becoming a Party as a Lender, and for the benefit of the Agent and without liability to any Obligor, which of the following categories it falls in:
(a)
not a Qualifying Lender;
(b)
a Qualifying Lender (other than a Treaty Lender); or
(c)
a Treaty Lender.
If such a Lender fails to indicate its status in accordance with this Clause 13.5 then that Lender shall be treated for the purposes of this Agreement (including by each Obligor) as if it is not a Qualifying Lender until such time as it notifies the Agent which category applies (and the Agent, upon receipt of such notification, shall inform the Obligors). For the avoidance of doubt, the documentation which a Lender executes on becoming a Party as a Lender shall not be invalidated by any failure of a Lender to comply with this Clause 13.5.
13.6
Stamp taxes

93954-4-34-v4.0
46

70-40529536




The Company shall pay and, within three Business Days of demand, indemnify each Finance Party against any cost, loss or liability that Finance Party incurs in relation to all stamp duty, registration and other similar Taxes payable in respect of any Finance Document.
13.7
Value added tax
(a)
All amounts expressed to be payable under a Finance Document by any Party to a Finance Party which (in whole or in part) constitute the consideration for any supply for VAT purposes are deemed to be exclusive of any VAT which is chargeable on that supply and, accordingly, subject to paragraph (b) below, if VAT is or becomes chargeable on any supply made by any Finance Party to any Party under a Finance Document and such Finance Party is required to account to the relevant tax authority for the VAT, that Party must pay to such Finance Party (in addition to and at the same time as paying any other consideration for such supply) an amount equal to the amount of the VAT (and such Finance Party must promptly provide an appropriate VAT invoice to that Party).
(b)
If VAT is or becomes chargeable on any supply made by any Finance Party (the "Supplier") to any other Finance Party (the "Recipient") under a Finance Document, and any Party other than the Recipient (the "Relevant Party") is required by the terms of any Finance Document to pay an amount equal to the consideration for that supply to the Supplier (rather than being required to reimburse or indemnify the Recipient in respect of that consideration):
(i)
(where the Supplier is the person required to account to the relevant tax authority for the VAT) the Relevant Party must also pay to the Supplier (at the same time as paying that amount) an additional amount equal to the amount of the VAT. The Recipient must (where this paragraph (i) applies) promptly pay to the Relevant Party an amount equal to any credit or repayment the Recipient receives from the relevant tax authority which the Recipient reasonably determines relates to the VAT chargeable on that supply; and
(ii)
(where the Recipient is the person required to account to the relevant tax authority for the VAT) the Relevant Party must promptly, following demand from the Recipient, pay to the Recipient an amount equal to the VAT chargeable on that supply but only to the extent that the Recipient reasonably determines that it is not entitled to credit or repayment from the relevant tax authority in respect of that VAT.
(c)
Where a Finance Document requires any Party to reimburse or indemnify a Finance Party for any cost or expense, that Party shall reimburse or indemnify (as the case may be) such Finance Party for the full amount of such cost or expense, including such part thereof as represents VAT, save to the extent that such Finance Party reasonably determines that it is entitled to credit or repayment in respect of such VAT from the relevant tax authority.

93954-4-34-v4.0
47

70-40529536




(d)
Any reference in this Clause 13.7 to any party shall, at any time when such party is treated as a member of a group or unity (or fiscal unity) for VAT purposes, include (where appropriate and unless the context otherwise requires) a reference to the person who is treated at that time as making the supply, or (as appropriate) receiving the supply, under the grouping rules (provided for in Article 11 of Council Directive 2006/112/EC (or as implemented by the relevant member state of the European Union) or any other similar provision in any jurisdiction which is not a member state of the European Union) so that a reference to a party shall be construed as a reference to that party or the relevant group or unity (or fiscal unity) of which that party is a member for VAT purposes at the relevant time or the relevant representative member (or head) of that group or unity (or fiscal unity) at the relevant time (as the case may be).
(e)
In relation to any supply made by a Finance Party to any Party under a Finance Document, if reasonably requested by such Finance Party, that Party must promptly provide such Finance Party with details of that Party's VAT registration and such other information as is reasonably requested in connection with such Finance Party's VAT reporting requirements in relation to such supply.
13.8
FATCA Information
(a)
Subject to paragraph (c) below, each Party shall, within ten Business Days of a reasonable request by another Party:
(i)
confirm to that other Party whether it is:
(A)
a FATCA Exempt Party; or
(B)
not a FATCA Exempt Party;
(ii)
supply to that other Party such forms, documentation and other information relating to its status under FATCA as that other Party reasonably requests for the purposes of that other Party's compliance with FATCA; and
(iii)
supply to that other Party such forms, documentation and other information relating to its status as that other Party reasonably requests for the purposes of that other Party's compliance with any other law, regulation or exchange of information regime.
(b)
If a Party confirms to another Party pursuant to paragraph (a)(i) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not, or has ceased to be a FATCA Exempt Party, that Party shall notify that other Party reasonably promptly.
(c)
Paragraph (a) above shall not oblige any Finance Party to do anything, and paragraph (a)(iii) above shall not oblige any other Party to do anything, which would or might in its reasonable opinion constitute a breach of:
(i)
any law or regulation;

93954-4-34-v4.0
48

70-40529536




(ii)
any fiduciary duty; or
(iii)
any duty of confidentiality.
(d)
If a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in accordance with paragraph (a)(i) or (ii) above (including, for the avoidance of doubt, where paragraph (c) above applies), then such Party shall be treated for the purposes of the Finance Documents (and payments under them) as if it is not a FATCA Exempt Party until such time as the Party in question provides the requested confirmation, forms, documentation or other information.
13.9
FATCA Deduction
(a)
Each Party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no Party shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction.
(b)
Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such FATCA Deduction), notify the Party to whom it is making the payment and, in addition, shall notify the Company and the Agent and the Agent shall notify the other Finance Parties.
14.
INCREASED COSTS
14.1
Increased costs
(a)
Subject to Clause 14.3 (Exceptions) an Obligor shall, within three Business Days of a demand by the Agent, pay for the account of a Finance Party the amount of any Increased Costs incurred by that Finance Party or any of its Affiliates as a result of:
(i)
the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation;
(ii)
compliance with any law or regulation made after the Effective Date; or
(iii)
the implementation or application of, or compliance with, Basel III or CRD IV or any law or regulation which implements or applies Basel III or CRD IV.
(b)
In this Agreement "Increased Costs" means:
(i)
a reduction in the rate of return from the Facility or on a Finance Party's (or its Affiliate's) overall capital;
(ii)
an additional or increased cost; or

93954-4-34-v4.0
49

70-40529536




(iii)
a reduction of any amount due and payable under any Finance Document,
which is incurred or suffered by a Finance Party or any of its Affiliates to the extent that it is attributable to that Finance Party having entered into its Commitment or funding or performing its obligations under any Finance Document.
14.2
Increased cost claims
(a)
A Finance Party intending to make a claim pursuant to Clause 14.1 (Increased costs) shall notify the Agent of the event giving rise to the claim, following which the Agent shall promptly notify the relevant Obligor.
(b)
Each Finance Party shall, as soon as practicable after a demand by the Agent, provide a certificate confirming the amount of its Increased Costs.
14.3
Exceptions
(a)
Clause 14.1 (Increased costs) does not apply to the extent any Increased Cost is:
(i)
attributable to a Tax Deduction required by law to be made by an Obligor;
(ii)
attributable to a FATCA Deduction required to be made by a Party;
(iii)
compensated for by Clause 13.3 (Tax indemnity) (or would have been compensated for under Clause 13.3 (Tax indemnity) but was not so compensated solely because any of the exclusions in paragraph (b) of Clause 13.3 (Tax indemnity) applied); or
(iv)
attributable to the wilful breach by the relevant Finance Party or its Affiliates of any law or regulation.
(b)
In this Clause 14.3, a reference to a "Tax Deduction" has the same meaning given to that term in Clause 13.1 (Definitions).
15.
OTHER INDEMNITIES
15.1
Currency indemnity
(a)
If any sum due from an Obligor under the Finance Documents (a "Sum"), or any order, judgment or award given or made in relation to a Sum, has to be converted from the currency (the "First Currency") in which that Sum is payable into another currency (the "Second Currency") for the purpose of:
(i)
making or filing a claim or proof against that Obligor;
(ii)
obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings,
that Obligor shall as an independent obligation, within three Business Days of demand, indemnify each Finance Party to whom that Sum is due against any

93954-4-34-v4.0
50

70-40529536




cost, loss or liability arising out of or as a result of the conversion including any discrepancy between (A) the rate of exchange used to convert that Sum from the First Currency into the Second Currency and (B) the rate or rates of exchange available to that person at the time of its receipt of that Sum.
(b)
Each Obligor waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency or currency unit other than that in which it is expressed to be payable.
15.2
Other indemnities
An Obligor shall within three Business Days of demand, indemnify each Finance Party against any cost, loss or liability incurred by that Finance Party as a result of:
(a)
the occurrence of any Event of Default;
(b)
a failure by an Obligor to pay any amount due under a Finance Document on its due date, including without limitation, any cost, loss or liability arising as a result of Clause 27 (Sharing among the Finance Parties);
(c)
funding, or making arrangements to fund, its participation in a Loan requested by a Borrower in a Utilisation Request but not made by reason of the operation of any one or more of the provisions of this Agreement (other than by reason of default or negligence by that Finance Party alone); or
(d)
a Loan (or part of a Loan) not being prepaid in accordance with a notice of prepayment given by a Borrower.
15.3
Indemnity to the Agent
An Obligor shall promptly indemnify the Agent against any cost, loss or liability incurred by the Agent (acting reasonably) as a result of:
(a)
investigating any event which it reasonably believes is a Default;
(b)
entering into or performing any foreign exchange contract for the purposes of Clause 6 (Optional Currencies); or
(c)
acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised; or
(d)
instructing lawyers, accountants, tax advisers, surveyors or other professional advisers or experts as permitted under this Agreement and provided that the Company has given its prior written consent (not to be unreasonably withheld) to such instructions save that no such consent shall be required where the Agent reasonably suspects a Default is continuing.
16.
MITIGATION BY THE LENDERS
16.1
Mitigation

93954-4-34-v4.0
51

70-40529536




(a)
Each Finance Party shall, in consultation with the Obligors, take all reasonable steps to mitigate any circumstances which arise and which would result in any amount becoming payable under or pursuant to, or cancelled pursuant to, any of Clause 8.1 (Illegality), Clause 13 (Tax gross-up and indemnities), Clause 14 (Increased costs) including (but not limited to) transferring its rights and obligations under the Finance Documents to another Affiliate or Facility Office.
(b)
Paragraph (a) above does not in any way limit the obligations of any Obligor under the Finance Documents.
16.2
Limitation of liability
(a)
An Obligor shall indemnify each Finance Party for all costs and expenses reasonably incurred by that Finance Party as a result of steps taken by it under Clause 16.1 (Mitigation).
(b)
A Finance Party is not obliged to take any steps under Clause 16.1 (Mitigation) if, in the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it.
17.
COSTS AND EXPENSES
17.1
Transaction expenses
An Obligor shall promptly on demand pay the Agent and the Arranger the amount of all out of pocket costs and expenses (including legal fees up to the amount of any cap agreed in respect thereof) reasonably incurred by any of them in connection with the negotiation, preparation, printing, execution and syndication of:
(a)
this Agreement and any other documents referred to in this Agreement; and
(b)
any other Finance Documents executed after the Effective Date.
17.2
Amendment costs
If (a) an Obligor requests an amendment, waiver or consent or (b) an amendment is required pursuant to Clause 28.10 (Change of currency), an Obligor shall, within three Business Days of demand, reimburse the Agent for the amount of all costs and expenses (including legal fees) reasonably incurred by the Agent in responding to, evaluating, negotiating or complying with that request or requirement.
17.3
Enforcement costs
An Obligor shall, within three Business Days of demand, pay to each Finance Party the amount of all costs and expenses (including legal fees) incurred by that Finance Party in connection with the enforcement of, or the preservation of any rights under, any Finance Document.

93954-4-34-v4.0
52

70-40529536




SECTION 7
GUARANTEE
18.
GUARANTEE AND INDEMNITY
18.1
Guarantee and indemnity
The Guarantor irrevocably and unconditionally:
(a)
guarantees to each Finance Party punctual performance by each other Borrower of all that Borrower's obligations under the Finance Documents;
(b)
undertakes with each Finance Party that whenever a Borrower does not pay any amount when due under or in connection with any Finance Document, the Guarantor shall immediately on demand pay that amount as if it was the principal obligor; and
(c)
agrees with each Finance Party that if any obligation guaranteed by it is or becomes unenforceable, invalid or illegal it will, as an independent and primary obligation, indemnify that Finance Party immediately on demand against any cost, loss or liability it incurs as a result of a Borrower not paying any amount which would, but for such unenforceability, invalidity or illegality, have been payable by it under any Finance Document on the date when it would have been due. The amount payable by the Guarantor under this indemnity will not exceed the amount it would have had to pay under this Clause 18 if the amount claimed had been recoverable on the basis of a guarantee.
18.2
Continuing guarantee
This guarantee is a continuing guarantee and will extend to the ultimate balance of sums payable by any Obligor under the Finance Documents, regardless of any intermediate payment or discharge in whole or in part.
18.3
Reinstatement
If any discharge, release or arrangement (whether in respect of the obligations of any Obligor or any security for those obligations or otherwise) is made by a Finance Party in whole or in part on the basis of any payment, security or other disposition which is avoided or must be restored in insolvency, liquidation, administration or otherwise, without limitation, then the liability of the Guarantor under this Clause 18 will continue or be reinstated as if the discharge, release or arrangement had not occurred.
18.4
Waiver of defences

93954-4-34-v4.0
53

70-40529536




The obligations of the Guarantor under this Clause 18 will not be affected by any act, omission, matter or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under this Clause 18 (without limitation and whether or not known to it or any Finance Party) including:
(a)
any time, waiver or consent granted to, or composition with, any Obligor or other person;
(b)
the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor of any member of the Group;
(c)
the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(d)
any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any other person;
(e)
any amendment, novation, supplement, extension or restatement (however fundamental and whether or not more onerous) or replacement of a Finance Document or any other document or security including without limitation any change in the purpose of, any extension of, or any increase in, any facility or the addition of any new facility under any Finance Document or other document;
(f)
any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document or any other document or security; or
(g)
any insolvency or similar proceedings.
18.5
Immediate recourse
The Guarantor waives any right it may have of first requiring any Finance Party (or any trustee or agent on its behalf) to proceed against or enforce any other rights or security or claim payment from any person before claiming from the Guarantor under this Clause 18. This waiver applies irrespective of any law or any provision of a Finance Document to the contrary.
18.6
Appropriations
Until all amounts which may be or become payable by the Obligors under or in connection with the Finance Documents have been irrevocably paid in full, each Finance Party (or any trustee or agent on its behalf) may:
(a)
refrain from applying or enforcing any other moneys, security or rights held or received by that Finance Party (or any trustee or agent on its behalf) in respect of those amounts, or apply and enforce the same in such manner and order as it sees fit (whether against those amounts or otherwise) and the Guarantor shall not be entitled to the benefit of the same; and

93954-4-34-v4.0
54

70-40529536




(b)
hold in an interest-bearing suspense account any moneys received from the Guarantor or on account of the Guarantor's liability under this Clause 18.
18.7
Deferral of Guarantor's rights
Until all amounts which may be or become payable by the Obligors under or in connection with the Finance Documents have been irrevocably paid in full and unless the Agent otherwise directs, the Guarantor will not exercise any rights which it may have by reason of performance by it of its obligations under the Finance Documents or by reason of any amount being payable, or liability arising, under this Clause 18:
(a)
to be indemnified by an Obligor;
(b)
to claim any contribution from any other guarantor of any Obligor's obligations under the Finance Documents;
(c)
to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Finance Parties under the Finance Documents or of any other guarantee or security taken pursuant to, or in connection with, the Finance Documents by any Finance Party;
(d)
to bring legal or other proceedings for an order requiring any Obligor to make any payment, or perform any obligation, in respect of which the Guarantor has given a guarantee, undertaking or indemnity under Clause 18.1 (Guarantee and Indemnity);
(e)
to exercise any right of set-off against any Obligor; and/or
(f)
to claim or prove as a creditor of any Obligor in competition with any Finance Party.
If the Guarantor receives any benefit, payment or distribution in relation to such rights it shall hold that benefit, payment or distribution to the extent necessary to enable all amounts which may be or become payable to the Finance Parties by the Obligors under or in connection with the Finance Documents to be repaid in full on trust for the Finance Parties and shall promptly pay or transfer the same to the Agent or as the Agent may direct for application in accordance with Clause 28 (Payment mechanics).
18.8
Additional security
This guarantee is in addition to and is not in any way prejudiced by any other guarantee or security now or subsequently held by any Finance Party.

93954-4-34-v4.0
55

70-40529536




SECTION 8
REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT
19.
REPRESENTATIONS
Each Obligor makes the representations and warranties set out in this Clause 19 to each Finance Party on the date of the Amendment and Restatement Agreement and on the Effective Date.
19.1
Status
(a)
It is a corporation, duly incorporated and validly existing under the law of its jurisdiction of incorporation.
(b)
It and each of its Subsidiaries has the power to own its assets and carry on its business as it is being conducted.
19.2
Binding obligations
The obligations expressed to be assumed by it in each Finance Document are, subject to any general principles of law as at the Effective Date limiting its obligations which are specifically referred to in any legal opinion delivered pursuant to Clause 4 (Conditions of Utilisation), legal, valid, binding and enforceable obligations.
19.3
Non-conflict with other obligations
The entry into and performance by it of, and the transactions contemplated by, the Finance Documents do not and will not conflict with:
(a)
any law or regulation applicable to it;
(b)
its or any of its Subsidiaries' constitutional documents; or
(c)
any agreement or instrument binding upon it or any of its Subsidiaries or any of its or any of its Subsidiaries' assets to an extent which could reasonably be expected to have a Material Adverse Effect.
19.4
Power and authority
It has the power to enter into, perform and deliver, and has taken all necessary action to authorise its entry into, performance and delivery of, the Finance Documents to which it is a party and the transactions contemplated by those Finance Documents.
19.5
Validity and admissibility in evidence
(a)
All Authorisations required:
(i)
to enable it lawfully to enter into, exercise its rights and comply with its obligations in the Finance Documents to which it is a party; and

93954-4-34-v4.0
56

70-40529536




(ii)
to make the Finance Documents to which it is a party admissible in evidence in its jurisdiction of incorporation,
have been obtained or effected and are in full force and effect.
(b)
All material Authorisations (including, without limitation, in the case of each Borrower pursuant to its DNO Licence) necessary for the conduct of its business, trade and ordinary activities have been obtained and effected and are in full force and effect.
19.6
Governing law and enforcement
(a)
The choice of English law as the governing law of the Finance Documents will be recognised and enforced in its jurisdiction of incorporation.
(b)
Any judgment obtained in England in relation to a Finance Document will be recognised and enforced in its jurisdiction of incorporation.
19.7
Deduction of Tax
It is not required to make any Tax Deduction (as defined in Clause 13.1 (Definitions) from any payment it may make under any Finance Document to a Lender which is:
(a)
a Qualifying Lender:
(i)
falling within paragraph (i)(A) of the definition of Qualifying Lender; or
(ii)
except where a Direction has been given under section 931 of the ITA in relation to the payment concerned, falling within paragraph (i)(B) of the definition of Qualifying Lender; or
(iii)
falling within paragraph (ii) of the definition of Qualifying Lender or;
(b)
a Treaty Lender and the payment is one specified in a direction given by the Commissioners of Revenue & Customs under Regulation 2 of the Double Taxation Relief (Taxes on Income) (General) Regulations 1970 (SI 1970/488).
19.8
No filing or stamp taxes
Under the law of its jurisdiction of incorporation it is not necessary that the Finance Documents be filed, recorded or enrolled with any court or other authority in that jurisdiction or that any stamp, registration or similar tax be paid on or in relation to the Finance Documents or the transactions contemplated by the Finance Documents.
19.9
No default
(a)
No Event of Default is continuing or might reasonably be expected to result from the making of any Utilisation.
(b)
No other event or circumstance is outstanding which constitutes a default under any other agreement or instrument which is binding on it or any of its Subsidiaries

93954-4-34-v4.0
57

70-40529536




or to which its (or any of its Subsidiaries') assets are subject which might reasonably be expected to have a Material Adverse Effect.
19.10
No misleading information
(a)
Any written factual information provided by any member of the Group (the "Information") was true and accurate in all material respects as at the date it was provided or as at the date (if any) at which it is stated.
(b)
Any financial projections contained in the Information have been prepared on the basis of recent historical information and on the basis of assumptions believed by it to be reasonable.
(c)
Nothing has occurred or been omitted from the Information and no information has been given or withheld that results in the Information taken as a whole being untrue or misleading in any material respect.
19.11
Financial statements
(a)
Its Original Financial Statements were prepared in accordance with IFRS consistently applied unless expressly disclosed to the Agent in writing to the contrary before the Effective Date.
(b)
Its Original Financial Statements fairly represent its financial condition as at the end of the relevant financial year and operations during the relevant financial year (consolidated in the case of the Guarantor) unless expressly disclosed to the Agent in writing to the contrary before the Effective Date.
(c)
There has been no material adverse change in its business or financial condition (or the business or consolidated financial condition of the Group, in the case of the Guarantor) since the date of its Original Financial Statements.
19.12
Pari passu ranking
Its payment obligations under the Finance Documents rank at least pari passu with the claims of all its other unsecured and unsubordinated creditors, except for obligations mandatorily preferred by law applying to companies generally.
19.13
No proceedings pending or threatened
No litigation, arbitration or administrative proceedings of or before any court, arbitral body or agency which, if adversely determined, might reasonably be expected to have a Material Adverse Effect has or have (to the best of its knowledge and belief) been started or threatened against it or any of its Subsidiaries.
19.14
Environmental compliance
Each member of the Group has performed and observed in all material respects all Environmental Law, Environmental Permits and all other material covenants, conditions, restrictions or agreements directly or indirectly concerned with any contamination, pollution or waste or the release or discharge of any toxic or hazardous substance in

93954-4-34-v4.0
58

70-40529536




connection with any real property which is or was at any time owned, leased or occupied by any member of the Group or on which any member of the Group has conducted any activity where failure to do so might reasonably be expected to have a Material Adverse Effect.
19.15
Environmental Claims
No Environmental Claim has been commenced or (to the best of its knowledge and belief) is threatened against any member of the Group where that claim would be reasonably likely, if determined against that member of the Group to have a Material Adverse Effect.
19.16
Sanctions
(a)
No member of the Group nor, to the knowledge of the Obligors, any director or officer or Affiliate of any member of the Group is currently a target of any financial or economic sanctions or trade embargoes ("Sanctions") administered or enforced by the Office of Foreign Assets Control of the US Department of Treasury (OFAC), the U.S. Departments of State or Commerce, the European Union, the United Kingdom or any other regulatory authority, institutions or agency which administers economic sanctions ("Sanctions Target").
(b)
No member of the Group is located, organised or resident in a country or territory that is the subject or the target of Sanctions, including, without limitation, Cuba, Iran, North Korea, Sudan and Syria.
Any provision of this Clause 19.16 shall not apply to any person if and to the extent that it is or would be unenforceable by or in respect of that person by reason of breach of any provision of Council Regulation (EC) No 2271/1996 of 22 November 1996 protecting against the effects of the extra-territorial application of legislation adopted by a third country, and actions based thereon or resulting therefrom (the "Blocking Regulation") (or any law or regulation implementing such Regulation in any member state of the European Union or the United Kingdom). For the avoidance of any doubt, nothing in this Clause 19.16 is intended or should be interpreted or construed, as inducing any party to act in a manner that would be in breach of any provision of the Blocking Regulation.
19.17
Anti-corruption
(a)
No member of the Group nor, to the best of the knowledge of the Obligors, any director, officer or Affiliate of the Group has engaged in any activity or conduct which would violate any applicable anti-money laundering, anti-bribery or anti-corruption law or regulation.
(b)
Each Obligor has instituted and maintains policies and procedures designed to prevent the violation of any applicable money laundering, bribery and corruption laws.
19.18
Relevant Financial Institution

93954-4-34-v4.0
59

70-40529536




No Obligor is a relevant financial institution (an "RFI") as defined in The Financial Services and Markets Act 2000 (Excluded Activities and Prohibitions) Order 2014.
19.19
Repetition
The Repeating Representations are deemed to be made by each Obligor (by reference to the facts and circumstances then existing) on the date of each Utilisation Request and the first day of each Interest Period.
20.
INFORMATION UNDERTAKINGS
The undertakings in this Clause 20 remain in force from the Effective Date for so long as any amount is outstanding under the Finance Documents or any Commitment is in force.
20.1
Financial statements
The Company shall supply to the Agent in sufficient copies for all the Lenders:
(a)
as soon as the same become available, but in any event within 180 days after the end of each of its financial years:
(i)
its audited consolidated financial statements for that financial year; and
(ii)
the audited financial statements of each Borrower for that financial year; and
(b)
as soon as the same become available, but in any event within 90 days after the end of each half of each of its financial years the unaudited consolidated financial statements of the Group for that financial half year.
20.2
Compliance Certificate
(a)
The Company shall supply to the Agent, with each set of financial statements delivered pursuant to paragraph (a)(i) or (b) of Clause 20.1 (Financial statements), a Compliance Certificate setting out (in reasonable detail) computations as to compliance with Clause 21 (Financial covenants) as at the date as at which those financial statements were drawn up.
(b)
Each Compliance Certificate shall be signed by two directors of the Company (or, failing that, by one director of the Company and the finance director or the treasurer and investor reporting manager or the treasury and reporting manager or the group financial controller or the company secretary of the Company).
20.3
Requirements as to financial statements
(a)
Each set of financial statements delivered by the Company pursuant to Clause 20.1 (Financial statements) shall include a balance sheet, income statement and cashflow statement and shall be certified by a director of the relevant company as fairly representing its financial condition as at the date as at which those financial statements were drawn up.

93954-4-34-v4.0
60

70-40529536




(b)    
(i)
The Company shall procure that each set of financial statements of an Obligor delivered pursuant to Clause 20.1 (Financial statements) is prepared using IFRS, and accounting practices and financial reference periods consistent with those applied in the preparation of the Original Financial Statements for that Obligor unless, in relation to any set of financial statements, it notifies the Agent that there has been a change in IFRS, or the accounting practices or reference periods and its auditors (or, if appropriate, the auditors of the Obligor) deliver to the Agent:
(A)
a description of any change necessary for those financial statements to reflect the IFRS, accounting practices and reference periods upon which that Obligor's Original Financial Statements were prepared; and
(B)
sufficient information, in form and substance as may be reasonably required by the Agent, to enable the Lenders to determine whether Clause 21 (Financial covenants) has been complied with and make an accurate comparison between the financial position indicated in those financial statements and that Obligor's Original Financial Statements.
(ii)
If the Company notifies the Agent of a change in accordance with paragraph (i) above then the Company and Agent shall enter into negotiations in good faith with a view to agreeing:
(A)
whether or not the change might result in any material alteration in the commercial effect of any of the terms of this Agreement; and
(B)
if so, any amendments to this Agreement which may be necessary to ensure that the change does not result in any material alteration in the commercial effect of those terms,
and if any amendments are agreed they shall take effect and be binding on each of the Parties in accordance with their terms.
Any reference in this Agreement to those financial statements shall be construed as a reference to those financial statements as adjusted to reflect the basis upon which the Original Financial Statements were prepared.
20.4
Information: miscellaneous
Each Borrower shall supply to the Agent (in sufficient copies for all the Lenders, if the Agent so requests):
(a)
promptly upon becoming aware of them, the details of any litigation, arbitration or administrative proceedings which are current, threatened or pending against any member of the Group, and which might, if adversely determined, have a

93954-4-34-v4.0
61

70-40529536




Material Adverse Effect (other than distribution price control reviews to which all other electricity distribution network operators in Great Britain are subject);
(b)
promptly written notice of each Obligor's Moody's Rating and S&P Rating and any changes thereto;
(c)
promptly upon receipt a copy of each DNO Licence (and any amendment thereto or renewal thereof) in respect of each Obligor; and
(d)
promptly, such further information regarding the financial condition, business and operations of any member of the Group as any Finance Party (through the Agent) may reasonably request.
20.5
Notification of default
(a)
Each Obligor shall notify the Agent of any Default (and the steps, if any, being taken to remedy it) promptly upon becoming aware of its occurrence (unless that Obligor is aware that a notification has already been provided by another Obligor).
(b)
Promptly upon a request by the Agent, an Obligor shall supply to the Agent a certificate signed by two of its directors or senior officers on its behalf certifying that no Default is continuing (or if a Default is continuing, specifying the Default and the steps, if any, being taken to remedy it) save that a Borrower shall only be required to certify that no Default is continuing in respect of itself.
20.6
Use of websites
(a)
An Obligor may satisfy its obligation under this Agreement to deliver any information in relation to those Lenders ( the "Website Lenders") who accept this method of communication by posting this information onto an electronic website designated by the Company and the Agent (the "Designated Website") if:
(i)
the Agent expressly agrees (after consultation with each of the Lenders) that it will accept communication of the information by this method;
(ii)
both the Obligor and the Agent are aware of the address of and any relevant password specifications for the Designated Website; and
(iii)
the information is in a format previously agreed between the Obligor and the Agent.
If any Lender (a "Paper Form Lender") does not agree to the delivery of information electronically then the Agent shall notify the Obligor accordingly and the Obligor shall supply the information to the Agent (in sufficient copies for each Paper Form Lender) in paper form. In any event the Obligor shall supply the Agent with at least one copy in paper form of any information required to be provided by it.

93954-4-34-v4.0
62

70-40529536




(b)
The Agent shall supply each Website Lender with the address of and any relevant password specifications for the Designated Website following designation of that website by the Obligor and the Agent.
(c)
The Obligor shall promptly upon becoming aware of its occurrence notify the Agent if:
(i)
the Designated Website cannot be accessed due to technical failure;
(ii)
the password specifications for the Designated Website change;
(iii)
any new information which is required to be provided under this Agreement is posted onto the Designated Website;
(iv)
any existing information which has been provided under this Agreement and posted onto the Designated Website is amended; or
(v)
the Obligor becomes aware that the Designated Website or any information posted onto the Designated Website is or has been infected by any electronic virus or similar software.
If the Obligor notifies the Agent under paragraph (c)(i) or paragraph (c)(v) above, all information to be provided by the Obligor under this Agreement after the date of that notice shall be supplied in paper form unless and until the Agent and each Website Lender is satisfied that the circumstances giving rise to the notification are no longer continuing.
Any Website Lender may request, through the Agent, one paper copy of any information required to be provided under this Agreement which is posted onto the Designated Website. The Obligor shall comply with any such request within ten Business Days.
20.7
"Know your customer" checks
(a)
If:
(i)
the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation made after the Effective Date;
(ii)
any change in the status of an Obligor or the composition of the shareholders of an Obligor after the Effective Date; or
(iii)
a proposed assignment or transfer by a Lender of any of its rights and obligations under this Agreement to a party that is not a Lender prior to such assignment or transfer,
obliges the Agent or any Lender (or, in the case of paragraph (iii) above, any prospective new Lender) to comply with "know your customer" or similar identification procedures in circumstances where the necessary information is not already available to it, each Obligor shall promptly upon the request of the

93954-4-34-v4.0
63

70-40529536




Agent or any Lender supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent (for itself, or on behalf of any Lender) or any Lender (for itself or, in the case of the event described in paragraph (iii) above, or on behalf of any prospective new Lender) in order for the Agent, such Lender or, in the case of the event described in paragraph (iii) above, any prospective new Lender to carry out and be satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents.
(b)
Each Lender shall promptly upon the request of the Agent supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent (for itself) in order for the Agent to carry out and be satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents.  
21.
FINANCIAL COVENANTS
21.1
Financial definitions
In this Clause 21:
"Borrowings" means, at any time, the outstanding principal, capital or nominal amount and any fixed or minimum premium payable on prepayment or redemption of any indebtedness for or in respect of:
(a)
moneys borrowed and debit balances with financial institutions;
(b)
any amount raised by acceptance under any acceptance credit facility;
(c)
any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument;
(d)
any finance or capital lease;
(e)
receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis);
(f)
any counter-indemnity obligation in respect of a guarantee, indemnity, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution (excluding any given in respect of trade credit arising in the ordinary course of business);
(g)
any amount raised by the issue of redeemable shares which are redeemable before the Termination Date;
(h)
any amount raised under any other transaction (including any forward sale or purchase agreement) having the commercial effect of a borrowing; and

93954-4-34-v4.0
64

70-40529536




(i)
(without double counting) the amount of any liability in respect of any guarantee or indemnity for any of the items referred to in paragraphs (a) to (h) above.
"Calculation Date" means each of 30 June and 31 December in any year.
"Consolidated EBIT" means the consolidated profit shown in the consolidated financial statements of the Group on the line entitled "operating profit":
(a)
before taking into account any items treated as exceptional items;
(b)
after deducting the amount of any profit of any member of the Group which is attributable to minority interests;
(c)
after adding dividends received from any investment or entity (which is not itself a member of the Group) in which any member of the Group has an ownership interest;
(d)
before taking into account any realised and unrealised exchange gains and losses including those arising on translation of currency debt;
(e)
before taking into account any gain or loss arising from an upward or downward revaluation of any asset at any time before the date of the Guarantor's Original Financial Statements,
in each case, to the extent added, deducted or taken into account, as the case may be, for the purposes of determining profits of the Group from ordinary activities before taxation (and without double counting).
"Consolidated Net Finance Charges" means, for any Relevant Period, the aggregate amount of net interest paid on Consolidated Senior Total Net Debt included in the consolidated cash flow statement for the Group in respect of that Relevant Period.
"Consolidated Senior Total Net Debt" means, at any time, the aggregate amount of all obligations of the Group for or in respect of Borrowings (other than between members of the Group) which rank at least pari passu with the Loans advanced hereunder but:
(a)
deducting the aggregate amount of all obligations of any member of the Group in respect of Project Finance Borrowings;
(b)
deducting the aggregate amount of all obligations of any member of the Group in respect of Borrowings to the extent that the repayment or redemption of such Borrowings is provided for by the purchase by a member of the Group of a guaranteed investment contract; and
(c)
deducting the aggregate amount of freely available cash and Cash Equivalent Investments held by any member of the Group at such time,
and so that no amount shall be excluded more than once.

93954-4-34-v4.0
65

70-40529536




"Interest Cover" means, in respect of any Relevant Period, the ratio of Consolidated EBIT for that Relevant Period to Consolidated Net Finance Charges for that Relevant Period.
"Northeast Senior Total Net Debt" means, at any time, the aggregate amount of all obligations of Northeast for or in respect of Borrowings which rank at least pari passu with the Loans advanced hereunder but:
(a)
deducting the aggregate amount of all obligations of Northeast in respect of Project Finance Borrowings;
(b)
deducting the aggregate amount of all obligations of Northeast in respect of Borrowings to the extent that the repayment or redemption of such Borrowings is provided for by the purchase by a member of the Group of a guaranteed investment contract; and
(c)
deducting the aggregate amount of freely available cash and Cash Equivalent Investments held by Northeast at such time,
and so that no amount shall be excluded more than once.
"Project Finance Borrowings" means any indebtedness to finance or refinance the ownership, acquisition, development, design, engineering, procurement, construction, servicing, management and/or operation of any project or asset:
(a)
which is incurred by an Excluded Subsidiary; or
(b)
in respect of which the person or persons to whom any such indebtedness is or may be owed by the relevant borrower (whether or not a member of the Group) has or have no recourse whatsoever to any member of the Group (other than an Excluded Subsidiary) for the repayment thereof other than:
(i)
recourse to such member of the Group for amounts limited to the cash flow or net cash flow (other than historic cash flow or historic net cash flow) from, or ownership interests or other investments in, such project or asset; and/or
(ii)
recourse to such member of the Group for the purpose only of enabling amounts to be claimed in respect of such indebtedness in an enforcement of any Security given by such member of the Group over such project or asset or the income, cash flow or other proceeds deriving therefrom (or given by any shareholder or the like or other investor in the borrower or in the owner of such project or asset over its shares or the like in the capital of or other investment in the borrower or in the owner of such project or asset) to secure such indebtedness provided that:
(A)
the extent of such recourse to such member of the Group is limited solely to the amount of any recoveries made on any such enforcement; and

93954-4-34-v4.0
66

70-40529536




(B)
such person or persons is/are not entitled, by virtue of any right or claim arising out of or in connection with such indebtedness, to commence proceedings for the winding up or dissolution of an Obligor or to appoint or procure the appointment of any receiver, trustee or similar person or officer in respect of an Obligor or any of its assets (save for the assets the subject of such Security); and/or
(iii)
recourse to such borrower generally, or directly or indirectly to a member of the Group, under any form of assurance, undertaking or support, which recourse is principally limited to a claim for damages (other than liquidated damages and damages required to be calculated in a specified way) for breach of any obligation (not being a payment obligation or an obligation to procure payment by another or an indemnity in respect thereof or any obligation to comply or to procure compliance by another with any financial ratios or other tests of financial condition) by the person against which such recourse is available.
For the avoidance of doubt, recourse as permitted by (i), (ii) or (iii) above shall not be had to the cash flow of a Borrower other than to the extent of the amount of cash flow derived solely from an investment or investments in the relevant project or asset.
For the purpose of this definition of "Project Finance Borrowings", "Excluded Subsidiary" means any Subsidiary of the Guarantor (other than a Borrower):
(a)
in respect of which neither the Guarantor nor any Subsidiary of the Guarantor (other than another Excluded Subsidiary) has undertaken any legal obligation to give any guarantee of any Borrowings (other than in respect of intra-Group Borrowings or pursuant to any statutory obligation) and the Subsidiaries of which are all Excluded Subsidiaries; and
(b)
which has been designated as such by the Guarantor by written notice to the Agent (and the Guarantor has not subsequently delivered written notice to the Agent that such Subsidiary is no longer an Excluded Subsidiary).
"Relevant Period" means each period of twelve months ending on a Calculation Date.
"Yorkshire Senior Total Net Debt" means, at any time, the aggregate amount of all obligations of Yorkshire for or in respect of Borrowings which rank at least pari passu with the Loans advanced hereunder but:
(a)
deducting the aggregate amount of all obligations of Yorkshire in respect of Project Finance Borrowings;
(b)
deducting the aggregate amount of all obligations of Yorkshire in respect of Borrowings to the extent that the repayment or redemption of such Borrowings is provided for by the purchase by a member of the Group of a guaranteed investment contract; and

93954-4-34-v4.0
67

70-40529536




(c)
deducting the aggregate amount of freely available cash and Cash Equivalent Investments held by Yorkshire at such time,
and so that no amount shall be excluded more than once.
21.2
Financial condition
The Guarantor shall ensure that:
(a)
Interest Cover for each Relevant Period shall be not less than 2.50:1;
(b)
Yorkshire Senior Total Net Debt on any Calculation Date shall not exceed 65 per cent. of Yorkshire RAV on such Calculation Date;
(c)
Northeast Senior Total Net Debt on any Calculation Date shall not exceed 65 per cent. of Northeast RAV on such Calculation Date; and
(d)
Consolidated Senior Total Net Debt on any Calculation Date shall not exceed 80 per cent. of Aggregate RAV on such Calculation Date.
21.3
Financial testing
The financial covenants set out in Clause 21.2 (Financial condition) shall be tested by reference to each of the financial statements and/or each Compliance Certificate delivered pursuant to Clause 20.2 (Compliance Certificate).
22.
GENERAL UNDERTAKINGS
The undertakings in this Clause 22 remain in force from the Effective Date for so long as any amount is outstanding under the Finance Documents or any Commitment is in force.
22.1
Authorisations
Each Obligor shall promptly:
(a)
obtain, comply with and do all that is necessary to maintain in full force and effect; and
(b)
supply certified copies to the Agent of
any Authorisation required under any law or regulation of its jurisdiction of incorporation to enable it to perform its obligations under the Finance Documents and to ensure the legality, validity, enforceability or admissibility in evidence in its jurisdiction of incorporation of any Finance Document.
22.2
Compliance with laws
Each Obligor shall comply in all respects with all laws to which it may be subject, if failure so to comply would materially impair its ability to perform its obligations under the Finance Documents.

93954-4-34-v4.0
68

70-40529536




22.3
Negative pledge
(a)
No Obligor shall create or permit to subsist any Security over any of its assets.
(b)
No Obligor shall:
(i)
sell, transfer or otherwise dispose of any of its assets on terms whereby they are or may be leased to or re-acquired by an Obligor;
(ii)
sell, transfer or otherwise dispose of any of its receivables on recourse terms;
(iii)
enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
(iv)
enter into any other preferential arrangement having a similar effect,
in circumstances where the arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the acquisition of an asset.
(c)
Paragraphs (a) and (b) above do not apply to:
(i)
any netting or set-off arrangement entered into by any Obligor in the ordinary course of its banking arrangements for the purpose of netting debit and credit balances;
(ii)
any lien arising by operation of law and in the ordinary course of trading;
(iii)
any Security over or affecting (or transaction ("Quasi-Security") described in paragraph (b) above affecting) any asset acquired by an Obligor after the Effective Date if:
(A)
the Security or Quasi-Security was not created in contemplation of the acquisition of that asset by the Obligor;
(B)
the principal amount secured has not been increased in contemplation of, or since the acquisition of that asset by the Obligor; and
(C)
the Security or Quasi-Security is removed or discharged within three months of the date of acquisition of such asset;
(iv)
any Security securing Project Finance Borrowings;
(v)
any Security over the shares of any member of the Group which is not an Obligor provided such Security was required by and forms part of a Project Finance Borrowing arrangement;
(vi)
any Security entered into pursuant to any Finance Document; or

93954-4-34-v4.0
69

70-40529536




(vii)
any Security or Quasi-Security securing indebtedness the principal amount of which (when aggregated with the principal amount of any other indebtedness which has the benefit of Security or Quasi-Security given by any member of the Group other than any permitted under paragraphs (i) to (vi) above) does not exceed £50,000,000 (or its equivalent in another currency or currencies).
22.4
Disposals
No Obligor shall enter into a single transaction or a series of transactions (whether related or not) and whether voluntary or involuntary to sell, lease, transfer or otherwise dispose of all or substantially all of its assets.
22.5
Merger
No Obligor shall enter into any amalgamation, demerger, merger or corporate reconstruction, provided that nothing in this Clause 22.5 shall prohibit an Obligor from doing anything in connection with any amalgamation, demerger, merger or corporate reconstruction of any of its subsidiaries which does not involve an amalgamation, demerger, merger or corporate reconstruction of an Obligor.
22.6
Change of business
Each Obligor shall procure that no substantial change is made to the general nature of its business or the business of the Group taken as a whole from that carried on at the Effective Date.
22.7
Insurance
Each Obligor shall maintain insurances on and in relation to its business and assets with reputable underwriters or insurance companies against those risks and to the extent as is consistent with sound business practice.
22.8
Compliance with DNO Licences and duties under the Electricity Act
Each Borrower shall not breach any of its DNO Licence conditions nor any of its obligations under the Electricity Act, the Competition Act and/or the Enterprise Act where any such breach could reasonably be expected to result in the revocation of its DNO Licence or would materially impair its ability to perform its obligations under the Finance Documents.
22.9
Sanctions
(a)
No Obligors shall lend, invest, contribute or otherwise make available the proceeds of any Loan to or for the benefit of any then-current Sanctions Target.
(b)
This Clause 22.9 shall not apply to any person if and to the extent that it is or would be unenforceable by or in respect of that person by reason of breach of any provision of the Blocking Regulation (or any law or regulation implementing such Regulation in any member state of the European Union or the United

93954-4-34-v4.0
70

70-40529536




Kingdom). For the avoidance of any doubt, nothing in this Clause 22.9 is intended or should be interpreted or construed, as inducing any party to act in a manner that would be in breach of any provision of the Blocking Regulation.
22.10
Anti-corruption
The Obligors shall maintain policies and procedures designed to prevent the violation of any applicable money laundering, bribery and corruption laws.
22.11
Relevant Financial Institution
Each Obligor shall promptly notify the Agent if it is or becomes an RFI and shall confirm the date on which it became an RFI.
23.
EVENTS OF DEFAULT
Each of the events or circumstances set out in this Clause 23 is an Event of Default (save as for Clause 23.14 (Acceleration)).
23.1
Non-payment
An Obligor does not pay on the due date any amount payable pursuant to a Finance Document at the place at and in the currency in which it is expressed to be payable unless:
(a)
its failure to pay is caused by:
(i)
administrative or technical error; or
(ii)
a Disruption Event; and
(b)
payment is made within 3 Business Days of its due date.
23.2
Financial covenants
Any requirement of Clause 21 (Financial covenants) is not satisfied.
23.3
Other obligations
(a)
An Obligor does not comply with any provision of the Finance Documents (other than those referred to in Clause 23.1 (Non-payment) and Clause 23.2 (Financial covenants)).
(b)
No Event of Default under paragraph (a) above will occur if the failure to comply is capable of remedy and is remedied within 20 Business Days of the Agent giving notice to the Company or the Company becoming aware of the failure to comply.
23.4
Misrepresentation
Any representation or statement made or deemed to be made by an Obligor in the Finance Documents or any other document delivered by or on behalf of any Obligor under or in

93954-4-34-v4.0
71

70-40529536




connection with any Finance Document is or proves to have been incorrect or misleading in any material respect when made or deemed to be made.
23.5
Cross default
(a)
Any Financial Indebtedness of any Obligor is not paid when due nor within any originally applicable grace period.
(b)
Any Financial Indebtedness of any member of any Obligor is declared to be or otherwise becomes due and payable prior to its specified maturity as a result of an event of default (however described).
(c)
Any commitment for any Financial Indebtedness of any member of the Group is cancelled or suspended by a creditor of any member of the Group as a result of an event of default (however described).
(d)
Any creditor of any member of the Group becomes entitled to declare any Financial Indebtedness of any member of the Group due and payable prior to its specified maturity as a result of an event of default (however described).
(e)
No Event of Default will occur under this Clause 23.5 if the aggregate amount of Financial Indebtedness or commitment for Financial Indebtedness falling within paragraphs (a) to (d) above is less than £25,000,000 (or its equivalent in any other currency or currencies) or (save where the same has resulted in recourse to a member of the Group pursuant to paragraph (c) of the definition of "Project Finance Borrowings") the Financial Indebtedness is Project Finance Borrowing.
23.6
Insolvency
(a)
An Obligor is unable or admits inability to pay its debts as they fall due, suspends making payments on any of its debts or, by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors (excluding any Finance Party in its capacity as such) with a view to rescheduling any of its indebtedness.
(b)
The value of the assets of any Obligor is less than its liabilities (taking into account contingent and prospective liabilities).
(c)
A moratorium is declared in respect of any indebtedness of any Obligor.
23.7
Insolvency proceedings
(a)
Any corporate action, legal proceedings or other procedure or step is taken in relation to:
(i)
the suspension of payments, a moratorium of any indebtedness, winding-up, dissolution, administration or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of any Obligor;
(ii)
a composition, compromise, assignment or arrangement with any creditor of any Obligor;

93954-4-34-v4.0
72

70-40529536




(iii)
the appointment of a liquidator, receiver, administrative receiver, administrator, compulsory manager or other similar officer in respect of any Obligor or any of its assets; or
(iv)
enforcement of any Security over any assets of any Obligor,
or any analogous procedure or step is taken in any jurisdiction.
(b)
Paragraph (a) shall not apply to any winding-up petition which is frivolous or vexatious and which is discharged, stayed or dismissed within 21 days of commencement or, if earlier, the date on which it is advertised.
23.8
Creditors' process
Any expropriation, attachment, sequestration, distress or execution affects any asset or assets of the Obligors taken together having an aggregate value of £25,000,000 and is not discharged within 21 days.
23.9
Governmental Intervention
By or under the authority of any government:
(a)
the management of any member of the Group is wholly or substantially displaced or the authority of any member of the Group in the conduct of its business is wholly or substantially curtailed; or
(b)
all or a majority of the issued shares of any Obligor or the whole or any material part of its revenues or assets is seized, nationalised, expropriated or compulsorily acquired.
23.10
Cessation of business
Any Obligor suspends or ceases to carry on (or threatens to suspend or cease to carry on) all or a material part of its business.
23.11
Unlawfulness
It is or becomes unlawful for an Obligor to perform any of its obligations under the Finance Documents.
23.12
Repudiation
An Obligor repudiates a Finance Document or evidences an intention to repudiate a Finance Document.
23.13
Borrower DNO Licence Events
(a)
Notice is given to terminate or revoke a Borrower's DNO Licence.
(b)
A Borrower is issued with an order by the Authority as a result of the Authority's belief that the Borrower is in breach (or is likely to be in breach) of a condition

93954-4-34-v4.0
73

70-40529536




in its DNO Licence or its obligations under the Electricity Act and such breach or the issuance of such order could reasonably be expected to have a Material Adverse Effect.
23.14
Acceleration
On and at any time after the occurrence of an Event of Default which is continuing the Agent may, and shall if so directed by the Majority Lenders, by notice to each Obligor:
(a)
cancel the Total Commitments whereupon they shall immediately be cancelled;
(b)
declare that all or part of the Loans, together with accrued interest, and all other amounts accrued or outstanding under the Finance Documents be immediately due and payable, whereupon they shall become immediately due and payable; and/or
(c)
declare that all or part of the Loans be payable on demand, whereupon they shall immediately become payable on demand by the Agent on the instructions of the Majority Lenders.
23.15
Protected Rights of the Borrowers as holders of a DNO Licence
(a)
Notwithstanding any other provision of any of the Finance Documents, if an Event of Default occurs and such Event of Default has not arisen as a result of any act or omission or state of affairs in existence which, relates to a Borrower, such Event of Default shall be deemed not to have occurred in relation to that Borrower and, accordingly, the powers described in paragraphs (a) to (c) of Clause 23.14 (Acceleration) shall be deemed not to have arisen as against that Borrower as regards (a) Loans made to and all sums owed by that Borrower under the Finance Documents, and (b) the unutilised portion of the applicable Tranche made available to that Borrower.
(b)
The provisions of paragraph (a) of this Clause 23.15 shall not operate so as to limit the rights of the Agent to exercise all or any of the powers described in paragraphs (a) to (c) of Clause 23.14 (Acceleration) against any Obligor (not being a Borrower) on or following the occurrence of any Event of Default (including where such Event of Default occurs as a result of any act or omission or state of affairs in existence which in each case relates to a Borrower) nor shall the provisions of paragraph (a) of this Clause 23.15 qualify the obligation of the Agent to exercise such powers, rights and remedies against any Obligor (not being a Borrower) if so instructed by the Majority Lenders.

93954-4-34-v4.0
74

70-40529536




SECTION 9
CHANGES TO PARTIES
24.
CHANGES TO THE PARTIES
24.1
Assignments and transfers by the Lenders
Subject to this Clause 24, a Lender (the "Existing Lender") may:
(a)
assign any of its rights; or
(b)
transfer by novation any of its rights and obligations,
to another bank or financial institution or to a trust, fund or other entity which is regularly engaged in or established for the purpose of making, purchasing or investing in loans, securities or other financial assets (the "New Lender").
24.2
Conditions of assignment or transfer
(a)
The consent of the Company is required for an assignment or transfer by an Existing Lender, unless the assignment or transfer is to another Lender or an Affiliate of a Lender or an Event of Default has occurred and is continuing.
(b)
The consent of the Company to an assignment or transfer must not be unreasonably withheld or delayed. The Company will be deemed to have given its consent five Business Days after the Existing Lender has requested it unless consent is expressly refused by the Company within that time.
(c)
An assignment will only be effective on:
(i)
receipt by the Agent of written confirmation from the New Lender (in form and substance satisfactory to the Agent) that the New Lender will assume the same obligations to the other Finance Parties as it would have been under if it was an Original Lender; and
(ii)
performance by the Agent of all necessary "know your customer" or other checks relating to any person that it is required to carry out in relation to such assignment to a New Lender, the completion of which the Agent shall promptly notify to the Existing Lender and the New Lender.
(d)
A transfer will only be effective if the procedure set out in Clause 24.5 (Procedure for transfer) is complied with.
(e)
If:
(i)
a Lender assigns or transfers any of its rights or obligations under the Finance Documents or changes its Facility Office; and
(ii)
as a result of circumstances existing at the date the assignment, transfer or change occurs, an Obligor would be obliged to make a payment to the

93954-4-34-v4.0
75

70-40529536




New Lender or Lender acting through its new Facility Office under Clause 13 (Tax gross-up and indemnities) or Clause 14 (Increased costs),
then the New Lender or Lender acting through its new Facility Office is only entitled to receive payment under those Clauses to the same extent as the Existing Lender or Lender acting through its previous Facility Office would have been if the assignment, transfer or change had not occurred. This paragraph (e) shall not apply:
(iii)
in respect of an assignment or transfer made in the ordinary course of the primary syndication of the Facility; or
(iv)
in relation to Clause ‎‎13.2 (Tax gross-up), to a Treaty Lender that has included a confirmation of its scheme reference number and its jurisdiction of tax residence in accordance with paragraph (g)(ii)(B) of Clause ‎‎13.2 (Tax gross-up) if the Obligor making the payment has not made a Borrower DTTP Filing in respect of that Treaty Lender.
(f)
Each New Lender, by executing the relevant Transfer Certificate or Assignment Agreement, confirms, for the avoidance of doubt, that the Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the transfer or assignment becomes effective in accordance with this Agreement and that it is bound by that decision to the same extent as the Existing Lender would have been had it remained a Lender.
(g)
No Existing Lender shall assign or transfer any of its rights and/or obligations under a Tranche to a New Lender without simultaneously assigning and/or transferring on a pro rata basis its rights and/or obligations under the other Tranches to such New Lender.
24.3
Assignment or transfer fee
The New Lender shall, on the date upon which an assignment or transfer takes effect, pay to the Agent (for its own account) a fee of £2,500.
24.4
Limitation of responsibility of Existing Lenders
(a)
Unless expressly agreed to the contrary, an Existing Lender makes no representation or warranty and assumes no responsibility to a New Lender for:
(i)
the legality, validity, effectiveness, adequacy or enforceability of the Finance Documents or any other documents;
(ii)
the financial condition of any Obligor;
(iii)
the performance and observance by any Obligor of its obligations under the Finance Documents or any other documents; or

93954-4-34-v4.0
76

70-40529536




(iv)
the accuracy of any statements (whether written or oral) made in or in connection with any Finance Document or any other document,
and any representations or warranties implied by law are excluded.
(b)
Each New Lender confirms to the Existing Lender and the other Finance Parties that it:
(i)
has made (and shall continue to make) its own independent investigation and assessment of the financial condition and affairs of each Obligor and its related entities in connection with its participation in this Agreement and has not relied exclusively on any information provided to it by the Existing Lender in connection with any Finance Document; and
(ii)
will continue to make its own independent appraisal of the creditworthiness of each Obligor and its related entities whilst any amount is or may be outstanding under the Finance Documents or any Commitment is in force.
(c)
Nothing in any Finance Document obliges an Existing Lender to:
(i)
accept a re-transfer or re-assignment from a New Lender of any of the rights and obligations assigned or transferred under this Clause 24; or
(ii)
support any losses directly or indirectly incurred by the New Lender by reason of the non-performance by any Obligor of its obligations under the Finance Documents or otherwise.
24.5
Procedure for transfer
(a)
Subject to the conditions set out in Clause 24.2 (Conditions of assignment or transfer) a transfer is effected in accordance with paragraph (c) below when the Agent executes an otherwise duly completed Transfer Certificate delivered to it by the Existing Lender and the New Lender. The Agent shall, subject to paragraph (b) below, as soon as reasonably practicable after receipt by it of a duly completed Transfer Certificate appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Transfer Certificate.
(b)
The Agent shall only be obliged to execute a Transfer Certificate delivered to it by the Existing Lender and the New Lender once it is satisfied it has complied with all necessary all "know your customer" or other similar checks under all applicable laws and regulations in relation to the transfer to such New Lender.
(c)
Subject to Clause 24.9 (Pro rata interest settlement), on the Transfer Date:
(i)
to the extent that in the Transfer Certificate the Existing Lender seeks to transfer by novation its rights and obligations under the Finance Documents each of the Obligors and the Existing Lender shall be released from further obligations towards one another under the Finance

93954-4-34-v4.0
77

70-40529536




Documents and their respective rights against one another under the Finance Documents shall be cancelled (being the "Discharged Rights and Obligations");
(ii)
each of the Obligors and the New Lender shall assume obligations towards one another and/or acquire rights against one another which differ from the Discharged Rights and Obligations only insofar as that Obligor and the New Lender have assumed and/or acquired the same in place of that Obligor and the Existing Lender;
(iii)
the Agent, the Arranger, the New Lender and other Lenders shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had the New Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of the transfer and to that extent the Agent, the Arranger and the Existing Lender shall each be released from further obligations to each other under the Finance Documents; and
(iv)
the New Lender shall become a Party as a "Lender".
24.6
Procedure for assignment
(a)
Subject to the conditions set out in Clause 24.2 (Conditions of assignment or transfer) an assignment may be effected in accordance with paragraph (c) below when the Agent executes an otherwise duly completed Assignment Agreement delivered to it by the Existing Lender and the New Lender. The Agent shall, subject to paragraph (b) below, as soon as reasonably practicable after receipt by it of a duly completed Assignment Agreement appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Assignment Agreement.
(b)
The Agent shall only be obliged to execute an Assignment Agreement delivered to it by the Existing Lender and the New Lender once it is satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to the assignment to such New Lender.
(c)
Subject to Clause 24.9 (Pro rata interest settlement), on the Transfer Date:
(i)
the Existing Lender will assign absolutely to the New Lender the rights under the Finance Documents expressed to be the subject of the assignment in the Assignment Agreement;
(ii)
the Existing Lender will be released by each Obligor and the other Finance Parties from the obligations owed by it (the "Relevant Obligations") and expressed to be the subject of the release in the Assignment Agreement; and
(iii)
the New Lender shall become a Party as a "Lender" and will be bound by obligations equivalent to the Relevant Obligations.

93954-4-34-v4.0
78

70-40529536




(d)
Lenders may utilise procedures other than those set out in this Clause 24.6 to assign their rights under the Finance Documents (but not, without the consent of the relevant Obligor or unless in accordance with Clause 24.5 (Procedure for transfer), to obtain a release by that Obligor from the obligations owed to that Obligor by the Lenders nor the assumption of equivalent obligations by a New Lender) provided that they comply with the conditions set out in Clause 24.2 (Conditions of assignment or transfer).
24.7
Copy of Transfer Certificate, Assignment Agreement or Increase Confirmation to Company
The Agent shall, as soon as reasonably practicable after it has executed a Transfer Certificate, an Assignment Agreement or an Increase Confirmation, send to the Company a copy of that Transfer Certificate, Assignment Agreement or Increase Confirmation.
24.8
Security over Lenders' rights
In addition to the other rights provided to Lenders under this Clause 24, each Lender may without consulting with or obtaining consent from any Obligor at any time charge, assign or otherwise create Security in or over (whether by way of collateral or otherwise) all or any of its rights under any Finance Document to secure obligations of that Lender including, without limitation:
(a)
any charge, assignment or other Security to secure obligations to a federal reserve or central bank; and
(b)
in the case of any Lender which is a fund, any charge, assignment or other Security granted to any holders (or trustee or representatives of holders) of obligations owed, or securities issued, by that Lender as Security for those obligations or securities,
except that no such charge, assignment or Security shall:
(i)
release a Lender from any of its obligations under the Finance Documents or substitute the beneficiary of the relevant charge, assignment or Security for the Lender as a party to any of the Finance Documents; or
(ii)
require any payments to be made by an Obligor or grant to any person any more extensive rights than those required to be made or granted to the relevant Lender under the Finance Documents.
24.9
Pro rata interest settlement

93954-4-34-v4.0
79

70-40529536




If the Agent has notified the Lenders that it is able to distribute interest payments on a "pro rata basis" to Existing Lenders and New Lenders then (in respect of any transfer pursuant to Clause 24.5 (Procedure for transfer) or any assignment pursuant to Clause 24.6 (Procedure for assignment) the Transfer Date of which, in each case, is after the date of such notification and is not on the last day of an Interest Period):
(a)
any interest or fees in respect of the relevant participation which are expressed to accrue by reference to the lapse of time shall continue to accrue in favour of the Existing Lender up to but excluding the Transfer Date ("Accrued Amounts") and shall become due and payable to the Existing Lender (without further interest accruing on them) on the last day of the current Interest Period (or, if the Interest Period is longer than six Months, on the next of the dates which falls at six Monthly intervals after the first day of that Interest Period); and
(b)
the rights assigned or transferred by the Existing Lender will not include the right to the Accrued Amounts, so that, for the avoidance of doubt:
(i)
when the Accrued Amounts become payable, those Accrued Amounts will be payable to the Existing Lender; and
(ii)
the amount payable to the New Lender on that date will be the amount which would, but for the application of this Clause 24.9, have been payable to it on that date, but after deduction of the Accrued Amounts.
(c)
In this Clause 24.9 references to "Interest Period" shall be construed to include a reference to any other period for accrual of fees.
24.10
Assignments and transfer by Obligors
No Obligor may assign any of its rights or transfer any of its rights or obligations under the Finance Documents.

93954-4-34-v4.0
80

70-40529536




SECTION 10
THE FINANCE PARTIES
25.
ROLE OF THE AGENT AND THE ARRANGER
25.1
Appointment of the Agent
(a)
Each other Finance Party appoints the Agent to act as its agent under and in connection with the Finance Documents.
(b)
Each other Finance Party authorises the Agent to exercise the rights, powers, authorities and discretions specifically given to the Agent under or in connection with the Finance Documents together with any other incidental rights, powers, authorities and discretions.
25.2
Duties of the Agent
(a)
Subject to paragraph (b) below, the Agent shall promptly forward to a Party the original or a copy of any document which is delivered to the Agent for that Party by any other Party.
(b)
Without prejudice to Clause 24.7 (Copy of Transfer Certificate, Assignment Agreement or Increase Confirmation to Company), paragraph (a) above shall not apply to any Transfer Certificate, any Assignment Agreement or any Increase Confirmation.
(c)
Except where a Finance Document specifically provides otherwise, the Agent is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party.
(d)
If the Agent receives notice from a Party referring to this Agreement, describing a Default and stating that the circumstance described is a Default, it shall promptly notify the other Finance Parties.
(e)
If the Agent is aware of the non-payment of any principal, interest, commitment fee or other fee payable to a Finance Party (other than the Agent or the Arranger) under this Agreement it shall promptly notify the other Finance Parties.
(f)
The Agent shall provide to the Obligors, within 5 Business Days of a request by an Obligor (but no more frequently than once per calendar month), a list (which may be in electronic form) setting out the names of the Lenders as at the date of that request, their respective Commitments, the address and fax number (and the department or officer, if any, for whose attention any communication is to be made) of each Lender for any communication to be made or document to be delivered under or in connection with the Finance Documents, the electronic mail address and/or any other information required to enable the sending and receipt of information by electronic mail or other electronic means to and by each Lender to whom any communication under or in connection with the Finance Documents may be made by that means and the account details of each Lender

93954-4-34-v4.0
81

70-40529536




for any payment to be distributed by the Agent to that Lender under the Finance Documents.
(g)
The Agent's duties under the Finance Documents are solely mechanical and administrative in nature.
25.3
Role of the Arranger
Except as specifically provided in the Finance Documents, the Arranger has no obligations of any kind to any other Party under or in connection with any Finance Document.
25.4
No fiduciary duties
(a)
Nothing in this Agreement constitutes the Agent or the Arranger as a trustee or fiduciary of any other person.
(b)
Neither the Agent nor the Arranger shall be bound to account to any Lender for any sum or the profit element of any sum received by it for its own account.
25.5
Business with the Group
The Agent and the Arranger may accept deposits from, lend money to and generally engage in any kind of banking or other business with any member of the Group.
25.6
Rights and discretions of the Agent
(a)
The Agent may rely on:
(i)
any representation, notice or document believed by it to be genuine, correct and appropriately authorised; and
(ii)
any statement made by a director, authorised signatory or employee of any person regarding any matters which may reasonably be assumed to be within his knowledge or within his power to verify.
(b)
The Agent may assume (unless it has received notice to the contrary in its capacity as agent for the Lenders) that:
(i)
no Default has occurred (unless it has actual knowledge of a Default arising under Clause 23.1 (Non-payment));
(ii)
any right, power, authority or discretion vested in any Party or the Majority Lenders has not been exercised; and
(iii)
any notice or request made by the Company (other than a Utilisation Request) is made on behalf of and with the consent and knowledge of all the Obligors.
(c)
The Agent may engage, pay for and rely on the advice or services of any lawyers, accountants, surveyors or other experts.

93954-4-34-v4.0
82

70-40529536




(d)
The Agent may act in relation to the Finance Documents through its personnel and agents.
(e)
The Agent may disclose to any other Party any information it reasonably believes it has received as agent under this Agreement.
(f)
Without prejudice to the generality of paragraph (e) above, the Agent may disclose the identity of a Defaulting Lender to the other Finance Parties and the Company and shall as soon as reasonably practicable disclose the same upon the written request of the Company or the Majority Lenders.
(g)
The Agent is not obliged to disclose to any Finance Party any details of the rate notified to the Agent by any Lender or the identity of any such Lender for the purpose of Clause 11.2 (Market Disruption).
(h)
Notwithstanding any other provision of any Finance Document to the contrary, neither the Agent nor the Arranger is obliged to do or omit to do anything if it would or might in its reasonable opinion constitute a breach of any law or regulation or a breach of a fiduciary duty or duty of confidentiality.
25.7
Majority Lenders' instructions
(a)
Unless a contrary indication appears in a Finance Document, the Agent shall (i) exercise any right, power, authority or discretion vested in it as Agent in accordance with any instructions given to it by the Majority Lenders (or, if so instructed by the Majority Lenders, refrain from exercising any right, power, authority or discretion vested in it as Agent) and (ii) not be liable for any act (or omission) if it acts (or refrains from taking any action) in accordance with an instruction of the Majority Lenders.
(b)
Unless a contrary indication appears in a Finance Document, any instructions given by the Majority Lenders will be binding on all the Finance Parties.
(c)
The Agent may refrain from acting in accordance with the instructions of the Majority Lenders (or, if appropriate, the Lenders) until it has received such security as it may require for any cost, loss or liability (together with any associated VAT) which it may incur in complying with the instructions.
(d)
In the absence of instructions from the Majority Lenders, (or, if appropriate, the Lenders) the Agent may act (or refrain from taking action) as it considers to be in the best interest of the Lenders.
(e)
The Agent is not authorised to act on behalf of a Lender (without first obtaining that Lender's consent) in any legal or arbitration proceedings relating to any Finance Document.
25.8
Responsibility for documentation

93954-4-34-v4.0
83

70-40529536




Neither the Agent nor the Arranger:
(a)
is responsible for the adequacy, accuracy and/or completeness of any information (whether oral or written) supplied by the Agent, the Arranger, an Obligor or any other person given in or in connection with any Finance Document;
(b)
is responsible for the legality, validity, effectiveness, adequacy or enforceability of any Finance Document or any other agreement, arrangement or document entered into, made or executed in anticipation of or in connection with any Finance Document; or
(c)
is responsible for any determination as to whether any information provided or to be provided to any Finance Party is non-public information the use of which may be regulated or prohibited by applicable law or regulation relating to insider dealing or otherwise.
25.9
Exclusion of liability
(a)
Without limiting paragraph (b) below (and without prejudice to the provisions of paragraph (e) of Clause 28.11 (Disruption to Payment Systems etc.)), the Agent will not be liable (including, without limitation, for negligence or any other category of liability whatsoever) for any action taken by it under or in connection with any Finance Document, unless directly caused by its gross negligence or wilful misconduct.
(b)
No Party (other than the Agent) may take any proceedings against any officer, employee or agent of the Agent in respect of any claim it might have against the Agent or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Finance Document and any officer, employee or agent of the Agent may rely on this Clause subject to Clause 1.4 (Third Party Rights) and the provisions of the Third Parties Act.
(c)
The Agent will not be liable for any delay (or any related consequences) in crediting an account with an amount required under the Finance Documents to be paid by the Agent if the Agent has taken all necessary steps as soon as reasonably practicable to comply with the regulations or operating procedures of any recognised clearing or settlement system used by the Agent for that purpose.
(d)
Nothing in this Agreement shall oblige the Agent or the Arranger to carry out any "know your customer" or other checks in relation to any person on behalf of any Lender and each Lender confirms to the Agent and the Arranger that it is solely responsible for any such checks it is required to carry out and that it may not rely on any statement in relation to such checks made by the Agent or the Arranger.
25.10
Lenders' indemnity to the Agent
Each Lender shall (in proportion to its share of the Total Commitments or, if the Total Commitments are then zero, to its share of the Total Commitments immediately prior

93954-4-34-v4.0
84

70-40529536




to their reduction to zero) indemnify the Agent, within three Business Days of demand, against any cost, loss or liability (including, without limitation, for negligence or any other category of liability whatsoever) incurred by the Agent (otherwise than by reason of the Agent's gross negligence or wilful misconduct) (or, in the case of any cost, loss or liability pursuant to Clause 28.11 (Disruption to Payment Systems etc.) notwithstanding the Agent's negligence, gross negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Agent) in acting as Agent under the Finance Documents (unless the Agent has been reimbursed by an Obligor pursuant to a Finance Document).
25.11
Resignation of the Agent
(a)
The Agent may resign and appoint one of its Affiliates acting through an office in the United Kingdom as successor by giving notice to the other Finance Parties and the Company.
(b)
Alternatively the Agent may resign by giving 30 days' notice to the other Finance Parties and the Company, in which case the Majority Lenders (after consultation with the Company) may appoint a successor Agent.
(c)
If the Majority Lenders have not appointed a successor Agent in accordance with paragraph (b) above within 30 days after notice of resignation was given, the retiring Agent (after consultation with the Company) may appoint a successor Agent (acting through an office in the United Kingdom).
(d)
If the Agent wishes to resign because (acting reasonably) it has concluded that it is no longer appropriate for it to remain as agent and the Agent is entitled to appoint a successor Agent under paragraph (c) above, the Agent may (if it concludes (acting reasonably) that it is necessary to do so in order to persuade the proposed successor Agent to become a party to this Agreement as Agent) agree with the proposed successor Agent and the Company amendments to this Clause 25 and any other term of this Agreement dealing with the rights or obligations of the Agent consistent with then current market practice for the appointment and protection of corporate trustees together with any reasonable amendments as agreed with the Company to the agency fee payable under this Agreement which are consistent with the successor Agent's normal fee rates and those amendments will bind the Parties.
(e)
The retiring Agent shall, at its own cost, make available to the successor Agent such documents and records and provide such assistance as the successor Agent may reasonably request for the purposes of performing its functions as Agent under the Finance Documents.
(f)
The Agent's resignation notice shall only take effect upon the appointment of a successor.
(g)
Upon the appointment of a successor, the retiring Agent shall be discharged from any further obligation in respect of the Finance Documents but shall remain entitled to the benefit of this Clause 25. Its successor and each of the other Parties

93954-4-34-v4.0
85

70-40529536




shall have the same rights and obligations amongst themselves as they would have had if such successor had been an original Party.
(h)
After consultation with the Company, the Majority Lenders may, by notice to the Agent, require it to resign in accordance with paragraph (b) above. In this event, the Agent shall resign in accordance with paragraph (b) above.
(i)
The Agent shall resign in accordance with paragraph (b) above (and, to the extent applicable, shall use reasonable endeavours to appoint a successor Agent pursuant to paragraph (c) above) if on or after the date which is three months before the earliest FATCA Application Date relating to any payment to the Agent under the Finance Documents, either:
(i)
the Agent fails to respond to a request under Clause 13.8 (FATCA Information) and the Company or a Lender reasonably believes that the Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date;
(ii)
the information supplied by the Agent pursuant to Clause 13.8 (FATCA Information) indicates that the Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date; or
(iii)
the Agent notifies the Company and the Lenders that the Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date;
and (in each case) the Company or a Lender reasonably believes that a Party will be required to make a FATCA Deduction that would not be required if the Agent were a FATCA Exempt Party, and the Company or that Lender, by notice to the Agent, requires it to resign.
25.12
Replacement of the Agent
(a)
After consultation with the Company, the Majority Lenders may, by giving 30 days' notice to the Agent (or, at any time the Agent is an Impaired Agent, by giving any shorter notice determined by the Majority Lenders) replace the Agent by appointing a successor Agent (acting through an office in the United Kingdom).
(b)
The retiring Agent shall (at its own cost if it is an Impaired Agent and otherwise at the expense of the Lenders) make available to the successor Agent such documents and records and provide such assistance as the successor Agent may reasonably request for the purposes of performing its functions as Agent under the Finance Documents.
(c)
The appointment of the successor Agent shall take effect on the date specified in the notice from the Majority Lenders to the retiring Agent. As from this date, the retiring Agent shall be discharged from any further obligation in respect of the Finance Documents but shall remain entitled to the benefit of this Clause 25

93954-4-34-v4.0
86

70-40529536




(and any agency fees for the account of the retiring Agent shall cease to accrue from (and shall be payable on) that date).
(d)
Any successor Agent and each of the other Parties shall have the same rights and obligations amongst themselves as they would have had if such successor had been an original Party.
25.13
Confidentiality
(a)
In acting as agent for the Finance Parties, the Agent shall be regarded as acting through its agency division which shall be treated as a separate entity from any other of its divisions or departments.
(b)
If information is received by another division or department of the Agent, it may be treated as confidential to that division or department and the Agent shall not be deemed to have notice of it.
25.14
Relationship with the Lenders
(a)
Subject to Clause 24.9 (Pro rata Interest Settlement), the Agent may treat the person shown in its records as Lender at the opening of business (in the place of the Agent's principal office as notified to the Finance Parties from time to time) as the Lender acting through its Facility Office:
(i)
entitled to or liable for any payment due under any Finance Document on that day; and
(ii)
entitled to receive and act upon any notice, request, document or communication or make any decision or determination under any Finance Document made or delivered on that day,
unless it has received not less than five Business Days' prior notice from that Lender to the contrary in accordance with the terms of this Agreement.
(b)
Any Lender may by notice to the Agent appoint a person to receive on its behalf all notices, communications, information and documents to be made or despatched to that Lender under the Finance Documents. Such notice shall contain the address, fax number and (where communication by electronic mail or other electronic means is permitted under Clause 30.6 (Electronic communication)) electronic mail address and/or any other information required to enable the sending and receipt of information by that means (and, in each case, the department or officer, if any, for whose attention communication is to be made) and be treated as a notification of a substitute address, fax number, electronic mail address, department and officer by that Lender for the purposes of Clause 30.2 (Addresses) and paragraph (a)(ii) of Clause 30.6 (Electronic communication) and the Agent shall be entitled to treat such person as the person entitled to receive all such notices, communications, information and documents as though that person were that Lender.
25.15
Credit appraisal by the Lenders

93954-4-34-v4.0
87

70-40529536




Without affecting the responsibility of any Obligor for information supplied by it or on its behalf in connection with any Finance Document, each Lender confirms to the Agent and the Arranger that it has been, and will continue to be, solely responsible for making its own independent appraisal and investigation of all risks arising under or in connection with any Finance Document including but not limited to:
(a)
the financial condition, creditworthiness, condition, affairs, status and nature of each member of the Group;
(b)
the legality, validity, effectiveness, adequacy or enforceability of any Finance Document and any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document;
(c)
whether that Lender has recourse, and the nature and extent of that recourse, against any Party or any of its respective assets under or in connection with any Finance Document, the transactions contemplated by the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document; and
(d)
the adequacy, accuracy and/or completeness of any information provided by the Agent, any Party or by any other person under or in connection with any Finance Document, the transactions contemplated by the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document.
25.16
Deduction from amounts payable by the Agent
If any Party owes an amount to the Agent under the Finance Documents the Agent may, after giving notice to that Party, deduct an amount not exceeding that amount from any payment to that Party which the Agent would otherwise be obliged to make under the Finance Documents and apply the amount deducted in or towards satisfaction of the amount owed. For the purposes of the Finance Documents that Party shall be regarded as having received any amount so deducted.
26.
CONDUCT OF BUSINESS BY THE FINANCE PARTIES
No provision of this Agreement will:
(a)
interfere with the right of any Finance Party to arrange its affairs (tax or otherwise) in whatever manner it thinks fit;
(b)
oblige any Finance Party to investigate or claim any credit, relief, remission or repayment available to it or the extent, order and manner of any claim; or
(c)
oblige any Finance Party to disclose any information relating to its affairs (tax or otherwise) or any computations in respect of Tax.
27.
SHARING AMONG THE FINANCE PARTIES
27.1
Payments to Finance Parties

93954-4-34-v4.0
88

70-40529536




If a Finance Party (a "Recovering Finance Party") receives or recovers any amount from an Obligor other than in accordance with Clause 28 (Payment mechanics) and applies that amount to a payment due under the Finance Documents then:
(a)
the Recovering Finance Party shall, within three Business Days, notify details of the receipt or recovery, to the Agent;
(b)
the Agent shall determine whether the receipt or recovery is in excess of the amount the Recovering Finance Party would have been paid had the receipt or recovery been received or made by the Agent and distributed in accordance with Clause 28 (Payment mechanics), without taking account of any Tax which would be imposed on the Agent in relation to the receipt, recovery or distribution; and
(c)
the Recovering Finance Party shall, within three Business Days of demand by the Agent, pay to the Agent an amount (the "Sharing Payment") equal to such receipt or recovery less any amount which the Agent determines may be retained by the Recovering Finance Party as its share of any payment to be made, in accordance with Clause 28.6 (Partial payments).
27.2
Redistribution of payments
The Agent shall treat the Sharing Payment as if it had been paid by the relevant Obligor and distribute it between the Finance Parties (other than the Recovering Finance Party) in accordance with Clause 28.6 (Partial payments).
27.3
Recovering Finance Party's rights
(a)
On a distribution by the Agent under Clause 27.2 (Redistribution of payments), the Recovering Finance Party will be subrogated to the rights of the Finance Parties which have shared in the redistribution.
(b)
If and to the extent that the Recovering Finance Party is not able to rely on its rights under paragraph (a) above, the relevant Obligor shall be liable to the Recovering Finance Party for a debt equal to the Sharing Payment which is immediately due and payable.
27.4
Reversal of redistribution
If any part of the Sharing Payment received or recovered by a Recovering Finance Party becomes repayable and is repaid by that Recovering Finance Party, then:
(a)
each Finance Party which has received a share of the relevant Sharing Payment pursuant to Clause 27.2 (Redistribution of payments) shall, upon request of the Agent, pay to the Agent for account of that Recovering Finance Party an amount equal to the appropriate part of its share of the Sharing Payment (together with an amount as is necessary to reimburse that Recovering Finance Party for its proportion of any interest on the Sharing Payment which that Recovering Finance Party is required to pay); and

93954-4-34-v4.0
89

70-40529536




(b)
that Recovering Finance Party's rights of subrogation in respect of any reimbursement shall be cancelled and the relevant Obligor will be liable to the reimbursing Finance Party for the amount so reimbursed.
27.5
Exceptions
(a)
This Clause 27 shall not apply to the extent that the Recovering Finance Party would not, after making any payment pursuant to this Clause, have a valid and enforceable claim against the relevant Obligor.
(b)
A Recovering Finance Party is not obliged to share with any other Finance Party any amount which the Recovering Finance Party has received or recovered as a result of taking legal or arbitration proceedings, if:
(i)
it notified that other Finance Party of the legal or arbitration proceedings; and
(ii)
that other Finance Party had an opportunity to participate in those legal or arbitration proceedings but did not do so as soon as reasonably practicable having received notice and did not take separate legal or arbitration proceedings.

93954-4-34-v4.0
90

70-40529536




SECTION 11
ADMINISTRATION
28.
PAYMENT MECHANICS
28.1
Payments to the Agent
(a)
On each date on which an Obligor or a Lender is required to make a payment under a Finance Document, that Obligor or Lender shall make the same available to the Agent (unless a contrary indication appears in a Finance Document) for value on the due date at the time and in such funds specified by the Agent as being customary at the time for settlement of transactions in the relevant currency in the place of payment.
(b)
Payment shall be made to such account in the principal financial centre of the country of that currency (or, in relation to euro, in a principal financial centre in a Participating Member State or London) with such bank as the Agent specifies.
28.2
Distributions by the Agent
Each payment received by the Agent under the Finance Documents for another Party shall, subject to Clause 28.3 (Distributions to an Obligor), Clause 28.4 (Clawback) and Clause 25.16 (Deduction from amounts payable by the Agent) be made available by the Agent as soon as practicable after receipt to the Party entitled to receive payment in accordance with this Agreement (in the case of a Lender, for the account of its Facility Office), to such account as that Party may notify to the Agent by not less than five Business Days' notice with a bank in the principal financial centre of the country of that currency (or, in relation to euro, in the principal financial centre of a Participating Member State or London).
28.3
Distributions to an Obligor
The Agent may (with the consent of the Obligor or in accordance with Clause 29 (Set-off)) apply any amount received by it for that Obligor in or towards payment (on the date and in the currency and funds of receipt) of any amount due from that Obligor under the Finance Documents or in or towards purchase of any amount of any currency to be so applied.
28.4
Clawback
(a)
Where a sum is to be paid to the Agent under the Finance Documents for another Party, the Agent is not obliged to pay that sum to that other Party (or to enter into or perform any related exchange contract) until it has been able to establish to its satisfaction that it has actually received that sum.
(b)
If the Agent pays an amount to another Party and it proves to be the case that the Agent had not actually received that amount, then the Party to whom that amount (or the proceeds of any related exchange contract) was paid by the Agent shall on demand refund the same to the Agent together with interest on that amount

93954-4-34-v4.0
91

70-40529536




from the date of payment to the date of receipt by the Agent, calculated by the Agent to reflect its cost of funds.
28.5
Impaired Agent
(a)
If, at any time, the Agent becomes an Impaired Agent, an Obligor or a Lender which is required to make a payment under the Finance Documents to the Agent in accordance with Clause 28.1 (Payments to the Agent) may instead either pay that amount direct to the required recipient or pay that amount to an interest-bearing account held with an Acceptable Bank and in relation to which no Insolvency Event has occurred and is continuing, in the name of the Obligor or the Lender making the payment and designated as a trust account for the benefit of the Party or Parties beneficially entitled to that payment under the Finance Documents. In each case such payments must be made on the due date for payment under the Finance Documents.
(b)
All interest accrued on the amount standing to the credit of the trust account shall be for the benefit of the beneficiaries of that trust account pro rata to their respective entitlements.
(c)
A Party which has made a payment in accordance with this Clause 28.5 shall be discharged of the relevant payment obligation under the Finance Documents and shall not take any credit risk with respect to the amounts standing to the credit of the trust account.
(d)
Promptly upon the appointment of a successor Agent in accordance with Clause 25.12 (Replacement of the Agent), each Party which has made a payment to a trust account in accordance with this Clause 28.5 shall give all requisite instructions to the bank with whom the trust account is held to transfer the amount (together with any accrued interest) to the successor Agent for distribution in accordance with Clause 28.2 (Distributions by the Agent).
28.6
Partial payments
(a)
If the Agent receives a payment that is insufficient to discharge all the amounts then due and payable by an Obligor under the Finance Documents, the Agent shall apply that payment towards the obligations of that Obligor under the Finance Documents in the following order:
(i)
first, in or towards payment pro rata of any unpaid fees, costs and expenses of the Agent and the Arranger under the Finance Documents;
(ii)
secondly, in or towards payment pro rata of any accrued interest, fee or commission due but unpaid under this Agreement;
(iii)
thirdly, in or towards payment pro rata of any principal due but unpaid under this Agreement; and
(iv)
fourthly, in or towards payment pro rata of any other sum due but unpaid under the Finance Documents.

93954-4-34-v4.0
92

70-40529536




(b)
The Agent shall, if so directed by the Majority Lenders, vary the order set out in paragraphs (a)(ii) to (iv) above.
(c)
Paragraphs (a) and (b) above will override any appropriation made by an Obligor.
28.7
No set-off by Obligors
All payments to be made by an Obligor under the Finance Documents shall be calculated and be made without (and free and clear of any deduction for) set-off or counterclaim.
28.8
Business Days
(a)
Any payment which is due to be made on a day that is not a Business Day shall be made on the next Business Day in the same calendar month (if there is one) or the preceding Business Day (if there is not).
(b)
During any extension of the due date for payment of any principal or Unpaid Sum under this Agreement interest is payable on the principal or Unpaid Sum at the rate payable on the original due date.
28.9
Currency of account
(a)
Subject to paragraphs (b) to (e) below, the Base Currency is the currency of account and payment for any sum due from an Obligor under any Finance Document.
(b)
A repayment of a Loan or Unpaid Sum or a part of a Loan or Unpaid Sum shall be made in the currency in which that Loan or Unpaid Sum is denominated on its due date.
(c)
Each payment of interest shall be made in the currency in which the sum in respect of which the interest is payable was denominated when that interest accrued.
(d)
Each payment in respect of costs, expenses or Taxes shall be made in the currency in which the costs, expenses or Taxes are incurred.
(e)
Any amount expressed to be payable in a currency other than the Base Currency shall be paid in that other currency.
28.10
Change of currency
(a)
Unless otherwise prohibited by law, if more than one currency or currency unit are at the same time recognised by the central bank of any country as the lawful currency of that country, then:
(i)
any reference in the Finance Documents to, and any obligations arising under the Finance Documents in, the currency of that country shall be translated into, or paid in, the currency or currency unit of that country designated by the Agent (after consultation with the Company); and

93954-4-34-v4.0
93

70-40529536




(ii)
any translation from one currency or currency unit to another shall be at the official rate of exchange recognised by the central bank for the conversion of that currency or currency unit into the other, rounded up or down by the Agent (acting reasonably).
(b)
If a change in any currency of a country occurs, this Agreement will, to the extent the Agent (acting reasonably and after consultation with the Company) specifies to be necessary, be amended to comply with any generally accepted conventions and market practice in the Relevant Market and otherwise to reflect the change in currency.
28.11
Disruption to Payment Systems etc.
If either the Agent determines (in its discretion) that a Disruption Event has occurred or the Agent is notified by an Obligor that a Disruption Event has occurred:
(a)
the Agent may, and shall if requested to do so by an Obligor, consult with the Obligors with a view to agreeing with the Obligors such changes to the operation or administration of the Facility as the Agent may deem necessary in the circumstances;
(b)
the Agent shall not be obliged to consult with the Obligors in relation to any changes mentioned in paragraph (a) if, in its opinion, it is not practicable to do so in the circumstances and, in any event, shall have no obligation to agree to such changes;
(c)
the Agent may consult with the Finance Parties in relation to any changes mentioned in paragraph (a) but shall not be obliged to do so if, in its opinion, it is not practicable to do so in the circumstances;
(d)
any such changes agreed upon by the Agent and the Obligors shall (whether or not it is finally determined that a Disruption Event has occurred) be binding upon the Parties as an amendment to (or, as the case may be, waiver of) the terms of the Finance Documents notwithstanding the provisions of Clause 34 (Amendments and Waivers);
(e)
the Agent shall not be liable for any damages, costs or losses whatsoever (including, without limitation for negligence, gross negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Agent) arising as a result of its taking, or failing to take, any actions pursuant to or in connection with this Clause 28.11; and
(f)
the Agent shall notify the Finance Parties of all changes agreed pursuant to paragraph (d) above.
29.
SET-OFF
A Finance Party may set off any matured obligation due from an Obligor under the Finance Documents (to the extent beneficially owned by that Finance Party) against any matured obligation owed by that Finance Party to that Obligor, regardless of the place

93954-4-34-v4.0
94

70-40529536




of payment, booking branch or currency of either obligation. If the obligations are in different currencies, the Finance Party may convert either obligation at a market rate of exchange in its usual course of business for the purpose of the set-off.
30.
NOTICES
30.1
Communications in writing
Any communication to be made under or in connection with the Finance Documents shall be made in writing and, unless otherwise stated, may be made by fax or letter.
30.2
Addresses
The address and fax number (and the department or officer, if any, for whose attention the communication is to be made) of each Party for any communication or document to be made or delivered under or in connection with the Finance Documents is:
(a)
in the case of the Company, that identified with its name below;
(b)
in the case of each Lender or any other Obligor, that notified in writing to the Agent on or prior to the date on which it becomes a Party; and
(c)
in the case of the Agent, that identified with its name below,
or any substitute address or fax number or department or officer as the Party may notify to the Agent (or the Agent may notify to the other Parties, if a change is made by the Agent) by not less than five Business Days' notice.
30.3
Delivery
(a)
Any communication or document made or delivered by one person to another under or in connection with the Finance Documents will only be effective:
(i)
if by way of fax, when received in legible form; or
(ii)
if by way of letter, when it has been left at the relevant address or five Business Days after being deposited in the post postage prepaid in an envelope addressed to it at that address,
and, if a particular department or officer is specified as part of its address details provided under Clause 30.2 (Addresses), if addressed to that department or officer.
(b)
Any communication or document to be made or delivered to the Agent will be effective only when actually received by the Agent and then only if it is expressly marked for the attention of the department or officer identified with the Agent's signature below (or any substitute department or officer as the Agent shall specify for this purpose).
(c)
All notices from or to an Obligor shall be sent through the Agent.

93954-4-34-v4.0
95

70-40529536




(d)
Any communication or document made or delivered to the Company in accordance with this Clause will be deemed to have been made or delivered to each of the Obligors.
(e)
Any electronic communication which becomes effective, in accordance with paragraphs (a) to (d) above, after 5.00 p.m. in the place of receipt shall be deemed only to become effective on the following Business Day.
30.4
Notification of address and fax number
Promptly upon receipt of notification of an address and fax number or change of address or fax number pursuant to Clause 30.2 (Addresses) or changing its own address or fax number, the Agent shall notify the other Parties.
30.5
Communication when Agent is Impaired Agent
If the Agent is an Impaired Agent the Parties may, instead of communicating with each other through the Agent, communicate with each other directly and (while the Agent is an Impaired Agent) all the provisions of the Finance Documents which require communications to be made or notices to be given to or by the Agent shall be varied so that communications may be made and notices given to or by the relevant Parties directly. This provision shall not operate after a replacement Agent has been appointed.
30.6
Electronic communication
(a)
Any communication to be made between any two Parties under or in connection with the Finance Documents may be made by electronic mail or other electronic means (including without limitation, by way of posting to a secure website) if those two Parties:
(i)
notify each other in writing of their electronic mail address and/or any other information required to enable the transmission of information by that means; and
(ii)
notify each other of any change to their address or any other such information supplied by them by not less than five Business Days' notice.
(b)
Any such electronic communication as specified in paragraph (a) above to be made between an Obligor and a Finance Party may only be made in that way to the extent that those two Parties agree that, unless and until notified to the contrary, this is to be an accepted form of communication.
(c)
Any such electronic communication as specified in paragraph (a) above made between any two Parties will be effective only when actually received (or made available) in readable form and in the case of any electronic communication made by a Party to the Agent only if it is addressed in such a manner as the Agent shall specify for this purpose.
(d)
Any electronic communication which becomes effective, in accordance with paragraph (c) above, after 5.00 p.m. in the place in which the Party to whom the

93954-4-34-v4.0
96

70-40529536




relevant communication is sent or made available has its address for the purpose of this Agreement shall be deemed only to become effective on the following day.
(e)
Any reference in a Finance Document to a communication being sent or received shall be construed to include that communication being made available in accordance with this Clause 30.6.
30.7
English language
(a)
Any notice given under or in connection with any Finance Document must be in English.
(b)
All other documents provided under or in connection with any Finance Document must be:
(i)
in English; or
(ii)
if not in English, and if so required by the Agent, accompanied by a certified English translation and, in this case, the English translation will prevail unless the document is a constitutional, statutory or other official document.
31.
CALCULATIONS AND CERTIFICATES
31.1
Accounts
In any litigation or arbitration proceedings arising out of or in connection with a Finance Document, the entries made in the accounts maintained by a Finance Party are prima facie evidence of the matters to which they relate.
31.2
Certificates and Determinations
Any certification or determination by a Finance Party of a rate or amount under any Finance Document is, in the absence of manifest error, conclusive evidence of the matters to which it relates.
31.3
Day count convention
Any interest, commission or fee accruing under a Finance Document will accrue from day to day and is calculated on the basis of the actual number of days elapsed and a year of 365 days in respect of amounts payable in Sterling or, in respect of other amounts 360 days or, in any case where the practice in the Relevant Market differs, in accordance with that market practice.
32.
PARTIAL INVALIDITY
If, at any time, any provision of the Finance Documents is or becomes illegal, invalid or unenforceable in any respect under any law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions nor the legality, validity or

93954-4-34-v4.0
97

70-40529536




enforceability of such provision under the law of any other jurisdiction will in any way be affected or impaired.
33.
REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part of any Finance Party, any right or remedy under the Finance Documents shall operate as a waiver of any such right or remedy or constitute an election to affirm any of the Finance Documents. No election to affirm any of the Finance Documents on the part of any Finance Party shall be effective unless it is in writing. No single or partial exercise of any right or remedy shall prevent any further or other exercise or the exercise of any other right or remedy. The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights or remedies provided by law.
34.
AMENDMENTS AND WAIVERS
34.1
Required consents
(a)
Subject to Clause 34.2 (Exceptions) any term of the Finance Documents may be amended or waived only with the consent of the Majority Lenders and the Obligors and any such amendment or waiver will be binding on all Parties.
(b)
The Agent may effect, on behalf of any Finance Party, any amendment or waiver permitted by this Clause.
34.2
Exceptions
(a)
Subject to Clause 34.3 (Replacement of Screen Rate) an amendment or waiver of any term of any Finance Document that has the effect of changing or which relates to:
(i)
the definition of "Majority Lenders" in Clause 1.1 (Definitions);
(ii)
except in accordance with Clause 5.6 (Extension Option), an extension to the date of payment of any amount under the Finance Documents;
(iii)
a reduction in the Margin or a reduction in the amount of any payment of principal, interest, fees or commission payable;
(iv)
an increase in or an extension of any Commitment other than in accordance with Clause 4.5 (Reallocation)
(v)
a change to the Borrowers or the Guarantor;
(vi)
any provision which expressly requires the consent of all the Lenders;
(vii)
Clause 2.3 (Finance Parties' rights and obligations), Clause 24 (Changes to the Lenders), this Clause 34, Clause 38 (Governing law) or Clause 39.1 (Jurisdiction); or

93954-4-34-v4.0
98

70-40529536




(viii)
the nature or scope of the guarantee and indemnity granted under Clause 18 (Guarantee and Indemnity),
shall not be made without the prior consent of all the Lenders.
(b)
An amendment or waiver which relates to the rights or obligations of the Agent or the Arranger (each in their capacity as such) may not be effected without the consent of the Agent or the Arranger, as the case may be.
34.3
Replacement of Screen Rate
(a)
Subject to Clause 34.2 (Exceptions), any amendment or waiver which relates to:
(i)
providing for the use of a Replacement Benchmark in relation to that currency in place of that Screen Rate; and
(ii)    
(A)
aligning any provision of any Finance Document to the use of that Replacement Benchmark;
(B)
enabling that Replacement Benchmark to be used for the calculation of interest under this Agreement (including, without limitation, any consequential changes required to enable that Replacement Benchmark to be used for the purposes of this Agreement);
(C)
implementing market conventions applicable to that Replacement Benchmark;
(D)
providing for appropriate fallback (and market disruption) provisions for that Replacement Benchmark; or
(E)
adjusting the pricing to reduce or eliminate, to the extent reasonably practicable, any transfer of economic value from one Party to another as a result of the application of that Replacement Benchmark (and if any adjustment or method for calculating any adjustment has been formally designated, nominated or recommended by the Relevant Nominating Body, the adjustment shall be determined on the basis of that designation, nomination or recommendation),
may be made with the consent of the Agent (acting on the instructions of the Majority Lenders) and the Obligors.

93954-4-34-v4.0
99

70-40529536




(b)
If any Lender fails to respond to a request for an amendment or waiver described in paragraph (a) above within 5 Business Days (unless the relevant Borrower and the Agent agree to a longer time period in relation to any request) of that request being made:
(i)
its Commitment(s) shall not be included for the purpose of calculating the Total Commitments under the relevant Facility/ies when ascertaining whether any relevant percentage of Total Commitments has been obtained to approve that request; and
(ii)
its status as a Lender shall be disregarded for the purpose of ascertaining whether the agreement of any specified group of Lenders has been obtained to approve that request.
34.4
Disenfranchisement of Defaulting Lenders
(a)
For so long as a Defaulting Lender has any Available Tranche A Commitment or any Available Tranche B Commitment in ascertaining the Majority Lenders or whether any given percentage (including, for the avoidance of doubt, unanimity) of the Total Commitments has been obtained to approve any request for a consent, waiver, amendment or other vote under the Finance Documents, that Defaulting Lender's Commitments will be reduced by the amount of its Available Tranche A Commitments or Available Tranche B Commitments.
(b)
For the purposes of this Clause 34.4, the Agent may assume that the following Lenders are Defaulting Lenders:
(i)
any Lender which has notified the Agent that it has become a Defaulting Lender;
(ii)
any Lender in relation to which it is aware that any of the events or circumstances referred to in paragraphs (a), (b) or (c) of the definition of "Defaulting Lender" has occurred,
unless it has received notice to the contrary from the Lender concerned (together with any supporting evidence reasonably requested by the Agent) or the Agent is otherwise aware that the Lender has ceased to be a Defaulting Lender.
34.5
Replacement of a Defaulting Lender
(a)
An Obligor may, at any time a Lender has become and continues to be a Defaulting Lender, by giving 5 Business Days' prior written notice to the Agent and such Lender:
(i)
replace such Lender by requiring such Lender to (and to the extent permitted by law such Lender shall) transfer pursuant to Clause 24 (Changes to the Parties) all (and not part only) of its rights and obligations under this Agreement;

93954-4-34-v4.0
100

70-40529536




(ii)
require such Lender to (and to the extent permitted by law such Lender shall) transfer pursuant to Clause 24 (Changes to the Parties) all (and not part only) of the undrawn Commitment of the Lender; or
(iii)
require such Lender to (and to the extent permitted by law such Lender shall) transfer pursuant to Clause 24 (Changes to the Parties) all (and not part only) of its rights and obligations in respect of the Facility, to a Lender or other bank, financial institution, trust, fund or other entity (a "Replacement Lender") selected by the relevant Obligor, and which confirms its willingness to assume and does assume all the obligations or all the relevant obligations of the transferring Lender (including the assumption of the transferring Lender's participations or unfunded participations (as the case may be) on the same basis as the transferring Lender) for a purchase price in cash payable at the time of transfer equal to the outstanding principal amount of such Lender's participation in the outstanding Utilisations and all accrued interest (to the extent that the Agent has not given a notification under Clause 24.9 (Pro rata interest settlement), Break Costs and other amounts payable in relation thereto under the Finance Documents.
(b)
Any transfer of rights and obligations of a Defaulting Lender pursuant to this Clause shall be subject to the following conditions:
(i)
the Obligors shall have no right to replace the Agent;
(ii)
neither the Agent nor the Defaulting Lender shall have any obligation to the Obligors to find a Replacement Lender;
(iii)
the transfer must take place no later than 5 days after the notice period referred to in paragraph (a) above;
(iv)
in no event shall the Defaulting Lender be required to pay or surrender to the Replacement Lender any of the fees received by the Defaulting Lender pursuant to the Finance Documents; and
(v)
the Defaulting Lender shall only be obliged to transfer its rights and obligations pursuant to paragraph (a) above once it is satisfied that it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to that transfer to the Replacement Lender.
(c)
The Defaulting Lender shall perform the checks described in paragraph (b)(v) above as soon as reasonably practicable following delivery of a notice referred to in paragraph (a) above and shall notify the Agent and the Company when it is satisfied that it has complied with those checks.
35.
CONFIDENTIAL INFORMATION
35.1
Confidentiality

93954-4-34-v4.0
101

70-40529536




Each Finance Party agrees to keep all Confidential Information confidential and not to disclose it to anyone, save to the extent permitted by Clause 35.2 (Disclosure of Confidential Information) and Clause 35.3 (Disclosure to numbering service providers), and to ensure that all Confidential Information is protected with security measures and a degree of care that would apply to its own confidential information.
35.2
Disclosure of Confidential Information
Any Finance Party may disclose:
(a)
to any of its Affiliates and any of its or their officers, directors, employees, professional advisers, auditors, partners and Representatives such Confidential Information as that Finance Party shall consider reasonably necessary if any person to whom the Confidential Information is to be given pursuant to this paragraph (a) is informed in writing of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the confidentiality of the information or is otherwise bound by requirements of confidentiality in relation to the Confidential Information;
(b)
to any person:
(i)
to (or through) whom it assigns or transfers (or may potentially assign or transfer) all or any of its rights and/or obligations under one or more Finance Documents and to any of that person's Affiliates, Representatives and professional advisers;
(ii)
with (or through) whom it enters into (or may potentially enter into), whether directly or indirectly, any sub-participation in relation to, or any other transaction under which payments are to be made or may be made by reference to, one or more Finance Documents and/or one or more Obligors and to any of that person's Affiliates, Representatives and professional advisers;
(iii)
appointed by any Finance Party or by a person to whom sub paragraph (b)(i) or (ii) above applies to receive communications, notices, information or documents delivered pursuant to the Finance Documents on its behalf (including, without limitation, any person appointed under paragraph (b) of Clause 25.14 (Relationship with the Lenders));
(iv)
who invests in or otherwise finances (or may potentially invest in or otherwise finance), directly or indirectly, any transaction referred to in paragraph b(i) or (b)(ii) above;
(v)
to whom information is required or requested to be disclosed by any court of competent jurisdiction or any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange or pursuant to any applicable law or regulation;

93954-4-34-v4.0
102

70-40529536




(vi)
to whom or for whose benefit that Finance Party charges, assigns or otherwise creates Security (or may do so) pursuant to Clause 24.8 (Security over Lenders' rights);
(vii)
to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitration, administrative or other investigations, proceedings or disputes;
(viii)
who is a Party;
(ix)
with the consent of the Obligors; and
(x)
who is an investor or a potential investor in a securitisation (or similar transaction of broadly equivalent economic effect) which involves this Facility,
in each case, such Confidential Information as that Finance Party shall consider appropriate if:
(A)
in relation to paragraphs (b)(i), (b)(ii) and b(iii) above, the person to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking except that there shall be no requirement for a Confidentiality Undertaking if the recipient is a professional adviser and is subject to professional obligations to maintain the confidentiality of the Confidential Information;
(B)
in relation to paragraph (b)(iv) above, the person to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking or is otherwise bound by requirements of confidentiality in relation to the Confidential Information they receive and is informed that some or all of such Confidential Information may be price-sensitive information;
(C)
in relation to paragraphs (b)(v), (b)(vi), (b)(vii) and b(x) above, the person to whom the Confidential Information is to be given is informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of that Finance Party, it is not practicable so to do in the circumstances;
(c)
to any person appointed by that Finance Party or by a person to whom paragraph (b)(i) or (b)(ii) above applies to provide administration or settlement services in respect of one or more of the Finance Documents including without limitation, in relation to the trading of participations in respect of the Finance Documents, such Confidential Information as may be required to be disclosed to enable such service provider to provide any of the services referred to in this paragraph (c) if the service provider to whom the Confidential Information is to be given has entered into a confidentiality agreement substantially in the form of the LMA Master Confidentiality Undertaking for Use With Administration/

93954-4-34-v4.0
103

70-40529536




Settlement Service Providers or such other form of confidentiality undertaking agreed between the Company and the relevant Finance Party;
(d)
to any rating agency (including its professional advisers) such Confidential Information as may be required to be disclosed to enable such rating agency to carry out its normal rating activities in relation to the Finance Documents and/or the Obligors if the rating agency to whom the Confidential Information is to be given is informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive information.
35.3
Disclosure to numbering service providers
(a)
Any Finance Party may disclose to any national or international numbering service provider appointed by that Finance Party to provide identification numbering services in respect of this Agreement, the Facility and/or one or more Obligors the following information:
(i)
names of Obligors;
(ii)
country of domicile of Obligors;
(iii)
place of incorporation of Obligors;
(iv)
date of this Agreement or the Effective Date;
(v)
Clause 38 (Governing law);
(vi)
the names of the Agent and the Arranger;
(vii)
date of each amendment and restatement of this Agreement;
(viii)
amount of, and names of, the Facilities (and any tranches);
(ix)
amount of Commitments and Total Commitments;
(x)
currencies of the Facility;
(xi)
type of Facility;
(xii)
ranking of Facility;
(xiii)
Termination Date for Facility;
(xiv)
changes to any of the information previously supplied pursuant to paragraphs (i) to (xiii) above; and
(xv)
such other information agreed between such Finance Party and the Obligors,
to enable such numbering service provider to provide its usual syndicated loan numbering identification services.

93954-4-34-v4.0
104

70-40529536




(b)
The Parties acknowledge and agree that each identification number assigned to this Agreement, the Facility and/or one or more Obligors by a numbering service provider and the information associated with each such number may be disclosed to users of its services in accordance with the standard terms and conditions of that numbering service provider.
(c)
Each Obligor represents that none of the information set out in paragraphs (i) to (xv) of paragraph (a) above is, nor will at any time be, unpublished price-sensitive information.
(d)
The Agent shall notify the Obligors and the other Finance Parties of:
(i)
the name of any numbering service provider appointed by the Agent in respect of this Agreement, the Facility and/or one or more Obligors; and
(ii)
the number or, as the case may be, numbers assigned to this Agreement, the Facility and/or one or more Obligors by such numbering service provider.
35.4
Entire agreement
This Clause 35 constitutes the entire agreement between the Parties in relation to the obligations of the Finance Parties under the Finance Documents regarding Confidential Information and supersedes any previous agreement, whether express or implied, regarding Confidential Information.
35.5
Inside information
Each of the Finance Parties acknowledges that some or all of the Confidential Information is or may be price-sensitive information and that the use of such information may be regulated or prohibited by applicable legislation including securities law relating to insider dealing and market abuse and each of the Finance Parties undertakes not to use any Confidential Information for any unlawful purpose.
35.6
Notification of disclosure
Each of the Finance Parties agrees (to the extent permitted by law and regulation) to inform the Obligors:
(a)
of the circumstances of any disclosure of Confidential Information made pursuant to paragraph (b)(v) of Clause 35.2 (Disclosure of Confidential Information) except where such disclosure is made to any of the persons referred to in that paragraph during the ordinary course of its supervisory or regulatory function; and
(b)
upon becoming aware that Confidential Information has been disclosed in breach of this Clause 35.
35.7
Continuing obligations

93954-4-34-v4.0
105

70-40529536




The obligations in this Clause 35 are continuing and, in particular, shall survive and remain binding on each Finance Party for a period of twelve months from the earlier of:
(a)
the date on which all amounts payable by the Obligors under or in connection with this Agreement have been paid in full and all Commitments have been cancelled or otherwise cease to be available; and
(b)
the date on which such Finance Party otherwise ceases to be a Finance Party.
36.
CONFIDENTIALITY OF FUNDING RATES
36.1
Confidentiality and disclosure
(a)
The Agent and each Borrower agree to keep each Funding Rate confidential and not to disclose it to anyone, save to the extent permitted by paragraphs (b), (c) and (d) below.
(b)
The Agent may disclose:
(i)
any Funding Rate to the relevant Borrower pursuant to Clause 9.4 (Notification of rates of interest); and
(ii)
any Funding Rate to any person appointed by it to provide administration services in respect of one or more of the Finance Documents to the extent necessary to enable such service provider to provide those services if the service provider to whom that information is to be given has entered into a confidentiality agreement substantially in the form of the LMA Master Confidentiality Undertaking for Use With Administration/Settlement Service Providers or such other form of confidentiality undertaking agreed between the Agent and the relevant Lender.
(c)
The Agent may disclose any Funding Rate and each Borrower may disclose any Funding Rate, to:
(i)
any of its Affiliates and any of its or their officers, directors, employees, professional advisers, auditors, partners and Representatives if any person to whom that Funding Rate is to be given pursuant to this paragraph (i) is informed in writing of its confidential nature and that it may be price-sensitive information except that there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the confidentiality of that Funding Rate or is otherwise bound by requirements of confidentiality in relation to it;
(ii)
any person to whom information is required or requested to be disclosed by any court of competent jurisdiction or any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange or pursuant to any applicable law or regulation if the person to whom that Funding Rate is to be given is informed in writing of its confidential nature and that it may be price-sensitive information except that there shall be no requirement to so inform if, in

93954-4-34-v4.0
106

70-40529536




the opinion of the Agent or the relevant Borrower, as the case may be, it is not practicable to do so in the circumstances;
(iii)
any person to whom information is required to be disclosed in connection with, and for the purpose of, any litigation, arbitration, administrative or other investigations, proceedings or disputes if the person to whom that Funding Rate is to be given is informed in writing of its confidential nature and that it may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of the Agent or the relevant Borrower, as the case may be, it is not practicable to do so in the circumstances; and
(iv)
any person with the consent of the relevant Lender.
36.2
Related obligations
(a)
The Agent and each Borrower acknowledge that each Funding Rate is or may be price-sensitive information and that its use may be regulated or prohibited by applicable legislation including securities law relating to insider dealing and market abuse and the Agent and each Borrower undertake not to use any Funding Rate for any unlawful purpose.
(b)
The Agent and each Borrower agree (to the extent permitted by law and regulation) to inform the relevant Lender:
(i)
of the circumstances of any disclosure made pursuant to paragraph (c)(ii) of Clause 36.1 (Confidentiality and disclosure) except where such disclosure is made to any of the persons referred to in that paragraph during the ordinary course of its supervisory or regulatory function; and
(ii)
upon becoming aware that any information has been disclosed in breach of this Clause 36.
36.3
No Event of Default
No Event of Default will occur under Clause 23.3 (Other obligations) by reason only of an Obligor's failure to comply with this Clause 36.
37.
COUNTERPARTS
Each Finance Document may be executed in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on a single copy of the Finance Document.

93954-4-34-v4.0
107

70-40529536




SECTION 12
GOVERNING LAW AND ENFORCEMENT
38.
GOVERNING LAW
This Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law
39.
ENFORCEMENT
39.1
Jurisdiction
(a)
The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including a dispute relating to the existence, validity or termination of this Agreement or the consequences of its nullity or any non-contractual obligations arising out of or in connection with this Agreement) (a "Dispute").
(b)
The Parties agree that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no Party will argue to the contrary.
(c)
This Clause 39.1 is for the benefit of the Finance Parties only. As a result, and notwithstanding paragraph (a) of Clause 39.1, any Finance Party may take proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Finance Parties may take concurrent proceedings in any number of jurisdictions.

93954-4-34-v4.0
108

70-40529536




Schedule 1
THE PARTIES
PART I    
THE OBLIGORS
Name of Borrowers
Registration number (or equivalent, if any)
Northern Powergrid (Yorkshire) plc
4112320
Northern Powergrid (Northeast) Limited
2906593

Name of Guarantor
Registration number (or equivalent, if any)
Northern Powergrid Holdings Company
3476201


93954-4-34-v4.0
109

70-40529536




PART II    
THE ORIGINAL LENDERS
Name of Original Lender
Tranche A Commitment
Tranche B Commitment
Santander UK plc
£25,000,000
£25,000,000
Lloyds Bank plc
£25,000,000
£25,000,000
National Westminster Bank Plc
£25,000,000
£25,000,000
 
£75,000,000
£75,000,000


93954-4-34-v4.0
110

70-40529536




SCHEDULE 2    
CONDITIONS PRECEDENT
Conditions Precedent to Initial Utilisation
1.
Obligors
(a)
A copy of the constitutional documents of each Obligor.
(b)
A copy of a resolution of the board of directors of each Obligor:
(i)
approving the terms of, and the transactions contemplated by, the Finance Documents to which it is a party and resolving that it execute the Finance Documents to which it is a party;
(ii)
authorising a specified person or persons to execute the Finance Documents to which it is a party on its behalf; and
(iii)
authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices (including, if relevant, any Utilisation Request) to be signed and/or despatched by it under or in connection with the Finance Documents to which it is a party.
(c)
A specimen of the signature of each person authorised by the resolution referred to in paragraph (b) above.
(d)
A certificate of each Obligor (signed by a director) confirming that borrowing the Commitments made available to that Obligor hereunder and in the case of the Guarantor, guaranteeing the Total Commitments, would not cause any borrowing, guaranteeing or similar limit binding on any such Obligor to be exceeded.
(e)
A certificate of an authorised signatory of the relevant Obligor certifying that each copy document relating to it specified in this Schedule 2 is correct, complete and in full force and effect as at a date no earlier than the date of the Amendment and Restatement Agreement.
2.
Legal opinion
A legal opinion of Clifford Chance LLP, legal advisers to the Arranger and the Agent in England, substantially in the form distributed to the Lenders prior to signing this Agreement.
3.
Other documents and evidence
(a)
A copy of any other Authorisation or other document, opinion or assurance which the Agent considers to be necessary or desirable (if it has notified the Company accordingly) in connection with the entry into and performance of the transactions contemplated by any Finance Document or for the validity and enforceability of any Finance Document.

93954-4-34-v4.0
111

70-40529536




(b)
The Original Financial Statements of each Obligor.
(c)
Evidence that the fees, costs and expenses then due from the Company pursuant to Clause 12 (Fees) and Clause 17 (Costs and expenses) have been paid or will be paid by the first Utilisation Date.
(d)
A copy of each DNO Licence.

93954-4-34-v4.0
112

70-40529536




SCHEDULE 3    
REQUESTS
Utilisation Request
From:
[Borrower]
To:
[Agent]
Dated:    
Dear Sirs
£150,000,000 Multicurrency Revolving Facility Agreement originally dated 20 August 2012, as amended and restated on 30 April 2015 and [•] September 2019 (the "Agreement")
1.
We refer to the Agreement. This is a Utilisation Request. Terms defined in the Agreement have the same meaning in this Utilisation Request unless given a different meaning in this Utilisation Request.
2.
We wish to borrow a [Tranche A/Tranche B] Loan on the following terms:
Proposed Utilisation Date:
[•] (or, if that is not a Business Day, the next Business Day)
Currency of Loan:
[•]
Amount:
[•] or, if less, the Available Tranche A Facility or Available Tranche B Facility (as applicable)
Interest Period:
[•]
3.
We confirm that each condition specified in Clause 4.2 (Further conditions precedent) is satisfied on the date of this Utilisation Request.
4.
The proceeds of this Loan should be credited to [account].
5.
This Utilisation Request is irrevocable.
Yours faithfully


…………………………………
authorised signatory for
[name of relevant Borrower]

93954-4-34-v4.0
113

70-40529536




SCHEDULE 4    
FORM OF TRANSFER CERTIFICATE
To:
[•] as Agent
From:
[The Existing Lender] (the "Existing Lender") and [The New Lender] (the "New Lender")
Dated:`
£150,000,000 Multicurrency Revolving Facility Agreement originally dated 20 August 2012, as amended and restated on 30 April 2015 and [•] September 2019 (the "Agreement")
1.
We refer to the Agreement. This is a Transfer Certificate. Terms defined in the Agreement have the same meaning in this Transfer Certificate unless given a different meaning in this Transfer Certificate.
2.
We refer to Clause 24.5 (Procedure for transfer):
(a)
The Existing Lender and the New Lender agree to the Existing Lender transferring to the New Lender by novation all or part of the Existing Lender's Commitment, rights and obligations referred to in the Schedule in accordance with Clause 24.5 (Procedure for transfer).
(b)
The proposed Transfer Date is [•].
(c)
The Facility Office and address, fax number and attention details for notices of the New Lender for the purposes of Clause 30.2 (Addresses) are set out in the Schedule.
3.
The New Lender expressly acknowledges the limitations on the Existing Lender's obligations set out in paragraph (c) of Clause 24.4 (Limitation of responsibility of Existing Lenders).
4.
The New Lender confirms, for the benefit of the Agent and without liability to any Obligor, that it is:
(a)
[a Qualifying Lender (other than a Treaty Lender);]
(b)
[a Treaty Lender;]
(c)
[not a Qualifying Lender]1.
5.
[The New Lender confirms that the person beneficially entitled to interest payable to that Lender in respect of an advance under a Finance Document is either:
(a)
a company resident in the United Kingdom for United Kingdom tax purposes;
________________________
1
Delete as applicable - each New Lender is required to confirm which of these three categories it falls within.

93954-4-34-v4.0
114

70-40529536





(b)
a partnership each member of which is:
a company so resident in the United Kingdom; or
a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA; or
(c)
a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company.]2 
6.
[The New Lender confirms that it holds a passport under the HMRC DT Treaty Passport scheme (reference number [•]) and is tax resident in [•]3, so that interest payable to it by borrowers is generally subject to full exemption from UK withholding tax, and requests that the Company notify each Borrower which is a Party as a Borrower as at the Transfer Date that it wishes that scheme to apply to the Agreement.]4 
7.
This Transfer Certificate may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Transfer Certificate.
8.
This Transfer Certificate and any non-contractual obligations arising out of or in connection with it are governed by English law.
9.
This Transfer Certificate has been entered into on the date stated at the beginning of this Transfer Certificate.




__________________________
2 
Include if New Lender comes within paragraph (i)(B) of the definition of Qualifying Lender in Clause 13.1 (Definitions).
3 
Insert jurisdiction of tax residence.
4 
Include if New Lender holds a passport under the HMRC DT Treaty Passport scheme and wishes that scheme to apply to the Agreement.

93954-4-34-v4.0
115

70-40529536





THE SCHEDULE
Commitment/rights and obligations to be transferred
[insert relevant details]
[
Facility Office address, fax number and attention details for notices and account details for payments]
[Existing Lender]    [New Lender]
By:    By:
This Transfer Certificate is accepted by the Agent and the Transfer Date is confirmed as [•].
[Agent]
By:

93954-4-34-v4.0
116

70-40529536




SCHEDULE 5    
CONVERSION NOTICE
To:    [•] as Agent
From:    Northern Powergrid Holdings Company as Company
Dated:    
Dear Sirs
£150,000,000 Multicurrency Revolving Facility Agreement originally dated 20 August 2012, as amended and restated on 30 April 2015 and on [•] September 2019 (the "Agreement")
1.
We refer to the Agreement. This is a Conversion Notice. Terms defined in the Agreement have the same meaning in this Conversion Notice unless given a different meaning in this Conversion Notice.
2.
We wish to:
(a)
[increase Tranche A Commitments]/[decrease Tranche A Commitments] in an amount equal to [•]; and
(b)
[increase Tranche B Commitments]/[decrease Tranche B Commitments] in an amount equal to [•].¬¬ 
on [insert Conversion Date].
3.
This Conversion Notice is irrevocable.
Yours faithfully


…………………………………
authorised signatory for
Northern Powergrid (Yorkshire) plc

…………………………………
authorised signatory for
Northern Powergrid (Northeast) Limited





_________________
¬¬ 
Not more than £25,000,000 may be reallocated between Tranches A and B.

93954-4-34-v4.0
117

70-40529536




SCHEDULE 6    
FORM OF COMPLIANCE CERTIFICATE
To:
[•] as Agent
From:
Northern Powergrid Holdings Company as Company
Dated:    
Dear Sirs
£150,000,000 Multicurrency Revolving Facility Agreement originally dated 20 August 2012, as amended and restated on 30 April 2015 and on [•] September 2019 (the "Agreement")
1.
We refer to the Agreement. This is a Compliance Certificate. Terms defined in the Agreement have the same meaning when used in this Compliance Certificate unless given a different meaning in this Compliance Certificate.
2.
We confirm that:
(a)
as of [insert most recent Calculation Date] the provisions of Clause 21.2 (Financial condition) [have/have not] been complied with;
(b)
the computations necessary to demonstrate the [compliance/non compliance] referred to in paragraph (a) above are as follows:
Interest Cover
(i)
Consolidated EBIT
[•]
(ii)
Consolidated Net Finance Charges
[•]
Yorkshire Debt to Yorkshire RAV
(iii)
Yorkshire Senior Total Net Debt
[•]
(iv)
Yorkshire RAV
[•]
Northeast Debt to Northeast RAV
(v)
Northeast Senior Total Net Debt
[•]

93954-4-34-v4.0
118

70-40529536




(vi)
Northeast RAV
[•]
Consolidated Senior Total Net Debt to Aggregate RAV
(vii)
Consolidated Senior Total Net Debt
[•]
(viii)
Aggregate RAV
[•]
3.
[We confirm that no Default is continuing.] ¬

Signed:
…............
…............
 
Director
Director
 
of
of
 
Northern Powergrid Holdings Company
Northern Powergrid Holdings Company
 
 
 










____________________
¬
If this statement cannot be made, the certificate should identify any Default that is continuing and the steps, if any, being taken to remedy it.


93954-4-34-v4.0
119

70-40529536




SCHEDULE 7    
LMA FORM OF CONFIDENTIALITY UNDERTAKING
[Letterhead of Seller]
To:


[insert name of Potential Purchaser]

Re:    The Agreement
Company: Northern Powergrid Holdings Company                                           (the "Company")
Date:
Amount:
Agent:

Dear Sirs
We understand that you are considering acquiring an interest in the Agreement which, subject to the Agreement, may be by way of novation, assignment, the entering into, whether directly or indirectly, of a sub-participation or any other transaction under which payments are to be made or may be made by reference to one or more Finance Documents and/or one or more Obligors or by way of investing in or otherwise financing, directly or indirectly, any such novation, assignment, sub-participation or other transaction (the "Acquisition"). In consideration of us agreeing to make available to you certain information, by your signature of a copy of this letter you agree as follows:
1.
CONFIDENTIALITY UNDERTAKING
You undertake (a) to keep all Confidential Information confidential and not to disclose it to anyone, save to the extent permitted by paragraph 2 below and to ensure that all Confidential Information is protected with security measures and a degree of care that would apply to your own confidential information, and (b) until the Acquisition is completed to use the Confidential Information only for the Permitted Purpose.
PERMITTED DISCLOSURE
We agree that you may disclose:
to any of your Affiliates and any of your or their officers, directors, employees, professional advisers and auditors such Confidential Information as you shall consider appropriate if any person to whom the Confidential Information is to be given pursuant to this sub-paragraph (a) is informed in writing of its confidential nature and that some or all of such Confidential

93954-4-34-v4.0
120

70-40529536




Information may be price-sensitive information, except that there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the confidentiality of the information or is otherwise bound by requirements of confidentiality in relation to the Confidential Information;
subject to the requirements of the Agreement, to any person:
to (or through) whom you assign or transfer (or may potentially assign or transfer) all or any of your rights and/or obligations which you may acquire under the Agreement such Confidential Information as you shall consider appropriate if the person to whom the Confidential Information is to be given pursuant to this sub-paragraph (i) has delivered a letter to you in equivalent form to this letter;
with (or through) whom you enter into (or may potentially enter into) any sub-participation in relation to, or any other transaction under which payments are to be made or may be made by reference to the Agreement or any Obligor such Confidential Information as you shall consider appropriate if the person to whom the Confidential Information is to be given pursuant to this sub-paragraph (ii) has delivered a letter to you in equivalent form to this letter;
to whom information is required or requested to be disclosed by any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange or pursuant to any applicable law or regulation such Confidential Information as you shall consider appropriate; and
notwithstanding sub-paragraphs (a) and (b) above, Confidential Information to such persons to whom, and on the same terms as, a Finance Party is permitted to disclose Confidential Information under the Agreement, as if such permissions were set out in full in this letter and as if references in those permissions to Finance Party were references to you.
NOTIFICATION OF DISCLOSURE
You agree (to the extent permitted by law and regulation) to inform us:
(a)
of the circumstances of any disclosure of Confidential Information made pursuant to sub-paragraph (b) of paragraph 2 above except where such disclosure is made to any of the persons referred to in that paragraph during the ordinary course of its supervisory or regulatory function; and
upon becoming aware that Confidential Information has been disclosed in breach of this letter.
RETURN OF COPIES
If you do not enter into the Acquisition and we so request in writing, you shall return or destroy all Confidential Information supplied to you by us and destroy or permanently erase (to the extent technically practicable) all copies of Confidential Information made by you and use your reasonable endeavours to ensure that anyone to whom you have supplied any Confidential Information destroys or permanently erases (to the extent technically practicable) such Confidential Information and any copies made by them, in each case save to the extent that you or the recipients are required to retain any such Confidential Information by any applicable law, rule or regulation or by any competent judicial, governmental, supervisory or regulatory body

93954-4-34-v4.0
121

70-40529536




or in accordance with internal policy, or where the Confidential Information has been disclosed under sub-paragraph (c) of paragraph 2 above.
CONTINUING OBLIGATIONS
The obligations in this letter are continuing and, in particular, shall survive and remain binding on you until (a) if you become a party to the Agreement as a lender of record, the date on which you become such a party to the Agreement; (b) if you enter into the Acquisition but it does not result in you becoming a party to the Agreement as a lender of record, the date falling twelve months after the date on which all of your rights and obligations contained in the documentation entered into to implement that Acquisition have terminated ; or (c) in any other case the date falling twelve months after the date of your final receipt (in whatever manner) of any Confidential Information.
NO REPRESENTATION; CONSEQUENCES OF BREACH, ETC
You acknowledge and agree that:
neither we, nor any member of the Group nor any of our or their respective officers, employees or advisers (each a "Relevant Person") (i) make any representation or warranty, express or implied, as to, or assume any responsibility for, the accuracy, reliability or completeness of any of the Confidential Information or any other information supplied by us or the assumptions on which it is based or (ii) shall be under any obligation to update or correct any inaccuracy in the Confidential Information or any other information supplied by us or be otherwise liable to you or any other person in respect of the Confidential Information or any such information; and
we or members of the Group may be irreparably harmed by the breach of the terms of this letter and damages may not be an adequate remedy; each Relevant Person may be granted an injunction or specific performance for any threatened or actual breach of the provisions of this letter by you.
ENTIRE AGREEMENT; NO WAIVER; AMENDMENTS, ETC
(a)
This letter constitutes the entire agreement between us in relation to your obligations regarding Confidential Information and supersedes any previous agreement, whether express or implied, regarding Confidential Information.
No failure to exercise, nor any delay in exercising, any right or remedy under this letter will operate as a waiver of any such right or remedy or constitute an election to affirm this letter. No election to affirm this letter will be effective unless it is in writing. No single or partial exercise of any right or remedy will prevent any further or other exercise or the exercise of any other right or remedy under this letter.
The terms of this letter and your obligations under this letter may only be amended or modified by written agreement between us and the Company.
INSIDE INFORMATION
You acknowledge that some or all of the Confidential Information is or may be price-sensitive information and that the use of such information may be regulated or prohibited by applicable

93954-4-34-v4.0
122

70-40529536




legislation including securities law relating to insider dealing and market abuse and you undertake not to use any Confidential Information for any unlawful purpose.
NATURE OF UNDERTAKINGS
The undertakings given by you under this letter are given to us and are also given for the benefit of the Company and each other member of the Group.
THIRD PARTY RIGHTS
(a)
Subject to this paragraph 10 and to paragraphs 6 and 9, a person who is not a party to this letter has no right under the Contracts (Rights of Third Parties) Act 1999 (the "Third Parties Act") to enforce or to enjoy the benefit of any term of this letter.
The Relevant Persons may enjoy the benefit of the terms of paragraphs 6 and 9 subject to and in accordance with this paragraph 10 and the provisions of the Third Parties Act.
Notwithstanding any provisions of this letter, the parties to this letter do not require the consent of any Relevant Person to rescind or vary this letter at any time.
GOVERNING LAW AND JURISDICTION
(a)
This letter and the agreement constituted by your acknowledgement of its terms (the "Letter") and any non-contractual obligations arising out of or in connection with it (including any non-contractual obligations arising out of the negotiation of the transaction contemplated by this Letter) are governed by English law.
The courts of England have non-exclusive jurisdiction to settle any dispute arising out of or in connection with this Letter (including a dispute relating to any non-contractual obligation arising out of or in connection with either this Letter or the negotiation of the transaction contemplated by this Letter).
DEFINITIONS
In this letter (including the acknowledgement set out below) terms defined in the Agreement shall, unless the context otherwise requires, have the same meaning and:
"Confidential Information" means all information relating to any Obligor, the Group, the Finance Documents, the Facility and/or the Acquisition which is provided to you in relation to the Finance Documents or the Facility by us or any of our affiliates or advisers, in whatever form, and includes information given orally and any document, electronic file or any other way of representing or recording information which contains or is derived or copied from such information but excludes information that:
is or becomes public information other than as a direct or indirect result of any breach by you of this letter; or
is identified in writing at the time of delivery as non-confidential by us or our advisers; or
is known by you before the date the information is disclosed to you by us or any of our affiliates or advisers or is lawfully obtained by you after that date, from a source which is, as far as you

93954-4-34-v4.0
123

70-40529536




are aware, unconnected with the Group and which, in either case, as far as you are aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality.
"Group" means the Company and its subsidiaries for the time being (as such term is defined in the Companies Act 2006).
"Permitted Purpose" means considering and evaluating whether to enter into the Acquisition.
Please acknowledge your agreement to the above by signing and returning the enclosed copy.
Yours faithfully

…................................
For and on behalf of
[Seller]


93954-4-34-v4.0
124

70-40529536




To:    [Seller]
The Company and each other member of the Group
We acknowledge and agree to the above:

…................................
For and on behalf of
[Potential Purchaser]

93954-4-34-v4.0
125

70-40529536




SCHEDULE 8    
TIMETABLES
 
Loans in US dollars or euro
Loans in sterling
Loans in other currencies
Request for approval as an Optional Currency (Clause 4.3 (Conditions relating to Optional Currencies))
N/A
N/A
U-4 (10.00am)
Agent notifies the Company if a currency is approved as an Optional Currency in accordance with Clause 4.3 (Conditions relating to Optional Currencies)
N/A
N/A
U-3 (4.00pm)
Delivery of a duly completed Utilisation Request (Clause 5.1 (Delivery of a Utilisation Request)
U-3 (9.00am)
U-1 (10.00am)
U-3 (9.00am)
Agent determines (in relation to a Utilisation) the Base Currency Amount of the Loan, if required under Clause 5.4 (Lenders' participation) and notifies the Lenders of the Loan in accordance with Clause 5.4 (Lenders' participation)
U-3 (3.00pm)
U-1 (3.00pm)
U-2 (2.00pm)
Agent receives a notification from a Lender under Clause 6.2 (Unavailability of a currency)
U-2 (9.30am)
N/A
U-2 (9.30am)
Agent gives notice in accordance with Clause 6.2 (Unavailability of a currency)
U-2 (10.30am)
N/A
U-2 (10.30am)
LIBOR or EURIBOR is fixed
Quotation Day as of 11.00am London time in respect of LIBOR and as of 11.00am (Brussels time) in respect of EURIBOR
Quotation Day as of 11.00am
Quotation Day as of 11.00am
 
 
 
 
"U" = date of utilisation
"U - X" = X Business Days prior to date of utilisation

93954-4-34-v4.0
126

70-40529536




SCHEDULE 9    
FORM OF INCREASE CONFIRMATION
To:
[•] as Agent and Northern Powergrid Holdings Company as Company
From:
[the Increase Lender] (the "Increase Lender")
Dated:    
Dear Sirs
£150,000,000 Multicurrency Revolving Facility Agreement originally dated 20 August 2012, as amended and restated on 30 April 2015 and on [•] September 2019 (the "Agreement")
1.
We refer to the Agreement. This is an Increase Confirmation. Terms defined in the Agreement have the same meaning in this Increase Confirmation unless given a different meaning in this Increase Confirmation.
2.
We refer to Clause 2.2 (Increase).
3.
The Increase Lender agrees to assume and will assume all of the obligations corresponding to the Commitment specified in the Schedule (the "Relevant Commitment") as if it was an Original Lender under the Agreement.
4.
The proposed date on which the increase in relation to the Increase Lender and the Relevant Commitment is to take effect (the "Increase Date") is [ ].
5.
On the Increase Date, the Increase Lender becomes party to the Finance Documents as a Lender.
6.
The Facility Office and address, fax number and attention details for notices to the Increase Lender for the purposes of Clause 30.2 (Addresses) are set out in the Schedule.
7.
The Increase Lender expressly acknowledges the limitations on the Lenders' obligations referred to in paragraph (f) of Clause 2.2 (Increase).
8.
The Increase Lender confirms, for the benefit of the Agent and without liability to any Obligor, that it is:
(a)
[a Qualifying Lender (other than a Treaty Lender);]
(b)
[a Treaty Lender;]
(c)
[not a Qualifying Lender]5.
9.
[The Increase Lender confirms that the person beneficially entitled to interest payable to that Lender in respect of an advance under a Finance Document is either:
(a)
a company resident in the United Kingdom for United Kingdom tax purposes; or

93954-4-34-v4.0
127

70-40529536




(b)
a partnership each member of which is:
(i)
a company so resident in the United Kingdom; or
(ii)
a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA; or
(c)
a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company.]6 
10.
[The Increase Lender confirms that it holds a passport under the HMRC DT Treaty Passport scheme (reference number [•]) and is tax resident in [•]7, so that interest payable to it by borrowers is generally subject to full exemption from UK withholding tax, and requests that the Company notify each Borrower which is a Party as a Borrower as at Increase Date that it wishes that scheme to apply to the Agreement.]8 
11.
This Increase Confirmation may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Increase Confirmation.
12.
This Increase Confirmation and any non-contractual obligations arising out of or in connection with it are governed by English law.
13.
This Increase Confirmation has been entered into on the date stated at the beginning of this Increase Confirmation.





______________________
5 
Delete as applicable - each Increase Lender is required to confirm which of these three categories it falls within.
6 
Include only if Increase Lender is a UK Non-Bank Lender, i.e. falls within paragraph (i)(B) of the definition of Qualifying Lender in Clause 13.1 (Definitions).
7 
Insert jurisdiction of tax residence.
8 
This confirmation must be included if the Increase Lender holds a passport under the HMRC DT Treaty Passport scheme and wishes the scheme to apply to the Agreement.

93954-4-34-v4.0
128

70-40529536






93954-4-34-v4.0
129

70-40529536




THE SCHEDULE
Relevant Commitment/rights and obligations to be assumed by the Increase Lender
[insert relevant details]
[Facility office address, fax number and attention details for notices and account details for payments]
[Increase Lender]
By:
This Increase Confirmation is accepted as an Increase Confirmation for the purposes of the Agreement by the Agent and the Increase Date is confirmed as [ ].
Agent
By:
Security Agent
By:

93954-4-34-v4.0
130

70-40529536




SIGNATURES
[Signatures pages not restated]
SIGNATURES
THE COMPANY
NORTHERN POWERGRID HOLDINGS COMPANY
By:
/s/ Tom Fielden
 
 
Address:
Lloyds Court
 
78 Grey Street
 
Newcastle Upon Tyne
 
NE1 6AF
 
 
Fax:
0191 223 5132
 
 
 
 
THE BORROWERS
NORTHERN POWERGRID (YORKSHIRE) PLC
By:
/s/ Tom Fielden
 
 
 
 
NORTHERN POWERGRID (NORTHEAST) LIMITED
By:
/s/ Tom Fielden
 
 
THE GUARANTOR
NORTHERN POWERGRID HOLDINGS COMPANY
By:
/s/ Tom Fielden
 
 

93954-4-34-v4.0
131

70-40529536




THE ARRANGER
SANTANDER UK PLC
By:
/s/ Matthew Thomas
 
/s/ Edmund Purves
 
 
Address:
2 Triton Square
 
Regent's Place
 
London NW1 3AN
 
 
Fax:        
020 7756 5816
 
 
 
 
LLOYDS BANK PLC
By:    
/s/ Vijay Chauhan
 
 
Address:
3rd Floor
 
10 Gresham Street
 
London EC2V 7AE
 
 
Fax:
020 7158 3251
 
 
 
 
NATIONAL WESMINSTER BANK PLC
By:
/s/ Peter Dooley
 
 
Address:
135 Bishopsgate
 
London EC2M 3UR
 
 
Fax:
0207 672 6403




93954-4-34-v4.0
132

70-40529536




THE AGENT
LLOYDS BANK PLC
By:
/s/ John Togher
 
 
For administrative matters:
Address:
Agency Servicing 
 
3rd Floor New Uberior House 
 
11 Early Grey Street
 
Edinburgh
 
EH3 9BN
 
 
Fax:
020 7158 3204
 
 
For credit matters:
Address:
Agency
 
3rd Floor New Uberior House 
 
11 Early Grey Street
 
Edinburgh
 
EH3 9BN
 
 
Fax:
020 7158 3204
 
 
Attention:
Agency

93954-4-34-v4.0
133

70-40529536




THE ORIGINAL LENDERS
SANTANDER UK PLC
By:
/s/ Matthew Thomas
 
/s/ Edmund Purves
 
 
Address:
2 Triton Square
 
Regent's Place
 
London NW1 3AN
 
 
Fax:
020 7756 5816
 
 
LLOYDS BANK PLC
By:
/s/ Vijay Chauhan
 
 
Address:
10 Gresham Street
 
London EC2V 7AE
 
 
NATIONAL WESTMINSTER BANK PLC
By:
/s/ Peter Dooley
 
 
Address:
135 Bishopsgate
 
London EC2M 3UR
 
 
Fax:
0207 672 6403
 
 
 
 
 
 

93954-4-34-v4.0
134

70-40529536




EXHIBIT 10.6
 
EXECUTION VERSION

 
Published CUSIP Numbers: 59562FAQ5
 
 59562FAR3
 
 
 
 
U.S. $400,000,000
 
364-DAY CREDIT AGREEMENT
 
Dated as of August 30, 2019
 
Among
 
MIDAMERICAN ENERGY COMPANY
as the Borrower
 
THE INITIAL LENDERS NAMED HEREIN
as Initial Lenders
 
and
 
MIZUHO BANK, LTD.
as Administrative Agent
 
 
 
MIZUHO BANK, LTD.
MUFG UNION BANK, N.A.
WELLS FARGO SECURITIES
CITIBANK, N.A.
U.S. BANK NATIONAL ASSOCIATION
Joint Lead Arrangers












TABLE OF CONTENTS
 
 
 
Page
 
 
 
 
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
1

 
 
 
 
 
SECTION 1.01.
Certain Defined Terms
1

 
SECTION 1.02.
Computation of Time Periods
18

 
SECTION 1.03.
Accounting Terms
18

 
SECTION 1.04.
Classification of Loans and Borrowings
19

 
SECTION 1.05.
Other Interpretive Provisions
19

 
 
 
 
ARTICLE II AMOUNTS AND TERMS OF THE EXTENSIONS OF CREDIT
19

 
 
 
 
 
SECTION 2.01.
The Revolving Loans
19

 
SECTION 2.02.
Making the Revolving Loans
20

 
SECTION 2.03.
[Reserved]
21

 
SECTION 2.04.
[Reserved]
21

 
SECTION 2.05.
Fees
21

 
SECTION 2.06.
[Reserved]
22

 
SECTION 2.07.
[Reserved]
22

 
SECTION 2.08.
Termination or Reduction of the Commitments
22

 
SECTION 2.09.
Repayment of Loans
22

 
SECTION 2.10.
Evidence of Indebtedness
23

 
SECTION 2.11.
Interest on Loans
23

 
SECTION 2.12.
Interest Rate Determination
24

 
SECTION 2.13.
Conversion of Revolving Loans
25

 
SECTION 2.14.
Optional Prepayments of Loans
26

 
SECTION 2.15.
Increased Costs
27

 
SECTION 2.16.
Illegality
28

 
SECTION 2.17.
Payments and Computations
28

 
SECTION 2.18.
Taxes
29

 
SECTION 2.19.
Sharing of Payments, Etc
33

 
SECTION 2.20.
Mitigation Obligations; Replacement of Lenders
34

 
SECTION 2.21.
Defaulting Lenders
35

 
 
 
 
ARTICLE III CONDITIONS PRECEDENT
36

 
 
 
 
 
SECTION 3.01.
Conditions Precedent to Effectiveness
36

 
SECTION 3.02.
Conditions Precedent to each Extension of Credit
38

 
 
 
 
ARTICLE IV REPRESENTATIONS AND WARRANTIES
38

 
 
 
 
 
SECTION 4.01.
Representations and Warranties of the Borrower
38

 
 
 
 

i



ARTICLE V COVENANTS OF THE BORROWER
41

 
 
 
 
 
SECTION 5.01.
Affirmative Covenants
41

 
SECTION 5.02.
Negative Covenants
44

 
SECTION 5.03.
Financial Covenant
46

 
 
 
 
ARTICLE VI EVENTS OF DEFAULT
 
 
 
 
 
 
SECTION 6.01.
Events of Default
46

 
 
 
 
ARTICLE VII THE ADMINISTRATIVE AGENT
 
 
 
 
 
 
SECTION 7.01.
Appointment and Authority
48

 
SECTION 7.02.
Rights as a Lender
48

 
SECTION 7.03.
Exculpatory Provisions
48

 
SECTION 7.04.
Reliance by Administrative Agent
49

 
SECTION 7.05.
Resignation of Administrative Agent
50

 
SECTION 7.06.
Non-Reliance on Administrative Agent and Other Lenders
51

 
SECTION 7.07.
Indemnification
51

 
SECTION 7.08.
No Other Duties, etc
52

 
 
 
 
ARTICLE VIII MISCELLANEOUS
52

 
 
 
 
 
SECTION 8.01.
Amendments, Etc
52

 
SECTION 8.02.
Notices, Etc
53

 
SECTION 8.03.
No Waiver; Remedies
54

 
SECTION 8.04.
Costs and Expenses; Indemnification
54

 
SECTION 8.05.
Right of Set-off
56

 
SECTION 8.06.
Binding Effect
57

 
SECTION 8.07.
Assignments and Participations
57

 
SECTION 8.08.
Confidentiality
61

 
SECTION 8.09.
Governing Law
62

 
SECTION 8.10.
Severability
62

 
SECTION 8.11.
Execution in Counterparts
62

 
SECTION 8.12.
Jurisdiction, Etc
62

 
SECTION 8.13.
Waiver of Jury Trial
63

 
SECTION 8.14.
USA Patriot Act
63

 
SECTION 8.15.
No Fiduciary Duty
64

 
SECTION 8.16.
Acknowledgment and Consent to Bail-In of EEA Financial
 
 
 
Institutions
64

 
SECTION 8.17.
[Reserved]
65

 
SECTION 8.18.
Certain ERISA Matters
65


ii



EXHIBITS AND SCHEDULES
 
 
 
 
 
 
 
EXHIBIT A
---------------
Form of Notice of Borrowing
EXHIBIT B
---------------
[Reserved]
EXHIBIT C
---------------
Form of Assignment and Assumption
EXHIBIT F-1
---------------
Form of U.S. Tax Compliance Certificate (For Foreign Lenders
That Are Not Partnerships For U.S. Federal Income Tax Purposes)

EXHIBIT F-2
---------------
Form of U.S. Tax Compliance Certificate (For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)

EXHIBIT F-3
---------------
Form of U.S. Tax Compliance Certificate (For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)

EXHIBIT F-4
---------------
Form of U.S. Tax Compliance Certificate (For Foreign Lenders
That Are Partnerships For U.S. Federal Income Tax Purposes)
 
 
 
 
 
SCHEDULE I
---------------
List of Commitment Amounts and Applicable Lending Offices
SCHEDULE II
---------------
List of Material Subsidiaries

ii



364-DAY CREDIT AGREEMENT
364-DAY CREDIT AGREEMENT, dated as of August 30, 2019 (as amended, restated, supplemented or otherwise modified from time to time, this “Agreement”), among MIDAMERICAN ENERGY COMPANY, an Iowa corporation (the “Borrower”), the banks, financial institutions and other institutional lenders listed on the signatures pages hereof (the “Initial Lenders”) and MIZUHO BANK, LTD. (“Mizuho”), as administrative agent (in such capacity, the “Administrative Agent”) for the Lenders (as hereinafter defined).
Article I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01.     Certain Defined Terms.
As used in this Agreement, the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined):
Administrative Agent” has the meaning specified in the first paragraph of this Agreement.
Administrative Questionnaire” means an administrative questionnaire in a form supplied by the Administrative Agent.
Affiliate” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, controls or is controlled by or is under common control with the Person specified. For purposes of this definition, the term “control” (including the terms “controlled by” and “under common control with”) of a Person means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ability to exercise voting power, by contract or otherwise.
Agent Fee Letter” means the letter agreement dated August 30, 2019 among the Borrower and the Administrative Agent, as amended, restated, supplemented or otherwise modified from time to time.
Agent Parties” has the meaning specified in Section 8.02(d)(ii).
Agent’s Account” means the account of the Administrative Agent designated from time to time in a written notice to the Lenders and the Borrower as the account to which the Lenders are to fund Borrowings and the Borrower is to make payments under this Agreement.
Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction applicable to the Borrower or any Subsidiary of the Borrower or their respective activities from time to time concerning or relating to bribery or corruption, including, without limitation, (i) the United States Foreign Corrupt Practices Act of 1977, as amended from



2

time to time, and the applicable regulations thereunder, and (ii) to the extent applicable, the United Kingdom’s Bribery Act 2010, as amended from time to time.
Applicable Law” means (i) all applicable common law and principles of equity and (ii) all applicable provisions of all (A) constitutions, statutes, rules, regulations and orders of all Governmental Authorities, (B) Governmental Approvals and (C) orders, decisions, judgments and decrees of all courts (whether at law or in equity or admiralty) and arbitrators.
Applicable Lending Office” means, with respect to each Lender, such Lender’s Domestic Lending Office in the case of a Base Rate Loan and such Lender’s Eurodollar Lending Office in the case of a Eurodollar Rate Revolving Loan.
Applicable Margin” means, (i) with respect to any Base Rate Loan, a percentage rate per annum equal to 0.000% and (ii) with respect to any Eurodollar Rate Revolving Loan, a percentage rate per annum equal to 0.550%; provided, that the Applicable Margins set forth in clauses (i) and (ii) above shall be increased upon the occurrence and during the continuance of any Event of Default by 2.00% per annum.
Approved Fund” means any Fund that is administered or managed by (i) a Lender, (ii) an Affiliate of a Lender or (iii) an entity or an Affiliate of an entity that administers or manages a Lender.
Assignment and Assumption” means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 8.07), and accepted by the Administrative Agent, in substantially the form of Exhibit C or any other form approved by the Administrative Agent.
Available Commitments” means, on any day, the aggregate unused Commitments, computed after giving effect to all Extensions of Credit made or to be made on such day, the application of proceeds therefrom and all prepayments and repayments of Revolving Loans made on such day.
Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.

Bail-In Legislation” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.

Bankruptcy Event” means, with respect to any Person, such Person becomes the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator, custodian, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets (including the Federal Deposit Insurance Corporation or any other Governmental Authority acting in a similar capacity)



3

appointed for it, provided that a Bankruptcy Event shall not result solely by virtue of any ownership interest, or the acquisition of any ownership interest, in such Person or a direct or indirect parent company of such Person by a Governmental Authority if and for so long as such ownership interest does not result in or provide such Person with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Person (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender.
Base Rate” means a fluctuating interest rate per annum in effect from time to time, which rate per annum shall at all times be equal to the highest of:
(i)
the rate of interest announced by Mizuho from time to time as Mizuho’s prime rate;
(ii)
1/2 of 1% per annum above the NYFRB Rate in effect on such date; and
(iii)
the rate of interest per annum (rounded upwards to the nearest 1/100 of 1%) appearing on the Service equal to the one-month London interbank offered rate for deposits in Dollars as determined at approximately 11:00 A.M. (London time) on such day (or if such day is not a Business Day, on the next preceding Business Day), plus 1%; provided, however, if more than one rate is specified on the Service, the applicable rate shall be the arithmetic mean of all such rates plus 1%
; provided, that in no event shall the Base Rate be less than 0%.
Base Rate Loan” means a Loan that bears interest as provided in Section 2.11(a).
Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Internal Revenue Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Internal Revenue Code) the assets of any such “employee benefit plan” or “plan”.
Berkshire Hathaway” means Berkshire Hathaway Inc.
Bonds” means pollution control revenue bonds or industrial development revenue bonds (or similar obligations, however designated) issued pursuant to an Indenture between the Trustee and the Issuer named therein.
Borrower” has the meaning specified in the first paragraph of this Agreement.
Borrowing” means a borrowing by the Borrower consisting of simultaneous Revolving Loans of the same Type, having the same Interest Period and ratably made or Converted on the same day by each of the Lenders pursuant to Section 2.02 or 2.13, as the case may be. All Revolving Loans to the Borrower of the same Type, having the same



4

Interest Period and made or Converted on the same day shall be deemed a single Borrowing hereunder until repaid or next Converted.
Borrowing Date” means the date of any Borrowing.
Business Day” means a day of the year on which banks are not required or authorized by law to close in New York City or Los Angeles and, if the applicable Business Day relates to any Eurodollar Rate Revolving Loans, “Business Day” also includes a day on which dealings are carried on in the London interbank market.
Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (i) the adoption of any law, rule, regulation or treaty, (ii) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (iii) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives (whether or not having the force of law) thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives (whether or not having the force of law) promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law,” regardless of the date enacted, adopted or issued.
Change of Control” has the meaning specified in Section 6.01(h).
Closing Date” means August 30, 2019.
Commitment” means, for each Lender, the obligation of such Lender to make Revolving Loans to the Borrower hereunder in an aggregate amount no greater than the amount set forth on Schedule I hereto or, if such Lender has entered into any Assignment and Assumption, set forth for such Lender in the Register maintained by the Administrative Agent pursuant to Section 8.07(c), in each such case as such amount may be from time to time reduced pursuant to Section 2.08.
Commitment Fee Rate” means, at any time, 0.050% rate per annum.
Commitment Percentage” means, as to any Lender as of any date of determination, the percentage describing such Lender’s pro rata share of the Commitments set forth initially on Schedule I hereto or in the Register from time to time; provided that in the case of Section 2.21 when a Defaulting Lender shall exist, “Commitment Percentage” means the percentage of the total Commitments (disregarding any Defaulting Lender’s Commitment) represented by such Lender’s Commitment. If the Commitments have terminated or expired, the Commitment Percentages shall be determined based upon the Commitments most recently in effect, giving effect to any assignments and to any Lender’s status as a Defaulting Lender at the time of determination.



5

Commitments” means the aggregate of each Lender’s Commitment hereunder.
Communications” has the meaning specified in Section 8.02(d)(ii).
Confidential Information” means information that the Borrower furnishes to the Administrative Agent, the Joint Lead Arrangers or any Lender in a writing designated as confidential, but does not include any such information that is or becomes generally available to the public or that is or becomes available to the Administrative Agent, the Joint Lead Arrangers or such Lender from a source other than the Borrower that has no obligation to maintain the confidentiality of such information.
Consolidated Assets” means, on any date of determination, the total of all assets (including revaluations thereof as a result of commercial appraisals, price level restatement or otherwise) appearing on the consolidated balance sheet of the Borrower and its Consolidated Subsidiaries most recently delivered to the Lenders pursuant to Section 5.01(h) as of such date of determination.
Consolidated Capital” means the sum (without duplication) of (i) Consolidated Debt of the Borrower (without giving effect to the proviso in the definition of Consolidated Debt) and (ii) consolidated equity of all classes (whether common, preferred, mandatorily convertible preferred or preference) of the Borrower.
Consolidated Debt” of the Borrower means the total principal amount of all Debt of the Borrower and its Consolidated Subsidiaries; provided that Guaranties of Debt shall not be included in such total principal amount.
Consolidated Subsidiary” means, with respect to any Person at any time, any Subsidiary or other Person the accounts of which would be consolidated with those of such first Person in its consolidated financial statements in accordance with GAAP.
Convert,” “Conversion” and “Converted” each refers to a conversion of Revolving Loans of one Type into Revolving Loans of the other Type, or the selection of a new, or the renewal of the same, Interest Period for Eurodollar Rate Revolving Loans, pursuant to Section 2.12 or 2.13.
Credit Party” means the Administrative Agent or any Lender.
Debt” of any Person means, at any date, without duplication, (i) all indebtedness of such Person for borrowed money, (ii) all obligations of such Person for the deferred purchase price of property or services (other than trade payables incurred in the ordinary course of such Person’s business), (iii) all obligations of such Person evidenced by notes, bonds, debentures or other similar instruments, (iv) all obligations of such Person as lessee under leases that have been, in accordance with GAAP, recorded as capital leases, (v) all obligations of such Person in respect of reimbursement agreements with respect to acceptances, letters of credit (other than trade letters of credit) or similar extensions of credit, and (vi) all Guaranties. Solely for the purpose of calculating compliance with the covenant



6

in Section 5.03, Debt shall not include Debt of the Borrower or its Consolidated Subsidiaries arising from the qualification of an arrangement as a lease due to that arrangement conveying the right to use or to control the use of property, plant or equipment under the application of the Financial Accounting Standards Board’s Accounting Standards Codification Topic 840 – Leases paragraph 840-10-15-6 (or the Accounting Standards Codification Topic 842 – Leases paragraphs 842-10-15-3 through 5), nor shall Debt include Debt of any variable interest entity consolidated by the Borrower under the requirements of Topic 810 – Consolidation.
Debtor Relief Laws” means the Bankruptcy Code of the United States of America, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect.
Default” means any Event of Default or any event that would constitute an Event of Default but for the requirement that notice be given or time elapse or both.
Defaulting Lender” means, subject to Section 2.21(b), any Lender that (i) has failed, within two Business Days after the date required to be funded or paid, to (A) fund all or any portion of its Loans or (B) pay over to any Credit Party any other amount required to be paid by it under this Agreement, unless, in the case of clause (A) above, such failure is the result of such Lender’s good faith determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in writing) has not been satisfied, as notified by such Lender to the Administrative Agent and the Borrower in such writing, (ii) has notified the Borrower or any Credit Party in writing that it does not intend to comply with any of its funding obligations under this Agreement or has made a public statement to the effect that it does not intend to comply with its funding obligations under this Agreement (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and such position is based on such Lender’s good faith determination that a condition precedent (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) to funding a Loan under this Agreement cannot be satisfied), (iii) has failed, within three Business Days after written request by the Administrative Agent or the Borrower, acting in good faith, to confirm in writing to such requesting party that it will comply with its obligations to fund prospective Loans, provided that such Lender shall cease to be a Defaulting Lender pursuant to clause (iii) upon such requesting party’s receipt of such written confirmation in form and substance reasonably satisfactory to it and the Administrative Agent, or (iv) has become the subject of a (A) Bankruptcy Event or (B) Bail-In Action. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (i) through (iv) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.21(b)) upon delivery of written notice of such determination to the Borrower and each Lender.
Dollars” and the symbol “$” mean lawful currency of the United States of America.



7

Domestic Lending Office” means, with respect to any Lender, the office of such Lender specified as its “Domestic Lending Office” opposite its name on Schedule I hereto or in the Assignment and Assumption pursuant to which it became a Lender, or such other office of such Lender as such Lender may from time to time specify in writing to the Borrower and the Administrative Agent.
EEA Financial Institution” means (a) any institution established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
EEA Resolution Authority” means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
Eligible Assignee” means any Person that meets the requirements to be an assignee under Section 8.07(b)(iii), (v) and (vi) (subject to such consents, if any, as may be required under Section 8.07(b)(iii)).
Environmental Law” means any federal, state, local or foreign statute, law, ordinance, rule, regulation, code, order, judgment, decree or judicial or agency interpretation, policy or guidance relating to pollution or protection of the environment, health, safety or natural resources, including, without limitation, those relating to the use, handling, transportation, treatment, storage, disposal, release or discharge of Hazardous Materials.
ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and rulings issued thereunder.
ERISA Affiliate” means, with respect to any Person, each trade or business (whether or not incorporated) that is considered to be a single employer with such entity within the meaning of Section 414(b), (c), (m) or (o) of the Internal Revenue Code.
ERISA Event” means (i) any “reportable event,” as defined in Section 4043 of ERISA with respect to a Pension Plan (other than an event as to which the PBGC has waived the requirement of Section 4043(a) of ERISA that it be notified of such event); (ii) the failure to make a required contribution to any Pension Plan that would result in the imposition of a lien or other encumbrance or the provision of security under Section 430 of the Internal Revenue Code or Section 303 or 4068 of ERISA, or there being or arising any “unpaid minimum required contribution” or “accumulated funding deficiency” (as defined or otherwise set forth in Section 4971 of the Internal Revenue Code or Part 3 of Subtitle B of



8

Title I of ERISA), whether or not waived, or the filing of any request for or receipt of a minimum funding waiver under Section 412 of the Internal Revenue Code with respect to any Pension Plan or Multiemployer Plan, or a determination that any Pension Plan is, or is reasonably expected to be, in at-risk status under Title IV of ERISA; (iii) the filing of a notice of intent to terminate any Pension Plan, if such termination would require material additional contributions in order to be considered a standard termination within the meaning of Section 4041(b) of ERISA, the filing under Section 4041(c) of ERISA of a notice of intent to terminate any Pension Plan, or the termination of any Pension Plan under Section 4041(c) of ERISA; (iv) the institution of proceedings, or the occurrence of an event or condition that would reasonably be expected to constitute grounds for the institution of proceedings by the PBGC, under Section 4042 of ERISA, for the termination of, or the appointment of a trustee to administer, any Pension Plan; (v) the complete or partial withdrawal of the Borrower or any of its ERISA Affiliates from a Multiemployer Plan, the reorganization or insolvency under Title IV of ERISA of any Multiemployer Plan, or the receipt by the Borrower or any of its ERISA Affiliates of any notice that a Multiemployer Plan is in endangered or critical status under Section 305 of ERISA; (vi) the failure by the Borrower or any of its ERISA Affiliates to comply with ERISA or the related provisions of the Internal Revenue Code with respect to any Pension Plan; (vii) the Borrower or any of its ERISA Affiliates incurring any liability under Title IV of ERISA with respect to any Pension Plan (other than premiums due and not delinquent under Section 4007 of ERISA); or (viii) the failure by the Borrower or any of its Subsidiaries to comply with Applicable Law with respect to any Foreign Plan.
EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.
Eurocurrency Liabilities” has the meaning assigned to that term in Regulation D of the Board of Governors of the Federal Reserve System, as in effect from time to time.
Eurodollar Lending Office” means, with respect to any Lender, the office of such Lender specified as its “Eurodollar Lending Office” opposite its name on Schedule I hereto or in the Assignment and Assumption pursuant to which it became a Lender (or, if no such office is specified, its Domestic Lending Office), or such other office of such Lender as such Lender may from time to time specify in writing to the Borrower and the Administrative Agent.
Eurodollar Rate” means, for any Interest Period for each Eurodollar Rate Revolving Loan comprising part of the same Borrowing, the rate of interest per annum (rounded upward to the nearest 1/100 of 1%) as calculated by ICE Benchmark Administration Limited (or any other person which takes over the administration of that rate) and obtained through a nationally recognized service such as the Dow Jones Market Service (Telerate), Reuters or other such service then being used by the Administrative Agent to ascertain such rates of interest (in each case, the “Service”) as the London interbank offered rate for deposits in Dollars at approximately 11:00 A.M. (London time) two Business Days before the first



9

day of such Interest Period for a period equal to such Interest Period, but in no event less than 0%.
Eurodollar Rate Reserve Percentage” of any Lender for any Interest Period for each Eurodollar Rate Revolving Loan means the reserve percentage applicable to such Lender during such Interest Period (or if more than one such percentage shall be so applicable, the daily average of such percentages for those days in such Interest Period during which any such percentage shall be so applicable) under regulations issued from time to time by the Board of Governors of the Federal Reserve System (or any successor) for determining the maximum reserve requirement (including, without limitation, any emergency, supplemental or other marginal reserve requirement) then applicable to such Lender with respect to liabilities or assets consisting of or including Eurocurrency Liabilities (or with respect to any other category of liabilities that includes deposits by reference to which the interest rate on Eurodollar Rate Revolving Loans is determined) having a term equal to such Interest Period.
Eurodollar Rate Revolving Loan” means a Revolving Loan that bears interest as provided in Section 2.11(b).
Eurodollar Successor Rate” has the meaning specified in Section 2.12(c).
Events of Default” has the meaning specified in Section 6.01.
Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (i) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (A) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its Applicable Lending Office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (B) that are Other Connection Taxes, (ii) in the case of a Lender, withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (A) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under Section 2.20(b)) or (B) such Lender changes its Applicable Lending Office, except in each case to the extent that, pursuant to Section 2.18, amounts with respect to such Taxes were payable either to such Lender's assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its Applicable Lending Office, (iii) Taxes attributable to such Recipient’s failure to comply with Section 2.18(g) and (iv) any Taxes imposed under FATCA.
Extension of Credit” means the making of a Borrowing. For purposes of this Agreement, a Conversion shall not constitute an Extension of Credit.
FATCA” means Sections 1471 through 1474 of the Internal Revenue Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with) any current or future



10

regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Internal Revenue Code, any intergovernmental agreement entered into in connection with the implementation of such Sections of the Internal Revenue Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any such intergovernmental agreement.
Federal Funds Effective Rate” means, for any day, the rate calculated by the NYFRB based on such day’s Federal funds transactions by depositary institutions (as determined in such manner as the NYFRB shall set forth on its public website from time to time) and published on the next succeeding Business Day by the NYFRB as the Federal funds effective rate.
Fee Letter” means the Agent Fee Letter, as amended, restated, supplemented or otherwise modified from time to time.
FERC” means the U.S. Federal Energy Regulatory Commission.
Foreign Lender” means a Lender that is not a U.S. Person.
Foreign Plan” means any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement (other than a Pension Plan or a Multiemployer Plan) maintained by any Subsidiary of the Borrower that, under applicable local foreign law, is required to be funded through a trust or other funding vehicle.
Fund” means any Person (other than a natural Person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities.
GAAP” has the meaning specified in Section 1.03.
Governmental Approval” means any authorization, consent, approval, license or exemption of, registration or filing with, or report or notice to, any Governmental Authority.
Governmental Authority” means the government of the United States of America or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).
Guaranty” of any Person means (i) any obligation, contingent or otherwise, of such Person to pay any Debt of any other Person and (ii) all reasonably quantifiable obligations of such Person under indemnities or under support or capital contribution agreements, and other reasonably quantifiable obligations (contingent or otherwise) to purchase or otherwise to assure a creditor against loss in respect of, or to assure an obligee against loss in respect of, any Debt of any other Person guaranteed directly or indirectly in any manner by such



11

Person, or in effect guaranteed directly or indirectly by such Person through an agreement (A) to pay or purchase such Debt or to advance or supply funds for the payment or purchase of such Debt, (B) to purchase, sell or lease (as lessee or lessor) property, or to purchase or sell services, primarily for the purpose of enabling the debtor to make payment of such Debt or to assure the holder of such Debt against loss, (C) to supply funds to or in any other manner invest in the debtor (including any agreement to pay for property or services irrespective of whether such property is received or such services are rendered) or (D) otherwise to assure a creditor against loss; provided that the term “Guaranty” shall not include endorsements for collection or deposit in the ordinary course of business or the grant of a Lien in connection with Project Finance Debt.
Hazardous Materials” means (i) petroleum and petroleum products, byproducts or breakdown products, radioactive materials, asbestos-containing materials, polychlorinated biphenyls and radon gas and (ii) any other chemicals, materials or substances designated, classified or regulated as hazardous or toxic or as a pollutant or contaminant under any Environmental Law.
Indemnified Party” has the meaning specified in Section 8.04(b).
Indemnified Taxes” means (i) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of the Borrower under any Loan Document and (ii) to the extent not otherwise described in (i), Other Taxes.
Indenture” means, for any series of Bonds, the indenture pursuant to which such Bonds are issued and any supplement thereto relating to such Bonds.
Initial Lenders” has the meaning specified in the first paragraph of this Agreement.
Interest Period” means, for each Eurodollar Rate Revolving Loan comprising part of the same Borrowing, the period commencing on the date of such Eurodollar Rate Revolving Loan or the date of the Conversion of any Base Rate Revolving Loan into such Eurodollar Rate Revolving Loan and ending on the last day of the period selected by the Borrower pursuant to the provisions below and, thereafter, with respect to Eurodollar Rate Revolving Loans, each subsequent period commencing on the last day of the immediately preceding Interest Period and ending on the last day of the period selected by the Borrower pursuant to the provisions below. The duration of each such Interest Period shall be one, two, three or six months or such other period acceptable to all the Lenders, as the Borrower may, upon notice received by the Administrative Agent not later than 12:00 noon (New York City Time) on the third Business Day prior to the first day of such Interest Period, select; provided, however, that:
(i)
the Borrower may not select any Interest Period that ends after the latest Termination Date in effect at such time;
(ii)
Interest Periods commencing on the same date for Eurodollar Rate Revolving Loans comprising part of the same Borrowing shall be of the same duration;



12

(iii)
whenever the last day of any Interest Period would otherwise occur on a day other than a Business Day, the last day of such Interest Period shall be extended to occur on the next succeeding Business Day, provided, however, that, if such extension would cause the last day of such Interest Period to occur in the next following calendar month, the last day of such Interest Period shall occur on the next preceding Business Day; and
(iv)
whenever the first day of any Interest Period occurs on a day of an initial calendar month for which there is no numerically corresponding day in the calendar month that succeeds such initial calendar month by the number of months equal to the number of months in such Interest Period, such Interest Period shall end on the last Business Day of such succeeding calendar month.
Internal Revenue Code” means the Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated and rulings issued thereunder.
IRS” means the U.S. Internal Revenue Service.
Issuer” means, for any series of Bonds, the issuer of such Bonds under the applicable Indentures.
Joint Lead Arrangers” means Mizuho Bank, Ltd., MUFG Union Bank, N.A., U.S. Bank National Association, Citibank, N.A., and Wells Fargo Securities.
Lenders” means the Initial Lenders and each Person that shall become party hereto pursuant to an Assignment and Assumption, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption.
Lien” means any lien, security interest or other charge or encumbrance of any kind, or any other type of preferential arrangement, including, without limitation, the lien or retained security title of a conditional vendor and any easement, right of way or other encumbrance on title to real property.
Loan Documents” means, collectively, (i) this Agreement, (ii) the Fee Letter and (iii) any promissory note issued pursuant to Section 2.10(d).
Loans” means the loans made by the Lenders to the Borrower pursuant to this Agreement.
Margin Regulations” means Regulations T, U and X of the Board of Governors of the Federal Reserve System, as in effect from time to time.
Margin Stock” has the meaning specified in the Margin Regulations.
Material Adverse Effect” means a material adverse effect on (i) on the business, operations, properties, financial condition, assets or liabilities (including, without limitation, contingent liabilities) of the Borrower and its Subsidiaries, taken as a whole, (ii) the ability



13

of the Borrower to perform its obligations under the Loan Documents or (iii) the ability of the Administrative Agent or any Lender to enforce its rights under the Loan Documents.
Material Subsidiaries” means any Subsidiary of the Borrower with respect to which (x) the Borrower’s percentage ownership interest in such Subsidiary multiplied by (y) the book value of the Consolidated Assets of such Subsidiary represents at least 15% of the Consolidated Assets of the Borrower as reflected in the latest financial statements of the Borrower delivered pursuant to clause (i) or (ii) of Section 5.01(h).
Mizuho” has the meaning specified in the recital of parties to this Agreement.
Moody’s” means Moody’s Investors Service, Inc.
Moody’s Rating” means, on any date of determination, the rating most recently announced by Moody’s with respect to any senior unsecured, non-credit enhanced Debt of the Borrower or, if such rating is not available, the corporate credit rating of the Borrower most recently announced by Moody’s.
Multiemployer Plan” means any “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA), which is contributed to by (or to which there is or may be an obligation to contribute of) the Borrower or any of its ERISA Affiliates or with respect to which the Borrower or any of its ERISA Affiliates has, or could reasonably be expected to have, any liability.
New York City Time” means the time in New York, New York.
Non-Consenting Lender” means any Lender that does not approve any consent, waiver or amendment that (i) requires the approval of all affected Lenders in accordance with the terms of Section 8.01 and (ii) has been approved by the Required Lenders.
Non-Defaulting Lender” means, at the time of determination, a Lender that is not a Defaulting Lender.
Notice of Borrowing” has the meaning specified in Section 2.02(a).
NYFRB” means the Federal Reserve Bank of New York.
NYFRB Rate” means, for any day, the greater of (a) the Federal Funds Effective Rate in effect on such day and (b) the Overnight Bank Funding Rate in effect on such day (or for any day that is not a Business Day, for the immediately preceding Business Day); provided that if none of such rates are published for any day that is a Business Day, the term “NYFRB Rate” means the rate for a Federal funds transaction quoted at 11:00 A.M. (New York City Time) on such day received by the Administrative Agent from a Federal funds broker of recognized standing selected by it; provided, further, that if any of the aforesaid rates shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.



14

OFAC” means The Office of Foreign Assets Control of the U.S. Department of the Treasury.
Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising solely from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document).
Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.20).
Outstanding Credits” means, on any date of determination, the aggregate principal amount of all Loans outstanding on such date. The Outstanding Credits with respect to any Lender at any time shall be its Commitment Percentage of the total Outstanding Credits at such time.
Overnight Bank Funding Rate” means, for any day, the rate comprised of both overnight Federal funds and overnight Eurodollar borrowings by U.S.-managed banking offices of depository institutions (as such composite rate shall be determined by the NYFRB as set forth on its public website from time to time) and published on the next succeeding Business Day by the NYFRB as an overnight bank funding rate (from and after such date as the NYFRB shall commence to publish such composite rate).
Participant” has the meaning assigned to such term in Section 8.07(d).
Participant Register” has the meaning specified in Section 8.07(d).
Patriot Act” has the meaning specified in Section 8.14.
PBGC” means the U.S. Pension Benefit Guaranty Corporation (or any successor).
Pension Plan” means any “employee pension benefit plan” (as defined in Section 3(2) of ERISA) (other than a Multiemployer Plan), subject to the provisions of Title IV of ERISA or Section 412 of the Internal Revenue Code or Section 302 of ERISA, maintained or contributed to by the Borrower or any of its ERISA Affiliates or to which the Borrower or any of its ERISA Affiliates has or may have an obligation to contribute (or is deemed under Section 4069 of ERISA to have maintained or contributed to or to have had an obligation to contribute to, or otherwise to have liability with respect to) such plan.



15

Permitted Liens” means such of the following as to which no enforcement, collection, execution, levy or foreclosure proceeding shall have been commenced: (i) Liens for taxes, assessments and governmental charges or levies to the extent not required to be paid under Section 5.01(a) hereof; (ii) Liens imposed by law, such as materialmen’s, mechanics’, carriers’, workmen’s and repairmen’s Liens, and other similar Liens arising in the ordinary course of business; (iii) Liens incurred or deposits made to secure obligations under workers’ compensation laws or similar legislation or to secure public or statutory obligations; (iv) easements, rights of way and other encumbrances on title to real property that do not render title to the property encumbered thereby unmarketable, including zoning and landmarking restrictions; (v) any judgment Lien, unless an Event of Default under Section 6.01(e) shall have occurred and be continuing with respect thereto; (vi) any Lien on any asset of any Person existing at the time such Person is acquired by or merged or consolidated with or into the Borrower or any Subsidiary of the Borrower and not created in contemplation of such event; (vii) pledges and deposits made in the ordinary course of business to secure the performance of bids, trade contracts (other than for Debt), operating leases and surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business; (viii) Liens upon or in any real property or equipment acquired, constructed, improved or held by the Borrower or any Subsidiary in the ordinary course of business to secure the purchase price of such property or equipment or to secure Debt incurred solely for the purpose of financing the acquisition, construction or improvement of such property or equipment, or Liens existing on such property or equipment at the time of its acquisition (other than any such Liens created in contemplation of such acquisition that were not incurred to finance the acquisition of such property), (ix) Liens securing Project Finance Debt, (x) any Lien on the Borrower’s or any Material Subsidiary’s interest in Bonds or cash or cash equivalents securing (A) the obligation of the Borrower or any Material Subsidiary to reimburse the issuer of a letter of credit supporting payments to be made in respect of such Bonds for a drawing on such letter of credit for the purpose of purchasing Bonds or (B) the obligation of the Borrower or any Material Subsidiary to reimburse or repay amounts advanced under any facility entered into to provide liquidity or credit support for any issue of Bonds; and (xi) extensions, renewals or replacements of any Lien described in clause (vi), (vii), (viii), (ix) or (x) for the same or a lesser amount, provided, however, that no such Lien shall extend to or cover any properties (other than after-acquired property already within the scope of the relevant Lien grant) not theretofore subject to the Lien being extended, renewed or replaced.
Person” means any natural Person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.
Platform” has the meaning specified in Section 8.02(d)(i).
Project Finance Debt” means Debt of any Subsidiary of the Borrower (i) that is (A) not recourse to the Borrower other than with respect to Liens granted by the Borrower on direct or indirect equity interests in such Subsidiary to secure such Debt and limited Guaranties of, or equity commitments with respect to, such Debt by the Borrower, which Liens, limited Guaranties and equity commitments are of a type consistent with other limited



16

recourse project financings, and other than customary contractual carve-outs to the non-recourse nature of such Debt consistent with other limited recourse project financings, and (B) incurred in connection with the acquisition, development, construction or improvement of any project, single purpose or other fixed assets of such Subsidiary, including Debt assumed in connection with the acquisition of such assets, or (ii) that represents an extension, renewal, replacement or refinancing of the foregoing, provided that, in the case of a replacement or refinancing, the principal amount of such new Debt shall not exceed the principal amount of the Debt being replaced or refinanced plus 10% of such principal amount.
PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
Rating Decline” means the occurrence of the following on, or within 90 days after, the earlier of (i) the occurrence of a Change of Control and (ii) the earlier of (x) the date of public notice of the occurrence of a Change of Control and (y) the date of the public notice of the Borrower’s (or its direct or indirect parent company’s) intention to effect a Change of Control, which 90-day period will be extended so long as the S&P Rating or Moody’s Rating is under publicly announced consideration for possible downgrading by S&P or Moody’s, as applicable: the S&P Rating is reduced to any rating level below BBB+ or the Moody’s Rating is reduced to any rating level below Baa1 (or both the S&P Rating and the Moody’s Rating become unavailable).
Recipient” means (i) the Administrative Agent and (ii) any Lender, as applicable.
Register” has the meaning specified in Section 8.07(c).
Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of such Person and of such Person’s Affiliates.
Removal Effective Date” has the meaning specified in Section 7.05(b).
Reportable Compliance Event” means that the Borrower or any of its Subsidiaries becomes a Sanctioned Person, or is charged by indictment, criminal complaint or similar charging instrument, arraigned, or custodially detained in connection with any Anti-Corruption Law or any predicate crime to any Anti-Corruption Law.
Required Lenders” means at any time Lenders owed in excess of 50% of the then aggregate unpaid principal amount of the Revolving Loans, or, if there are no Outstanding Credits, Lenders having in excess of 50% in interest of the Commitments (without giving effect to any termination in whole of the Commitments pursuant to Section 6.01). The Commitments and outstanding Loans for any Defaulting Lender shall be disregarded in determining Required Lenders at any time.
Resignation Effective Date” has the meaning specified in Section 7.05(a).



17

Revolving Loan” means a Loan by a Lender to the Borrower pursuant to Section 2.02 as part of a Borrowing and refers to a Base Rate Revolving Loan or a Eurodollar Rate Revolving Loan.
S&P” means S&P Global Ratings, a business unit of S&P Global, Inc.
S&P Rating” means, on any date of determination, the rating most recently announced by S&P with respect to any senior unsecured, non-credit enhanced Debt of the Borrower or, if such rating is not available, the corporate credit rating of the Borrower most recently announced by S&P.
Sanctioned Country” means, at any time, a country, region or territory that is the subject or target of comprehensive Sanctions (at the time of this Agreement, Cuba, Iran, North Korea, Sudan, Syria and Crimea).
Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by OFAC, the U.S. Department of State or the U.S. Department of the Treasury, or maintained by the United Nations Security Council, the European Union or Her Majesty’s Treasury of the United Kingdom, as may be amended, supplemented or substituted from time to time, (b) any Person organized or ordinarily resident or located in a Sanctioned Country or (c) any Person controlled by, or acting on behalf of, any such Person described in clause (a) or (b). For purposes of this definition, “control” of a Person shall mean the direct or indirect (x) ownership of, or power to vote, 25% or more of the issued and outstanding equity interests having ordinary voting power for the election of directors of such Person or other Persons performing similar functions for such Person, or (y) power to direct or cause the direction of the management and policies of such Person whether by ownership of equity interests, contract or otherwise.
Sanctions” means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by OFAC, the U.S. Department of State or the U.S. Department of Treasury, or (b) the United Nations Security Council, the European Union or Her Majesty’s Treasury of the United Kingdom.
SEC” means the U.S. Securities and Exchange Commission.
Service” has the meaning set forth in the definition of “Eurodollar Rate”.
Subsidiary” of any Person means any corporation, partnership, joint venture, limited liability company, trust or estate of which (or in which) more than 50% of (i) the issued and outstanding capital stock having ordinary voting power to elect a majority of the board of directors of such corporation (irrespective of whether at the time capital stock of any other class or classes of such corporation shall or might have voting power upon the occurrence of any contingency), (ii) the interest in the capital or profits of such limited liability company, partnership or joint venture or (iii) the beneficial interest in such trust or estate is at the time directly or indirectly owned or controlled by such Person, by such Person



18

and one or more of its other Subsidiaries or by one or more of such Person’s other Subsidiaries.
Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
Termination Date” means the earlier to occur of (i) August 28, 2020, and (ii) the date of termination in whole of the Commitments available to the Borrower pursuant to Section 2.08 or 6.01.
Trustee” means, for any series of Bonds, the Person acting in the capacity of trustee for the holders of such Bonds under the Indenture pursuant to which such Bonds were issued.
Type” refers to the distinction between Loans bearing interest at the Base Rate and Loans bearing interest at the Eurodollar Rate.
U.S. Person” means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Internal Revenue Code.
U.S. Tax Compliance Certificate” has the meaning assigned to such term in Section 2.18(g)(ii).
Withholding Agent” means the Borrower and the Administrative Agent.
Write-Down and Conversion Powers” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.
SECTION 1.02.     Computation of Time Periods.
In this Agreement in the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including” and the words “to” and “until” each mean “to but excluding”.
SECTION 1.03.     Accounting Terms.
All accounting terms not specifically defined herein shall be construed in accordance with generally accepted accounting principles as in effect from time to time (“GAAP”). If any “Accounting Change” (as defined below) shall occur and such change results in a change in the calculation of financial covenants, standards or terms in this Agreement, and either the Borrower or the Required Lenders (through the Administrative Agent) shall request the same to the other parties hereto in writing, the Borrower and the Administrative Agent shall enter into negotiations to amend the affected provisions of this Agreement with the desired result that the criteria for evaluating the Borrower’s consolidated financial condition and results of operations shall be



19

substantially the same after such Accounting Change as if such Accounting Change had not been made. Once such request has been made, until such time as such an amendment shall have been executed and delivered by the Borrower, the Administrative Agent and the Required Lenders, all financial covenants, standards and terms in this Agreement shall continue to be calculated or construed as if such Accounting Change had not occurred. “Accounting Change” means a change in accounting principles required by the promulgation of any final rule, regulation, pronouncement or opinion by the Financial Accounting Standards Board of the American Institute of Certified Public Accountants or, if applicable, the SEC (or successors thereto or agencies with similar functions).
SECTION 1.04.     Classification of Loans and Borrowings.
For purposes of this Agreement, Loans may be classified and referred to by Type (e.g., a “Eurodollar Rate Loan”). Borrowings also may be classified and referred to by Type (e.g., a “Eurodollar Rate Borrowing”).
SECTION 1.05.     Other Interpretive Provisions.
As used herein, except as otherwise specified herein, (i) references to any Person include its successors and assigns and, in the case of any Governmental Authority, any Person succeeding to its functions and capacities; (ii) references to any Applicable Law include amendments, supplements and successors thereto; (iii) references to specific sections, articles, annexes, schedules and exhibits are to this Agreement; (iv) words importing any gender include the other gender; (v) the singular includes the plural and the plural includes the singular; (vi) the words “including”, “include” and “includes” shall be deemed to be followed by the words “without limitation”; (vii) captions and headings are for ease of reference only and shall not affect the construction hereof; and (viii) references to any time of day shall be to New York City Time unless otherwise specified.
ARTICLE II    
AMOUNTS AND TERMS OF THE EXTENSIONS OF CREDIT
SECTION 2.01.     The Revolving Loans.
(a)    Each Lender severally agrees, on the terms and conditions hereinafter set forth, to make Revolving Loans to the Borrower from time to time on any Business Day during the period from the date hereof until the Termination Date applicable to such Lender in an aggregate outstanding amount not to exceed at any time such Lender’s Available Commitment at such time. Within the limits of each Lender’s Commitment and as hereinabove and hereinafter provided, including without limitation Section 2.01(b), the Borrower may request a Borrowing hereunder, and repay or prepay Revolving Loans pursuant to Section 2.14 and utilize the resulting increase in the Available Commitments for further Extensions of Credit in accordance with the terms hereof.
(b)    In no event shall the Borrower be entitled to request or receive any Borrowing that (i) would exceed the Available Commitments or (ii) would cause the Outstanding Credits to exceed the Commitments.



20

SECTION 2.02.     Making the Revolving Loans.
(a)    Each Borrowing shall be in an amount not less than $1,000,000 (or, if less, the Available Commitments at such time) or an integral multiple of $100,000 in excess thereof and shall consist of Revolving Loans of the same Type made on the same day by the Lenders ratably according to their respective Commitment Percentages. Each Borrowing shall be made on notice, given not later than 1:00 P.M. (New York City Time) on the third Business Day prior to the date of the proposed Borrowing in the case of a Borrowing consisting of Eurodollar Rate Revolving Loans, or not later than 1:00 P.M. (New York City Time) on the date of the proposed Borrowing in the case of a Borrowing consisting of Base Rate Revolving Loans, by the Borrower to the Administrative Agent, which shall give to each Lender prompt written notice thereof. Each such notice of a Revolving Borrowing (a “Notice of Borrowing”) shall be by telephone, confirmed immediately in writing or facsimile in substantially the form of Exhibit A hereto, specifying therein the requested (i) Borrowing Date for such Borrowing, (ii) Type of Revolving Loans comprising such Borrowing, (iii) aggregate amount of such Borrowing, and (iv) in the case of a Borrowing consisting of Eurodollar Rate Revolving Loans, the initial Interest Period for each such Revolving Loan. Each Lender shall, before 2:00 P.M. (New York City Time) (or, for Borrowings consisting of Base Rate Revolving Loans for which notice was provided to the Lenders after 12:00 noon (New York City Time) but no later than 1:00 P.M. (New York City Time), before 3:00 P.M. (New York City Time)) on the applicable Borrowing Date, make available for the account of its Applicable Lending Office to the Administrative Agent at the Agent’s Account, in same day funds, such Lender’s ratable portion of the Borrowing to be made on such Borrowing Date. After the Administrative Agent’s receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Administrative Agent will make such funds available to the Borrower no later than 3:30 P.M. (New York City Time) in such manner as the Borrower shall have specified in the applicable Notice of Borrowing.
(b)    Anything in subsection (a) above to the contrary notwithstanding, (i) the Borrower may not select Eurodollar Rate Revolving Loans for any Borrowing if the aggregate amount of such Borrowing is less than $1,000,000 or if the obligation of the Lenders to make Eurodollar Rate Revolving Loans shall then be suspended pursuant to Section 2.12(b), 2.13 or 2.16, and (ii) Borrowings of more than one Type may be outstanding at the same time; provided, however, there shall be not more than 10 Borrowings at any one time outstanding.
(c)    Each Notice of Borrowing shall be irrevocable and binding on the Borrower. In the case of any Borrowing that the related Notice of Borrowing specifies is to comprise Eurodollar Rate Revolving Loans, the Borrower shall indemnify each Lender against any loss, cost or expense incurred by such Lender as a result of any failure to fulfill on or before the date specified in such Notice of Borrowing for such Borrowing the applicable conditions set forth in Article III, including, without limitation, any loss (including loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the Revolving Loan to be made by such Lender as part of such Borrowing when such Revolving Loan, as a result of such failure, is not made on such date.



21

(d)    Unless the Administrative Agent shall have received written notice from a Lender prior to any Borrowing Date or, in the case of a Base Rate Loan, prior to the time of Borrowing, that such Lender will not make available to the Administrative Agent such Lender’s Loan as part of the Borrowing to be made on such Borrowing Date, the Administrative Agent may, but shall not be required to, assume that such Lender has made such portion available to the Administrative Agent on such Borrowing Date in accordance with subsection (a) of this Section 2.02, and the Administrative Agent may (but it shall not be required to), in reliance upon such assumption, make available to the Borrower on such date a corresponding amount. If and to the extent that such Lender shall not have so made such Loan available to the Administrative Agent, such Lender and the Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount, together with interest thereon, for each day from the date such amount is made available to the Borrower until the date such amount is repaid to the Administrative Agent, at (i) in the case of the Borrower, the interest rate applicable at the time to Loans comprising such Borrowing and (ii) in the case of such Lender, the Federal Funds Effective Rate. If such Lender shall repay to the Administrative Agent such corresponding amount, such amount so repaid shall constitute such Lender’s Loan as part of such Borrowing for purposes of this Agreement.
(e)    The failure of any Lender to make the Loan to be made by it as part of any Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Loan on the date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the Loan to be made by such other Lender on the date of any Borrowing.
SECTION 2.03.     [Reserved]
SECTION 2.04.     [Reserved]
SECTION 2.05.     Fees.
(a)    The Borrower agrees to pay to the Administrative Agent for the account of each Lender a commitment fee on the aggregate unused amount of such Lender’s Commitment (i) from the date hereof in the case of each Initial Lender and (ii) from the effective date specified in the Assignment and Assumption pursuant to which it became a Lender in the case of each other Lender, in each case, until the latest Termination Date applicable to such Lender, payable quarterly in arrears on the last day of each March, June, September and December, commencing September 30, 2019, and ending on such Termination Date. The commitment fee for any period will be equal to the Commitment Fee Rate in effect from time to time during such period, times an amount equal to the Commitments minus the aggregate principal amount of Loans outstanding during such period.
(b)    The Borrower agrees to pay the fees payable by the Borrower in such amounts and on such terms as set forth in the Fee Letter.
SECTION 2.06.     [Reserved]
SECTION 2.07.     [Reserved]
SECTION 2.08.     Termination or Reduction of the Commitments.



22

(a)    The Borrower shall have the right, upon at least three Business Days’ notice to the Administrative Agent, to terminate in whole or reduce ratably in part the Available Commitments, provided that (i) each partial reduction shall be in the aggregate amount of $10,000,000 or an integral multiple of $5,000,000 in excess thereof and (ii) no such termination or reduction shall be made that would reduce the aggregate Commitments to an amount less than the Outstanding Credits on the date of such termination or reduction. Each such notice of termination or reduction shall be irrevocable; provided, however, that a notice of termination delivered pursuant to this Section 2.08 may state that such notice is conditioned upon the effectiveness of other credit facilities, in which case such notice may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the effective date specified in the notice of termination) if such condition is not satisfied.
(b)    The Borrower may terminate the unused amount of the Commitment of any Lender that is a Defaulting Lender upon not less than three Business Days’ prior notice to the Administrative Agent (which shall promptly notify the Lenders thereof), and in such event the provisions of Section 2.21(a)(ii) will apply to all amounts thereafter paid by the Borrower for the account of such Defaulting Lender under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts); provided that (i) no Event of Default shall have occurred and be continuing, and (ii) such termination shall not be deemed to be a waiver or release of any claim the Borrower, the Administrative Agent or any Lender may have against such Defaulting Lender.
(c)    The Commitment of each Lender shall automatically terminate on the Termination Date.
(d)    Once terminated, a Commitment or any portion thereof may not be reinstated.
SECTION 2.09.     Repayment of Loans.
(a)    The Borrower shall repay to the Administrative Agent for the account of each Lender on the Termination Date applicable to such Lender the aggregate principal amount of the Revolving Loans made to the Borrower by such Lender then outstanding. Without limiting the foregoing, the Borrower shall also repay (to the Administrative Agent for the account of the Lenders) Revolving Loans, in each ease, to the extent and at the time required pursuant to the terms of any applicable Governmental Approval relating to the Borrower’s ability to incur Debt.
(b)    If at any time the aggregate principal amount of Outstanding Credits exceeds the Commitments, the Borrower shall pay or prepay so much of the Borrowings as shall be necessary in order that the Outstanding Credits will not exceed the Commitments.
SECTION 2.10.     Evidence of Indebtedness.
(a)    Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness to such Lender resulting from each Loan made by such Lender from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time under this Agreement.



23

(b)    The Administrative Agent shall maintain accounts in which it will record (i) the amount of each Loan made hereunder, the Type of each Loan made and the Interest Period applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder from the Borrower and each Lender’s share thereof.
(c)    The entries made in the accounts maintained pursuant to subsections (a) and (b) of this Section 2.10 shall, to the extent permitted by Applicable Law, be prima facie evidence of the existence and amounts of the obligations therein recorded; provided, however, that the failure of any Lender or the Administrative Agent to maintain such accounts or any error therein shall not in any manner affect the obligations of the Borrower to repay the Loans and interest thereon in accordance with their terms.
(d)    Any Lender may request that any Loans made by it be evidenced by one or more promissory notes. In such event, the Borrower shall prepare, execute and deliver to such Lender one or more promissory notes payable to such Lender (or, if requested by such Lender, to such Lender and its assignees) and in a form reasonably satisfactory to the Administrative Agent. Thereafter, the Loans evidenced by such promissory notes and interest thereon shall at all times (including after assignment pursuant to Section 8.07) be represented by one or more promissory notes in such form payable to the payee named therein.
SECTION 2.11.     Interest on Loans.
The Borrower shall pay interest on the unpaid principal amount of each Loan from the date of such Loan until such principal amount shall be paid in full, at the following rates per annum:
(a)    Base Rate Loans. During such periods as such Loan is a Base Rate Revolving Loan, a rate per annum equal at all times to the sum of (x) the Base Rate plus (y) the Applicable Margin for Base Rate Loans in effect from time to time, payable in arrears quarterly on the last day of each March, June, September and December during such periods and on the date such Base Rate Loan shall be Converted or paid in full.
(b)    Eurodollar Rate Revolving Loans. During such periods as such Revolving Loan is a Eurodollar Rate Revolving Loan, a rate per annum equal at all times during each Interest Period for such Revolving Loan to the sum of (x) the Eurodollar Rate for such Interest Period for such Revolving Loan plus (y) the Applicable Margin for Eurodollar Rate Revolving Loans in effect from time to time, payable in arrears on the last day of such Interest Period and, if such Interest Period has a duration of more than three months, on each day that occurs during such Interest Period every three months from the first day of such Interest Period and on the date such Eurodollar Rate Revolving Loan shall be Converted or paid in full.
(c)    Additional Interest on Eurodollar Rate Revolving Loans. The Borrower shall pay to each Lender, so long as such Lender shall be required under regulations of the Board of Governors of the Federal Reserve System to maintain reserves with respect to liabilities or assets consisting of or including Eurocurrency Liabilities, additional interest on the unpaid principal amount of each Eurodollar Rate Revolving Loan of such Lender, from the date of such Revolving Loan until such



24

principal amount is paid in full, at an interest rate per annum equal at all times to the remainder obtained by subtracting (i) the Eurodollar Rate for the Interest Period for such Revolving Loan from (ii) the rate obtained by dividing such Eurodollar Rate by a percentage equal to 100% minus the Eurodollar Rate Reserve Percentage of such Lender for such Interest Period, payable on each date on which interest is payable on such Revolving Loan. Such additional interest shall be determined by such Lender and notified to the Borrower through the Administrative Agent.
SECTION 2.12.     Interest Rate Determination.
(a)    The Administrative Agent shall give prompt notice to the Borrower and the Lenders of the applicable interest rate determined by the Administrative Agent for purposes of Section 2.11(a) or (b), and, if applicable, the rate for the purpose of determining the applicable interest rate under Section 2.11(c).
(b)    If, with respect to any Eurodollar Rate Revolving Loans, (i) the Required Lenders notify the Administrative Agent that the Eurodollar Rate for any Interest Period for such Revolving Loans will not adequately reflect the cost to such Required Lenders of making, funding or maintaining their respective Eurodollar Rate Revolving Loans for such Interest Period, or (ii) the Administrative Agent determines that adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of Eurodollar Rate (including, without limitation, because the Eurodollar Rate is not available or published on a current basis), the Administrative Agent shall forthwith so notify the Borrower and the Lenders, whereupon (A) each Eurodollar Rate Revolving Loan will automatically, on the last day of the then existing Interest Period therefor, Convert into a Base Rate Revolving Loan, and (B) the obligation of the Lenders to make, or to Convert Revolving Loans into, Eurodollar Rate Revolving Loans shall be suspended until the Administrative Agent shall notify the Borrower and the Lenders that the circumstances causing such suspension no longer exist.
(c)    If at any time (i) the circumstances set forth in clause (b)(ii) above have arisen and the Administrative Agent determines (which determination shall be conclusive absent manifest error), or the Borrower notifies the Administrative Agent that the Borrower has determined, that such circumstances are unlikely to be temporary, (ii) the circumstances set forth in clause (b)(ii) above have not arisen but the supervisor for the administrator of the Eurodollar Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which the Eurodollar Rate shall no longer be used for determining interest rates for loans, or (iii) the Administrative Agent and the Borrower determine that syndicated credit facilities currently being entered into or amended are incorporating or adopting a new benchmark reference rate to replace the Eurodollar Rate, then the Administrative Agent and the Borrower may amend this Agreement to establish an alternate benchmark reference rate (including any mathematical or other adjustments to the benchmark (if any) incorporated therein) that gives due consideration to the then prevailing market convention for determining a benchmark reference rate for syndicated loans in the United States at such time (any such proposed rate, a “Eurodollar Successor Rate”), and in connection therewith to incorporate any proposed conforming changes to the definition of “Base Rate,” “Interest Period,” timing and frequency of determining rates and making payments of interest and other administrative matters as may be appropriate, as



25

agreed between the Administrative Agent and the Borrower, to reflect the adoption of such Eurodollar Successor Rate and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such Eurodollar Successor Rate yet exists, in such other manner of administration as the Administrative Agent determines with the consent of the Borrower). Notwithstanding anything to the contrary in Section 8.01, such amendment shall become effective without any further action or consent of any other party to this Agreement so long as the Administrative Agent shall not have received, within five (5) Business Days of the date notice of such Eurodollar Successor Rate is provided to the Lenders, a written notice from the Required Lenders stating that such Required Lenders object to such amendment, provided that any such objection shall be reasonable and made in good faith. In the case of the circumstances described in subclause (i) or (ii) of the first sentence of this clause (c), until an Eurodollar Successor Rate shall be determined in accordance with this clause (c) (but, in the case of the circumstances described in such subclause (ii), only to the extent the Eurodollar Rate for such Interest Period is not available or published at such time on a current basis), (x) any notice from the Borrower that requests the Conversion of any Borrowing to, or continuation of any Borrowing as, a Borrowing consisting of Eurodollar Rate Revolving Loans shall be ineffective and (y) if any Notice of Borrowing requests a Borrowing consisting of Eurodollar Rate Revolving Loans, such Borrowing shall be made a Borrowing consisting of Base Rate Loans; provided that, if such Eurodollar Successor Rate shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.
SECTION 2.13.     Conversion of Revolving Loans.
(a)    Voluntary. The Borrower may on any Business Day, upon notice given to the Administrative Agent not later than 12:00 noon (New York City Time) on the third Business Day prior to the date of the proposed Conversion and subject to the provisions of Sections 2.12 and 2.16, Convert all or any part of Revolving Loans of one Type comprising the same Borrowing into Revolving Loans of the other Type or of the same Type but having a new Interest Period; provided, however, that any Conversion of Eurodollar Rate Revolving Loans into Base Rate Revolving Loans shall be made only on the last day of an Interest Period for such Eurodollar Rate Revolving Loans, any Conversion of Base Rate Revolving Loans into Eurodollar Rate Revolving Loans shall be in an amount not less than the minimum amount specified in Section 2.02(b) and no Conversion of any Revolving Loans shall result in more separate Borrowings than permitted under Section 2.02(b). Each such notice of a Conversion shall, within the restrictions specified above, specify (i) the date of such Conversion, (ii) the Revolving Loans to be Converted, and (iii) if such Conversion is into Eurodollar Rate Revolving Loans, the duration of the initial Interest Period for each such Revolving Loan. Each notice of Conversion shall be irrevocable and binding on the Borrower.
(b)    Mandatory.
(i)    If the Borrower shall fail to select the Type of any Revolving Loan or the duration of any Interest Period for any Borrowing comprising Eurodollar Rate Revolving Loans in accordance with the provisions contained in the definition of “Interest Period” in Section 1.01 and Section 2.13(a), or if any proposed Conversion of a Borrowing that is to



26

comprise Eurodollar Rate Revolving Loans upon Conversion shall not occur as a result of the circumstances described in subsection (c) below, or if an Event of Default has occurred and is continuing and Eurodollar Rate Revolving Loans are outstanding, the Administrative Agent will forthwith so notify the Borrower and the Lenders, and (i) such Revolving Loans will automatically, on the last day of the then existing Interest Period therefor, Convert into Base Rate Loans and (ii) the obligation of the Lenders to make, or to Convert Revolving Loans into, Eurodollar Rate Revolving Loans shall be suspended.
(ii)    On the date on which the aggregate unpaid principal amount of Eurodollar Rate Revolving Loans comprising any Borrowing shall be reduced, by payment or prepayment or otherwise, to less than $10,000,000, such Revolving Loans shall automatically Convert into Base Rate Revolving Loans.
(c)    Failure to Convert. Each notice of Conversion given pursuant to subsection (a) above shall be irrevocable and binding on the Borrower. In the case of any Borrowing that is to comprise Eurodollar Rate Revolving Loans upon Conversion, the Borrower agrees to indemnify each Lender against any loss, cost or expense incurred by such Lender if, as a result of the failure of the Borrower to satisfy any condition to such Conversion (including, without limitation, the occurrence of any Default), such Conversion does not occur. The Borrower’s obligations under this subsection (c) shall survive the repayment of all other amounts owing to the Lenders and the Administrative Agent under this Agreement and the termination of the Commitments.
(d)    Limitation on Certain Conversions. Notwithstanding any other provision of this Agreement to the contrary, the Borrower may not borrow Revolving Loans at the Eurodollar Rate or Convert Revolving Loans resulting in Eurodollar Rate Revolving Loans at any time an Event of Default has occurred and is continuing.
SECTION 2.14.     Optional Prepayments of Loans.
The Borrower may prepay Loans, (i) upon at least two Business Days’ notice, in the case of Eurodollar Rate Revolving Loans, and (ii) upon notice not later than 12:00 noon (New York City Time) on the date of prepayment, in the case of Base Rate Revolving Loans, to the Administrative Agent stating the proposed date and aggregate principal amount of the prepayment, and, if such notice is given, the Borrower shall prepay the outstanding principal amount of the Loans comprising part of the same Borrowing in whole or ratably in part, without penalty, together with accrued interest to the date of such prepayment on the principal amount prepaid; provided, however, that (x) each partial prepayment shall be in an aggregate principal amount of $1,000,000 or an integral multiple of $100,000 in excess thereof and (y) in the event of any such prepayment of a Eurodollar Rate Loan, the Borrower shall be obligated to reimburse the Lenders in respect thereof pursuant to Section 8.04(c).
SECTION 2.15.     Increased Costs.
(a)    Increased Costs Generally. If any Change in Law shall:



27

(i)    impose, modify or deem applicable any reserve, assessment, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender (except any reserve requirement reflected in the Eurodollar Rate Reserve Percentage);
(ii)    other than (A) Indemnified Taxes and (B) Excluded Taxes, subject any Recipient to any Taxes on, or change the basis of taxation of payments to any Recipient in respect of, its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or
(iii)    impose on any Lender or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender;
and the result of any of the foregoing shall be to increase the cost to such Lender or such other Recipient of making, converting to, continuing or maintaining any Loan or of maintaining its obligation to make any such Loan or to reduce the amount of any sum received or receivable by such Lender or other Recipient hereunder (whether of principal, interest or any other amount) then, upon the good faith request of such Lender or other Recipient, the Borrower will pay to such Lender or other Recipient, as the case may be, such additional amount or amounts as will compensate such Lender or other Recipient, as the case may be, for such additional costs incurred or reduction suffered.

(b)    Capital Requirements. If any Lender determines that any Change in Law affecting such Lender or any lending office of such Lender or such Lender’s holding company, if any, regarding capital or liquidity requirements, has or would have the effect of reducing the rate of return on such Lender’s capital or on the capital of such Lender’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by such Lender to a level below that which such Lender or such Lender’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s policies and the policies of such Lender’s holding company with respect to capital adequacy and liquidity), then from time to time the Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender or such Lender’s holding company for any such reduction suffered.
(c)    Certificates for Reimbursement. A certificate of a Lender setting forth the amount or amounts necessary to compensate such Lender or its holding company, as specified in subsection (a) or (b) of this Section and delivered to the Borrower, shall be conclusive absent manifest error. The Borrower shall pay such Lender promptly upon demand the amount shown as due on any such certificate.
(d)    Delay in Requests. Failure or delay on the part of any Lender to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender pursuant to this Section for any increased costs incurred or reductions suffered more than 180 days prior to the date that such Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, and of such Lender’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof).



28

SECTION 2.16.     Illegality.
If due to any Change in Law it shall become unlawful or impossible for any Lender (or its Eurodollar Lending Office) to make, maintain or fund its Eurodollar Rate Revolving Loans, and such Lender shall so notify the Administrative Agent, the Administrative Agent shall forthwith give notice thereof to the other Lenders and the Borrower, whereupon, until such Lender notifies the Borrower and the Administrative Agent that the circumstances giving rise to such suspension no longer exist, the obligation of such Lender to make Eurodollar Rate Revolving Loans, or to Convert outstanding Revolving Loans into Eurodollar Rate Revolving Loans, shall be suspended. Before giving any notice to the Administrative Agent pursuant to this Section 2.16, such Lender shall use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions applicable to such Lender) to designate a different Eurodollar Lending Office if such designation would avoid the need for giving such notice and would not, in the judgment of such Lender, be otherwise disadvantageous to such Lender. If such notice is given, each Eurodollar Rate Revolving Loan of such Lender then outstanding shall be converted to a Base Rate Revolving Loan either (i) on the last day of the then current Interest Period applicable to such Eurodollar Rate Revolving Loan if such Lender may lawfully continue to maintain and fund such Revolving Loan to such day or (ii) immediately if such Lender shall determine that it may not lawfully continue to maintain and fund such Revolving Loan to such day.
SECTION 2.17.     Payments and Computations.
(a)    The Borrower shall make each payment to be made by it hereunder not later than 1:00 P.M. (New York City Time) on the day when due in Dollars to the Administrative Agent at the Agent’s Account in same day funds without condition or deduction for any counterclaim, defense, recoupment or setoff. The Administrative Agent will promptly thereafter cause to be distributed like funds relating to the payment of principal or interest or commitment fees ratably (other than amounts payable pursuant to Section 2.02(c), 2.11(c), 2.13(c), 2.15, 2.18, 2.21 or 8.04(c)) to the Lenders for the account of their respective Applicable Lending Offices, and like funds relating to the payment of any other amount payable to any Lender to such Lender for the account of its Applicable Lending Office, in each case to be applied in accordance with the terms of this Agreement. Upon its acceptance of an Assignment and Assumption and recording of the information contained therein in the Register pursuant to Section 8.07(c), from and after the effective date specified in such Assignment and Assumption, the Administrative Agent shall make all payments hereunder in respect of the interest assigned thereby to the Lender assignee thereunder, and the parties to such Assignment and Assumption shall make all appropriate adjustments in such payments for periods prior to such effective date directly between themselves.
(b)    The Borrower hereby authorizes each Lender, if and to the extent payment owed to such Lender is not made when due hereunder, after any applicable grace period, to charge from time to time against any or all of the Borrower’s accounts with such Lender any amount so due.
(c)    All computations of interest based on the rate referred to in clause (i) of the definition of the “Base Rate” contained in Section 1.01 shall be made by the Administrative Agent on the basis of a year of 365 or 366 days, as the case may be, and all computations of interest based on the Eurodollar Rate, the Federal Funds Effective Rate, NYFRB Rate or the rate referred to in clause



29

(iii) of the definition of the “Base Rate” and of commitment fees shall be made by the Administrative Agent on the basis of a year of 360 days, in each case for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest or commitment fees are payable. Each determination by the Administrative Agent of an interest rate hereunder shall be conclusive and binding for all purposes, absent manifest error.
(d)    Whenever any payment hereunder shall be stated to be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day, and such extension of time shall in such case be included in the computation of payment of interest or commitment fees, as the case may be; provided, however, that, if such extension would cause payment of interest on or principal of Eurodollar Rate Revolving Loans to be made in the next following calendar month or on a date after the Termination Date, such payment shall be made on the next preceding Business Day.
(e)    Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to a Lender hereunder that the Borrower will not make such payment in full, the Administrative Agent may assume that the Borrower has made such payment in full to the Administrative Agent on such date, and the Administrative Agent may, in reliance upon such assumption, cause to be distributed to each Lender on such due date an amount equal to the amount then due such Lender. If and to the extent that the Borrower shall not have so made such payment in full to the Administrative Agent, each Lender shall repay to the Administrative Agent forthwith on demand such amount distributed to such Lender together with interest thereon, for each day from the date such amount is distributed to such Lender until the date such Lender repays such amount to the Administrative Agent, at the Federal Funds Effective Rate.
SECTION 2.18.     Taxes.
(a)    Defined Terms. For purposes of this Section 2.18 and for the avoidance of doubt, the term “Applicable Law” includes FATCA.
(b)    Payments Free of Taxes. Any and all payments by or on account of any obligation of the Borrower under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by Applicable Law. If any Applicable Law (as determined in the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with Applicable Law and, if such Tax is an Indemnified Tax, then the sum payable by the Borrower shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.
(c)    Payment of Other Taxes by the Borrower. The Borrower shall timely pay to the relevant Governmental Authority in accordance with Applicable Law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes.



30

(d)    Indemnification by the Borrower. The Borrower shall indemnify each Recipient, within 30 days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.
(e)    Indemnification by the Lenders. Each Lender shall severally indemnify the Administrative Agent, within 30 days after demand therefor, for any Indemnified Taxes attributable to such Lender (but only to the extent that the Borrower has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Borrower to do so). Each Lender shall severally indemnify the Administrative Agent and the Borrower, within 30 days after demand therefor, for (i) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 8.07(d) relating to the maintenance of a Participant Register and (ii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent or the Borrower in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent or the Borrower shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent or the Borrower to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent or the Borrower to the Lender from any other source against any amount due to the Administrative Agent or the Borrower under this subsection (e).
(f)    Evidence of Payments. As soon as practicable after any payment of Taxes by the Borrower to a Governmental Authority pursuant to this Section 2.18, the Borrower shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.
(g)    Status of Lenders. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by Applicable Law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such



31

documentation (other than such documentation set forth in Section 2.18(g)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(i)    Without limiting the generality of the foregoing,
(A)    any Lender that is a U.S. Person shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), an executed IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;

(B)    any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), whichever of the following is applicable:

(i)    in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, an executed IRS Form W-8BEN-E or IRS Form W-8BEN establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, an executed IRS Form W-8BEN-E or IRS Form W-8BEN establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;

(ii)    an executed IRS Form W-8ECI;

(iii)    in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Internal Revenue Code, (x) a certificate substantially in the form of Exhibit F-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Internal Revenue Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Internal Revenue Code (a “U.S. Tax Compliance Certificate”) and (y) an executed IRS Form W-8BEN-E or IRS Form W-8BEN; or

(iv)    to the extent a Foreign Lender is not the beneficial owner, an executed IRS Form W-8IMY, accompanied by an executed IRS Form W-8ECI, IRS Form W-8BEN-E or IRS Form W-8BEN, a U.S. Tax Compliance Certificate substantially in the form of Exhibit F-2 or Exhibit F-3, IRS Form W-9, and/or other certification



32

documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit F-4 on behalf of each such direct and indirect partner;

(C)    any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed originals of any other form prescribed by Applicable Law as a basis for claiming exemption from or a reduction in withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by Applicable Law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and

(D)    if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Internal Revenue Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by Applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.

(h)    Treatment of Certain Refunds. If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 2.18 (including by the payment of additional amounts pursuant to this Section 2.18), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section with respect to the Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this subsection (h) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this subsection (h), in no event will the indemnified



33

party be required to pay any amount to an indemnifying party pursuant to this subsection (h) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This subsection shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.
(i)    Survival. Each party’s obligations under this Section 2.18 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.
SECTION 2.19.     Sharing of Payments, Etc.
If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or other obligations hereunder resulting in such Lender receiving payment of a proportion of the aggregate amount of its Loans and accrued interest thereon or other such obligations greater than its Commitment Percentage thereof as provided herein, then the Lender receiving such greater proportion shall (i) notify the Administrative Agent of such fact, and (ii) purchase (for cash at face value) participations in the Loans and such other obligations of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing them; provided that:
(A)    if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and

(B)    the provisions of this Section shall not be construed to apply to (x) any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender and any payment made pursuant to Section 2.02(c), 2.11(c), 2.13(c), 2.15, 2.18, 2.21 or 8.04(c) or, in respect of Eurodollar Rate Revolving Loans converted into Base Rate Revolving Loans, pursuant to Section 2.16), or (y) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans to any assignee or participant, other than to the Borrower or any Subsidiary thereof (as to which the provisions of this Section shall apply).

The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under Applicable Law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
SECTION 2.20.     Mitigation Obligations; Replacement of Lenders.



34

(a)    Designation of a Different Lending Office. If any Lender requests compensation under Section 2.15, or if the Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.18, then such Lender shall (at the request of the Borrower) use reasonable efforts to designate a different Applicable Lending Office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or Affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.15 or 2.18, as the case may be, in the future, and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.
(b)    Replacement of Lenders. If any Lender requests compensation under Section 2.15, or if the Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.18 and, in each case, such Lender has declined or is unable to designate a different Applicable Lending Office in accordance with subsection (a) above, or if any Lender is a Defaulting Lender or a Non-Consenting Lender, then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 8.07), all of its interests, rights (other than its existing rights to payments pursuant to Section 2.15 or Section 2.18) and obligations under this Agreement and the related Loan Documents to an Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if such Lender accepts such assignment); provided that:
(i)    the Borrower shall have paid to the Administrative Agent the assignment fee (if any) specified in Section 8.07(b)(iv);
(ii)    such Lender shall have received payment of an amount equal to the outstanding principal of its Loans, together with all applicable accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section 8.04(c)) from the assignee (to the extent of such outstanding principal amounts and accrued interest and fees) or the Borrower (in the case of all other amounts);
(iii)    in the case of any such assignment resulting from a claim for compensation under Section 2.15 or payments required to be made pursuant to Section 2.18, such assignment will result in a reduction in such compensation or payments thereafter;
(iv)    such assignment shall not conflict with Applicable Law;
(v)    in the case of any assignment resulting from a Lender becoming a Non-Consenting Lender, the applicable assignee shall have consented to the applicable extension, amendment, waiver or consent; and
(vi)    No Default shall have occurred and be continuing.



35

A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply.
SECTION 2.21.     Defaulting Lenders.
(a)    Defaulting Lender Adjustments. Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by Applicable Law:
(i)    Waivers and Amendments. Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in the definition of Required Lenders and in Section 8.01.
(ii)    Defaulting Lender Waterfall. Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article 6.01 or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 8.05 shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, as the Borrower may request (so long as no Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; third, if so determined by the Administrative Agent and the Borrower, to be held in a deposit account and released pro rata in order to satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement; fourth, to the payment of any amounts owing to the Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; fifth, so long as no Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and sixth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made were issued at a time when the conditions set forth in Section 3.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of such Defaulting Lender until such time as all Loans are held by the Lenders pro rata in accordance with the Commitments. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
(iii)    Certain Fees. No Defaulting Lender shall be entitled to receive any commitment fee for any period during which that Lender is a Defaulting Lender (and the



36

Borrower shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender).
(iv)    [Reserved].
(v)    Reduction of Available Commitments. The Borrower may terminate the Available Commitment of any Lender that is a Defaulting Lender in accordance with Section 2.08(b).
(b)    Defaulting Lender Cure. If the Borrower and the Administrative Agent agree in writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein, that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Loans to be held pro rata by the Lenders in accordance with the Commitments, whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed in writing by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
ARTICLE III    
CONDITIONS PRECEDENT
SECTION 3.01.     Conditions Precedent to Effectiveness.
The obligation of each Lender to make the initial Extension of Credit to be made by it hereunder shall become effective on and as of the first date on which the following conditions precedent have been satisfied:
(a)    The Administrative Agent shall have received on or before such date of effectiveness the following, each dated such day (except as noted otherwise below), in form and substance reasonably satisfactory to the Administrative Agent and, to the extent requested by the Administrative Agent, in sufficient copies (except with respect to the promissory notes described in paragraph (ii) below) for each Lender:
(i)    A fully executed version of this Agreement and the other Loan Documents;
(ii)    Promissory notes payable to each Lender that has requested the same prior to such date pursuant to Section 2.10(d), duly executed by the Borrower.
(iii)    (A) A copy of the articles of incorporation or other organizational documents of the Borrower and each amendment thereto, certified by the Secretary of State of Iowa as being a true and correct copy thereof, and (B) a certificate from the Secretary of State of



37

Iowa (dated not more than 10 days prior to the date hereof) attesting to the continued existence and good standing of the Borrower in that State.
(iv)    Certified copies of the resolutions of the board of directors of the Borrower approving this Agreement and the other Loan Documents and of all documents evidencing other necessary corporate action and Governmental Approvals required for the execution, delivery and performance by the Borrower of this Agreement and the other Loan Documents.
(v)    A certificate of the Secretary or Assistant Secretary of the Borrower certifying (A) the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the other documents to be delivered by the Borrower hereunder, and (B) that attached thereto are true and correct copies of the bylaws of the Borrower as in effect on such date.
(vi)    A favorable opinion of special Iowa counsel for the Borrower, in form and substance reasonably acceptable to the Administrative Agent.
(vii)    A favorable opinion of special New York counsel for the Borrower, in form and substance reasonably acceptable to the Administrative Agent.
(b)        On such date, the following statements shall be true and the Administrative Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Borrower, dated such date, stating that:
(i)    The representations and warranties of the Borrower contained in this Agreement are true and correct on and as of the date of such effectiveness as though made on and as of such date, and
(ii)    No event has occurred and is continuing that constitutes a Default.
(c)    The Borrower shall have paid all accrued fees and expenses of the Administrative Agent, the Joint Lead Arrangers and the Lenders payable on the date hereof (including the accrued fees and expenses of counsel to the Administrative Agent to the extent then due and payable).
(d)    The Administrative Agent shall have received all documentation and information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act, to the extent such documentation or information is requested by the Administrative Agent on behalf of the Lenders reasonably in advance of the date hereof.
(e)    The Administrative Agent shall have received such other approvals or documents as the Administrative Agent or any Lender shall have reasonably requested through the Administrative Agent reasonably in advance of the date hereof.
SECTION 3.02.     Conditions Precedent to each Extension of Credit.



38

The obligation of each Lender to make each Extension of Credit to be made by it hereunder (other than in connection with any Borrowing that would not increase the aggregate principal amount of Loans outstanding immediately prior to the making of such Borrowing) shall be subject to the following statements being true on the date of such Borrowing (and each of the giving of the applicable Notice of Borrowing and the acceptance by the Borrower of the proceeds of any such Extension of Credit shall constitute a representation and warranty by the Borrower that on the date of such Extension of Credit such statements are true):
(i)    The representations and warranties of the Borrower contained in Section 4.01 (other than the representations and warranties in the first sentence of Section 4.01(g), in Section 4.01(i) and in the first sentence of Section 4.01(n)) are true and correct in all material respects (without duplication of any materiality qualifiers) on and as of the date of such Extension of Credit, before and after giving effect to such Extension of Credit and to the application of the proceeds therefrom, as though made on and as of such date, and
(ii)    No event has occurred and is continuing, or would result from such Extension of Credit or from the application of the proceeds therefrom, that constitutes a Default.
ARTICLE IV    
REPRESENTATIONS AND WARRANTIES
SECTION 4.01.     Representations and Warranties of the Borrower.
The Borrower represents and warrants as follows:
(a)    The Borrower is a corporation duly organized, validly existing and in good standing under the laws of the State of Iowa and is duly qualified to do business and is in good standing as a foreign corporation under the laws of each state in which the ownership of its properties or the conduct of its business makes such qualification necessary, except where the failure to be so qualified would not reasonably be expected to have a Material Adverse Effect, and each Material Subsidiary is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organized.
(b)    The execution, delivery and performance by the Borrower of each Loan Document, and the consummation of the transactions contemplated hereby and thereby, are within the Borrower’s corporate powers and have been duly authorized by all necessary corporate action. Each Loan Document has been duly executed and delivered by the Borrower.
(c)    No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority or any other third party is required for the due execution, delivery and performance by the Borrower of any Loan Document, other than such Governmental Approvals that have been duly obtained and are in full force and effect, which as of the date hereof include: Letter Order issued June 29, 2018, in Docket No. ES18-38-000, by the FERC.
(d)    The execution, delivery and performance by Borrower of the Loan Documents will not (i) violate (A) the articles of incorporation or bylaws (or comparable documents) of Borrower



39

or any of its Material Subsidiaries or (B) any Applicable Law, (ii) be in conflict with, or result in a breach of or constitute a default under, any contract, agreement, indenture or instrument to which the Borrower or any of its Material Subsidiaries is a party or by which any of its or their respective properties is bound or (iii) result in the creation or imposition of any Lien on the property of Borrower or any of its Material Subsidiaries other than Permitted Liens and Liens required under this Agreement, except to the extent such conflict, breach or default referred to in the preceding clause (ii), individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.
(e)    Each Loan Document is the legal, valid and binding obligation of the Borrower, enforceable against the Borrower in accordance with its terms, except as limited by bankruptcy and similar laws affecting the enforcement of creditors’ rights generally and by the application of general equitable principles.
(f)    The Borrower and each Material Subsidiary are in compliance with all Applicable Laws (including Environmental Laws), except to the extent that failure to comply would not reasonably be expected to have a Material Adverse Effect.
(g)    There is no action, suit, proceeding, claim or dispute pending or, to the Borrower’s knowledge, threatened against or affecting the Borrower or any of its Material Subsidiaries, or any of its or their respective properties or assets, before any Governmental Authority that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect. There is no injunction, writ, preliminary restraining order or any other order of any nature issued by any Governmental Authority directing that any material aspect of the transactions expressly provided for in any of the Loan Documents not be consummated as herein or therein provided.
(h)    The consolidated balance sheet of the Borrower and its Consolidated Subsidiaries as at December 31, 2018, and the related consolidated statements of income, cash flows and stockholders’ equity for the fiscal year ended on such date, certified by Deloitte & Touche LLP, copies of which have heretofore been furnished to the Administrative Agent and each Lender, present fairly in all material respects the financial condition of the Borrower and its Consolidated Subsidiaries as at such date, and the consolidated results of their operations and cash flows for the fiscal year then ended. All such financial statements, including the related schedules and notes thereto, have been prepared in accordance with GAAP applied consistently throughout the periods involved (except as may be disclosed therein).
(i)    Since December 31, 2018, no event has occurred that could reasonably be expected to have a Material Adverse Effect.
(j)    The Borrower and each Material Subsidiary have filed or caused to be filed all U.S. Federal and other material tax returns that are required by Applicable Law to be filed, and have paid all taxes shown to be due and payable on said returns or on any assessments made against it or any of its property; other than (i) with respect to taxes the amount or validity of which is currently being contested in good faith by appropriate proceedings and with respect to which reserves in conformity with GAAP have been provided on the books of the Borrower or the applicable Material



40

Subsidiary, as the case may be, or (ii) to the extent that the failure to do so could not reasonably be expected to result in a Material Adverse Effect.
(k)    No ERISA Event has occurred other than as would not, either individually or in the aggregate, be reasonably expected to have a Material Adverse Effect. There are no actions, suits or claims pending against or involving a Pension Plan (other than routine claims for benefits) or, to the knowledge of the Borrower or any of its ERISA Affiliates, threatened, that would reasonably be expected to be asserted successfully against any Pension Plan and, if so asserted successfully, would reasonably be expected either singly or in the aggregate to have a Material Adverse Effect. No lien imposed under the Internal Revenue Code or ERISA on the assets of the Borrower or any of its ERISA Affiliates exists or is likely to arise with respect to any Pension Plan. The Borrower and each of its Subsidiaries have complied with foreign law applicable to its Foreign Plans, except to the extent that failure to comply would not reasonably be expected to have a Material Adverse Effect.
(l)    The Borrower is not engaged in the business of extending credit for the purpose of buying or carrying Margin Stock, and no proceeds of any Loan will be used to extend credit to others for the purpose of buying or carrying any Margin Stock. Following the application of the proceeds of any Extension of Credit, not more than 25% of the value of the assets of the Borrower and the Material Subsidiaries that are subject to the restrictions of Section 5.02(a) or (c) constitute Margin Stock.
(m)    Neither the Borrower nor any Subsidiary is an “investment company” or a company “controlled” by an “investment company,” as such terms are defined in the Investment Company Act of 1940, as amended.
(n)    There are no claims, liabilities, investigations, litigation, notices of violation or liability, administrative proceedings, judgments or orders, whether asserted, pending or threatened, relating to any liability under or compliance with any applicable Environmental Law, against the Borrower or any Material Subsidiary or relating to any real property currently or formerly owned, leased or operated by the Borrower or any Material Subsidiary, that would reasonably be expected to have a Material Adverse Effect. No Hazardous Materials have been or are present or are being spilled, discharged or released on, in, under or from property (real, personal or mixed) currently or formerly owned, leased or operated by the Borrower or any Material Subsidiary in any quantity or manner violating, or resulting in liability under, any applicable Environmental Law, which violation or liability would reasonably be expected to have a Material Adverse Effect.
(o)    No written statement or information furnished by or on behalf of the Borrower to the Administrative Agent or any Lender in connection with the syndication or negotiation of this Agreement or delivered pursuant hereto, in each case as of the date such statement or information is made or delivered, as applicable, contained or contains, any material misstatement of fact or intentionally omitted or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were, are, or will be made, not misleading.
(p)    Each Material Subsidiary as of the date hereof is set forth on Schedule II.



41

(q)    The Borrower has implemented and maintains in effect policies and procedures designed to promote compliance by the Borrower, its Subsidiaries and their respective directors, officers and employees with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and, to the knowledge of the Borrower, their respective officers, directors and employees and their respective agents that will act in any capacity in connection with or benefit from the credit facility established hereby, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of the Borrower or any Subsidiary is a Sanctioned Person. No Borrowing, use of proceeds or other transaction contemplated by this Agreement will violate any Anti-Corruption Law or applicable Sanctions.
ARTICLE V    
COVENANTS OF THE BORROWER
SECTION 5.01.     Affirmative Covenants.
So long as any Loan or any other amount payable hereunder shall remain unpaid or any Lender shall have any Commitment hereunder, the Borrower will:
(a)    Payment of Taxes, Etc. Pay and discharge, and cause each Material Subsidiary to pay and discharge, before the same shall become delinquent, (i) all taxes, assessments and governmental charges or levies imposed upon it or its property, and (ii) all lawful claims that, if unpaid, would by Applicable Law become a Lien upon its property, in each case, except to the extent that the failure to pay and discharge such amounts, either singly or in the aggregate, would not reasonably be expected to have a Material Adverse Effect; provided, however, that neither the Borrower nor any Material Subsidiary shall be required to pay or discharge any such tax, assessment, charge or claim that is being contested in good faith and by proper proceedings and as to which adequate reserves are being maintained in accordance with GAAP.
(b)    Preservation of Existence, Etc. Preserve and maintain, and cause each Material Subsidiary to preserve and maintain, its corporate, partnership or limited liability company (as the case may be) existence and all rights (charter and statutory) and franchises, except to the extent the failure to maintain such rights and franchises would not reasonably be expected to have a Material Adverse Effect; provided, however, that the Borrower and any Material Subsidiary may consummate any merger or consolidation permitted under Section 5.02(b).
(c)    Compliance with Laws, Etc. Comply, and cause each Material Subsidiary to comply with Applicable Law (with such compliance to include, without limitation, compliance with Environmental Laws, the Patriot Act, Anti-Corruption Laws and Sanctions), except to the extent the failure to do so would not reasonably be expected to have a Material Adverse Effect.
(d)    Inspection Rights. At any reasonable time and from time to time, permit the Administrative Agent or any Lender or any designated agents or representatives thereof, at all reasonable times and to the extent permitted by Applicable Law, to examine and make copies of and abstracts from the records and books of account of, and visit the properties of, the Borrower and any Material Subsidiary and to discuss the affairs, finances and accounts of the Borrower and any Material Subsidiary with any of their officers or directors and with their independent certified



42

public accountants (at which discussion, if the Borrower or such Material Subsidiary so requests, a representative of the Borrower or such Material Subsidiary shall be permitted to be present, and if such accountants should require that a representative of the Borrower be present, the Borrower agrees to provide a representative to attend such discussion); provided that (i) such designated agents or representatives shall agree to any reasonable confidentiality obligations proposed by the Borrower and shall follow the guidelines and procedures generally imposed upon like visitors to the Borrower’s facilities, and (ii) unless an Event of Default shall have occurred and be continuing, such visits and inspections shall occur not more than once in any fiscal quarter.
(e)    Keeping of Books. Keep, and cause each Material Subsidiary to keep, proper books of record and account, in which full and correct entries shall be made of all financial transactions and the assets and business of the Borrower and each such Material Subsidiary in accordance with GAAP.
(f)    Maintenance of Properties, Etc. Maintain and preserve, and cause each Material Subsidiary to maintain and preserve, all of its properties that are material to the conduct of its business in good working order and condition, ordinary wear and tear excepted.
(g)    Maintenance of Insurance. Maintain, and cause each Material Subsidiary to maintain, insurance with responsible and reputable insurance companies or associations in such amounts and covering such risks as is usually carried by companies engaged in similar businesses and owning similar properties in the same general areas in which Borrower or any of its Material Subsidiaries operates to the extent available on commercially reasonable terms (the “Industry Standard”); provided, however, that the Borrower and each Material Subsidiary may self-insure to the same extent as other companies engaged in similar businesses and owning similar properties and to the extent consistent with prudent business practice; and provided, further, that if the Industry Standard is such that the insurance coverage then being maintained by Borrower and its Material Subsidiaries is below the Industry Standard, Borrower shall only be required to use its reasonable best efforts to obtain the necessary insurance coverage such that its and its Material Subsidiaries’ insurance coverage equals or is greater than the Industry Standard.
(h)    Reporting Requirements. Furnish to the Lenders:
(i)    within 60 days after the end of each of the first three quarters of each fiscal year of the Borrower, a copy of the consolidated balance sheet of the Borrower and its Consolidated Subsidiaries as of the end of such quarter and consolidated statements of income and cash flows of the Borrower and its Consolidated Subsidiaries for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, duly certified (subject to year-end audit adjustments) by the chief financial officer, chief accounting officer, treasurer or assistant treasurer of the Borrower as having been prepared in accordance with generally accepted accounting principles and a certificate of the chief financial officer, chief accounting officer, treasurer or assistant treasurer of the Borrower as to compliance with the terms of this Agreement and setting forth in reasonable detail the calculations necessary to demonstrate compliance with Section 5.03, provided that in the event of any change in GAAP used in the preparation of such financial statements, the Borrower shall also provide, if necessary for the determination of compliance with Section



43

5.03, a statement of reconciliation conforming such financial statements to GAAP in effect on the date hereof;
(ii)    within 120 days after the end of each fiscal year of the Borrower, a copy of the annual audit report for such year for the Borrower and its Consolidated Subsidiaries, containing a consolidated balance sheet of the Borrower and its Consolidated Subsidiaries as of the end of such fiscal year and consolidated statements of income and cash flows of the Borrower and its Consolidated Subsidiaries for such fiscal year, in each case accompanied by an opinion by Deloitte & Touche LLP or other independent public accountants of nationally recognized standing, and a certificate of the chief financial officer, chief accounting officer, treasurer or assistant treasurer of the Borrower as to compliance with the terms of this Agreement and setting forth in reasonable detail the calculations necessary to demonstrate compliance with Section 5.03, provided that in the event of any change in GAAP used in the preparation of such financial statements, the Borrower shall also provide, if necessary for the determination of compliance with Section 5.03, a statement of reconciliation conforming such financial statements to GAAP in effect on the date hereof;
(iii)    within five days after the chief financial officer or treasurer of the Borrower obtains knowledge of the occurrence of any Default, a statement of the chief financial officer or treasurer of the Borrower setting forth details of such Default and the action that the Borrower has taken and proposes to take with respect thereto;
(iv)    within ten Business Days after the Borrower or any of its ERISA Affiliates knows or has reason to know that (A) the Borrower or any of its ERISA Affiliates has failed to comply with ERISA or the related provisions of the Internal Revenue Code with respect to any Pension Plan, and such noncompliance will, or could reasonably be expected to, result in material liability to the Borrower or its Subsidiaries, and/or (B) any ERISA Event (other than an ERISA Event as defined in clause (vi) of the definition of “ERISA Event”) has occurred, a certificate of the chief financial officer of the Borrower describing such ERISA Event and the action, if any, proposed to be taken with respect to such ERISA Event and a copy of any notice filed with the PBGC or the IRS pertaining to such ERISA Event and all notices received by the Borrower or such ERISA Affiliate from the PBGC or any other governmental agency with respect thereto;
(v)    promptly after the commencement thereof, notice of all actions and proceedings before, and orders by, any Governmental Authority affecting the Borrower or any Material Subsidiary of the type described in Section 4.01(g);
(vi)    together with the financial statements delivered in paragraphs (i) and (ii) of this Section 5.01(h), if Schedule II shall no longer set forth a complete and correct list of all Material Subsidiaries as of the last date of the period for which such financial statements were prepared, an updated Schedule II setting forth all Material Subsidiaries as of the last date of such period for which such financial statements have been prepared;
(vii)    promptly upon the occurrence of a Reportable Compliance Event, notice of such occurrence; and



44

(viii)    such other information respecting the Borrower or any of its Subsidiaries as any Lender through the Administrative Agent may from time to time reasonably request.
If the financial statements required to be delivered pursuant to Section 5.01(h)(i) or 5.01(h)(ii) are included in any Form 10-K or 10-Q filed by the Borrower, the Borrower’s obligation to deliver such documents or information to the Administrative Agent shall be deemed to be satisfied upon (x) delivery of a copy of the relevant form to the Administrative Agent within the time period required by such Section or (y) the relevant form being available on EDGAR and the delivery of a notice to the Administrative Agent (which notice may be delivered by electronic mail and/or included in the applicable compliance certificate delivered pursuant to Section 5.01(h)(i) or 5.01(h)(ii)) that such form is so available, in each case within the time period required by such Section.

(i)    Use of Proceeds. Use the proceeds of the Borrowings for working capital and other general corporate purposes.
SECTION 5.02.     Negative Covenants.
So long as any Loan or any other amount payable hereunder shall remain unpaid, or any Lender shall have any Commitment hereunder, the Borrower agrees that it will not:
(a)    Liens, Etc. Create or suffer to exist, or cause or permit any Material Subsidiary to create or suffer to exist, any Lien on or with respect to any of its properties, including, without limitation, equity interests held by such Person in any Subsidiary of such Person, whether now owned or hereafter acquired, other than (i) Permitted Liens, (ii) Liens created by or pursuant to (x) the Mortgage, Security Agreement, Fixture Filing and Financing Statement, dated as of September 9, 2013, as amended, modified or supplemented, of Borrower, entered into with The Bank of New York Mellon Trust Company, N.A., as trustee, or (y) any other first mortgage indenture or similar agreement or instrument pursuant to which the Borrower or any of its Material Subsidiaries may issue bonds, notes or similar instruments secured by a lien on all or a substantial portion of its fixed assets, so long as under the terms of such other indenture or similar agreement or instrument no “cross-default” or similar “event of default” (howsoever designated) in respect of any bonds, notes or other instruments issued thereunder will be triggered by reference to a Default, and (iii) Liens, in addition to the foregoing, securing obligations not greater than the greater of (A) 7.5% of consolidated shareholders’ equity of all classes (whether common, preferred, mandatorily convertible preferred or preference) of the Borrower and (B) $100,000,000.
(b)    Mergers, Etc. Merge or consolidate with or into any Person, unless (i) the successor entity (if other than the Borrower) (A) assumes, in form reasonably satisfactory to the Administrative Agent, all of the obligations of the Borrower under this Agreement, (B) is a corporation or limited liability company formed under the laws of the United States of America, one of the states thereof or the District of Columbia, (C) is in pro forma compliance with the covenant in Section 5.03 both before and after giving effect to such proposed transaction (determined as if such proposed transaction had occurred on the last day of the most recent fiscal quarter period preceding the date of such proposed transaction for which financial statements have been delivered pursuant to Section 5.01(h)) and (D) has long-term senior unsecured debt ratings issued (and confirmed after giving effect to such merger) by S&P or Moody’s of at least BBB- and Baa3, respectively (or if no such



45

ratings have been issued, commercial paper ratings issued (and confirmed after giving effect to such merger) by S&P and Moody’s of at least A-3 and P-3, respectively), and (ii) no Default shall have occurred and be continuing at the time of such proposed transaction or would result therefrom, and provided, in each case of clause (i) where the successor entity is other than the Borrower, that the Administrative Agent shall have received, and be reasonably satisfied with, all documentation and information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act, to the extent such documentation or information is requested by the Administrative Agent on behalf of the Lenders prior to the date of such proposed transaction.
(c)    Sales, Etc. of Assets. Sell, lease, transfer or otherwise dispose of all or substantially all of its assets to any Person, or grant any option or other right to purchase, lease or otherwise acquire such assets, except that the Borrower may sell, lease, transfer or otherwise dispose of all or substantially all of its assets to any Person so long as the requirements set forth in Section 5.02(b) are satisfied as if such disposition were a merger or consolidation in which the Borrower is not the surviving entity.
(d)    Use of Proceeds. Use the proceeds of any Extension of Credit to buy or carry Margin Stock in violation of the Margin Regulations.
(e)    [Reserved].
(f)    [Reserved].
(g)    [Reserved].
(h)    [Reserved].
(i)    Compliance with Anti-Corruption Laws and Sanctions. The Borrower will not, directly or, to the knowledge of the Borrower, indirectly, use the proceeds of any Borrowing, or lend, contribute or otherwise make available such proceeds to any Subsidiary, joint venture partner or other Person (i) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws, (ii) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country, or (iii) in any manner that would result in the violation of any Sanctions by the Borrower or any of its Subsidiaries or, to the knowledge of the Borrower, any other party (including each Credit Party) to this Agreement or the other Loan Documents.
SECTION 5.03.     Financial Covenant.
So long as any Loan shall remain unpaid or any Lender shall have any Commitment hereunder, the Borrower will maintain a ratio of Consolidated Debt to Consolidated Capital of not greater than 0.65 to 1.00 as of the last day of each fiscal quarter.



46

ARTICLE VI    
EVENTS OF DEFAULT
SECTION 6.01.     Events of Default.
If any of the following events (“Events of Default”) shall occur and be continuing:
(a)    The Borrower shall fail to pay any principal of any Loan when the same becomes due and payable, or shall fail to pay any interest on any Loan or make any other payment of fees or other amounts payable under this Agreement within five days after the same becomes due and payable; or
(b)    Any representation or warranty made by the Borrower herein or by the Borrower (or any of its officers) in connection with this Agreement shall prove to have been incorrect in any material respect when made; or
(c)    (i) The Borrower shall fail to perform or observe any term, covenant or agreement contained in Section 5.01(b), 5.02 or 5.03, or (ii) the Borrower shall fail to perform or observe any other term, covenant or agreement contained in this Agreement or any other Loan Document if such failure shall remain unremedied for 30 days after written notice thereof shall have been given to the Borrower by the Administrative Agent or any Lender; or
(d)    The Borrower or any Material Subsidiary shall fail to pay any principal of or premium or interest on any Debt (other than Debt under this Agreement) that is outstanding in a principal amount in excess of $75,000,000 in the aggregate when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other event shall occur or condition shall exist under any agreement or instrument relating to any such Debt and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such event or condition is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable, or required to be prepaid or redeemed (other than by a regularly scheduled required prepayment or redemption), prior to the stated maturity thereof; or
(e)    Any judgment or order for the payment of money in excess of $75,000,000 to the extent not paid or insured shall be rendered against the Borrower or any Material Subsidiary and either (i) enforcement proceedings shall have been commenced by any creditor upon such judgment or order or (ii) there shall be any period of 30 consecutive days during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect; or
(f)    The Borrower or any Material Subsidiary shall generally not pay its debts as such debts become due, or shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against the Borrower or any Material Subsidiary seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of



47

debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property and, in the case of any such proceeding instituted against it (but not instituted by it), either such proceeding shall remain undismissed or unstayed for a period of 60 days, or any of the actions sought in such proceeding (including, without limitation, the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, it or for any substantial part of its property) shall occur; or the Borrower or any Material Subsidiary shall take any corporate action to authorize any of the actions set forth above in this subsection (f); or
(g)    An ERISA Event shall have occurred that, when taken together with all other ERISA Events that have occurred, has resulted in, or is reasonably likely to result in, a Material Adverse Effect; or
(h)    (i) Berkshire Hathaway shall fail to own, directly or indirectly, at least 50% of the issued and outstanding shares of common stock of the Borrower, calculated on a fully diluted basis or (ii) Berkshire Hathaway Energy Company shall fail to own, directly or indirectly, at least 80% of the issued and outstanding shares of common stock of the Borrower, calculated on a fully diluted basis (each, a “Change of Control”); provided that, in each case of the foregoing clauses (i) and (ii), such failure shall not constitute an Event of Default unless and until a Rating Decline has occurred;
then, and in any such event, the Administrative Agent (i) shall at the request, or may with the consent, of the Required Lenders, by notice to the Borrower, declare the obligation of each Lender to make Extensions of Credit to be terminated, whereupon the same shall forthwith terminate and (ii) shall at the request, or may with the consent, of the Required Lenders, by notice to the Borrower, declare the outstanding Borrowings, all interest thereon and all other amounts payable under this Agreement to be forthwith due and payable, whereupon the outstanding Borrowings, all such interest and all such amounts shall become and be forthwith due and payable by the Borrower, without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived by the Borrower; provided, however, that in the event of an actual or deemed entry of an order for relief with respect to the Borrower under the Bankruptcy Code of the United States of America, (A) the obligation of each Lender to make Extensions of Credit shall automatically be terminated and (B) the outstanding Borrowings, all such interest and all such amounts shall automatically become and be due and payable, without presentment, demand, protest or any notice of any kind, all of which are hereby expressly waived by the Borrower.
    
ARTICLE VII    
THE ADMINISTRATIVE AGENT
SECTION 7.01.     Appointment and Authority.
Each Lender hereby irrevocably appoints Mizuho to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative



48

Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article are solely for the benefit of the Administrative Agent and the Lenders, and the Borrower shall not have rights as a third-party beneficiary of any of such provisions. It is understood and agreed that the use of the term “agent” herein or in any other Loan Document (or any other similar term) with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any Applicable Law. Instead such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting parties.

SECTION 7.02.     Rights as a Lender.
The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for, and generally engage in any kind of business with, the Borrower or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders.

SECTION 7.03.     Exculpatory Provisions.
(a)    The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, the Administrative Agent:
(i)    shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing;
(ii)    shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents); provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or Applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law; and
(iii)    shall not, except as expressly set forth herein or in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as the Administrative Agent or any of its Affiliates in any capacity.



49

(b)    The Administrative Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 6.01 and 8.01), or (ii) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgment. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until notice describing such Default is given to the Administrative Agent in writing by the Borrower or a Lender.
(c)    The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article III or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.
SECTION 7.04.     Reliance by Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan that by its terms must be fulfilled to the satisfaction of any Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender unless the Administrative Agent shall have received notice to the contrary from such Lender prior to the making of such Loan. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.

SECTION 7.05.     Resignation of Administrative Agent.
(a)    The Administrative Agent may at any time give notice of its resignation to the Lenders and the Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, in consultation with the Borrower, to appoint a successor, which shall be (i) a commercial bank with an office in the United States having a combined capital and surplus of at least $500,000,000, or an Affiliate of any such bank with an office in the United States and (ii) subject to the approval of the Borrower so long as no Default shall have occurred and be continuing (such approval not to be unreasonably withheld or delayed). If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after



50

the retiring Administrative Agent gives notice of its resignation (or such earlier day as shall be agreed by the Required Lenders) (the “Resignation Effective Date”), then the retiring Administrative Agent may (but shall not be obligated to), on behalf of the Lenders, appoint a successor Administrative Agent meeting the qualifications set forth above. Whether or not a successor has been appointed, such resignation shall become effective in accordance with such notice on the Resignation Effective Date.
(b)    If the Person serving as Administrative Agent is a Defaulting Lender pursuant to clause (d) of the definition thereof, the Required Lenders may, to the extent permitted by Applicable Law, by notice in writing to the Borrower and such Person remove such Person as Administrative Agent and, in consultation with the Borrower, appoint a successor, which shall be (i) a commercial bank with an office in the United States having a combined capital and surplus of at least $500,000,000, or an Affiliate of any such bank with an office in the United States and (ii) subject to the approval of the Borrower so long as no Default shall have occurred and be continuing (such approval not to be unreasonably withheld or delayed). If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days (or such earlier day as shall be agreed by the Required Lenders) (the “Removal Effective Date”), then such removal shall nonetheless become effective in accordance with such notice on the Removal Effective Date.
(c)    With effect from the Resignation Effective Date or the Removal Effective Date (as applicable) (1) the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (2) except for any indemnity payments owed to the retiring or removed Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender directly, until such time, if any, as the Required Lenders appoint a successor Administrative Agent as provided for above. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring or removed Administrative Agent (other than any rights to indemnity payments owed to the retiring or removed Administrative Agent), and the retiring or removed Administrative Agent shall be discharged from all of its duties and obligations hereunder, under the other Loan Documents. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the retiring or removed Administrative Agent’s resignation or removal hereunder and under the other Loan Documents, the provisions of this Article and Section 8.04 shall continue in effect for the benefit of such retiring or removed Administrative Agent, its sub‑agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring or removed Administrative Agent was acting as Administrative Agent.
SECTION 7.06.     Non-Reliance on Administrative Agent and Other Lenders.
Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision



51

to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.

SECTION 7.07.     Indemnification.
Each Lender severally agrees to indemnify the Administrative Agent (to the extent not promptly reimbursed by the Borrower and without limiting its obligation to do so) from and against such Lender’s Commitment Percentage of any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever that may be imposed on, incurred by, or asserted against the Administrative Agent in any way relating to or arising out of this Agreement or any other Loan Document or any action taken or omitted by the Administrative Agent under this Agreement or any other Loan Document; provided, however, that no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the Administrative Agent’s gross negligence or willful misconduct, as proven in a court of competent jurisdiction by final and nonappealable judgment. Without limitation of the foregoing, each Lender agrees to reimburse the Administrative Agent promptly upon demand for its Commitment Percentage of any costs and expenses (including, without limitation, fees and reasonable expenses of counsel) payable by the Borrower under Section 8.04, to the extent that the Administrative Agent is not promptly reimbursed for such costs and expenses by the Borrower (and without limiting its obligation to do so) after request therefor. The failure of any Lender to reimburse the Administrative Agent promptly upon demand for its Commitment Percentage of any amount required to be paid by the Lender to the Administrative Agent as provided herein shall not relieve any other Lender of its obligation hereunder to reimburse the Administrative Agent for its Commitment Percentage of such amount, but no Lender shall be responsible for the failure of any other Lender to reimburse the Administrative Agent for such other Lender’s Commitment Percentage of such amount. Without prejudice to the survival of any other agreement of any Lender hereunder, the agreement and obligations of each Lender contained in this Section 7.07 shall survive the payment in full of principal, interest and all other amounts payable hereunder.
SECTION 7.08.     No Other Duties, etc.
Anything herein to the contrary notwithstanding, none of the Joint Lead Arrangers listed on the cover page hereof shall have any powers, duties or responsibilities under this Agreement or any other Loan Document, except in its capacity, as applicable, as the Administrative Agent or a Lender hereunder or thereunder.

ARTICLE VIII    
MISCELLANEOUS
SECTION 8.01.     Amendments, Etc.



52

Subject to Section 2.12(c) and Section 2.21(a)(i), no amendment or waiver of any provision of this Agreement, nor consent to any departure by the Borrower therefrom, shall in any event be effective unless the same shall be in writing and signed by the Required Lenders and the Borrower, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that, no amendment, waiver or consent shall, unless in writing and signed by each Lender directly affected thereby (other than, in the case of clause (i) or (v) below, any Defaulting Lender), do any of the following: (i) amend Section 3.01 or 3.02 or waive any of the conditions specified therein, (ii) increase the Commitment of any Lender or extend the Commitments, (iii) reduce the principal of, or interest on, or rate of interest applicable to, the outstanding Loans or any fees or other amounts payable hereunder, (iv) postpone any date fixed for any payment of principal of, or interest on, the outstanding Loans, reimbursement obligations or any fees or other amounts payable hereunder, (v) change the definition of Required Lenders or change the percentage of the Commitments or of the aggregate unpaid principal amount of the outstanding Borrowings, or the number or the percentage of Lenders, that shall be required for the Lenders or any of them to take any action hereunder, or (vi) amend or waive this Section 8.01 or any provision of this Agreement that requires pro rata treatment of the Lenders; and provided further that (x) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders required above to take such action, affect the rights or duties of the Administrative Agent under this Agreement and (y) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent and the Required Lenders, amend or waive Section 2.21. Notwithstanding the foregoing, any provision of this Agreement may be amended by an agreement in writing entered into by the Borrower, the Required Lenders and the Administrative Agent if by the terms of such agreement the Commitment of each Non-Consenting Lender shall terminate (but such Non-Consenting Lender shall continue to be entitled to the benefits of Sections 2.15, 2.18 and 8.04) upon the effectiveness of such amendment, and such Non-Consenting Lender shall have received or shall at the time of such termination receive payment of an amount equal to the outstanding principal of its Loans, together with all applicable accrued interest thereon, accrued fees and all other amounts then payable to it hereunder and under the other Loan Documents.
SECTION 8.02.     Notices, Etc.
(a)    Notices Generally. Except in the case of notices and other communications expressly permitted to be given by telephone (and except as provided in subsection (b) below), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by facsimile as follows:
(i)    if to the Borrower, to it at 666 Grand Avenue, Suite 500, Des Moines, Iowa 50309-2580, Attention: James C. Galt, Treasurer (Facsimile No.: (515) 242-4019; Telephone No. (515) 281-2521);
(ii)    if to the Administrative Agent, to Mizuho Bank, Ltd. at 1800 Plaza Ten Harborside Financial Center, Jersey City, NJ 07311, Attention: Maria Sherry (Telephone: (201) 626-9384; Facsimile: (201) 626-9935; Email: lau_agent@mizuhocbus.com);
(iii)    [reserved];



53

(iv)    if to any Initial Lender, at its Domestic Lending Office specified opposite its name on Schedule I hereto, and if to any other Lender at its Domestic Lending Office specified in the Assignment and Assumption pursuant to which it became a Lender.
Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices sent by facsimile shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next business day for the recipient). Notices delivered through electronic communications, to the extent provided in subsection (b) below, shall be effective as provided in said subsection (b).

(b)    Electronic Communications. Notices and other communications to the Lenders hereunder may be delivered or furnished by electronic communication (including e‑mail and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent, provided that the foregoing shall not apply to notices to any Lender pursuant to Section 2.02 if such Lender has notified the Administrative Agent that it is incapable of receiving notices under such Section by electronic communication. The Administrative Agent or the Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient, at its e-mail address as described in the foregoing clause (i), of notification that such notice or communication is available and identifying the website address therefor; provided that, for both clauses (i) and (ii) above, if such notice, email or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient.
(c)    Change of Address, etc. Any party hereto may change its address or facsimile number for notices and other communications hereunder by notice to the other parties hereto.
(d)    Platform.
(i)     The Borrower agrees that the Administrative Agent may, but shall not be obligated to, make the Communications (as defined below) available to the Lenders by posting the Communications on Debt Domain, Intralinks, Syndtrak or a substantially similar electronic transmission system (the “Platform”).
(ii)    The Platform is provided “as is” and “as available.” The Agent Parties (as defined below) do not warrant the adequacy of the Platform and expressly disclaim liability for errors or omissions in the Communications. No warranty of any kind, express, implied or statutory, including, without limitation, any warranty of merchantability, fitness for a



54

particular purpose, non-infringement of third-party rights or freedom from viruses or other code defects, is made by any Agent Party in connection with the Communications or the Platform. In no event shall the Administrative Agent or any of its Related Parties (collectively, the “Agent Parties”) have any liability to the Borrower, any Lender or any other Person or entity for damages of any kind, including, without limitation, direct or indirect, special, incidental or consequential damages, losses or expenses (whether in tort, contract or otherwise) arising out of the Borrower’s or the Administrative Agent’s transmission of communications through the Platform except to the extent that such damages are found in a judgment by a court of competent jurisdiction by final and nonappealable judgment to have resulted from such Agent Party’s gross negligence or willful misconduct. “Communications” means, collectively, any notice, demand, communication, information, document or other material provided by or on behalf of the Borrower pursuant to any Loan Document or the transactions contemplated therein which is distributed to the Administrative Agent or any Lender by means of electronic communications pursuant to this Section, including through the Platform.
SECTION 8.03.     No Waiver; Remedies.
No failure on the part of any Lender or the Administrative Agent to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any such right preclude any other or further exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.
SECTION 8.04.     Costs and Expenses; Indemnification.
(a)    The Borrower agrees to pay promptly upon demand all reasonable out-of-pocket costs and expenses of the Administrative Agent, the Joint Lead Arrangers and their respective Affiliates in connection with the preparation, negotiation, execution, delivery, administration, modification and amendment of this Agreement and the other documents to be delivered hereunder, including, without limitation, (A) all due diligence, syndication (including printing, distribution and bank meetings), transportation, computer, duplication, appraisal, consultant, and audit expenses and (B) the reasonable fees and expenses of counsel for the Administrative Agent with respect thereto and with respect to advising the Administrative Agent as to its rights and responsibilities under this Agreement. The Borrower further agrees to pay promptly upon demand all reasonable costs and expenses of the Administrative Agent and the Lenders, if any, (A) in connection with the enforcement (whether through negotiations, legal proceedings or otherwise) of this Agreement and the other Loan Documents, including its rights under this Section, or (B) in connection with the Loans made hereunder, including all such reasonable out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans, including, without limitation, reasonable fees and expenses of one outside counsel for the Administrative Agent and the Lenders taken as a whole in connection with the enforcement of rights under this Section 8.04(a) (and, with respect to matters referred to in clause (A) of this sentence only, separate counsel for the Administrative Agent and any Lender to the extent needed to avoid an actual or potential conflict of interest).



55

(b)    The Borrower shall indemnify the Administrative Agent (and any sub-agent thereof), each Lender and the Joint Lead Arrangers, and each Related Party of any of the foregoing Persons (each, an “Indemnified Party”) from and against any and all claims, damages, losses and liabilities, joint or several, to which any such Indemnified Party may become subject, in each case arising out of or in connection with or relating to (including, without limitation, in connection with any investigation, litigation or proceeding or preparation of a defense in connection therewith) this Agreement, any of the transactions contemplated herein or the actual or proposed use of the proceeds of the Extensions of Credit, and shall reimburse any Indemnified Party for any and all reasonable expenses (including, without limitation, reasonable fees and expenses of counsel) as they are incurred in connection with the investigation of or preparation for or defense of any pending or threatened claim or any action or proceeding arising therefrom, whether or not such Indemnified Party is a party (but if not a party thereto, then only with respect to such proceedings where such Indemnified Party (i) is subject to legal process or other compulsion of law, (ii) believes in good faith that it will be so subject, or (iii) believes in good faith that it is necessary or appropriate for it to resist any legal process or other compulsion of law which is purported to be asserted against it) and whether or not such claim, action or proceeding is initiated or brought by or on behalf of the Borrower or any of its Affiliates and whether or not any of the transactions contemplated hereby are consummated or this Agreement is terminated, except to the extent such claim, damage, loss, liability or expense is found in a judgment by a court of competent jurisdiction by final and nonappealable judgment to have resulted from such Indemnified Party’s gross negligence, bad faith or willful misconduct. In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 8.04(b) applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by the Borrower, its directors, shareholders or creditors or an Indemnified Party or any other Person or any Indemnified Party is otherwise a party thereto and whether or not the transactions contemplated hereby are consummated. The Borrower agrees not to assert any claim against the Administrative Agent, any Lender, any of their respective Affiliates, or any of their respective directors, officers, employees, attorneys and agents, on any theory of liability, for special, indirect, consequential or punitive damages arising out of or otherwise relating to this Agreement, any of the transactions contemplated herein or the actual or proposed use of the proceeds of the Extensions of Credit. This Section 8.04(b) shall not apply with respect to Taxes that are Indemnified Taxes, Excluded Taxes or Taxes that are covered by Section 2.15(a)(ii).
(c)    If any payment of principal of, or Conversion of, any Eurodollar Rate Revolving Loan is made by the Borrower to or for the account of a Lender other than on the last day of the Interest Period for such Revolving Loan, as a result of a payment or Conversion pursuant to Section 2.09, 2.12(b), 2.13, 2.14, 2.15 or 2.16, acceleration of the maturity of the outstanding Borrowings pursuant to Section 6.01, assignment to another Lender upon demand of the Borrower pursuant to Section 2.20(b) or for any other reason (in the case of any such payment or Conversion), the Borrower shall, promptly upon demand by such Lender (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent for the account of such Lender any amounts required to compensate such Lender for any additional losses, costs or expenses that it may reasonably incur as a result of such payment or Conversion, including, without limitation, any loss (other than loss of Applicable Margin), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any Lender to fund or maintain such Loan.



56

(d)    Without prejudice to the survival of any other agreement of the Borrower hereunder, the agreements and obligations of the Borrower contained in Sections 2.15, 2.16, 2.19 and 8.04 shall survive the payment in full of principal, interest and all other amounts payable hereunder.
(e)    The Borrower agrees that no Indemnified Party shall have any liability (whether direct or indirect, in contract or tort or otherwise) to the Borrower or its respective security holders or creditors related to or arising out of or in connection with this Agreement, the Extensions of Credit or the use or proposed use of the proceeds thereof, any of the transactions contemplated by any of the foregoing or in the loan documentation and the performance by an Indemnified Party by any of the foregoing except to the extent that any loss, claim, damage, liability or expense is found in a judgment by a court of competent jurisdiction by final and nonappealable judgment to have resulted from such Indemnified Party’s gross negligence or willful misconduct.
(f)    In the event that an Indemnified Party is requested or required to appear as a witness in any action brought by or on behalf of or against the Borrower or any of its Affiliates in which such Indemnified Party is not named as a defendant, the Borrower agrees to reimburse such Indemnified Party for all reasonable expenses incurred by it in connection with such Indemnified Party’s appearing and preparing to appear as such a witness, including, without limitation, the fees and disbursements of its legal counsel.
SECTION 8.05.     Right of Set-off.
Upon (i) the occurrence and during the continuance of any Event of Default and (ii) the making of the request or the granting of the consent specified by Section 6.01 to authorize the Administrative Agent to declare the outstanding Borrowings due and payable pursuant to the provisions of Section 6.01, each Lender and each of their respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by Applicable Law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held, and other obligations (in whatever currency) at any time owing, by such Lender or any such Affiliate, to or for the credit or the account of the Borrower against any and all of the obligations of the Borrower now or hereafter existing under this Agreement or any other Loan Document to such Lender or its Affiliates, irrespective of whether or not such Lender or such Affiliate shall have made any demand under this Agreement or any other Loan Document and although such obligations of the Borrower may be contingent or unmatured or are owed to a branch, office or Affiliate of such Lender, different from the branch, office or Affiliate holding such deposit or obligated on such indebtedness; provided that in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.21 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent and the Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the obligations of the Borrower owing to such Defaulting Lender as to which it exercised such right of setoff. The rights of each Lender and their respective Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff) that such Lender or its Affiliates may have. Each Lender agrees to notify the Borrower and the Administrative Agent promptly after any



57

such setoff and application; provided that the failure to give such notice shall not affect the validity of such setoff and application.
SECTION 8.06.     Binding Effect.
This Agreement shall become effective when it shall have been executed by the Borrower and the Administrative Agent and when the Administrative Agent shall have been notified by each Initial Lender that such Initial Lender has executed it and thereafter shall be binding upon and inure to the benefit of the Borrower, the Administrative Agent and each Lender and their respective successors and assigns, except that the Borrower shall not have the right to assign its rights hereunder or any interest herein without the prior written consent of all of the Lenders.
SECTION 8.07.     Assignments and Participations.
(a)    Successors and Assigns Generally. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Administrative Agent and each Lender, and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of subsection (b) of this Section, (ii) by way of participation in accordance with the provisions of subsection (d) of this Section, or (iii) by way of pledge or assignment of a security interest subject to the restrictions of subsection (e) of this Section (and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in subsection (d) of this Section and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b)    Assignments by Lenders. Any Lender may at any time assign to one or more assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans at the time owing to it); provided that any such assignment shall be subject to the following conditions:
(i)    Minimum Amounts.
(A)    in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and/or the Loans at the time owing to it or contemporaneous assignments to related Approved Funds that equal at least the amount specified in subsection (b)(i)(B) of this Section in the aggregate or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned; and

(B)    in any case not described in subsection (b)(i)(A) of this Section, the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) or, if the applicable Commitment is not then in effect, the



58

principal outstanding balance of the Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date) shall not be less than $5,000,000, or an integral multiple of $1,000,000 in excess thereof, unless each of the Administrative Agent and, so long as no Default has occurred and is continuing, the Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed).

(ii)    Proportionate Amounts. Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Loan or the Commitment assigned.
(iii)    Required Consents. No consent shall be required for any assignment except to the extent required by subsection (b)(i)(B) of this Section and, in addition:
(A)     the consent of the Borrower (such consent not to be unreasonably withheld or delayed) shall be required unless (x) an Event of Default has occurred and is continuing at the time of such assignment, or (y) such assignment is to a Lender or an Affiliate of a Lender; provided that the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within ten Business Days after having received written notice thereof; and

(B)     the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required for assignments if such assignment is to a Person that is not a Lender with a Commitment or an Affiliate of such Lender.

(iv)    Assignment and Assumption. The parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee of $3,500; provided that the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment. The assignee, if it is not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire.
(v)    No Assignment to Certain Persons. No such assignment shall be made to (A) the Borrower or any of the Borrower’s Affiliates (except for any Affiliate of Berkshire Hathaway not controlled directly or indirectly by the Borrower that is a commercial lender acquiring rights and obligations under this Agreement in the ordinary course of its business) or Subsidiaries or (B) to any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (B).



59

(vi)    No Assignment to Natural Persons. No such assignment shall be made to a natural Person.
(vii)    Certain Additional Payments. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent and each other Lender hereunder (and interest accrued thereon), and (y) acquire (and fund as appropriate) its full pro rata share of all Loans in accordance with its Commitment Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under Applicable Law without compliance with the provisions of this subsection, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c) of this Section, from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Sections 2.15, 2.18 and 8.04 with respect to facts and circumstances occurring prior to the effective date of such assignment; provided, that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this subsection shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with subsection (d) of this Section.

(c)    Register. The Administrative Agent, acting solely for this purpose as a non-fiduciary agent of the Borrower, shall maintain at its address referred to in Section 8.02 a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments and Termination Date of, and principal amounts (and stated interest) of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement.



60

The Register shall be available for inspection by the Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior notice.
(d)    Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural Person or the Borrower or any of the Borrower’s Affiliates (except for any Affiliate of Berkshire Hathaway not controlled directly or indirectly by the Borrower that is a commercial lender acquiring participations under this Agreement in the ordinary course of its business) or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, and (iii) the Borrower, the Administrative Agent and Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. For the avoidance of doubt, each Lender shall be responsible for the indemnity under Section 7.07 with respect to any payments made by such Lender to its Participant(s).
Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver described in Section 8.01 requiring the consent of each Lender directly affected thereby that directly affects such Participant. The Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.15, 2.18 and 8.04(c) (subject to the requirements and limitations therein, including the requirements under Section 2.18(g) (it being understood that the documentation required under Section 2.18(g) shall be delivered to the participating Lender or the applicable Withholding Agent to the extent required by Applicable Law)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Section 2.20 as if it were an assignee under subsection (b) of this Section; and (B) shall not be entitled to receive any greater payment under Section 2.15 or 2.18, with respect to any participation, than its participating Lender would have been entitled to receive. Each Lender that sells a participation agrees, at the Borrower’s request and expense, to use reasonable efforts to cooperate with the Borrower to effectuate the provisions of Section 2.20(b) with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 8.05 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.19 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments, Loans or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such Commitment, Loan or other obligation is in registered form under Section 5f.103-1(c) of the United



61

States Treasury Regulations or to comply with other requirements under applicable tax law. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(e)    Certain Pledges. Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or any other central banking authority; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
SECTION 8.08.     Confidentiality.
Neither the Administrative Agent nor any Lender shall disclose any Confidential Information to any other Person without the consent of the Borrower, other than (i) to the Administrative Agent’s or such Lender’s Affiliates and their officers, directors, employees, agents and advisors, to the Administrative Agent or a Lender and, as contemplated by Section 8.07, to actual or prospective assignees and participants, and then only on a confidential basis, (ii) as required by any law, rule or regulation or judicial process, (iii) to any rating agency when required by it, provided, that, prior to any such disclosure, such rating agency, commercial paper dealer or provider shall undertake to preserve the confidentiality of any Confidential Information received by it from such Lender, (iv) as requested or required by any state, federal or foreign authority or examiner regulating banks, banking or other financial institutions, (v) to any direct, indirect, actual or prospective counterparty (and its advisor) to any swap, derivative or securitization transaction related to the obligations under this Agreement on a confidential basis, (vi) to any credit insurance provider relating to the Borrower and its obligations on a confidential basis and (vii) pursuant to a request or requirement from a regulatory authority (governmental or non-governmental self-regulatory authority) having jurisdiction over a Lender; provided that unless prohibited by Applicable Law, each Lender and the Administrative Agent agree, prior to disclosure thereof, to notify the Borrower of any request for disclosure of any such Confidential Information (x) by any Governmental Authority or representative thereof (other than any such request in connection with an examination of such Lender or the Administrative Agent by such Governmental Authority) or (y) pursuant to legal process.
SECTION 8.09.     Governing Law.
EACH LOAN DOCUMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THAT WOULD REQUIRE APPLICATION OF ANOTHER LAW.
SECTION 8.10.     Severability.



62

In the event any one or more of the provisions contained in this Agreement should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired hereby.
SECTION 8.11.     Execution in Counterparts.
This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement by telecopier or other electronic transmission (including by e-mail with a PDF attachment of an executed counterpart) shall be effective as delivery of an original executed counterpart of this Agreement.
SECTION 8.12.     Jurisdiction, Etc.
(a)    Each party hereto hereby irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of any kind or description, whether in law or equity, whether in contract or in tort or otherwise, against the Administrative Agent, any Lender, or any Related Party of the foregoing in any way relating to this Agreement or any other Loan Document or the transactions relating hereto or thereto, in any forum other than the courts of the State of New York sitting in the Borough of Manhattan in New York City, and of the United States District Court of the Southern District of New York sitting in the Borough of Manhattan in New York City, and any appellate court from any thereof, and each of the parties hereto irrevocably and unconditionally submits to the jurisdiction of such  courts and agrees that all claims in respect of any such action, litigation or proceeding may be heard and determined in such New York State court or, to the fullest extent permitted by applicable law, in such federal court.  Each party hereto agrees that a final judgment in any such action, litigation or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. 
(b)    The Borrower irrevocably and unconditionally waives, to the fullest extent permitted by Applicable Law, any objection that it may now or hereafter have to the laying of venue of any action or proceeding arising out of or relating to this Agreement or any other Loan Document in any court referred to in paragraph (a) of this Section. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by applicable law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.
(c)    Each party hereto irrevocably consents to service of process in the manner provided for notices in Section 8.02. Nothing in this Agreement will affect the right of any party hereto to serve process in any other manner permitted by Applicable Law.
SECTION 8.13.     Waiver of Jury Trial.
EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE



63

TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY) OR THE ACTIONS OF THE ADMINISTRATIVE AGENT, THE BORROWER OR ANY LENDER IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF. TO THE EXTENT THEY MAY LEGALLY DO SO, BORROWER, THE ADMINISTRATIVE AGENT AND THE LENDERS HEREBY AGREE THAT ANY SUCH CLAIM, DEMAND, ACTION, CAUSE OF ACTION, OR PROCEEDING SHALL BE DECIDED BY A COURT TRIAL WITHOUT A JURY AND THAT ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE OTHER PARTY OR PARTIES HERETO TO WAIVER OF ITS OR THEIR RIGHT TO TRIAL BY JURY. EACH PARTY HERETO (i) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (ii) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 8.14.     USA Patriot Act.
Each Lender that is subject to the Patriot Act and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law as of October 26, 2001)) (as amended, restated, modified or otherwise supplemented from time to time, the “Patriot Act”), it is required to obtain, verify and record information that identifies the Borrower, which information includes the name and address of the Borrower and other information that will allow such Lender or the Administrative Agent, as applicable, to identify the Borrower in accordance with the Patriot Act. The Borrower shall, and shall cause each of its Subsidiaries to, provide to the extent commercially reasonable, such information and take such actions as are reasonably requested by the Administrative Agent or any Lender in order to assist the Administrative Agent and the Lenders in maintaining compliance with the Patriot Act.
SECTION 8.15.     No Fiduciary Duty.
The Credit Parties and their respective Affiliates (collectively, solely for purposes of this Section, the “Lender Parties”), may have economic interests that conflict with those of the Borrower, its securities holders and/or their Affiliates. The Borrower agrees that nothing in the Loan Documents will be deemed to create an advisory, fiduciary or agency relationship or fiduciary or other implied duty between any Lender Party, on the one hand, and the Borrower, its securities holders or its Affiliates, on the other hand. The Borrower acknowledges and agrees that (i) the transactions contemplated by the Loan Documents (including the exercise of rights and remedies hereunder and thereunder) are arm’s-length commercial transactions between the Lender Parties, on the one hand, and the Borrower, on the other, and (ii) in connection therewith and with the process leading thereto, (x) no Lender Party has assumed an advisory or fiduciary responsibility in favor of the Borrower, its securities holders or its Affiliates with respect to the transactions contemplated



64

hereby (or the exercise of rights or remedies with respect thereto) or the process leading thereto (irrespective of whether any Lender Party has advised, is currently advising or will advise the Borrower, its securities holders or its Affiliates on other matters), and (y) each Lender Party is acting solely as principal hereunder and under the other Loan Documents and not as the agent or fiduciary of the Borrower, its management, securities holders or creditors. The Borrower acknowledges and agrees that it has consulted its own legal and financial advisors to the extent it deemed appropriate and that it is responsible for making its own independent judgment with respect to such transactions and the process leading thereto. The Borrower agrees that it will not claim that any Lender Party has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Borrower, in connection with the transactions contemplated by the Loan Documents or the process leading thereto.
SECTION 8.16.     Acknowledgement and Consent to Bail-In of EEA Financial Institutions.
Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any EEA Financial Institution arising under any Loan Document may be subject to the write-down and conversion powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a)    the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an EEA Financial Institution; and
(b)    the effects of any Bail-In Action on any such liability, including, if applicable:
(i)    a reduction in full or in part or cancellation of any such liability;
(ii)    a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent entity, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or
(iii)    the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any EEA Resolution Authority.
SECTION 8.17.     [Reserved].
SECTION 8.18.     Certain ERISA Matters.
(a)    Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent



65

and not, for the avoidance of doubt, to or for the benefit of the Borrower, that at least one of the following is and will be true:
(i)    such Lender is not using “plan assets” (within the meaning of Section 3(42) of ERISA or otherwise) of one or more Benefit Plans with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Commitments or this Agreement;
(ii)    the transaction exemption set forth in one or more PTEs, such as PTE84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement,
(iii)    (A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement, or
(iv)    such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and such Lender.
(b)    In addition, unless either (1) sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or (2) a Lender has not provided another representation, warranty and covenant as provided in sub-clause (iv) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and not, for the avoidance of doubt, to or for the benefit of the Borrower, that the Administrative Agent is not a fiduciary with respect to the assets of such Lender involved in such Lender’s entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement (including in connection with the reservation or exercise of any rights by the Administrative Agent under this Agreement, any Loan Document or any documents related to hereto or thereto).




66

[Remainder of page intentionally left blank.]

MIDAMERICAN ENERGY COMPANY,
as Borrower


By: /s/ James C. Galt                
James C. Galt
Treasurer





MIZUHO BANK, LTD.,
as Administrative Agent and Lender


By /s/ Edward Sacks                
Name: Edward Sacks
Title: Authorized Signatory


Signature Page to MidAmerican Energy Company 364-Day Credit Agreement



LENDERS:
CITIBANK, N.A., as Lender


By /s/ Ashwani Khubani                
Name: Ashwani Khubani
Title: Managing Director / Vice President





Signature Page to MidAmerican Energy Company 364-Day Credit Agreement



MUFG UNION BANK, N.A., as Lender


By /s/ Robert MacFarlane            
Name: Robert MacFarlane
Title: Director



Signature Page to MidAmerican Energy Company 364-Day Credit Agreement



U.S. BANK NATIONAL ASSOCIATION, as Lender


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

Signature Page to MidAmerican Energy Company 364-Day Credit Agreement



WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Lender


By /s/ Jesse Tannuzzo                
Name: Jesse Tannuzzo
Title: Vice President



Signature Page to MidAmerican Energy Company 364-Day Credit Agreement

    

EXHIBIT A
(to the Credit Agreement)
FORM OF NOTICE OF BORROWING
Mizuho Bank, Ltd., as Administrative Agent
for the Lenders party
to the Credit Agreement
referred to below
Attention: Agency Group
[Date]
Ladies and Gentlemen:
The undersigned, MidAmerican Energy Company, refers to the 364-Day Credit Agreement, dated as of August 30, 2019 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement,” the terms defined therein being used herein as therein defined), among the undersigned and the Lenders party thereto, and Mizuho Bank, Ltd., as Administrative Agent, and hereby gives you notice, irrevocably, pursuant to Section 2.02(a) of the Credit Agreement that the undersigned hereby requests a Borrowing under the Credit Agreement, and in that connection sets forth below the information relating to such Borrowing (the “Proposed Borrowing”) as required by Section 2.02(a) of the Credit Agreement:
(i)    The Business Day of the Proposed Borrowing is __________________, 20__.
(ii)    The Type of Loans comprising the Proposed Borrowing is [Base Rate Loans][Eurodollar Rate Revolving Loans].
(iii)    The aggregate amount of the Proposed Borrowing is $___________________.
[(iv)    The initial Interest Period for each Eurodollar Rate Revolving Loan made as part of the Proposed Borrowing is _____ month[s].]
The undersigned hereby certifies that the following statements are true on the date hereof, and will be true on the date of the Proposed Borrowing:
(A)    the representations and warranties contained in Section 4.01 of the Credit Agreement (other than the representations and warranties in the first sentence of Section 4.01(g), in Section 4.01(i) and in the first sentence of Section 4.01(n)) are true and correct in all material respects on and as of the date hereof, before and after giving effect to



A-2

the Proposed Borrowing and to the application of the proceeds therefrom, as though made on the date hereof; and
(B)    no event has occurred and is continuing, or would result from the Proposed Borrowing or from the application of the proceeds therefrom, that constitutes a Default.
Very truly yours,
MIDAMERICAN ENERGY COMPANY
By    
Name:
Title:



    

EXHIBIT B
(to the Credit Agreement)

[RESERVED]




    

EXHIBIT C
(to the Credit Agreement)

ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (the “Assignment and Assumption”) is dated as of the Effective Date set forth below and is entered into by and between [the][each]1 Assignor identified in item 1 below ([the][each, an] “Assignor”) and [the][each]2 Assignee identified in item 2 below ([the][each, an] “Assignee”). [It is understood and agreed that the rights and obligations of [the Assignors][the Assignees]3 hereunder are several and not joint.]4 Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below (as amended, the “Credit Agreement”), receipt of a copy of which is hereby acknowledged by [the][each] Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full.

For an agreed consideration, [the][each] Assignor hereby irrevocably sells and assigns to [the Assignee][the respective Assignees], and [the][each] Assignee hereby irrevocably purchases and assumes from [the Assignor][the respective Assignors], subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below (i) all of [the Assignor’s][the respective Assignors’] rights and obligations in [its capacity as a Lender][their respective capacities as Lenders] under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of [the Assignor][the respective Assignors] under the respective facilities identified below (including without limitation any letters of credit and guarantees included in such facilities), and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of [the Assignor (in its capacity as a Lender)][the respective Assignors (in their respective capacities as Lenders)] against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned by [the][any] Assignor to [the][any] Assignee pursuant to clauses (i) and (ii) above being referred to herein collectively as [the][an] “Assigned Interest”). Each such sale and assignment is without recourse to [the][any] Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by [the][any] Assignor.

______________________________________________________________________________
1 For bracketed language here and elsewhere in this form relating to the Assignor(s), if the assignment is from a single Assignor, choose the first bracketed language. If the assignment is from multiple Assignors, choose the second bracketed language.
2 For bracketed language here and elsewhere in this form relating to the Assignee(s), if the assignment is to a single Assignee, choose the first bracketed language. If the assignment is to multiple Assignees, choose the second bracketed language.
3 Select as appropriate.
4 Include bracketed language if there are either multiple Assignors or multiple Assignees.



C-2

1.    Assignor[s]:        ________________________________

______________________________
[Assignor [is] [is not] a Defaulting Lender]

2.
Assignee[s]:        ______________________________

______________________________
[for each Assignee, indicate [Affiliate][Approved Fund] of [identify Lender]]

3.
Borrower(s):        MidAmerican Energy Company

4.
Administrative Agent: Mizuho Bank, Ltd., as the administrative agent under the Credit Agreement

5.
Credit Agreement:    The $400,000,000 364-Day Credit Agreement dated as of August 30, 2019 among MidAmerican Energy Company, the Lenders parties thereto and Mizuho Bank, Ltd., as Administrative Agent.

6.
Assigned Interest[s]:

Assignor[s]5
Assignee[s]6
Facility Assigned7
Aggregate Amount of Commitment/Loans for all Lenders8
Amount of Commitment/Loans Assigned8
Percentage Assigned of Commitment/ 
Loans9
CUSIP Number
 
 
 
$
$
%
 
 
 
 
$
$
%
 
 
 
 
$
$
%
 

[7.    Trade Date:        ______________]10 

[Page break]








______________________________________________________________________________
5 List each Assignor, as appropriate.
6 List each Assignee, as appropriate.
7 Fill in the appropriate terminology for the types of facilities under the Credit Agreement that are being assigned under this Assignment (e.g., “Revolving Credit Commitment,” etc.)
8 Amount to be adjusted by the counterparties to take into account any payments or prepayments made between the Trade Date and the Effective Date.
9 Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder.
10 To be completed if the Assignor(s) and the Assignee(s) intend that the minimum assignment amount is to be determined as of the Trade Date.




C-3

Effective Date: _____________ ___, 20___ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]

The terms set forth in this Assignment and Assumption are hereby agreed to:

ASSIGNOR[S]11 
[NAME OF ASSIGNOR]


By______________________________
Title:

[NAME OF ASSIGNOR]


By______________________________
Title:

ASSIGNEE[S]12 
[NAME OF ASSIGNEE]


By______________________________
Title:

[NAME OF ASSIGNEE]


By______________________________
Title:












______________________________________________________________________________
11 Add additional signature blocks as needed. Include both Fund/Pension Plan and manager making the trade (if applicable).
12 Add additional signature blocks as needed. Include both Fund/Pension Plan and manager making the trade (if applicable).



C-4


[Consented to and]13 Accepted:
MIZUHO BANK, LTD., as
Administrative Agent


By _________________________________
Title:

[Consented to:]14
[NAME OF RELEVANT PARTY]


By ________________________________
Title:












__________________________________________________________________________
13 To be added only if the consent of the Administrative Agent is required by the terms of the Credit Agreement.
14 To be added for, only if the consent of the Borrower is required by the terms of the Credit Agreement, the Borrower.



    

ANNEX 1
$400,000,000 364-Day Credit Agreement, dated as of August 30, 2019, among MidAmerican Energy Company, the Lenders parties thereto and Mizuho Bank, Ltd., as Administrative Agent.
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1.    Representations and Warranties.
1.1    Assignor[s]. [The][Each] Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of [the][the relevant] Assigned Interest, (ii) [the][such] Assigned Interest is free and clear of any lien, encumbrance or other adverse claim, (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and (iv) it is [not] a Defaulting Lender; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial condition of the Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document, or (iv) the performance or observance by the Borrower, any of its Subsidiaries or Affiliates or any other Person of any of their respective obligations under any Loan Document.
1.2.    Assignee[s]. [The][Each] Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) it meets all the requirements to be an assignee under Section 8.07(b)(iii), (v) and (vi) of the Credit Agreement (subject to such consents, if any, as may be required under Section 8.07(b)(iii) of the Credit Agreement), (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of [the][the relevant] Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it is sophisticated with respect to decisions to acquire assets of the type represented by the Assigned Interest and either it, or the Person exercising discretion in making its decision to acquire the Assigned Interest, is experienced in acquiring assets of such type, (v) it has received a copy of the Credit Agreement, and has received or has been accorded the opportunity to receive copies of the most recent financial statements delivered pursuant to clauses (i) and (ii) of Section 5.01(h) thereof, as applicable, and such other documents and information as it deems appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption and to purchase [the][such] Assigned Interest, (vi) it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Assignment and Assumption and to purchase [the][such] Assigned Interest, and





(vii) attached to the Assignment and Assumption is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by [the][such] Assignee; and (b) agrees that (i) it will, independently and without reliance on the Administrative Agent, [the][any] Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.
2. Payments. From and after the Effective Date, the Administrative Agent shall make all payments in respect of [the][each] Assigned Interest (including payments of principal, interest, fees and other amounts) to [the][the relevant] Assignee whether such amounts have accrued prior to, on or after the Effective Date. The Assignor[s] and the Assignee[s] shall make all appropriate adjustments in payments by the Administrative Agent for periods prior to the Effective Date or with respect to the making of this assignment directly between themselves. Notwithstanding the foregoing, the Administrative Agent shall make all payments of interest, fees or other amounts paid or payable in kind from and after the Effective Date to [the][the relevant] Assignee.
3. General Provisions. This Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment and Assumption may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed counterpart of a signature page of this Assignment and Assumption by telecopy shall be effective as delivery of a manually executed counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed by, and construed in accordance with, the law of the State of New York.






EXHIBIT F-1
(to the Credit Agreement)
[FORM OF]
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)

Reference is hereby made to the 364-Day Credit Agreement, dated as of August 30, 2019 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among MidAmerican Energy Company (the “Borrower”), the Lenders party thereto from time to time and Mizuho Bank, Ltd., as Administrative Agent.
Pursuant to the provisions of Section 2.18 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as well as any promissory note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (iii) it is not a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Internal Revenue Code and (iv) it is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Internal Revenue Code.
The undersigned has furnished the Administrative Agent and the Borrower with a certificate of its non-U.S. Person status on IRS Form W-8BEN-E or IRS Form W-8BEN. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.



[NAME OF LENDER]
By:                                                            
 
Name:
 
Title:
Date: ________ __, 20[ ]







EXHIBIT F-2
(to the Credit Agreement)
[FORM OF]
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)

Reference is hereby made to the 364-Day Credit Agreement, dated as of August 30, 2019 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among MidAmerican Energy Company (the “Borrower”), the Lenders party thereto from time to time and Mizuho Bank, Ltd., as Administrative Agent.
Pursuant to the provisions of Section 2.18 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (iii) it is not a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Internal Revenue Code, and (iv) it is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Internal Revenue Code.
The undersigned has furnished its participating Lender with a certificate of its non-U.S. Person status on IRS Form W-8BEN-E or IRS Form W-8BEN. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender in writing, and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.


[NAME OF PARTICIPANT]
By:                                             
 
Name:
 
Title:
Date: ________ __, 20[ ]






EXHIBIT F-3
(to the Credit Agreement)
[FORM OF]
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)

Reference is hereby made to the 364-Day Credit Agreement, dated as of August 30, 2019 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among MidAmerican Energy Company (the “Borrower”), the Lenders party thereto from time to time and Mizuho Bank, Ltd., as Administrative Agent.
Pursuant to the provisions of Section 2.18 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the participation in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such participation, (iii) with respect such participation, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Internal Revenue Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Internal Revenue Code.
The undersigned has furnished its participating Lender with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN-E or IRS Form W-8BEN or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN-E or IRS Form W-8BEN from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
[NAME OF PARTICIPANT]
By:                                             
 
Name:
 
Title:
Date: ________ __, 20[ ]






EXHIBIT F-4
(to the Credit Agreement)
[FORM OF]
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)

Reference is hereby made to the 364-Day Credit Agreement, dated as of August 30, 2019 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among MidAmerican Energy Company (the “Borrower”), the Lenders party thereto from time to time and Mizuho Bank, Ltd., as Administrative Agent.
Pursuant to the provisions of Section 2.18 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the Loan(s) (as well as any promissory note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such Loan(s) (as well as any promissory note(s) evidencing such Loan(s)), (iii) with respect to the extension of credit pursuant to this Credit Agreement or any other Loan Document, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Internal Revenue Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Internal Revenue Code.
The undersigned has furnished the Administrative Agent and the Borrower with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN-E or IRS Form W-8BEN or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN-E or IRS Form W-8BEN from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.





Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
[NAME OF LENDER]
By:                                                                              
 
Name:
 
Title:
Date: ________ __, 20[ ]








SCHEDULE I

LIST OF COMMITMENT AMOUNTS AND APPLICABLE LENDING OFFICES

MIDAMERICAN ENERGY COMPANY

U.S. $400,000,000 364-Day Credit Agreement

Name of Bank     
Commitment Amount
Domestic
Lending Office
Eurodollar
Lending Office
Mizuho Bank, Ltd.
$80,000,000.00
1251 Avenue of the Americas
New York, New York 10020

Contact: Edwin Stone
Phone: (212) 282-3269
Fax: (212) 282-4488
Email: edwin.stone@mizuhocbus.com
Group Email: LAU_USCorp3@mizuhocbus.com
Same as Domestic Lending Office
MUFG Union Bank, N.A.
$80,000,000.00
[Address]15 

Contact: [_____]
Phone: (____) [___]-[___]
Email: [_____]
Group Email: [_____]
Same as Domestic Lending Office
Citibank, N.A.
$80,000,000.00
[Address]16 

Contact: [_____]
Phone: (____) [___]-[___]
Email: [_____]
Group Email: [_____]
Same as Domestic Lending Office
U.S. Bank National Association
$80,000,000.00
1700 Farnam Street
Omaha, Nebraska 68102

Contact: Karen Nelsen
Phone: (402) 536-5104
Fax : (402) 536-5213
Email: karen.nelsen@usbank.com
Group Email:
CLSSyndicationServicesTeam@usbank.com
Same as Domestic Lending Office
Wells Fargo Bank, National Association
$80,000,000.00
90 S. 7th Street
MAC: N9305-156
Minneapolis, MN 55402

Contact: Greg Gredvig
Phone: (612) 667-4832
Fax : (612) 316-0506
Email: gregory.r.gredvig@wellsfargo.com
Group Email:
RKELCLNSVPayments@wellsfargo.com
Same as Domestic Lending Office
TOTAL
$400,000,000
 
 
_________________________________________________________________________
13 
MUFG to provide.
14 
CitiBank to provide.






SCHEDULE II

LIST OF MATERIAL SUBSIDIARIES

MIDAMERICAN ENERGY COMPANY

U.S. $400,000,000 364-Day Credit Agreement
None.





EXHIBIT 15.1


November 1, 2019

To the Board of Directors and Shareholders of
Berkshire Hathaway Energy Company
Des Moines, Iowa

We have reviewed, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the unaudited consolidated interim financial information of Berkshire Hathaway Energy Company and subsidiaries for the periods ended September 30, 2019 and 2018, as indicated in our report dated November 1, 2019; because we did not perform an audit, we expressed no opinion on that information.

We are aware that our report referred to above, which is included in your Quarterly Report on Form 10-Q for the quarter ended September 30, 2019, is incorporated by reference in Registration Statement No. 333-228511 on Form S-8.

We also are aware that the aforementioned report, pursuant to Rule 436(c) under the Securities Act of 1933, is not considered a part of the Registration Statement prepared or certified by an accountant or a report prepared or certified by an accountant within the meaning of Sections 7 and 11 of that Act.


/s/ Deloitte & Touche LLP

Des Moines, Iowa








EXHIBIT 15.2


November 1, 2019

To the Board of Directors and Shareholders of
PacifiCorp
Portland, Oregon

We have reviewed, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the unaudited consolidated interim financial information of PacifiCorp and subsidiaries for the periods ended September 30, 2019 and 2018, as indicated in our report dated November 1, 2019; because we did not perform an audit, we expressed no opinion on that information.

We are aware that our report referred to above, which is included in your Quarterly Report on Form 10-Q for the quarter ended September 30, 2019, is incorporated by reference in Registration Statement No. 333-227592 on Form S-3.

We also are aware that the aforementioned report, pursuant to Rule 436(c) under the Securities Act of 1933, is not considered a part of the Registration Statement prepared or certified by an accountant or a report prepared or certified by an accountant within the meaning of Sections 7 and 11 of that Act.


/s/ Deloitte & Touche LLP

Portland, Oregon








EXHIBIT 15.3


November 1, 2019

To the Board of Directors and Shareholder of
MidAmerican Energy Company
Des Moines, Iowa

We have reviewed, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the unaudited interim financial information of MidAmerican Energy Company for the periods ended September 30, 2019 and 2018, as indicated in our report dated November 1, 2019; because we did not perform an audit, we expressed no opinion on that information.

We are aware that our report referred to above, which is included in your Quarterly Report on Form 10-Q for the quarter ended September 30, 2019, is incorporated by reference in Registration Statement No. 333-225916 on Form S-3.

We also are aware that the aforementioned report, pursuant to Rule 436(c) under the Securities Act of 1933, is not considered a part of the Registration Statement prepared or certified by an accountant or a report prepared or certified by an accountant within the meaning of Sections 7 and 11 of that Act.


/s/ Deloitte & Touche LLP

Des Moines, Iowa






EXHIBIT 15.4


November 1, 2019

To the Board of Directors and Shareholder of
Nevada Power Company
Las Vegas, Nevada

We have reviewed, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the unaudited consolidated interim financial information of Nevada Power Company and subsidiaries for the periods ended September 30, 2019 and 2018, as indicated in our report dated November 1, 2019; because we did not perform an audit, we expressed no opinion on that information.

We are aware that our report referred to above, which is included in your Quarterly Report on Form 10-Q for the quarter ended September 30, 2019, is incorporated by reference in Registration Statement No. 333-234207 on Form S-3.

We also are aware that the aforementioned report, pursuant to Rule 436(c) under the Securities Act of 1933, is not considered a part of the Registration Statement prepared or certified by an accountant or a report prepared or certified by an accountant within the meaning of Sections 7 and 11 of that Act.


/s/ Deloitte & Touche LLP

Las Vegas, Nevada







EXHIBIT 31.1
CERTIFICATION PURSUANT TO
SECTION 302 OF THE
SARBANES-OXLEY ACT OF 2002

I, William J. Fehrman, certify that:
1.
I have reviewed this Quarterly Report on Form 10-Q of Berkshire Hathaway Energy Company;
2.
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3.
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4.
The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a)
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b)
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c)
Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d)
Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5.
The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
(a)
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
(b)
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
Date: November 1, 2019
/s/ William J. Fehrman
 
 
William J. Fehrman
 
 
President and Chief Executive Officer
 
 
(principal executive officer)
 





EXHIBIT 31.2
CERTIFICATION PURSUANT TO
SECTION 302 OF THE
SARBANES-OXLEY ACT OF 2002

I, Patrick J. Goodman, certify that:
1.
I have reviewed this Quarterly Report on Form 10-Q of Berkshire Hathaway Energy Company;
2.
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3.
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4.
The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a)
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b)
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c)
Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d)
Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5.
The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
(a)
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
(b)
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
Date: November 1, 2019
/s/ Patrick J. Goodman
 
 
Patrick J. Goodman
 
 
Executive Vice President and Chief Financial Officer
 
 
(principal financial officer)
 





EXHIBIT 31.3
CERTIFICATION PURSUANT TO
SECTION 302 OF THE
SARBANES-OXLEY ACT OF 2002

I, William J. Fehrman, certify that:
1.
I have reviewed this Quarterly Report on Form 10-Q of PacifiCorp;
2.
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3.
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4.
The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a)
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b)
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c)
Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d)
Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5.
The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
(a)
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
(b)
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
Date: November 1, 2019
/s/ William J. Fehrman
 
 
William J. Fehrman
 
 
Chairman of the Board of Directors and Chief Executive Officer
 
 
(principal executive officer)
 






EXHIBIT 31.4
CERTIFICATION PURSUANT TO
SECTION 302 OF THE
SARBANES-OXLEY ACT OF 2002

I, Nikki L. Kobliha, certify that:
1.
I have reviewed this Quarterly Report on Form 10-Q of PacifiCorp;
2.
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3.
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4.
The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a)
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b)
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c)
Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d)
Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5.
The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
(a)
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
(b)
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
Date: November 1, 2019
/s/ Nikki L. Kobliha
 
 
Nikki L. Kobliha
 
 
Vice President, Chief Financial Officer and Treasurer
 
 
(principal financial officer)
 






EXHIBIT 31.5
CERTIFICATION PURSUANT TO
SECTION 302 OF THE
SARBANES-OXLEY ACT OF 2002

I, Adam L. Wright, certify that:
1.
I have reviewed this Quarterly Report on Form 10-Q of MidAmerican Energy Company;
2.
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3.
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4.
The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a)
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b)
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c)
Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d)
Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5.
The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
(a)
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
(b)
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
Date: November 1, 2019
/s/ Adam L. Wright
 
 
Adam L. Wright
 
 
President and Chief Executive Officer
 
 
(principal executive officer)
 





EXHIBIT 31.6
CERTIFICATION PURSUANT TO
SECTION 302 OF THE
SARBANES-OXLEY ACT OF 2002

I, Thomas B. Specketer, certify that:
1.
I have reviewed this Quarterly Report on Form 10-Q of MidAmerican Energy Company;
2.
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3.
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4.
The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a)
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b)
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c)
Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d)
Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5.
The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
(a)
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
(b)
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
Date: November 1, 2019
/s/ Thomas B. Specketer
 
 
Thomas B. Specketer
 
 
Vice President and Chief Financial Officer
 
 
(principal financial officer)
 





EXHIBIT 31.7
CERTIFICATION PURSUANT TO
SECTION 302 OF THE
SARBANES-OXLEY ACT OF 2002

I, Adam L. Wright, certify that:
1.
I have reviewed this Quarterly Report on Form 10-Q of MidAmerican Funding, LLC;
2.
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3.
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4.
The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a)
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b)
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c)
Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d)
Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5.
The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
(a)
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
(b)
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
Date: November 1, 2019
/s/ Adam L. Wright
 
 
Adam L. Wright
 
 
President
 
 
(principal executive officer)
 





EXHIBIT 31.8
CERTIFICATION PURSUANT TO
SECTION 302 OF THE
SARBANES-OXLEY ACT OF 2002

I, Thomas B. Specketer, certify that:
1.
I have reviewed this Quarterly Report on Form 10-Q of MidAmerican Funding, LLC;
2.
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3.
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4.
The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a)
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b)
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c)
Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d)
Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5.
The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
(a)
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
(b)
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
Date: November 1, 2019
/s/ Thomas B. Specketer
 
 
Thomas B. Specketer
 
 
Vice President and Controller
 
 
(principal financial officer)
 





EXHIBIT 31.9
 CERTIFICATION PURSUANT TO
SECTION 302 OF THE
SARBANES-OXLEY ACT OF 2002

I, Douglas A. Cannon, certify that: 
1.
I have reviewed this Quarterly Report on Form 10-Q of Nevada Power Company (dba NV Energy);
2.
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3.
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4.
The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a)
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b)
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c)
Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d)
Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5.
The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
(a)
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
(b)
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
Date: November 1, 2019
/s/ Douglas A. Cannon
 
 
Douglas A. Cannon
 
 
President and Chief Executive Officer
 
 
(principal executive officer)
 






EXHIBIT 31.10
 CERTIFICATION PURSUANT TO
SECTION 302 OF THE
SARBANES-OXLEY ACT OF 2002

I, Michael E. Cole, certify that: 
1.
I have reviewed this Quarterly Report on Form 10-Q of Nevada Power Company (dba NV Energy);
2.
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3.
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4.
The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a)
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b)
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c)
Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d)
Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5.
The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
(a)
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
(b)
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
Date: November 1, 2019
/s/ Michael E. Cole
 
 
Michael E. Cole
 
 
Vice President and Chief Financial Officer
 
 
(principal financial officer)
 
 





EXHIBIT 31.11
CERTIFICATION PURSUANT TO
SECTION 302 OF THE
SARBANES-OXLEY ACT OF 2002
 
I, Douglas A. Cannon, certify that: 
1.
I have reviewed this Quarterly Report on Form 10-Q of Sierra Pacific Power Company (dba NV Energy);
2.
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3.
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4.
The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a)
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b)
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c)
Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d)
Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5.
The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
(a)
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
(b)
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
Date: November 1, 2019
/s/ Douglas A. Cannon
 
 
Douglas A. Cannon
 
 
President and Chief Executive Officer
 
 
(principal executive officer)
 
 






EXHIBIT 31.12
CERTIFICATION PURSUANT TO
SECTION 302 OF THE
SARBANES-OXLEY ACT OF 2002
 
I, Michael E. Cole, certify that: 
1.
I have reviewed this Quarterly Report on Form 10-Q of Sierra Pacific Power Company (dba NV Energy);
2.
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3.
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4.
The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a)
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b)
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c)
Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d)
Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5.
The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
(a)
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
(b)
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
Date: November 1, 2019
/s/ Michael E. Cole
 
 
Michael E. Cole
 
 
Vice President and Chief Financial Officer
 
 
(principal financial officer)
 
 






EXHIBIT 32.1
CERTIFICATION PURSUANT TO
SECTION 906 OF THE
SARBANES-OXLEY ACT OF 2002

I, William J. Fehrman, President and Chief Executive Officer of Berkshire Hathaway Energy Company (the "Company"), certify, pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, 18 U.S.C. Section 1350, that to the best of my knowledge:
(1)
the Quarterly Report on Form 10-Q of the Company for the quarterly period ended September 30, 2019 (the "Report") fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m or 78o(d)); and
(2)
the information contained in the Report fairly presents, in all material respects, the financial condition and result of operations of the Company.
Date: November 1, 2019
/s/ William J. Fehrman
 
 
William J. Fehrman
 
 
President and Chief Executive Officer
 
 
(principal executive officer)
 






EXHIBIT 32.2
CERTIFICATION PURSUANT TO
SECTION 906 OF THE
SARBANES-OXLEY ACT OF 2002

I, Patrick J. Goodman, Executive Vice President and Chief Financial Officer of Berkshire Hathaway Energy Company (the "Company"), certify, pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, 18 U.S.C. Section 1350, that to the best of my knowledge:
(1)
the Quarterly Report on Form 10-Q of the Company for the quarterly period ended September 30, 2019 (the "Report") fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m or 78o(d)); and
(2)
the information contained in the Report fairly presents, in all material respects, the financial condition and result of operations of the Company.
Date: November 1, 2019
/s/ Patrick J. Goodman
 
 
Patrick J. Goodman
 
 
Executive Vice President and Chief Financial Officer
 
 
(principal financial officer)
 








EXHIBIT 32.3
CERTIFICATION PURSUANT TO
SECTION 906 OF THE
SARBANES-OXLEY ACT OF 2002

I, William J. Fehrman, Chairman of the Board of Directors and Chief Executive Officer of PacifiCorp, certify, pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, 18 U.S.C. Section 1350, that to the best of my knowledge:
(1)
the Quarterly Report on Form 10-Q of PacifiCorp for the quarterly period ended September 30, 2019 (the "Report") fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m or 78o(d)); and
(2)
the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of PacifiCorp.
Date: November 1, 2019
/s/ William J. Fehrman
 
 
William J. Fehrman
 
 
Chairman of the Board of Directors and Chief Executive Officer
 
 
(principal executive officer)
 






EXHIBIT 32.4
CERTIFICATION PURSUANT TO
SECTION 906 OF THE
SARBANES-OXLEY ACT OF 2002

I, Nikki L. Kobliha, Vice President, Chief Financial Officer and Treasurer of PacifiCorp, certify, pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, 18 U.S.C. Section 1350, that to the best of my knowledge:
(1)
the Quarterly Report on Form 10-Q of PacifiCorp for the quarterly period ended September 30, 2019 (the "Report") fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m or 78o(d)); and
(2)
the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of PacifiCorp.
Date: November 1, 2019
/s/ Nikki L. Kobliha
 
 
Nikki L. Kobliha
 
 
Vice President, Chief Financial Officer and Treasurer
 
 
(principal financial officer)
 






EXHIBIT 32.5
CERTIFICATION PURSUANT TO
SECTION 906 OF THE
SARBANES-OXLEY ACT OF 2002

I, Adam L. Wright, President and Chief Executive Officer of MidAmerican Energy Company, certify, pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, 18 U.S.C. Section 1350, that to the best of my knowledge:
(1)
the Quarterly Report on Form 10-Q of MidAmerican Energy Company for the quarterly period ended September 30, 2019 (the “Report”) fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m or 78o(d)); and
(2)
the information contained in the Report fairly presents, in all material respects, the financial condition and result of operations of MidAmerican Energy Company.
Date: November 1, 2019
/s/ Adam L. Wright
 
 
Adam L. Wright
 
 
President and Chief Executive Officer
 
 
(principal executive officer)
 






EXHIBIT 32.6
CERTIFICATION PURSUANT TO
SECTION 906 OF THE
SARBANES-OXLEY ACT OF 2002

I, Thomas B. Specketer, Vice President and Chief Financial Officer of MidAmerican Energy Company, certify, pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, 18 U.S.C. Section 1350, that to the best of my knowledge:
(1)
the Quarterly Report on Form 10-Q of MidAmerican Energy Company for the quarterly period ended September 30, 2019 (the “Report”) fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m or 78o(d)); and
(2)
the information contained in the Report fairly presents, in all material respects, the financial condition and result of operations of MidAmerican Energy Company.
Date: November 1, 2019
/s/ Thomas B. Specketer
 
 
Thomas B. Specketer
 
 
Vice President and Chief Financial Officer
 
 
(principal financial officer)
 









EXHIBIT 32.7
CERTIFICATION PURSUANT TO
SECTION 906 OF THE
SARBANES-OXLEY ACT OF 2002

I, Adam L. Wright, President of MidAmerican Funding, LLC, certify, pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, 18 U.S.C. Section 1350, that to the best of my knowledge:
(1)
the Quarterly Report on Form 10-Q of MidAmerican Funding, LLC for the quarterly period ended September 30, 2019 (the “Report”) fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m or 78o(d)); and
(2)
the information contained in the Report fairly presents, in all material respects, the financial condition and result of operations of MidAmerican Funding, LLC.
Date: November 1, 2019
/s/ Adam L. Wright
 
 
Adam L. Wright
 
 
President
 
 
(principal executive officer)
 







EXHIBIT 32.8
CERTIFICATION PURSUANT TO
SECTION 906 OF THE
SARBANES-OXLEY ACT OF 2002

I, Thomas B. Specketer, Vice President and Controller of MidAmerican Funding, LLC, certify, pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, 18 U.S.C. Section 1350, that to the best of my knowledge:
(1)
the Quarterly Report on Form 10-Q of MidAmerican Funding, LLC for the quarterly period ended September 30, 2019 (the “Report”) fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m or 78o(d)); and
(2)
the information contained in the Report fairly presents, in all material respects, the financial condition and result of operations of MidAmerican Funding, LLC.
Date: November 1, 2019
/s/ Thomas B. Specketer
 
 
Thomas B. Specketer
 
 
Vice President and Controller
 
 
(principal financial officer)
 






EXHIBIT 32.9
CERTIFICATION PURSUANT TO
SECTION 906 OF THE
SARBANES-OXLEY ACT OF 2002

I, Douglas A. Cannon, President and Chief Executive Officer of Nevada Power Company (dba NV Energy), certify, pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, 18 U.S.C. Section 1350, that to the best of my knowledge:
(1)
the Quarterly Report on Form 10-Q of Nevada Power Company for the quarterly period ended September 30, 2019 (the "Report") fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m or 78o(d)); and
(2)
the information contained in the Report fairly presents, in all material respects, the financial condition and result of operations of Nevada Power Company.
Date: November 1, 2019
/s/ Douglas A. Cannon
 
 
Douglas A. Cannon
 
 
President and Chief Executive Officer
 
 
(principal executive officer)
 







EXHIBIT 32.10
CERTIFICATION PURSUANT TO
SECTION 906 OF THE
SARBANES-OXLEY ACT OF 2002

I, Michael E. Cole, Vice President and Chief Financial Officer of Nevada Power Company (dba NV Energy), certify, pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, 18 U.S.C. Section 1350, that to the best of my knowledge:
(1)
the Quarterly Report on Form 10-Q of Nevada Power Company for the quarterly period ended September 30, 2019 (the "Report") fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m or 78o(d)); and
(2)
the information contained in the Report fairly presents, in all material respects, the financial condition and result of operations of Nevada Power Company.
Date: November 1, 2019
/s/ Michael E. Cole
 
 
Michael E. Cole
 
 
Vice President and Chief Financial Officer
 
 
(principal financial officer)
 






EXHIBIT 32.11
CERTIFICATION PURSUANT TO
SECTION 906 OF THE
SARBANES-OXLEY ACT OF 2002

I, Douglas A. Cannon, President and Chief Executive Officer of Sierra Pacific Power Company (dba NV Energy), certify, pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, 18 U.S.C. Section 1350, that to the best of my knowledge:
(1)
the Quarterly Report on Form 10-Q of Sierra Pacific Power Company for the quarterly period ended September 30, 2019 (the "Report") fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m or 78o(d)); and
(2)
the information contained in the Report fairly presents, in all material respects, the financial condition and result of operations of Sierra Pacific Power Company.
Date: November 1, 2019
/s/ Douglas A. Cannon
 
 
Douglas A. Cannon
 
 
President and Chief Executive Officer
 
 
(principal executive officer)
 






EXHIBIT 32.12
CERTIFICATION PURSUANT TO
SECTION 906 OF THE
SARBANES-OXLEY ACT OF 2002

I, Michael E. Cole, Vice President and Chief Financial Officer of Sierra Pacific Power Company (dba NV Energy), certify, pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, 18 U.S.C. Section 1350, that to the best of my knowledge:
(1)
the Quarterly Report on Form 10-Q of Sierra Pacific Power Company for the quarterly period ended September 30, 2019 (the "Report") fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m or 78o(d)); and
(2)
the information contained in the Report fairly presents, in all material respects, the financial condition and result of operations of Sierra Pacific Power Company.
Date: November 1, 2019
/s/ Michael E. Cole
 
 
Michael E. Cole
 
 
Vice President and Chief Financial Officer
 
 
(principal financial officer)
 






EXHIBIT 95
MINE SAFETY VIOLATIONS AND OTHER LEGAL MATTER DISCLOSURES
PURSUANT TO SECTION 1503(a) OF THE DODD-FRANK WALL STREET
REFORM AND CONSUMER PROTECTION ACT

PacifiCorp and its subsidiaries operate certain coal mines and coal processing facilities (collectively, the "mining facilities") that are regulated by the Federal Mine Safety and Health Administration ("MSHA") under the Federal Mine Safety and Health Act of 1977 (the "Mine Safety Act"). MSHA inspects PacifiCorp's mining facilities on a regular basis. The total number of reportable Mine Safety Act citations, orders, assessments and legal actions for the three-month period ended September 30, 2019 are summarized in the table below and are subject to contest and appeal. The severity and assessment of penalties may be reduced or, in some cases, dismissed through the contest and appeal process. Amounts are reported regardless of whether PacifiCorp has challenged or appealed the matter. Mines that are closed or idled are not included in the information below if no reportable events occurred at those locations during the three-month period ended September 30, 2019. There were no mining-related fatalities during the three-month period ended September 30, 2019. PacifiCorp has not received any notice of a pattern, or notice of the potential to have a pattern, of violations of mandatory health or safety standards that are of such nature as could have significantly and substantially contributed to the cause and effect of coal or other mine health or safety hazards under Section 104(e) of the Mine Safety Act during the three-month period ended September 30, 2019.
 
 
Mine Safety Act
 
 
 
Legal Actions
 
 
 
 
 
 
 
 
Total
 
 
 
 
 
 
Section 104
 
 
 
Section
 
Value of
 
 
 
 
 
 
Significant
 
Section
 
107(a)
 
Proposed
 
Pending
 
 
 
 
and
Section
104(d)
Section
Imminent
 
MSHA
 
as of Last
Instituted
Resolved
 
 
Substantial
104(b)
Citations/
110(b)(2)
Danger
 
Assessments
 
Day of
During
During
Mining Facilities
 
Citations(1)
Orders(2)
Orders(3)
Violations(4)
Orders(5)
 
(in thousands)
 
Period(6)
Period
Period
 
 
 
 
 
 
 
 
 
 
 
 
 
Bridger (surface)
 





 

 



Bridger (underground)
 
1


2



 
$
7

 
1

1


Wyodak Coal Crushing Facility
 





 

 




(1)
Citations for alleged violations of mandatory health and safety standards that could significantly or substantially contribute to the cause and effect of a safety or health hazard under Section 104 of the Mine Safety Act.

(2)
For alleged failure to totally abate the subject matter of a Mine Safety Act Section 104(a) citation within the period specified in the citation.

(3)
For an alleged unwarrantable failure (i.e., aggravated conduct constituting more than ordinary negligence) to comply with a mandatory health or safety standard. Subsequently, MSHA modified the Section 104(d)(1) citation to a Section 104(a) citation and also vacated the Section 104(d)(1) order.

(4)
For alleged flagrant violations (i.e., reckless or repeated failure to make reasonable efforts to eliminate a known violation of a mandatory health or safety standard that substantially and proximately caused, or reasonably could have been expected to cause, death or serious bodily injury).

(5)
For the existence of any condition or practice in a coal or other mine which could reasonably be expected to cause death or serious physical harm before such condition or practice can be abated.

(6)
For the existence of any proposed penalties under Subpart C of the Federal Mine Safety and Health Review Commission's procedural rules. The pending legal actions are not exclusive to citations, notices, orders and penalties assessed by MSHA during the reporting period.