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
|
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
|
|
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
|
|
|
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
|
•
|
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;
|
•
|
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.
|
Item 1.
|
Financial Statements
|
Berkshire Hathaway Energy Company and its subsidiaries
|
|
|
|
||
|
||
|
||
|
||
|
||
|
||
|
||
PacifiCorp and its subsidiaries
|
|
|
|
||
|
||
|
||
|
||
|
||
|
||
MidAmerican Energy Company
|
|
|
|
||
|
||
|
||
|
||
|
||
|
||
MidAmerican Funding, LLC and its subsidiaries
|
|
|
|
||
|
||
|
||
|
||
|
||
|
||
Nevada Power Company and its subsidiaries
|
|
|
|
||
|
||
|
||
|
||
|
||
|
||
Sierra Pacific Power Company
|
|
|
|
||
|
||
|
||
|
||
|
||
|
Item 2.
|
Management's Discussion and Analysis of Financial Condition and Results of Operations
|
Item 1.
|
Financial Statements
|
|
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
|
|
|
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
|
|
|
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
|
|
|
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
|
|
|
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
|
|
|
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
|
|
(1)
|
General
|
(2)
|
Property, Plant and Equipment, Net
|
|
|
|
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
|
|
(3)
|
Investments and Restricted Cash and Cash Equivalents and Investments
|
|
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
|
|
|
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
|
)
|
|
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
|
|
|
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
|
|
|
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
|
%
|
|
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
|
|
|
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
|
|
|
|
|
|
|
|
(5)
|
Recent Financing Transactions
|
(6)
|
Income Taxes
|
(7)
|
Employee Benefit Plans
|
|
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
|
)
|
|
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
|
|
(9)
|
Fair Value Measurements
|
•
|
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.
|
|
|
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
|
)
|
(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.
|
|
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
|
|
|
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
|
(11)
|
Revenue from Contracts with Customers
|
|
|
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
|
|
|
|
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.
|
|
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
|
|
|
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
|
(13)
|
Components of Other Comprehensive Income (Loss), Net
|
|
|
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
|
)
|
(14)
|
Segment Information
|
|
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
|
|
|
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
|
|
|
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.
|
Item 2.
|
Management's Discussion and Analysis of Financial Condition and Results of Operations
|
|
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
|
|
•
|
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.
|
•
|
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.
|
•
|
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.
|
|
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
|
)
|
|
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
|
|
|
|
|
|
|
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.
|
|
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
|
|
◦
|
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.
|
◦
|
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.
|
Item 1.
|
Financial Statements
|
|
|
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
|
|
|
|
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
|
|
|
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
|
|
|
|
|
|
|
|
|
|
|
|
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
|
|
|
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
|
|
(1)
|
General
|
(2)
|
Cash and Cash Equivalents and Restricted Cash and Cash Equivalents
|
|
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
|
|
(3)
|
Property, Plant and Equipment, Net
|
|
|
|
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.
|
|
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
|
|
|
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
|
%
|
|
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
|
|
|
|
|
|
|
|
|
(5)
|
Recent Financing Transactions
|
(6)
|
Income Taxes
|
|
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
|
%
|
(7)
|
Employee Benefit Plans
|
|
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
|
)
|
(8)
|
Risk Management and Hedging Activities
|
|
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.
|
|
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
|
|
|
Unit of
|
|
September 30,
|
|
December 31,
|
||
|
Measure
|
|
2019
|
|
2018
|
||
|
|
|
|
|
|
||
Electricity sales, net
|
Megawatt hours
|
|
(3
|
)
|
|
(6
|
)
|
Natural gas purchases
|
Decatherms
|
|
108
|
|
|
117
|
|
(9)
|
Fair Value Measurements
|
•
|
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.
|
|
|
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.
|
|
|
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
|
(11)
|
Revenue from Contracts with Customers
|
|
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
|
Item 2.
|
Management's Discussion and Analysis of Financial Condition and Results of Operations
|
|
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.
|
•
|
$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.
|
•
|
$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.
|
•
|
$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.
|
•
|
$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.
|
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
|
|
|
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
|
|
•
|
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.
|
◦
|
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.
|
Item 1.
|
Financial Statements
|
|
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
|
|
|
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
|
|
|
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
|
|
|
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
|
|
|
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
|
|
(1)
|
General
|
(2)
|
Cash and Cash Equivalents and Restricted Cash and Cash Equivalents
|
|
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
|
|
(3)
|
Property, Plant and Equipment, Net
|
|
|
|
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
|
(5)
|
Recent Financing Transactions
|
(6)
|
Income Taxes
|
|
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
|
)%
|
(7)
|
Employee Benefit Plans
|
|
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
|
)
|
Beginning balance
|
|
$
|
562
|
|
Change in estimated costs
|
|
237
|
|
|
Additions
|
|
5
|
|
|
Retirements
|
|
(2
|
)
|
|
Accretion
|
|
22
|
|
|
Ending balance
|
|
$
|
824
|
|
(9)
|
Fair Value Measurements
|
•
|
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.
|
|
|
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
|
)
|
|
|
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.
|
|
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
|
|
(10)
|
Commitments and Contingencies
|
(11)
|
Revenue from Contracts with Customers
|
|
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.
|
(12)
|
Segment Information
|
|
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
|
|
|
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
|
|
|
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
|
|
|
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
|
|
|
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
|
|
|
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
|
|
(1)
|
General
|
(2)
|
Cash and Cash Equivalents and Restricted Cash and Cash Equivalents
|
|
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
|
|
(3)
|
Property, Plant and Equipment, Net
|
(4)
|
Leases
|
(5)
|
Recent Financing Transactions
|
(6)
|
Income Taxes
|
(7)
|
Employee Benefit Plans
|
(9)
|
Fair Value Measurements
|
|
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
|
(11)
|
Revenue from Contracts with Customers
|
(12)
|
Segment Information
|
|
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.
|
Item 2.
|
Management's Discussion and Analysis of Financial Condition and Results of Operations
|
|
|
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
|
)
|
—
|
%
|
|
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.
|
(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.
|
(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.
|
|
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
|
%
|
(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.
|
(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.
|
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
|
|
|
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
|
|
•
|
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.
|
•
|
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.
|
Item 1.
|
Financial Statements
|
|
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.
|
|
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.
|
|
|
|
|
|
|
|
|
|
|
|
|
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.
|
|
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.
|
(1)
|
General
|
(2)
|
Cash and Cash Equivalents and Restricted Cash and Cash Equivalents
|
|
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
|
|
(3)
|
Property, Plant and Equipment, Net
|
|
|
|
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
|
|
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
|
|
|
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
|
%
|
|
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
|
|
|
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
|
|
|
|
|
|
|
|
(5)
|
Regulatory Matters
|
(6)
|
Recent Financing Transactions
|
(7)
|
Income Taxes
|
|
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
|
%
|
|
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
|
|
(9)
|
Fair Value Measurements
|
•
|
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.
|
|
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.
|
|
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
|
)
|
|
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
|
(11)
|
Revenue from Contracts with Customers
|
|
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
|
|
|
|
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
|
|
|
|
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
|
)
|
(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.
|
•
|
$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.
|
•
|
$7 million due to residential and commercial customer growth.
|
Cash and cash equivalents
|
|
$
|
276
|
|
Credit facility
|
|
400
|
|
|
Total net liquidity
|
|
$
|
676
|
|
Credit facility:
|
|
|
||
Maturity date
|
|
2022
|
|
Item 1.
|
Financial Statements
|
|
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.
|
|
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.
|
|
|
|
|
|
|
|
|
|
|
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.
|
|
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.
|
(1)
|
General
|
(2)
|
Cash and Cash Equivalents and Restricted Cash and Cash Equivalents
|
|
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
|
|
(3)
|
Property, Plant and Equipment, Net
|
|
|
|
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
|
|
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
|
|
|
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
|
%
|
|
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
|
|
|
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
|
|
|
|
|
|
|
|
(5)
|
Regulatory Matters
|
|
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
|
|
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
|
•
|
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.
|
|
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.
|
|
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
|
(11)
|
Revenue from Contracts with Customers
|
|
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
|
|
|
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
|
|
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
|
|
|
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.
|
|
|
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
|
%
|
|
|
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
|
|
(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.
|
|
|
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
|
%
|
•
|
$5 million of higher transmission revenue, and
|
•
|
$3 million of customer growth.
|
•
|
$6 million in lower retail rates due to the tax rate reduction rider effective April 2018.
|
Cash and cash equivalents
|
|
$
|
64
|
|
Credit facility
|
|
250
|
|
|
Total net liquidity
|
|
$
|
314
|
|
Credit facility:
|
|
|
||
Maturity date
|
|
2022
|
|
|
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
|
|
Item 3.
|
Quantitative and Qualitative Disclosures About Market Risk
|
Item 4.
|
Controls and Procedures
|
Item 1.
|
Legal Proceedings
|
Item 1A.
|
Risk Factors
|
Item 2.
|
Unregistered Sales of Equity Securities and Use of Proceeds
|
Item 3.
|
Defaults Upon Senior Securities
|
Item 4.
|
Mine Safety Disclosures
|
Item 5.
|
Other Information
|
Item 6.
|
Exhibits
|
Exhibit No.
|
Description
|
4.1
|
4.2
|
4.3
|
10.1
|
10.2
|
15.1
|
31.1
|
31.2
|
32.1
|
32.2
|
15.2
|
31.3
|
31.4
|
32.3
|
32.4
|
4.4
|
10.3
|
10.4
|
95
|
15.3
|
31.5
|
31.6
|
32.5
|
32.6
|
Exhibit No.
|
Description
|
4.5
|
4.6
|
10.5
|
10.6
|
31.7
|
31.8
|
32.7
|
32.8
|
15.4
|
31.9
|
31.10
|
32.9
|
32.10
|
10.7
|
31.11
|
31.12
|
32.11
|
32.12
|
10.8
|
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.
|
|
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)
|
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
|
(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)).
|
(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.
|
1.
|
INTERPRETATION
|
1.1
|
Definitions
|
245021-4-4-v5.0
|
1
|
70-40727287
|
245021-4-4-v5.0
|
2
|
70-40727287
|
(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,
|
245021-4-4-v5.0
|
3
|
70-40727287
|
1.2
|
Terms defined elsewhere
|
245021-4-4-v5.0
|
4
|
70-40727287
|
1.3
|
Construction of Certain References
|
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
|
1.5
|
Schedules
|
2.
|
AMOUNT OF THE BONDS AND COVENANT TO PAY
|
2.1
|
Amount of the Bonds
|
2.2
|
Covenant to pay
|
245021-4-4-v5.0
|
5
|
70-40727287
|
2.3
|
Discharge
|
2.4
|
Payment after a Default
|
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
|
(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.
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2.5.4
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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
|
3.2
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Signature and Authentication
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3.3
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Exchange for Definitive Bonds
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3.4
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The Definitive Bonds
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3.5
|
Entitlement to treat holder as owner
|
4.
|
STAMP DUTIES AND TAXES
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4.1
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Stamp Duties
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4.2
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Change of taxing jurisdiction
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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
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5.
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THE TRUST DEED AND THE BONDS
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5.1
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Bonds incorporated by reference
|
5.2
|
Bonds subject to Trust Deed
|
5.3
|
Evidence of Default
|
6.
|
APPLICATION OF MONEYS RECEIVED BY THE TRUSTEE
|
6.1
|
Declaration of Trust
|
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
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6.1.4
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fourthly, in payment to the Issuer.
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6.2
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Accumulation
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6.3
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Investment
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7.
|
COVENANTS BY THE ISSUER
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7.1
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Books of account
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7.2
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Notice of Event of Default
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7.3
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Information
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7.4
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Financial statements etc.
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7.5
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Certificate of director
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7.6
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Notices to Bondholders
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7.7
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Further assurance
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7.8
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Notice of non-payment
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7.9
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Notice of late payment
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7.10
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Listing
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7.11
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Maintenance of Paying Agents
|
7.12
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Change in Agents
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7.13
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Early Redemption
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7.14
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Negative Pledge
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7.15
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Obligations under Paying Agency Agreement
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7.16
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List of authorised signatories
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7.17
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Payments
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7.18
|
Directors' certificate
|
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
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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
|
7.20
|
Certificate of outstandings
|
8.
|
REMUNERATION AND INDEMNIFICATION OF THE TRUSTEE
|
8.1
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Normal remuneration
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8.2
|
Extra remuneration
|
8.3
|
Expenses
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8.4
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Payment of expenses
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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
|
8.6
|
Provisions continuing
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9.
|
PROVISIONS SUPPLEMENTAL TO THE TRUSTEE ACT 1925 AND THE TRUSTEE ACT 2000
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9.1
|
Advice
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9.2
|
Certificates and reports by valuers, Auditors and other experts
|
9.3
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Trustee to assume due performance
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9.4
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Resolutions of Bondholders
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9.5
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Reliance on certification of clearing system
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9.6
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Certificate signed by a director or Authorised Signatory
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9.7
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Custodians and nominees
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9.8
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Agents
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9.9
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Delegation
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9.10
|
No obligation to monitor
|
9.11
|
Bonds held by the Issuer
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9.12
|
Forged Bonds
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9.13
|
Confidentiality
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9.14
|
Determinations conclusive
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9.15
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Currency conversion
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9.16
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Events of Default
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9.17
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Right to deduct or withhold
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9.18
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Payment for and delivery of Bonds
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9.19
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Responsibility
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9.20
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Trustee's discretion
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9.21
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Consents
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9.22
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Error of judgement
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9.23
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Professional charges
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9.24
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Bondholders as a class
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9.25
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Ratings
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9.26
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Validity of documents
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9.27
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Listing Rules
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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
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9.29.1
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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
|
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
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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,
|
11.
|
CONSEQUENTIAL LOSS
|
12.
|
WAIVER
|
12.1
|
Waiver
|
12.2
|
Enforcement proceedings
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12.3
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No action by Bondholders or Couponholders
|
13.
|
TRUSTEE NOT PRECLUDED FROM ENTERING INTO CONTRACTS
|
14.
|
MODIFICATION AND SUBSTITUTION
|
14.1
|
Modification
|
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
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(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.
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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
|
15.2
|
Retirement and removal
|
15.3
|
Co-Trustees
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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.
|
15.4
|
Competence of a majority of Trustees
|
15.5
|
Powers additional
|
16.
|
COUPONS
|
16.1
|
Notices
|
16.2
|
Bondholders assumed to hold Coupons
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17.
|
CURRENCY INDEMNITY
|
17.1
|
Currency of account and payment
|
17.2
|
Extent of discharge
|
17.3
|
Indemnities
|
17.4
|
Indemnities separate
|
17.5
|
Merger
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18.
|
COMMUNICATIONS
|
18.1.1
|
in the case of the Issuer, to it:
|
18.1.2
|
in the case of the Trustee, to it at:
|
19.
|
GOVERNING LAW
|
20.
|
JURISDICTION
|
20.1
|
English courts
|
20.2
|
Appropriate forum
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20.3
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Rights of the Trustee and Bondholders to take proceedings outside England
|
21.
|
SEVERABILITY
|
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").
|
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.
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23.
|
CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
|
24.
|
COUNTERPARTS
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1.
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INTRODUCTION
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2.
|
REFERENCES TO CONDITIONS
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3.
|
PROMISE TO PAY
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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
|
5.
|
EXCHANGE
|
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.
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6.
|
WRITING DOWN
|
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),
|
7.
|
PAYMENTS
|
8.
|
CONDITIONS APPLY
|
9.
|
NOTICES
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10.
|
AUTHENTICATION
|
11.
|
GOVERNING LAW
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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
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1.
|
INTRODUCTION
|
2.
|
REFERENCES TO CONDITIONS
|
3.
|
PROMISE TO PAY
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4.
|
NEGOTIABILITY
|
5.
|
EXCHANGE
|
6.
|
DELIVERY OF DEFINITIVE BONDS
|
7.
|
WRITING DOWN
|
7.1
|
a payment of principal is made in respect of this Global Bond;
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7.2
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Definitive Bonds are delivered; or
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7.3
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Bonds represented by this Global Bond are to be cancelled in accordance with Condition 7(e) (Redemption and Purchase - Cancellation),
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8.
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WRITING UP
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9.
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PAYMENTS
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10.
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CONDITIONS APPLY
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11.
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EXERCISE OF PUT OPTION
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12.
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EXERCISE OF CALL OPTION
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13.
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NOTICES
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14.
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AUTHENTICATION
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15.
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GOVERNING LAW
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Date of payment, exchange, delivery or cancellation
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Amount of interest then paid
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Principal amount of Temporary Global Bond then exchanged
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Aggregate principal amount of Definitive Bonds then delivered
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Aggregate principal amount of Bonds then cancelled
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New principal amount of this Global Bond
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Authorised signature
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(i)
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(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
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(ii)
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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
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(iii)
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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.
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(i)
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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
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(ii)
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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
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(a)
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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
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(b)
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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.
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(a)
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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.
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(b)
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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.
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(i)
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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:
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(1)
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par; and
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(2)
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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
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(ii)
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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.
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(c)
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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).
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(d)
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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.
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(e)
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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.
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(a)
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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
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(i)
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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
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(ii)
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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
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(iii)
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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.
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(b)
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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).
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(c)
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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.
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(a)
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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
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(b)
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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
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(c)
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(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
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(d)
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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
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(e)
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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
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(f)
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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
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(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),
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(i)
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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"),
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(b)
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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
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(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.
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(a)
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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.
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(b)
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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.
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(c)
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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
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(d)
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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) .
|
(a)
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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)
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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.
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1.
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DEFINITIONS
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(a)
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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;
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(c)
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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;
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(a)
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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)
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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;
|
(a)
|
for all business other than voting on an Extraordinary Resolution, one tenth;
|
(b)
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for voting on any Extraordinary Resolution other than one relating to a Reserved Matter, more than half; and
|
(c)
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for voting on any Extraordinary Resolution relating to a Reserved Matter, two thirds;
|
(i)
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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;
|
(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)
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(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)
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to postpone the maturity of the Bonds or the dates on which interest is payable in respect of the Bonds;
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(d)
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to reduce or cancel the principal amount of, any premium payable on redemption of, or interest on the Bonds;
|
(e)
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to change the currency in which amounts due in respect of the Bonds are payable;
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(f)
|
to change the quorum required at any Meeting or the majority required to pass an Extraordinary Resolution; or
|
(g)
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to amend this definition;
|
(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;
|
2.
|
ISSUE OF VOTING CERTIFICATES AND BLOCK VOTING INSTRUCTIONS
|
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3.
|
REFERENCES TO DEPOSIT/RELEASE OF BONDS
|
4.
|
VALIDITY OF BLOCK VOTING INSTRUCTIONS
|
5.
|
CONVENING OF MEETING
|
6.
|
NOTICE
|
7.
|
CHAIRMAN
|
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8.
|
QUORUM
|
9.
|
ADJOURNMENT FOR WANT OF QUORUM
|
(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
|
11.
|
NOTICE FOLLOWING ADJOURNMENT
|
(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.
|
12.
|
PARTICIPATION
|
(a)
|
Voters;
|
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(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
|
14.
|
POLL
|
15.
|
VOTES
|
(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.
|
16.
|
VALIDITY OF VOTES BY PROXIES
|
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17.
|
POWERS
|
(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
|
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19.
|
MINUTES
|
20.
|
WRITTEN RESOLUTION
|
21.
|
FURTHER REGULATIONS
|
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|
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|
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
|
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|
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
|
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93954-4-33-v4.0
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|
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
|
|
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|
|
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|
(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").
|
1.
|
DEFINITIONS AND INTERPRETATION
|
1.1
|
Definitions
|
1.2
|
Incorporation of defined terms
|
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|
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|
(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
|
1.4
|
Third party rights
|
1.5
|
Designation
|
2.
|
REPRESENTATIONS
|
(a)
|
the date of this Agreement; and
|
(b)
|
the Effective Date,
|
3.
|
RESTATEMENT
|
3.1
|
Amendment and Restatement of the Original Facility Agreement
|
4.
|
CONTINUITY AND FURTHER ASSURANCE
|
4.1
|
Continuing obligations
|
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|
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|
4.2
|
Confirmation of Guarantee Obligations
|
4.3
|
Further assurance
|
5.
|
COSTS AND EXPENSES
|
5.1
|
Transaction expenses
|
(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
|
7.
|
MISCELLANEOUS
|
7.1
|
Incorporation of terms
|
93954-4-33-v4.0
|
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|
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|
7.2
|
Counterparts
|
8.
|
GOVERNING LAW
|
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|
4
|
70-40529536
|
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|
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
|
|
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|
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
|
(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").
|
1.
|
DEFINITIONS AND INTERPRETATION
|
1.1
|
Definitions
|
93954-4-34-v4.0
|
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|
70-40529536
|
(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,
|
(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,
|
93954-4-34-v4.0
|
4
|
70-40529536
|
(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.
|
(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;
|
(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.
|
(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.
|
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|
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|
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|
(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,
|
(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
|
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|
70-40529536
|
(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.
|
(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,
|
(i)
|
its failure to pay is caused by:
|
(A)
|
administrative or technical error; or
|
(B)
|
a Disruption Event; and,
|
93954-4-34-v4.0
|
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|
70-40529536
|
(ii)
|
the Lender is disputing in good faith whether it is contractually obliged to make the payment in question.
|
(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,
|
93954-4-34-v4.0
|
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|
70-40529536
|
(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),
|
(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.
|
(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
|
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|
70-40529536
|
(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
|
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|
70-40529536
|
(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;
|
(i)
|
its failure to pay is caused by:
|
(A)
|
administrative or technical error; or
|
(B)
|
a Disruption Event; and
|
(ii)
|
the Agent is disputing in good faith whether it is contractually obliged to make the payment in question.
|
(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;
|
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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.
|
(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,
|
(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),
|
(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),
|
93954-4-34-v4.0
|
12
|
70-40529536
|
(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.
|
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
|
(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.
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(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.
|
(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.
|
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(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,
|
(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
|
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(ii)
|
any Relevant Nominating Body,
|
(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.
|
(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.
|
(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),
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(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
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(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),
|
(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),
|
(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.
|
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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.
|
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(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
|
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.
|
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2.
|
THE FACILITY
|
2.1
|
The Facility
|
(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),
|
(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;
|
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(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
|
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(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
|
3.2
|
Monitoring
|
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.
|
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(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
|
(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
|
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(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.
|
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5.
|
UTILISATION
|
5.1
|
Delivery of a Utilisation Request
|
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).
|
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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
|
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
|
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(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:
|
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|
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|
(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
|
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|
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6.2
|
Unavailability of a currency
|
(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,
|
6.3
|
Participation in a Loan
|
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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,
|
(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
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(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
|
(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
|
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(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
|
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
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(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,
|
(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
|
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(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.
|
(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.
|
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9.
|
INTEREST
|
9.1
|
Calculation of interest
|
(a)
|
Margin; and
|
(b)
|
LIBOR or, in relation to any Loan in euro, EURIBOR.
|
9.2
|
Payment of interest
|
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
|
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(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
|
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
|
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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
|
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(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
|
12.4
|
Arrangement fee
|
12.5
|
Coordination fee
|
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13.
|
TAX GROSS UP AND INDEMNITIES
|
13.1
|
Definitions
|
(a)
|
In this Agreement:
|
(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.
|
(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
|
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(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.
|
(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
|
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(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.
|
(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.
|
(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
|
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(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.
|
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(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.
|
(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.
|
(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,
|
(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
|
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(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,
|
(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,
|
(ii)
|
to the extent a loss, liability or cost:
|
(A)
|
is compensated for by an increased payment under Clause 13.2 (Tax gross-up);
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(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
|
(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,
|
13.5
|
Lender Status Confirmation
|
(a)
|
not a Qualifying Lender;
|
(b)
|
a Qualifying Lender (other than a Treaty Lender); or
|
(c)
|
a Treaty Lender.
|
13.6
|
Stamp taxes
|
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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.
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(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;
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(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
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(iii)
|
a reduction of any amount due and payable 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,
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(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
|
(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
|
(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
|
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(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
|
(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
|
17.3
|
Enforcement costs
|
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18.
|
GUARANTEE AND INDEMNITY
|
18.1
|
Guarantee and indemnity
|
(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
|
18.3
|
Reinstatement
|
18.4
|
Waiver of defences
|
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(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
|
18.6
|
Appropriations
|
(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
|
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(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
|
(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.
|
18.8
|
Additional security
|
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19.
|
REPRESENTATIONS
|
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
|
19.3
|
Non-conflict with other obligations
|
(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
|
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
|
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(ii)
|
to make the Finance Documents to which it is a party admissible in evidence in its jurisdiction of incorporation,
|
(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
|
(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
|
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
|
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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
|
19.13
|
No proceedings pending or threatened
|
19.14
|
Environmental compliance
|
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19.15
|
Environmental Claims
|
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.
|
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
|
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19.19
|
Repetition
|
20.
|
INFORMATION UNDERTAKINGS
|
20.1
|
Financial statements
|
(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.
|
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(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,
|
20.4
|
Information: miscellaneous
|
(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
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(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.
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(b)
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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.
|
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,
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(b)
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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
|
(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
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(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.
|
(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,
|
(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,
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(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,
|
(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
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(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.
|
(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).
|
(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
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(c)
|
deducting the aggregate amount of freely available cash and Cash Equivalent Investments held by Yorkshire at such time,
|
21.2
|
Financial condition
|
(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
|
22.
|
GENERAL UNDERTAKINGS
|
22.1
|
Authorisations
|
(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
|
22.2
|
Compliance with laws
|
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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,
|
(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
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(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
|
22.5
|
Merger
|
22.6
|
Change of business
|
22.7
|
Insurance
|
22.8
|
Compliance with DNO Licences and duties under the Electricity Act
|
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
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22.10
|
Anti-corruption
|
22.11
|
Relevant Financial Institution
|
23.
|
EVENTS OF DEFAULT
|
23.1
|
Non-payment
|
(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
|
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
|
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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;
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(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,
|
(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
|
23.9
|
Governmental Intervention
|
(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
|
23.11
|
Unlawfulness
|
23.12
|
Repudiation
|
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
|
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23.14
|
Acceleration
|
(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.
|
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24.
|
CHANGES TO THE PARTIES
|
24.1
|
Assignments and transfers by the Lenders
|
(a)
|
assign any of its rights; or
|
(b)
|
transfer by novation any of its rights and obligations,
|
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
|
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(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
|
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
|
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(iv)
|
the accuracy of any statements (whether written or oral) made in or in connection with any Finance Document or any other document,
|
(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
|
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(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.
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(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
|
24.8
|
Security over Lenders' rights
|
(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,
|
(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
|
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(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
|
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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
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(g)
|
The Agent's duties under the Finance Documents are solely mechanical and administrative in nature.
|
25.3
|
Role of the Arranger
|
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
|
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.
|
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(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
|
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(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
|
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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
|
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(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;
|
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
|
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(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,
|
(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
|
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(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
|
26.
|
CONDUCT OF BUSINESS BY THE FINANCE PARTIES
|
(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
|
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(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
|
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
|
(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
|
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(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.
|
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90
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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
|
28.3
|
Distributions to an Obligor
|
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
|
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91
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|
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.
|
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|
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|
(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
|
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
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(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.
|
(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
|
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30.
|
NOTICES
|
30.1
|
Communications in writing
|
30.2
|
Addresses
|
(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,
|
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,
|
(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.
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(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
|
30.5
|
Communication when Agent is Impaired Agent
|
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
|
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(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
|
31.2
|
Certificates and Determinations
|
31.3
|
Day count convention
|
32.
|
PARTIAL INVALIDITY
|
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33.
|
REMEDIES AND WAIVERS
|
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
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(viii)
|
the nature or scope of the guarantee and indemnity granted under Clause 18 (Guarantee and Indemnity),
|
(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
|
(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),
|
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(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,
|
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;
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(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
|
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35.2
|
Disclosure of Confidential Information
|
(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;
|
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(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,
|
(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/
|
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(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,
|
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(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
|
35.5
|
Inside information
|
35.6
|
Notification of disclosure
|
(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
|
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(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
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(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
|
37.
|
COUNTERPARTS
|
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38.
|
GOVERNING 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.
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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
|
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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
|
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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
|
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.
|
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(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.
|
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From:
|
[Borrower]
|
To:
|
[Agent]
|
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.
|
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To:
|
[•] as Agent
|
From:
|
[The Existing Lender] (the "Existing Lender") and [The New Lender] (the "New Lender")
|
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.
|
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(b)
|
a partnership each member of which is:
|
(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.
|
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|
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 [•].¬¬
|
3.
|
This Conversion Notice is irrevocable.
|
…………………………………
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.
|
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To:
|
[•] as Agent
|
From:
|
Northern Powergrid Holdings Company as Company
|
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:
|
(i)
|
Consolidated EBIT
|
(ii)
|
Consolidated Net Finance Charges
|
(iii)
|
Yorkshire Senior Total Net Debt
|
(iv)
|
Yorkshire RAV
|
(v)
|
Northeast Senior Total Net Debt
|
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|
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|
(vi)
|
Northeast RAV
|
(vii)
|
Consolidated Senior Total Net Debt
|
(viii)
|
Aggregate RAV
|
3.
|
[We confirm that no Default is continuing.] ¬
|
¬
|
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.
|
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|
|
[insert name of Potential Purchaser]
|
Company: Northern Powergrid Holdings Company (the "Company")
Date:
Amount:
Agent:
|
1.
|
CONFIDENTIALITY UNDERTAKING
|
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|
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|
(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
|
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|
(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.
|
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|
(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.
|
(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.
|
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|
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|
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|
|
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
|
|
|
|
|
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To:
|
[•] as Agent and Northern Powergrid Holdings Company as Company
|
From:
|
[the Increase Lender] (the "Increase Lender")
|
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
|
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|
(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.
|
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|
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|
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|
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|
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|
70-40529536
|
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
|
|
|
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|
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|
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
|
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|
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|
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|
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|
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|
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
|
|
|
|
|
|
|
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|
|
|
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
|
|
|
|
|
|
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
|
|
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
|
(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%
|
(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;
|
(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.
|
2.
|
Assignee[s]: ______________________________
|
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
|
|
|
|
$
|
$
|
%
|
|
|
|
|
$
|
$
|
%
|
|
|
|
|
$
|
$
|
%
|
|
[NAME OF LENDER]
|
|
By:
|
|
|
Name:
|
|
Title:
|
[NAME OF PARTICIPANT]
|
|
By:
|
|
|
Name:
|
|
Title:
|
[NAME OF PARTICIPANT]
|
|
By:
|
|
|
Name:
|
|
Title:
|
[NAME OF LENDER]
|
|
By:
|
|
|
Name:
|
|
Title:
|
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.
|
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)
|
|
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)
|
|
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)
|
|
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)
|
|
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)
|
|
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)
|
|
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)
|
|
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)
|
|
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)
|
|
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)
|
|
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)
|
|
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)
|
|
(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)
|
|
(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)
|
|
(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)
|
|
(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)
|
|
(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)
|
|
(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)
|
|
(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)
|
|
(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)
|
|
(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)
|
|
(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)
|
|
(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)
|
|
(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)
|
|
|
|
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.
|