Exhibit 10.1
AMENDMENT NUMBER 6 TO THE
POWER SALES CONTRACT
BETWEEN
MIDAMERICAN ENERGY COMPANY
AND
NEBRASKA PUBLIC POWER DISTRICT
THIS AMENDMENT NUMBER 6 to the Power Sales Contract ("Contract") is made,
entered into, and shall be effective as of the 31st day of July, 2002, by and
between MidAmerican Energy Company ("Purchaser"), formerly Iowa Power and Light
Company, and Nebraska Public Power District (the "District"), formerly Consumers
Public Power District.
WHEREAS, Purchaser and the District entered into a Settlement Agreement
as of July 31, 2002 ("Settlement Agreement"), settling the lawsuit entitled:
Nebraska Public Power District v. MidAmerican Energy Company,
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Civil Action No. 4:97CV346, pending in the United States District Court for
the District of Nebraska (the "Litigation"); and
WHEREAS, Purchaser and the District, as a result of said settlement,
reached agreement to amend further the Contract made and entered into by them as
of September 22, 1967, and heretofore amended as of February 20, 1968, May 24,
1968, August 31, 1970, March 28, 1974, and September 2, 1997, respectively.
NOW, THEREFORE, Purchaser and the District hereby agree as follows:
1. In Section 1 of the Contract, the words "of thirty-seven years from the
date hereof" shall be deleted and replaced with the words "that will end on
December 31, 2004, at 11:59:59 p.m."
In addition, the following paragraph shall be added as a new paragraph
after the existing paragraph: "The Contract, which for ▇▇▇▇ purposes is
identified as Transaction No. A-135, shall remain in effect in its pre-Amendment
6 form, for the purposes of ▇▇▇▇ accreditation only, until the ▇▇▇▇
Accreditation Working Group recognizes and grants accreditation to the Power
Sales Agreement, as amended by Amendment 6."
2. In Section 2 of the Contract, the following words shall be added to the
end of paragraph "b": "and except the 345 kv transmission line together with
associated equipment and switching (MINT Line) extending southeast to
Fairport."; the contents of paragraph "c" shall be deleted and replaced with the
word: "Reserved," the contents of paragraphs "e" through and including "k" shall
be deleted and replaced with the word: "Reserved," and the contents of paragraph
"l" shall be deleted after the words "Monthly Power Costs shall mean" and
replaced with the following:
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"only those costs billable to Purchaser pursuant to the pricing terms and
conditions set forth in subparagraphs (1) and (2) and (3), below."
"(1) Capacity Price.
The parties agree to keep and maintain confidential the following
Capacity Prices and associated ▇▇▇▇▇▇▇▇ except to the extent (i) required
by law or regulation, (ii) required by order of any court or administrative
agency of competent jurisdiction, (iii) deemed necessary by a party in
order to inform a regulatory authority with jurisdiction over that party,
or to inform a North American Electric Reliability Council organization,
(iv) deemed necessary to provide to customers of either party or (v)
necessary in a proceeding by a party hereto to enforce the terms of this
Agreement. In the event other needs to disclose the terms of this Agreement
shall arise, and a party seeks the permission of the other party to make
the disclosure, such permission shall not be unreasonably withheld."
"August 1, 2002 - December 31, 2002: [confidential information
intentionally deleted]/kW-Month for 380 megawatts of the Nuclear Facility's
accredited Mid-Continent Area Power Pool ("▇▇▇▇") capacity or of the
Nuclear Facility's capacity as accredited by any successor organization to
▇▇▇▇, responsible for accrediting the Nuclear Facility's generation
capacity, delivered to the Purchaser ("Purchaser's Capacity Share")."
"January 1, 2003 - December 31, 2003: [confidential information
intentionally deleted]/kW-Month for Purchaser's Capacity Share."
"January 1, 2004 - December 31, 2004: [confidential information
intentionally deleted]/kW-Month for Purchaser's Capacity Share."
"The District guarantees Purchaser 380 megawatts of the Nuclear
Facility's accredited capacity at all times during the term of this
Contract ("Guaranteed Capacity"). If a reduction in the accreditation of
the Nuclear Facility requires the District to replace a portion or all of
the Guaranteed Capacity, the District shall so provide and the Purchaser
shall continue to pay for such replacement accredited capacity
("Replacement Capacity") at the Capacity Price. The Replacement Capacity,
if any, shall be accredited by ▇▇▇▇ or any successor organization to ▇▇▇▇,
responsible for accrediting the Nuclear Facility's generation capacity."
"(2) Energy Price.
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The parties agree to keep and maintain confidential the following
Energy Prices and associated ▇▇▇▇▇▇▇▇ except to the extent (i) required by
law or regulation, (ii) required by order of any court or administrative
agency of competent jurisdiction, (iii) deemed necessary by a party in
order to inform a
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regulatory authority with jurisdiction over that party, or to inform a
North American Electric Reliability Council organization, (iv) deemed
necessary to provide to customers of either party or (v) necessary in a
proceeding by a party hereto to enforce the terms of this Agreement. In the
event other needs to disclose the terms of this Agreement shall arise, and
a party seeks the permission of the other party to make the disclosure,
such permission shall not be unreasonably withheld."
"The Purchaser's Nuclear Energy Share, as defined in paragraph (a) of
Section 3, delivered to the switchyard referenced in Section 8 of the
Contract, and Supplementary Energy, as defined in paragraph (a) of Section
3, which shall be delivered to the switchyard referenced in Section 8 of
the Contract, or other mutually agreed locations on the Purchaser's system,
when added together shall be defined as "Total Delivered Energy"."
"August 1, 2002 - December 31, 2002:
Energy Price A: [confidential information intentionally deleted]/MWh
for Total Delivered Energy for each MWh at or below the applicable
Guaranteed Minimum Energy as set forth in paragraph 3(b), and"
"Energy Price B: [confidential information intentionally deleted]/MWh
for Total Delivered Energy for each MWh above the applicable
Guaranteed Minimum Energy as originally set forth in Section 3(b)."
"January 1, 2003 - December 31, 2003:
Energy Price A: [confidential information intentionally deleted]/MWh
for Total Delivered Energy for each MWh at or below the applicable
Guaranteed Minimum Energy as set forth in paragraph 3(b), and"
"Energy Price B: [confidential information intentionally deleted]/MWh
for Total Delivered Energy for each MWh above the applicable
Guaranteed Minimum Energy as originally set forth in Section 3(b)."
"January 1, 2004 - December 31, 2004:
Energy Price A: [confidential information intentionally deleted]/MWh
for Total Delivered Energy for each MWh at or below the applicable
Guaranteed Minimum Energy as set forth in paragraph 3(b), and"
"Energy Price B: [confidential information intentionally deleted]/MWh
for Total Delivered Energy for each MWh above the applicable
Guaranteed Minimum Energy as originally set forth in Section 3(b)."
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"(3) EHV Facilities Cost Share
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Fifty percent of the District's actual costs resulting from the
operation and maintenance ("O&M") of the EHV Facilities, and fifty
percent of an annual amortization of the District's costs resulting
from capital renewals and replacements ("R&R"), if any, to the EHV
Facilities, provided these O&M and capital R&R costs meet the
requirements of Section 15 of this Contract, plus any amount
MidAmerican shall owe pursuant to Section 18. The annual amortization
of R&R costs shall be over the life of the replaced or renewed
equipment for a period of time not to exceed thirty years and shall be
billed on this basis regardless of whether the District does or does
not use this amortization for internal accounting purposes. The period
of amortization shall be one agreed to by Purchaser, which agreement
shall not be unreasonably withheld."
3. Section 3 of the Contract shall be deleted and replaced
by the following:
"(a) The "Purchaser's Nuclear Energy Share" shall be 380 MWh per
hour during hours when the Nuclear Facility is operating at or above a
net 650 megawatts and shall not be less than fifty percent of the net
power and energy produced by the Nuclear Facility when it is operating
below a net 650 megawatts. The District agrees to deliver to the
Purchaser, and the Purchaser agrees to purchase, the Purchaser's
Nuclear Energy Share, at the 345 kv switchyard referred to in Section
8. The District shall have full operating authority to determine the
operating level of the Nuclear Facility at all times. The District at
its option can use the Nuclear Facility or energy from other
supplemental sources ("Supplementary Energy") to supply Purchaser's
Nuclear Energy Share up to the Guaranteed Minimum Energy. Unless
agreed to by the Purchaser, the District will not deliver
Supplementary Energy during scheduled refueling outages described in
Section 3(b), unless such Supplementary Energy is required to meet the
Guaranteed Minimum Energy over the remaining calendar year. If, at any
time, the Purchaser's Nuclear Energy Share at an 85 percent capacity
factor over the remaining calendar year operating hours described in
paragraph (b), below, will not result in sufficient energy deliveries
to meet the Guaranteed Minimum Energy, defined in paragraph (b),
below, then the District shall have the obligation to supplement the
Purchaser's Nuclear Energy Share with Supplementary Energy of at least
323 MWh per hour and deliver such supplies to the switchyard of the
Nuclear Facility or to other mutually agreed locations on the
Purchaser's system. In such deliveries to such other locations, the
Purchaser shall not unreasonably refuse to receive and purchase such
Supplementary Energy, if there is no resulting additional cost to the
Purchaser. Supplementary Energy shall be a flat, around-the-clock
schedule, can be delivered concurrently with delivery of the
Purchaser's Nuclear Energy Share, shall be purchased by the Purchaser
at the Energy Price, shall count towards the Guaranteed Minimum
Energy, and shall be delivered pursuant to a mutually agreeable
schedule. The
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sum of the Purchaser's Nuclear Energy Share and Supplementary Energy
shall not exceed 380 MWh per hour in any hour, absent the Purchaser's
prior consent."
"(b) The "Guaranteed Minimum Energy" shall be the minimum amount
of energy as set forth below that the District is obligated to
annually deliver to the Purchaser, except as otherwise provided in
Section 10(b); and also, that the Purchaser is obligated to purchase
from the District, except as otherwise provided in Section 10(b). The
basis for calculating the Guaranteed Minimum Energy is 380 megawatts
at 85 per cent capacity factor for the number of hours during the year
that the Nuclear Facility is planned, at the time of the execution of
Amendment 6, to be operating, and zero per cent capacity factor in the
other hours. (The Nuclear Facility outages are planned to last 42 days
and are currently scheduled to begin on March 1, 2003 and October 2,
2004; however, the District retains the authority and obligations it
has pursuant to Sections 7 and 10(a) of this Contract in the
scheduling of such refueling outages.) For the purpose of defining the
Guaranteed Minimum Energy, such numbers of operating hours are 3,672
hours for 2002 starting August 1; 7,752 hours in 2003; and 7,776 hours
in 2004. The Guaranteed Minimum Energy shall be as follows, except as
otherwise provided in Section 10(b):"
"August 1, 2002 - December 31, 2002: 1,186,056 MWh."
"January 1, 2003 - December 31, 2003: 2,503,896 MWh."
"January 1, 2004 - December 31, 2004: 2,511,648 MWh."
"Total Delivered Energy during the said calendar year shall not
be less than the Guaranteed Minimum Energy, except as otherwise
provided in Section 10(b)."
4. The title of Section 4 of the Contract shall be deleted
and replaced by the following new title: "Billing and Payment." In
addition, the remainder of Section 4 shall be deleted and replaced with the
following:
"(a) On or before the fifth day of each Month the District shall
render to the Purchaser a monthly statement showing:"
"(1) the amount of 380,000 kilowatts, the Purchaser's Capacity
Share, multiplied by the Capacity Price contained in subparagraph (1)
of Section 2(l) applicable for the Month;"
"(2) the amount for the preceding Month equal to:"
"(i) that amount of the Total Delivered Energy up to and
including the Guaranteed Minimum Energy multiplied by Energy
Price A as provided in subparagraph (2) of Section 2(l),
plus"
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"(ii) that amount of the Total Delivered Energy above the
Guaranteed Minimum Energy, if any, multiplied by Energy
Price B as provided in subparagraph (2) of 2(l);"
"(3) statements in MWh of:"
"(i) the Nuclear Facility's total net generation for the
preceding Month;"
"(ii) Purchaser's Nuclear Energy share for the preceding
Month;"
"(iii) Supplementary Energy for the preceding Month; and"
"(iv) the year-to-date cumulative amount from January 1 (or
August 1, for 2002) for the Total Delivered Energy;"
"(4) (i) the Guaranteed Minimum Energy for the appropriate
calendar year except as otherwise provided in Section
10(b);"
"(ii) the total Nuclear Facility operating hours remaining
in the calendar year occurring after the last date of the
previous Month;"
"(iii) the value obtained by multiplying the value shown in
clause 4(ii), above, by the Purchaser's Capacity Share and
then multiplying by 85 per cent; and"
"(iv) the value obtained by adding clause 3(iv) and 4(iii),
above;"
"(5) the estimated or budgeted EHV Facilities Cost Share as
defined in subparagraph (3) of Section 2(l) applicable for the
current Month, with an annual true-up, if any, to actual cost at
year end."
"Purchaser within twenty days of the date of the monthly
statement shall pay to the District, by wire transfer to an account
designated by the District, the sum of the amounts referred to in
subparagraphs (1), (2), and (5), above."
"Purchaser may, in good faith, dispute the correctness of any
monthly statement rendered under this Contract or adjust any monthly
statement for any arithmetic or computational error within sixty (60)
days of the date the monthly statement was rendered. In the event of a
disputed monthly statement, payment of the undisputed portion of the
monthly statement shall be required to be made when due by Purchaser,
with notice of the objection given to the District. Any monthly
billing dispute or adjustment shall be in writing and shall state the
basis for the dispute or adjustment. Payment of the disputed amount
shall not be required until the dispute is resolved. Any such monthly
billing dispute or
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adjustment shall first be submitted to the parties' Chief Executive
Officers for resolution. If unresolved after sixty (60) days, such
dispute or adjustment may be submitted to mediation or binding
arbitration by agreement of the parties, or failing that may be
litigated by the parties. If it is ultimately determined that the
disputed monthly statement was correct, the Purchaser shall pay the
disputed amount within twenty (20) days and shall pay the District an
additional amount for interest, on the disputed amount, at the rate of
10% per annum from the original due date until paid. If it is
determined that an adjustment to a disputed monthly statement
previously paid by the Purchaser is appropriate, then the District
shall refund to the Purchaser such disputed amount within twenty (20)
days of such determination, if not already made, and the District
shall pay the Purchaser an additional amount for interest, on the
amount of the adjustment, at the rate of 10% per annum from the date
payment was originally received by the District until the refund is
paid. Any dispute by the Purchaser with respect to a monthly statement
is waived unless the District is notified within sixty (60) days after
the monthly statement is rendered or any specific adjustment to the
monthly statement is made."
"The ▇▇▇▇▇▇▇▇, as rendered by the District pursuant to this
Contract, prior to its amendment by Amendment 6, for June 2002
capacity and energy and the EHV Facilities, and for July 2002 capacity
and the EHV Facilities shall be paid by the Purchaser prior to the
execution of Amendment 6. The billing for July 2002 energy supplied by
the District to the Purchaser pursuant to this Contract, which billing
shall be rendered by the District on or before the fifth day of August
2002, shall be paid by the Purchaser by August 25, 2002, at the price
of [confidential information intentionally deleted]/MWh."
"(b) By January 25, 2005, Purchaser shall pay the District for
the energy delivered pursuant to this Contract during December 2004,
the amount referred to in subparagraph (a)(2) and the annual true-up
for 2004, if any, required under (a)(5), above. The District shall
include in the monthly statement for said Month all the information
referred to in subparagraphs (a)(2) through and including (a)(5),
above."
"(c) The District may, whenever any undisputed amount due remains
unpaid subsequent to the 30th day after the due date and after giving
30 days advance notice and opportunity to cure in writing via
registered mail, terminate this Contract if Purchaser has failed to
cure within the said 30 days, but no such termination shall relieve
the Purchaser from liability for its default. No such termination
shall relieve the District from any liability for damages or prevent
Purchaser from obtaining any other remedy(ies) allowable at law or
equity for breach of this Contract."
5. The contents of Sections 5 and 6 of the Contract shall be deleted
and replaced in each instance with a new title: "Reserved."
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6. In Section 7 of the Contract, in the first sentence, the words
"follows (while this Section 7 references deliveries from the Nuclear
Facility, it is agreed by the parties that this Section 7 also applies to
deliveries at other locations on the Purchaser's system pursuant to
Amendment 6)." shall be inserted after the word "as," and the remainder of
the sentence shall be deleted.
In the second sentence, the words "Purchaser and the," "respectively,"
"each" and "other" shall be deleted, and the word "Purchaser" shall be
inserted after the words "deliver to the."
In paragraph "a" in line 1, the words "Contract Year" shall be deleted
and replaced with the words "calendar year, except 2002," the words "for
each Month of the ensuing calendar year" shall be added after the words
"total energy," a semicolon shall be added after the words "Nuclear
Facility," and the remainder of the paragraph shall be deleted.
In paragraph "b" the words "Contract Year" shall be deleted and
replaced with the words "calendar year," and the words "desired by the
Purchaser or the District, as the case may be," shall be deleted.
In paragraph "c" the words "At least eight hours before 12:01 A.M.,
C.S.T." shall be deleted and replaced with the words "By 8:00 A.M., C.P.T."
and the words "shall be provided to the Purchaser for the next day"
followed by a period (".") shall be inserted after the words "energy
deliveries" and the remainder of the sentence shall be deleted. In
addition, the following words shall be added at the end of the foregoing:
"The District shall separately identify any amounts being scheduled as
Supplementary Energy, as well as any amounts of such Supplementary Energy
scheduled to be delivered to mutually agreeable points other than the
Nuclear Facility switchyard."
In addition the next to last paragraph of Section 7, added to the
Contract by Amendment Number 2, shall be deleted.
In the last paragraph of Section 7 the phrase "Contract Year" shall be
deleted and replaced by the phrase "calendar year" each time the former
phrase appears in the paragraph. In addition the words "agree on" shall be
deleted and replaced by the phrase "consult regarding."
7. In Section 10 of the Contract the first paragraph shall be
designated as paragraph "a," and the following words shall be inserted
between the words "Purchaser if" and "the District:" "the Nuclear Facility
is reduced below a net 650 MWh per hour and."
In addition, the second paragraph of the Contract shall be deleted and
the following paragaphs "b," "c" and "d" shall be added.
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"(b) If the amount of energy produced from the Nuclear Facility is
reduced below a net 650 MWh per hour due to External Uncontrollable Forces
(as hereinafter defined), fifty per cent of such reductions shall apply as
reductions to the Guaranteed Minimum Energy but only for so long as the
reduction is attributable to the event or circumstance creating the
External Uncontrollable Forces. For purposes of this Contract, External
Uncontrollable Forces means an event or circumstance which prevents the
District from performing its obligations under this Contract, which event
or circumstance was not anticipated or foreseeable, which event or
circumstance is not within the control of, or the result of the negligence
of the District, and which, by exercise of due diligence, the District is
unable to overcome or avoid or cause to be avoided. Reductions in the
Nuclear Facility's production due to any of the following: (i) the
breakage, accident or failure of materials, machinery, equipment, and
personnel resulting from causes other than External Uncontrollable Forces;
or (ii) voluntary or regulatory shutdowns shall not apply as reductions to
the Guaranteed Minimum Energy obligation. Reductions in the Nuclear
Facility's production due to any of the following: (i) storm damage; (ii)
low Missouri River water levels or high Missouri River water temperatures;
or (iii) acts of war or terrorism (including, but not limited to,
government-ordered shutdowns of nuclear plants due to a threat of
terrorism) shall be considered External Uncontrollable Forces and shall
apply as reductions to the Guaranteed Minimum Energy obligation. The
District shall provide reasonable documentation supporting the declaration
of an External Uncontrollable Force to Purchaser. Any and all benefits or
proceeds received by the District as a result of any remedy associated with
the External Uncontrollable Force caused by a third party shall be shared
equally between the parties; however, the sum of the value MidAmerican
receives under paragraph "c," below, plus its share of the benefits or
proceeds referred to in the prior sentence, shall not exceed the value of
the energy Purchaser was entitled to receive but did not receive due to the
External Uncontrollable Force.
"(c) To the extent the District fails to deliver to the Purchaser in
either 2003 or 2004, the Guaranteed Minimum Energy as originally
established, due to External Uncontrollable Forces, the District shall pay
within 30 days after the end of such year to the Purchaser, an amount of
[confidential information intentionally deleted] (during 2003) and
[confidential information intentionally deleted] (during 2004) per MWh it
fails to deliver in such year."
"(d) If the District reduces Total Delivered Energy due to an External
Uncontrollable Force to an average less than a net 190 MWh per hour over a
six (6) month period, then the Purchaser may serve written notice upon the
District of the Purchaser's intention to terminate the Contract within ten
(10) business days. Any such termination shall not relieve the District
from any liability for damages or prevent Purchaser from obtaining any
other remedy(ies) allowable at law or equity for breach of this Contract."
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8. The contents of Sections 12 and 13 of the Contract shall be deleted
and replaced in each instance with a new title: "Reserved."
9. The contents of Section 14 of the Contract shall be deleted and
replaced with the following:
The Purchaser certifies that it continued its purchase of insurance
applicable to 50% of the ▇▇▇▇▇▇ plant for primary nuclear property
insurance, excess nuclear property insurance, and nuclear accidental
outage insurance through, and including, the execution date of
Amendment 6.
10. In the heading for Section 15, the words "OF EHV FACILTIES" shall
be added after the word "MAINTENANCE". In addition, line 2 of amended
Section 15, of the Contract, the following words "Nuclear Facility and the"
shall be deleted.
In addition, after the sentence ending with the words "safety and
expedition" the following shall be added: "Notwithstanding any other
provision of this Contract, all operating and maintenance and renewal and
replacement projects that are projected to cost in excess of [confidential
information intentionally deleted] shall require the prior consent of
Purchaser for the Purchaser to be obligated to pay its 50% share of such
projects, or if in the aggregate all such costs exceed [confidential
information intentionally deleted] in a given calendar year all such costs
shall require the prior consent of Purchaser for the Purchaser to be
obligated to pay its 50% share of such projects, which consent shall not be
unreasonably withheld. The District shall provide Purchaser with economic
and engineering analysis that examines the costs and benefits of all
proposed projects that are projected to cost in excess of [confidential
information intentionally deleted]. The parties' Transmission Operating
Agreement dated February 20, 1968, as amended, is not amended by the
parties' Amendment 6 to this Contract.
In addition, in Section 15, in the third to last sentence the words
"the Nuclear Facility and" shall be deleted, the words "and maintenance"
shall be inserted after the word "operating," and the last two sentences
shall be deleted.
11. The contents of Sections 16 and 17 of the Contract shall be
deleted and replaced in each instance with a new title: "Reserved."
12. In Section 18 of the Contract the words "Nuclear Facility and the"
shall be deleted, and the words ", and paid by the District," shall be
inserted after the words "EHV Facilities" and placement of a comma (",")
after the word "insurance."
In addition, the following words shall be added after the words "shall
be paid:" "50% by the Purchaser to the District as part of the Monthly
Power Costs, provided the liability is not due to or does not arise out of
the District's failure to operate and maintain and make renewals and
replacements to the EHV Facilities consistent with Section 15 of this
Contract."
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13. The contents of Sections 20 through and including 23 of the
Contract shall be deleted and replaced in each instance with a new title:
"Reserved."
IN WITNESS WHEREOF, Purchaser and the District have caused this
Amendment Number 6 to be executed by their duly authorized officers and
delivered in counterparts, each of which when so executed and delivered
(whether in person or by facsimile) shall be an original, and the
counterparts taken together shall constitute one instrument.
NEBRASKA PUBLIC POWER DISTRICT MIDAMERICAN ENERGY COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Vice-President Senior Vice-President
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