Offer Sheet


Table of Contents
Exhibit C.5
Offer Sheet

A. Covenant To Provide Information 3

B. Seller Information 3

C. Project Information 4

D. Definitive Agreement Pricing and Operating Information 4

E. Conditions Precedent 4

F. Offer Deposit 4

1. Offer Deposit 4

2. Conditions For Return of Offer Deposit 5

G. Additional Conditions 5

H. Seller’s Waiver Of Claims and Limitation Of Remedies 5

I. Seller’s Representations, Warranties and Covenants; Binding Offer 6

J. Confidentiality Agreement 8

K. Signature 9

Attachment B.1 Special Purpose Entity Information 10

Attachment B.2 Seller’s Principal Business 11

Attachment B.3 Seller’s Principal Business Address 12

Attachment B.4 Parent or Consortium Information 13

Attachment B.5 Guarantor Information 14

Attachment B.6 Seller’s Organizational Chart 15

Attachment B.7 Annual Report, Form 10-K, Form 10-Q, Audited Financial Statement 16

Attachment B.8 Debt Ratings 17

Attachment B.9 Seller’s Experience Information 18

Attachment B.10 Delivery Information 19

Attachment B.11 Accounting Considerations Information Request List 20

Attachment B.12 Market-Based Rate Authority Status 21

Attachment C.1 Project Schedule 22

Attachment C.2 Project Description 24

Attachment C.3 Project Finance Information 25

Attachment C.4 Site Description and Site Control Information 26

Attachment C.5 Interconnection Information 27

Attachment C.6 Fuel Supply Plan 28

Attachment C.7 Permitting 29

Attachment C.8 Project Construction 30

Attachment C.8.1 Monthly Project Progress Report (suggested minimum content) 31

Attachment C.9 Project Labor Agreements 32

Attachment C.10 FERC Certification 33

Attachment F Documentation of Offer Deposit Submittal 34

Attachment F.1 Letter of Credit 35

Attachment G Additional Conditions 38

Attachment J Confidentiality Agreement 39


[Click here and insert date]

Mike Marelli

Manager of Power Contracts

Southern California Edison Company

2244 Walnut Grove Ave., Quad 1C

Rosemead, CA 91770

Re: Offer to Sell to SCE

Dear Mr. Marelli:

In response to the RFO dated August 14, 2006, [Click here and insert name entered in Attachment B.1. below], or Seller, hereby submits its Offer to sell exclusive rights to schedule and dispatch[1] electrical Capacity, Energy, Ancillary Services, and Resource Adequacy Benefits from specific Generating Units to SCE.

Specifically, this “Offer Sheet” sets forth the terms and conditions under which Seller proposes to sell rights to schedule and dispatch electrical Capacity, Energy, Ancillary Services, and Resource Adequacy Benefits to SCE and which, if accepted by SCE, would serve as the basis for a Definitive Agreement between SCE and Seller, containing terms substantially similar to those in the PPA contained in the RFO.

Capitalized terms used in this Offer Sheet that are not otherwise defined herein are used with the meanings ascribed to them in the other RFO Documents, including without limitation the PPA, the Transmittal Letter and the RFO Definitions. References to “dollars” in this Offer Sheet are to United States dollars.

A. Covenant To Provide Information

Seller has provided or will provide all of the information requested in Attachment B.1 through Attachment J of this Offer Sheet. If any requested information is not available as of the date Seller submits this Offer Sheet to SCE, Seller must identify in the timeline, discussed in Attachment C.1, below, the specific date such information will be provided to SCE (such date(s) not to extend beyond the deadline to submit Final Offers as set forth in the applicable RFO Schedule in Section C of the Transmittal Letter) and Seller covenants that it will provide the information to SCE by the date(s) identified. Seller covenants that it will provide SCE with a monthly report containing information identified in the attachments to this Offer Sheet.

B. Seller Information

  1. In Attachment B.1, Seller has provided special purpose entity information.
  2. In Attachment B.2, Seller has described its principal business.
  3. In Attachment B.3, Seller has provided the address of its principal business office.
  4. In Attachment B.4, Seller has provided or will provide certain parent or consortium information.
  5. In Attachment B.5, Seller has provided or will provide Guarantor information if Seller proposes to provide a guaranty to SCE.
  6. In Attachment B.6, Seller has provided an organizational chart for Seller showing each level of ownership up to the ultimate parent.
  7. In Attachment B.7, Seller has provided certain Annual Reports, Forms 10-K, Forms 10-Q, and audited financial statements, if applicable.
  8. In Attachment B.8, Seller has provided its debt ratings, if any.
  9. In Attachment B.9, Seller has provided its experience in developing projects in California.
  10. In Attachment B.10, Seller has provided delivery information.
  11. In Attachment B.11, Seller will provide certain company/partnership and accounting information if requested by SCE.
  12. In Attachment B.12, Seller has provided information about the status of its Market-Based Rate Authority, if applicable.

C.  Project Information

  1. In Attachment C.1, Seller has provided its Project schedule.
  1. In Attachment C.2, Seller has provided its Project description.
  2. In Attachment C.3, Seller has provided or will provide Project financing information.
  3. In Attachment C.4, Seller has provided or will provide Site description and Site control information.
  4. In Attachment C.5, Seller has provided or will provide interconnection information consistent with the requirements of the applicable RFO Schedule in Section C of the Transmittal Letter.
  5. In Attachment C.6, Seller has provided a Fuel Supply Plan.
  6. In Attachment C.7, Seller has provided or will provide permitting information.
  7. In Attachment C.8, Seller has provided or will provide Project construction information.
  8. In Attachment C.9, Seller has provided a summary of any labor agreements covering or otherwise applicable to the Project, including information regarding the term remaining under any such agreement(s).
  9. In Attachment C.10, Seller has provided or will provide its FERC Certification of a QF Project, if applicable.

D.  Definitive Agreement Pricing and Operating Information

All proposed Project pricing terms, operating information and other conditions are provided in the attached PPA contained in Seller’s Complete Offer Submittal Package.

E. Conditions Precedent

Seller acknowledges that SCE’s obligations under any Definitive Agreement shall only become effective upon satisfaction of all conditions precedent set forth in such Definitive Agreement including, but not limited to, attainment of Final CPUC Approval of the Definitive Agreement, FERC Approval of the Definitive Agreement, if applicable, and delivery to SCE of all required documentation required under the Definitive Agreement.

F. Offer Deposit

1.  Offer Deposit

Seller agrees and acknowledges that it must submit an Offer Deposit in accordance with the terms of this Section F. In Attachment F, Seller has documented its Offer Deposit submittal. Seller’s Offer Deposit is in the form of a Letter of Credit or cash in the amount of the greater of (a) $500,000 or (b) the product of $5,000 per MW and the Project’s Contract Capacity in MW. If the proposed Offer for a Project contains multiple or optional configurations with varying Contract Capacities, the Offer Deposit for such Project was calculated using the maximum Contract Capacity among the presented options. If the Seller is proposing more than one Project that is not mutually exclusive, then Seller has submitted multiple Offer Deposits with each Offer Deposit determined in accordance with this Section.

2.  Conditions For Return of Offer Deposit

Seller agrees and acknowledges that the Offer Deposit will only be returned under the circumstances and within the time frames set forth below and that SCE will have no liability for failing to refund the Offer Deposit under any circumstances other than as set forth below:

  1. Within five Business Days after SCE rejects Seller’s Offer.
  2. Within five Business Days after Seller withdraws its Offer.
  3. Within five Business Days after the deadline to submit Definitive Agreements to the CPUC, if a Definitive Agreement has not been fully executed by Seller and SCE.
  4. On October 31, 2007 or October 31, 2008, as applicable, if Seller and SCE have executed a Definitive Agreement but the conditions precedent in the Definitive Agreement have not been satisfied by that date.
  5. If Seller and SCE execute a Definitive Agreement, and the conditions precedent have occurred, within five Business Days after the following have occurred: (i) SCE provides Seller with written notice that the CPUC decision constitutes Final CPUC Approval, and (ii) Seller has posted Delivery Date Security.
  6. If Seller and SCE execute a Definitive Agreement, and the CPUC issues a decision on the Definitive Agreement by September 30, 2007 or September 30, 2008, as applicable, within five Business Days after SCE gives Seller written notice that the CPUC decision does not constitute Final CPUC Approval.

G.  Additional Conditions

If Seller’s Offer contains any additional conditions, Seller has specified them in Attachment G.

H.  Seller’s Waiver Of Claims and Limitation Of Remedies

Except as expressly set forth in the RFO Documents (including without limitation this Offer Sheet), by submitting an Offer, Seller knowingly, voluntarily, and completely waives any rights under statute, regulation, state or federal constitution or common law to assert any claim, complaint or other challenge in any regulatory, judicial or other forum, including without limitation, the CPUC, (except as expressly provided below), the FERC, the Superior Court of the State of California (“State Court”) or any United States District Court (“Federal Court”) concerning or related in any way to the RFO or any documents in the RFO Documents including all exhibits, attachments, and appendices thereto (“Waived Claims”). Seller further expressly acknowledges and consents that if it asserts any Waived Claim at the CPUC, FERC, State Court or Federal Court, or otherwise in any forum, to the extent that Seller’s Offer has not already been disqualified, SCE is entitled to automatically disqualify such Offer from further consideration in the RFO or otherwise, and further, SCE may elect to terminate the RFO.

By submitting an Offer, Seller further agrees that the sole forum in which Seller may assert any challenge with respect to the conduct or results of the RFO is at the CPUC. Seller further agrees that: (1) the sole means of challenging the conduct or results of the RFO is a complaint filed under Article 3, Complaints and Commission Investigations, of Title 20, Public Utilities and Energy, of the California Code of Regulations, (2) that the sole basis for any such protest shall be that SCE allegedly failed in a material respect to conduct the solicitation in accordance with the RFO; and (3) that the exclusive remedy available to Seller in the case of such a protest shall be an order of the CPUC that SCE again conduct any portion of the solicitation that the CPUC determines was not previously conducted in accordance with the RFO or any RFO Documents (including exhibits, attachments, and appendices). Seller expressly waives any and all other remedies, including, without limitation, compensatory and/or exemplary damages, restitution, injunctive relief, interest, costs and/or attorneys’ fees. Unless SCE elects to do otherwise in its sole discretion, during the pendency of such a protest the RFO and any related regulatory proceedings related to the RFO will continue as if the protest had not been filed, unless the CPUC issues an order suspending the RFO or SCE has elected to terminate the RFO.

Seller further acknowledges and agrees that if Seller asserts any Waived Claim, SCE shall be entitled to seek immediate dismissal of Seller’s claim, complaint or other challenge, with prejudice, by filing a motion to dismiss (or similar procedural device) supported by the language in this SectionH and that Seller will not challenge or oppose such a request for dismissal. Seller further acknowledges and agrees that if it asserts any Waived Claim, and if SCE successfully has that claim dismissed or transferred to the CPUC, Seller shall pay SCE’s full costs and expenses incurred in seeking such dismissal or transfer, including reasonable attorneys’ fees.

Seller agrees to indemnify and hold SCE harmless from any and all claims by any other Seller asserted in response to the assertion of any Waived Claim by Seller or as a result of a Seller’s protest to a filing at the CPUC resulting from the RFO.

Except as expressly provided in the RFO Documents, nothing herein, including Seller’s waiver of any Waived Claims as set forth above, shall in any way limit or otherwise affect the rights and remedies of SCE.

Seller acknowledges that it bears sole responsibility for submitting all applications and obtaining all permits, leases or mortgages, interconnection, financing, and any other agreements necessary for Seller to submit a Final Offer. Seller further acknowledges and agrees that SCE shall have no liability for any of the following:

·  Time required to complete any studies, obtain any required permits for project operation or enter into any agreements discussed or contemplated under Section C of this Offer Sheet (including without limitation Interconnection Studies, leases, mortgages, financing, or permits);

·  Time required to arrange for the construction of Network Upgrades necessary to meet the proposed Expected Initial Delivery Date;

·  Time to construct the Project; and

·  Time required to acquire environmental permits to construct or operate, including acquisition of any emission credits required by law or regulation.

I.  Seller’s Representations, Warranties and Covenants; Binding Offer

Each Seller submitting an Offer shall be deemed to have made the following representations, warranties, and covenants to SCE, which representations, warranties, and covenants shall be deemed to be incorporated in their entireties into Seller’s Offer(s). Seller shall execute and sign in the space provided below attesting to Seller’s agreement to be bound by the conditions of the RFO, including these conditions, in submitting Seller’s Offer.

  1. Seller has read, understands and agrees to be bound by all terms, conditions and other provisions of the RFO Documents.
  1. Seller has had the opportunity to seek independent legal and financial advice of its own choosing with respect to the RFO, the RFO Documents, including this Offer Sheet, including any appendices.
  2. Seller acknowledges and agrees that, in SCE’s evaluation of Offers pursuant to this RFO, SCE reserves the right to disqualify a Seller that is unwilling or unable to meet SCE’s credit requirements.
  3. Seller has obtained all necessary authorizations, approvals and waivers, if any, required by Seller as a condition of submitting its Offer and, if Seller’s Offer is selected and a Final Offer is submitted, executing a Definitive Agreement with SCE with substantially the substance of the PPA.
  4. Seller is submitting its Offer subject to all applicable laws and regulations.
  5. Seller has not engaged, and covenants that it will not engage, in any communications with any other actual or potential participant in the RFO concerning this solicitation, price terms in Seller’s Offer, or related matters and has not engaged in collusion or other unlawful or unfair business practices in connection with this RFO.
  6. If Seller is placed on the short list or is otherwise eligible to submit a Final Offer, any Final Offer submitted by Seller is a binding Offer subject only to SCE’s acceptance, in SCE’s sole discretion.
  7. The information submitted by Seller to SCE in connection with this RFO, including information in this Offer Sheet, Attachment B.1 through Attachment J, and all information submitted as part of the Offer Submittal Package as described in the Transmittal Letter, is true and accurate as of the date of this Offer Sheet.