OFFER SHEET
(Insert Date)
Jill Horswell
Manager of Power Contracts
Southern California Edison Company
2244 Walnut Grove Ave., Quad 1C
Rosemead, CA 91770
Re: Offer to Sell Electrical Generating Capacity to Southern California Edison Company
Dear Ms. Horswell:
In response to the Request for Offers (“RFO”), dated October 25, 2004, ( insert company name ) (“Seller”) hereby submits its Offer to sell (i) electrical call options; (ii) unit commitment call options; and/or (iii) rights to schedule and dispatch generating capacity, associated energy, or ancillary services to Southern California Edison Company (“SCE”).
Specifically, this offer sheet letter (“Offer Sheet”) and the respective “Confirmation(s)” enclosed with it set forth the specific terms and conditions under which Seller proposes to sell (i) electrical call options; (ii) unit commitment call options; and/or (iii) rights to schedule and dispatch generating capacity, associated energy, or ancillary services to SCE and which, if accepted by SCE, would serve as the basis for a transaction governed by an EEI Master Power Purchase and Sale Agreement (“Master Agreement”)and the EEI Collateral Annex (“Collateral Annex”) between SCE and Seller.
Capitalized terms used in this Offer Sheet that are not otherwise defined herein are used with the meanings ascribed to them in the Master Agreement and Collateral Annex, or the California Independent System Operator’s (“CAISO”) tariff and protocol provisions (as amended from time to time, the “Tariff”). References to “dollars” in this Offer Sheet are to United States dollars.
A. SELLER INFORMATION
1. Seller’s exact and complete name, form of organization (e.g. corporation, limited liability company) and state of incorporation or organization. ______
2. Seller’s enabling agreement with SCE ( check one ):
[ ] New Master Agreement and Collateral Annex (complete subsections A3 through A9 and the attached EEI Cover Sheet to the Master Agreement and Paragraph 10 to the Collateral Annex if Seller and SCE are not parties to a Master Agreement including a Collateral Annex.).
[ ] Existing Master Agreement and Collateral Annex (skip subsections A3 through A-6, but complete A-7 and the attached EEI Amendment if Seller and SCE are parties to a Master Agreement including a Collateral Annex).
3. Seller’s principal business. ______
4. The address of Seller’s principal business office. ______
5. The information required by items A1 though A3 above with respect to: Seller’s ultimate corporate parent if Seller is a subsidiary of any other corporation; and/or each of Seller’s general partners if Seller is a partnership; and/or each of Seller’s joint venturers if Seller is a joint venture (identifying the controlling joint venturer); and/or each of Seller’s members if Seller is a consortium or other association or organization (identifying the controlling member); and/or each member of the group of persons acting in concert if Seller is a group or member of a group acting in concert for purposes of this Offer (identifying the controlling member). ______
6. The information required by items A1, A3 and A4 above with respect to Seller’s Guarantor, if any.
7. The name, title, address (not a P.O. box) where FedEx or courier packages may be delivered, and telephone and fax number of at least two representatives of Seller authorized to act on behalf of Seller with respect to any inquiries, clarifications, or other communications related to the RFO process. ______
8. Attach a copy of Seller's or Guarantor’s most recent Annual Report to shareholders or Annual Report on Form 10-K and all subsequent quarterly filings on Form 10-Q as filed with the Securities and Exchange Commission ("SEC") containing audited, in the case of Form 10-K, or unaudited, in the case of Form 10-Q, financial statements of Seller or Guarantor, or if applicable, each member of the bidding group (or if any member is a subsidiary of a partnership whose general partner(s) is (are), a joint venture whose controlling venturer(s) is (are), a consortium or other association or organization whose controlling member(s) is (are), or a group acting in concert whose controlling member(s) is (are), required to file reports under the Securities Exchange Act of 1934, the most recent Annual Report to shareholders or Annual Report on Form 10-K as filed with the SEC containing audited financial statements of each such reporting person). If none of the foregoing applies, attach a copy of the most recent audited annual financial statements, including certified independent accountants report thereon, and subsequent quarterly financial statements of the Seller or Guarantor, or if applicable, each member of the bidding group and, the Seller's or each member of the bidding group's general partners, controlling joint venturer, or controlling member, for at least the three prior full fiscal years or, if shorter, the life of such Seller or member of a bidding group or its general partners or such controlling persons. Include with the audited financial statements, information related to the history of the Seller or member of the bidding group and a description of its business and material matters relating to such business, including the level of detail that would be required if the Seller or member of the bidding group were subject to the disclosure requirements of Items 3 and 7 of Form 10-K.
9. If a new facility is being proposed, the Seller must provide a complete description of the project and its financing plan. Description should include the following:
a. Total project cost
b. Amount and type of financing (sources and amount of debt and equity)
c. Description of construction period financing
d. Description operation period financing
e. Description of credit facilities: type (term loan or revolver; secured or unsecured), tenor, interest rate, significant covenants, amortization schedule, and term-out provisions.
f. Pro-forma projections showing cash flow, income statement, balance sheet, sources and uses of funds, construction draw schedule, debt service, debt coverage ratios and all the assumptions in the model.
B. MULTIPLE OFFERS
SCE invites multiple offers within this RFO. Seller should complete and submit a separate Confirmation for each Product (as defined in SCE’s transmittal letter dated October 25, 2004 [“Transmittal Letter”]) offered but need only submit one Offer Sheet. If Seller has submitted multiple Confirmations to SCE in response to this RFO, Seller shall specify a Unique Identifying Number for each Confirmation submitted under this Offer Sheet (the recommended format is an abbreviated name for the Seller followed by a unique, sequential identifying number):
C. CREDIT AND COLLATERAL REQUIREMENTS
Seller's offer is structured as follows (check one):
[ ] This offer DOES NOT require SCE to post collateral. (The credit terms in the Master Agreement and the Collateral Annex shall govern the transaction(s) contemplated in this offer, provided, however, that for purposes of calculating exposure pursuant to Article 8.1 (b) and 8.1 (d) of the Master Agreement and Paragraph 3 of the Collateral Annex, if the Seller has exposure to the Buyer in respect of this transaction(s), then the amount of the exposure for this transaction(s) is deemed to be $0.)
[ ] This offer DOES NOT require SCE to post collateral, and the offer has been
adjusted by ($/(kW-mo) to accommodate this provision.
[ ] This offer DOES require SCE to post collateral. (The credit terms in the Master Agreement and the Collateral Annex shall govern the transaction(s) contemplated in this offer). Seller acknowledges that Offers requiring SCE to post collateral will be assessed negatively in SCE's evaluation process to reflect the implied potential impact on SCE's liquidity.
D. ADDITIONAL CONDITIONS
Any additional conditions on Seller’s Offer(s) to SCE are specified below. Identify the Unique Identifying Number of the Confirmation to which the conditions apply.
______
E. Seller’s waiver of claims and limitation of remedies
Except as expressly set forth in the Transmittal Letter (including all attachments thereto, including without limitation this Offer Sheet), by submitting an Offer, Seller knowingly and voluntarily waives any rights under statute, regulation, state or federal constitution or common law to assert any claim or complaint or other challenge in any regulatory, judicial or other forum, including the California Public Utilities Commission (“CPUC”), except as expressly provided below, the Federal Energy Regulatory Commission (“FERC”) the Superior Court of the State of California (“State Court”) or United States District Court (“Federal Court”) concerning or related in any way to the RFO, or the Transmittal Letter (including all attachments thereto)(“Waived Claims”). The assertion of any Waived Claims by Seller at the CPUC, FERC, State Court or Federal Court, or otherwise, shall, to the extent that Seller’s Offer has not already been disqualified, automatically disqualify such Offer from further consideration in the RFO or otherwise, and may result in SCE’s electing 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 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, that the sole basis for any such protest shall be that SCE allegedly failed in a material respect to conduct the RFO in accordance with the Transmittal Letter and 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 RFO that the CPUC determines was not previously conducted in accordance with the Transmittal Letter. 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 has issued an order suspending the RFO or SCE has elected to terminate the RFO.
Seller agrees to indemnify and hold SCE harmless from any and all claims by any other Seller asserted in response to the assertion of a 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 Transmittal Letter (including all attachments thereto), nothing herein, including Seller’s waiver of the Waived Claims as set forth above, shall in any way limit or otherwise affect the rights and remedies of SCE.
F. seller’s representation and warranties; binding offer
Each Seller submitting an Offer shall be deemed to have made the following representations and warranties to SCE, which Representations and Warranties shall be deemed to be incorporated in their entireties into each 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 Transmittal Letter, including all attachments thereto.
2. Seller has had the opportunity to seek independent legal and financial advice of its own choosing with respect to the RFO, the Transmittal Letter and all attachments thereto, including this Offer Sheet.
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, executing a Confirmation with SCE in substantially one or more of the forms attached to the Transmittal Letter.
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 an communications with any other actual or potential participant in the RFO concerning the RFO process, 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 the RFO.
6. If Seller is placed on the short list or is otherwise eligible to submit a final Offer, such final Offer submitted by Seller is a binding Offer subject only to SCE’s acceptance, in SCE’s sole discretion, at any time prior to acceptance by SCE or by 2:00 PPT on Friday January 28, 2005.
7. Seller is not an affiliate of SCE, Edison International or any of their subsidiaries of affiliates.
8. The information submitted by Seller to SCE in connection with the RFO, including information in this Offer Sheet and all information submitted as part of the Complete Offer Submittal Package described in the Transmittal Letter is true and accurate as of the date hereof. Seller covenants that such information will be promptly updated by Seller upon any material change thereto.
In addition, Seller’s execution of this Offer Sheet is Seller’s acknowledgement that (a) SCE will rely upon all representations in the final offer submitted by Seller if it is short listed; (b) SCE may in its sole discretion disclose the contents of the Offer Sheet and Confirmation(s), and Seller’s final offer, if any, the fact that Seller submitted an offer, and/or the terms of any proposed agreement based on Seller’s offer (all, “Seller’s Offer Information”) to duly authorized regulatory and governmental agencies, including without limitation the California Public Utilities Commission (“CPUC”) and all divisions thereof, and to SCE’s Procurement Review Group, a group of non-market participants including members of the CPUC, other governmental agencies (including the California Energy Commission) and consumer groups established by the CPUC in CPUC Decision 02-08-071 and (c) SCE is not liable for any disclosure of Seller’s Offer Information by any of the third parties to whom SCE discloses such information under (b), above.