Exhibit 10.5.2
AMENDMENT NO. 1
TO
ENGINEERING
PROCUREMENT AND CONSTRUCTION CONTRACT
This AMENDMENT NO.1 TO THE ENGINEERING, PROCUREMENT AND CONSTRUCTION CONTRACT
(the "Amendment") is made and entered into as of 2003 by and between
Tuaropaki Power Company Limited, a New Zealand corporation with offices at
Taupo, New Zealand ("Owner"), and Ormat Pacific Inc., a Delaware corporation
acting through its New Zealand branch with offices at Taupo, New Zealand
("Contractor").
RECITALS
A. Owner and Contractor are parties to the Engineering, Procurement and
Construction Contract dated as of August 23, 2002, (the "EPC Contract")
pursuant to which Contractor agreed to arrange for the design,
engineering, procurement, construction, fabrication, installation,
commissioning, start-up and testing of a geothermal power plant at
Owner's site located in Mokai, New Zealand.
B. Owner and Contractor wish to amend certain provisions of the EPC
Contract to clarify certain matters.
AGREEMENT
1. DEFINED TERMS
Terms defined in the EPC Contract shall have the same meaning when used in this
Amendment, unless specifically defined otherwise herein.
2. AMENDMENT TO EPC CONTRACT
With effect from the date of this Amendment:
(a) The definition of "Guaranteed Capacity" in Article 1 is
amended to read as follows:
"The level of net electrical generating capacity for the
Project guaranteed by Contractor, equal to 39 MW as corrected
to the Design Conditions using the Correction Curves and
formulas set forth in Exhibit D, as measured at the Power
Measuring Point of the switch yard as per Drawing
0.002.95.641.0 and adjusted to include the 110/220kV
transformer (T9) losses at Whakamaru but excluding line
losses."
(b) Article 9.1 will be amended by adding at the end of that
Article the following:
"Contractor acknowledges that construction and operational
experience from Mokai I may be relevant to the development of
technical data, design and other
documentation required for the performance of the Work
(including specification of the Equipment). Contractor agrees
to provide to Owner prior to the Owner giving a Notice to
Proceed under Article 5.1 a detailed listing of lessons
learned during the construction and operation of Mokai I,
together with details of the various design changes that have
been or are proposed to be implemented in respect of the
Project and/or the Equipment. Contractor further agrees that,
to the extent not already incorporated in the design of the
Project and/or the Equipment, it shall address those issues
raised as part of the design review process."
(c) The last sentence of subclause 13.1(b) appearing under Article
13.1 (Security Provided on Behalf of Contractor) will be
amended by replacing it as follows:
"The US$ Denominated L/C shall be reduced from time to time
upon arrival at the port of destination in New Zealand of
Equipment or parts thereof (as may be evidenced by a notice of
arrival issued by the shipping line agent) by the amounts
computed as described in Exhibit J-2, so that the US$
Denominated L/C will be reduced to 30% (Thirty Percent) of the
sum of the US dollar denominated portion of the EPC Contract
Price and the Supply Contract Price upon the completion of
arrival of the Equipment at the New Zealand port. The US$
Denominated L/C shall also be reduced from time to time by the
amount of insurance proceeds received for any goods lost,
destroyed or irrevocably damaged in marine transit and which
were paid into escrow pursuant to Article 15.5".
(d) Article 15.1 shall be amended by adding at the end of the
clause the following paragraph:
"The insurance to be maintained pursuant to sub-paragraph (b)
above shall include terrorism and war risk".
(e) Article 15.5 (Application of Insurance Proceeds) will be
amended as follows:
(i) after sub-clause (a), by adding a new sub-clause (b):
"where the insurance proceeds arise as a result of a
claim under the ocean marine shipment insurance
maintained pursuant to Article 15.1(b) and the
milestone payment for shipment of goods affected by
the event of loss was not received by Contractor or
Supplier, according to the case, (irrespective of
whether the obligation to pay has arisen) an amount
equal to the difference between the total insurance
proceeds paid in respect of the event of loss or
damage and the value of milestone payments under the
Milestone Payment Schedule or the Supply Contract
Milestone Payment Schedule paid by the Owner to the
Contractor or the Supplier as the case may be in
respect of that Equipment or other goods lost or
damaged shall be paid directly to Contractor."
(ii) by relettering sub-clause (b) as sub-clause (c), and
amending its sub-clause (iii) by replacing "under
Subsections 15.1(b) and (d)" with:
"under insurance referred to in Subsection 15.1(d),
and all insurance proceeds for events occurring and
covered by the insurance maintained under Subsection
15.1(b) in excess of amounts payable directly to
Contractor under
Section 15.5 (b) above".
(iii) by replacing the first sentence of the full paragraph
following renumbered sub-clause (c)(iii) as follows:
"Directions will be placed with the escrow agent that
the monies will be released from the account for each
milestone payment within 48 (forty-eight) hours
against presentation by Contractor or Supplier of
documents in accordance with the Milestone Payment
Schedule or the Supply Contract Milestone Payment
Schedule, as applicable (as such shall be adapted for
goods or works not specifically mentioned there)
verified by Owner's Representative as provided below,
and so that payment in full is due no later than the
supply (delivered to the New Zealand port as
evidenced by a notice of arrival issued by the
shipping line agent) of replacement goods and/or
completion of the rectification of the relevant parts
of the Work which had been lost, damaged or
destroyed."
(iv) at the end of Article 15.5 add the following:
"and provided further that the amount of the
insurance proceeds payable to the Owner under
sub-clauses (i) and (ii) above (in respect of any
Equipment lost, damaged or destroyed that has not
been replaced or rectified as of the date of
termination or in respect of other loss or damages
arising out of events giving rise to the claim) shall
be reduced by the amount received by the Owner as a
result of any claim on the US$ Denominated L/C
provided by Contractor pursuant to Article 13.2."
(f) Exhibit A shall be amended by adding to the end of the sixth
paragraph of clause 1.1 the words:
"Contractor acknowledges that construction and operational
experience from Mokai I may be relevant to the development of
technical data and design of the Project (including
specification of the Equipment) and has included in the design
of the Project those design revisions and modifications that
were implemented for Mokai I or an appropriate equivalent or,
to the extent not already implemented, will address those
issues in the design review process in accordance with Article
9.1."
(g) Exhibit A shall be amended by adding a new bullet point to
clause 3.3 as follows:
"Description of operational experience from Mokai I to be
addressed during the design review for the Project."
(h) Exhibit A shall be amended by adding a new section 4.11 as
follows:
"4.11 Interface with Mokai I
The Contractor acknowledges that Mokai I is an operational
plant and that in performing the Work the Contractor will
schedule all activities that involve direct interface with
Mokai I plant or systems in a manner to be mutually agreed
upon to accommodate the operational requirements of Mokai I
and shall at all times conduct the Work with a view to
minimising disruption to the operation of Mokai I"
(i) Schedule B to Exhibit D is amended by deleting the Correction
Curves contained therein and substituting the Correction
Curves attached as the Schedule to this Amendment.
(j) Exhibit J-2 (Form of Performance Bond) shall be amended as
follows:
(i) At the end of paragraph 2 (under the heading "Special
Conditions") add the words "and/or as payments from
insurance monies which were escrowed as a result of a
claim of loss under the ocean marine shipment policy
and which were received in connection with milestone
payments prior to shipment payments for replacement
goods."
(ii) In Paragraph 3 (under the heading "Special
Conditions"):
(aa) renumbering paragraph (a) as paragraph (a1);
(bb) adding a new subparagraph (a1)(3) after
subparagraph (a1)(2) as follows:
"(3) Copy of Notice of arrival of the shipment
of the equipment referred to in the Xxxx of
Lading issued by the shipping line agent"
(cc) Adding the following after " IA = the total
amount of the Invoices supporting such reduction
request."
"And/or
(a2) By an amount equal to a sum not to exceed
the amount stated in the escrow account agent's
statement under (2) below in a reduction request
to be presented to us by ORMAT in writing,
together with of the following documents:
(1) Copy of ORMAT's certificate certifying that
amounts have been claimed from the marine
cargo insurer for an event of loss of goods
in transit under the insurance maintained
by ORMAT or OPI.
(2) Copy of the escrow agent's statement
confirming the amount of the insurance
proceeds deposited into the escrow
account."
3. MISCELLANEOUS
3.1 This Amendment shall be effective on the date of execution.
3.2 This Amendment may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
3.3 Except as amended by this Amendment the EPC Contract remains in full
force and effect.
IN WITNESS WHEREOF, the parties have caused this Amendment to be executed as of
the date first above written.
Contractor Ormat Pacific Inc.
By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
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Title: Assistant Secretary
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Owner: Tuaropaki Power Company Limited
By: /s/ Xxxxxx Xxxxxxx Xxxxxxxxx
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Name: Xxxxxx Xxxxxxx Xxxxxxxxx
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Title: Director
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