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 Bill 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/ Connie Stechman ------------------------------- Name: Connie Stechman ----------------------------- Title: Assistant Secretary ---------------------------- Owner: Tuaropaki Power Company Limited By: /s/ Martin Douglas Heffernan ------------------------------- Name: Martin Douglas Heffernan ----------------------------- Title: Director ----------------------------
Ormat (ORA) S-1IPO registration
Filed: 21 Jul 04, 12:00am