Exhibit 10.3.37
FIRST AMENDMENT TO LEYTE OPTIMIZATION PROJECT BOT AGREEMENT
THIS FIRST AMENDMENT to LEYTE OPTIMIZATION PROJECT BOT AGREEMENT (this
"Amendment") is made as of February 29, 1996, between PNOC-ENERGY DEVELOPMENT
CORPORATION, a wholly owned subsidiary of the Philippine National Oil Company,
organized and existing under Philippine law ("PNOC-EDC") and ORMAT LEYTE CO.
LTD. a Philippine limited partnership ("Operator").
A. PNOC-EDC and ORMAT INC. a Delaware Corporation executed that certain
Leyte Optimization Project BOT Agreement dated August 4, 1995 which has been
assigned to the Operator (the "Original Agreement"), concerning the development
and operation of a 49 MW (net) geothermal power production facilities in Leyte
Province, the Philippines. All capitalized terms not defined herein shall have
the meanings given them in the Original Agreement.
B. PNOC-EDC and Operator each acknowledge that some but not all of the
conditions to "Effectivity" of the Original Agreement set forth in Sections
26.1, 26.2 and 26.3 of the Original Agreement have been fulfilled.
C. PNOC-EDC and Operator recognize that additional time is needed in order
to fulfill the remaining conditions to Effectivity set forth in Sections 26.1,
26.2 and 26.3 of the Original Agreement.
D. Section 15.1 of the Original Agreement provides, inter alia, that if by
the Effectivity Date of March 1, 1996, one or more of the conditions set forth
in Sections 26.1, 26.2 and 26.3 have not been fulfilled or waived by PNOC-EDC or
the Operator, as the case may be, the parties shall consult in good faith with a
view to achieving Effectivity. Furthermore, Section 3.1(a) states that if the
Effectivity Date does not occur on or before March 01, 1996, the parties shall
discuss and agree on any further extension of the Bid Security.
E. PNOC-EDC and Operator wish to amend the Original Agreement and the Bid
Security as more fully set forth in this Amendment.
NOW THEREFORE, the parties hereto, intending to be legally bound, and to
bind their successors and assigns, agree as follows:
1. Amendment of Section 3.1(a) of the Original Agreement.
Section 3.1(a) of the Original Agreement is hereby amended to read in its
entirety as follows:
(a) To guarantee the faithful performance by the Operator of its obligation
to completely construct the Power Plant in accordance with the terms and
conditions of this Agreement, within ten (10) days of the Effectivity Date the
Operator shall post and deliver the Construction Performance Security in a form
acceptable to PNOC-EDC in a sum equivalent to One Hundred Dollars (US $100) per
kilowatt (kW) of total Contracted Capacity for all the Plants or its equivalent
in Philippine Pesos or other currencies. Prior to such delivery, the Operator
shall ensure that the Bid Security required under the bid documents shall be
extended until such time the Construction Performance Security shall have been
posted and delivered; provided that, in the event that the Effectivity Date does
not occur on or before April 10, 1996, the parties shall discuss and agree on
any further extension of the Bid Security. PNOC-EDC shall have recourse to the
Construction Performance Security to satisfy the final judgment in an arbitral
proceeding in accordance with Article 21.
2. Amendment of Section 4.1(a) of the Original Agreement
Section 4.1(a) of the Original Agreement is hereby amended to read in its
entirety as follows:
(a) The Operator shall in good faith use all reasonable efforts to
construct the Power Plant in accordance with the following schedule:
Activity Date
Target Effectivity Date April 10, 1996
Ordering of long lead items the latter of (i) July 1, 1996 or (ii)
(turbogenerators) 120 days after the Effectivity Date
Start of Commissioning Period May 1, 1997
of Plants 1, 2 and 3
Start of Commissioning Period of October 1, 1997
Plant 4
Scheduled Completion Date for September 1, 1997
Plants 1, 2 and 3
Scheduled Completion Date for January 1, 1998
Plant 4
Guaranteed Commercial Operation September 25, 1997
Date for Plants 1, 2 and 3
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Guaranteed Commercial Operation January 25, 1998
Date for Plant 4
If the Commercial Operation Date of any Power Plant does not occur on or before
the relevant Guaranteed Commercial Operation Date, the Operator shall be subject
to the penalty provisions set forth in Section 4.11. The Operator, however, may
request for an extension of the relevant milestone dates.
3. Amendment of Section 15.1(b) of the Original Agreement
Section 15.1(b) of the Original Agreement is hereby amended to read in its
entirety as follows:
(b) If the Effectivity Date has not occurred by April 10, 1996, or within
such longer period as the parties may agree to, due to a failure of the
conditions set forth in Section 26.1 to have been satisfied prior to such date,
if such conditions have not been waived in writing by PNOC-EDC, the parties
shall consult with each other in good faith with the view to achieving the
Effectivity Date. If a mutually acceptable arrangement is not reached and
implemented within fifteen (15) days thereafter, either party shall have the
right to terminate this Agreement by giving written notice to the other party.
Upon such termination, PNOC-EDC shall return to the Operator all security held
by PNOC-EDC in connection with this Agreement, including any bid securities,
letters of credit and bank guarantees, the Operator shall reimburse PNOC-EDC for
all costs and expenses incurred by PNOC-EDC as of the date of and in connection
with this Agreement except those of PNOC-EDC related to the preparation of the
request for proposals and the bid evaluation until such termination, and
thereafter, neither party shall have any further liability to the other and this
Agreement shall immediately and automatically become null and void.
Notwithstanding anything to the contrary in this Agreement, this provision shall
become effective upon execution of this Agreement and shall remain effective
until the Effectivity Date.
4. Amendment of Section 15.1(c) of the Original Agreement
Section 15.1(c) of the Original Agreement is hereby amended to read in its
entirety as follows:
(c) If the Effectivity Date has not occurred by April 10, 1996, or within
such longer period as the parties may agree to, due to a failure of the
conditions set forth in Section 26.2 to have been satisfied prior to such date,
if such conditions have not been waived in writing by the Operator, the parties
shall consult each other in good faith with the view to achieving the
Effectivity Date. If a mutually acceptable arrangement is not reached and
implemented within fifteen (15) days thereafter, either party shall have the
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right to terminate this Agreement by giving written notice to the other party.
Upon such termination, PNOC-EDC shall return to the Operator all security held
by PNOC-EDC in connection with this Agreement, including any bid securities,
letters of credit and bank guarantees, PNOC-EDC shall reimburse the Operator for
all costs and expenses incurred by the Operator as of the date of and in
connection with this Agreement, and thereafter, neither party shall have any
further liability to the other and this Agreement shall immediately and
automatically become null and void. Notwithstanding anything to the contrary in
this Agreement, this provision shall become effective upon execution of this
Agreement and shall remain effective until the Effectivity Date.
5. Amendment of Section 15.1(d) of the Original Agreement
(d) If the Effectivity Date has not occurred by April 10, 1996, or within
such longer period as the parties may agree to, due to a failure of the
conditions set forth in Section 26.3 to have been satisfied prior to such date,
if such conditions have not been waived in writing by both parties, the parties
shall consult each other in good faith with the view to achieving the
Effectivity Date. If a mutually acceptable arrangement is not reached and
implemented within fifteen (15) days thereafter, either party shall bear its own
costs and expenses. In the event, however, of the failure of the condition in
Section 26.3(a)(ii) other than for reasons due to adverse economic or political
conditions in the Philippines, and the parties do not waive the fulfillment of
this condition, either party may terminate this Agreement by giving written
notice to the other party, and the Operator shall reimburse PNOC-EDC as of the
date of and in connection with this Agreement except those of PNOC-EDC related
to the preparation of the request for proposals and the bid evaluation until
such termination. Neither party shall have any further liability to the other
and this Agreement shall immediately and automatically became null and void.
Notwithstanding anything to the contrary in this Agreement, this provision shall
become effective upon execution of this Agreement and shall remain effective
until the Effectivity Date.
6. General Ratification. Except as expressly amended hereby, all the terms
and provisions of the Original Agreement are hereby ratified and confirmed and
remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this First Amendment to Leyte
Optimization Project BOT Agreement as of the date first above written.
PNOC-ENERGY DEVELOPMENT CORPORATION,
a wholly-owned subsidiary of the
Philippine National Oil Company
By:
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/s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: President
ORMAT LEYTE CO. LTD.
a Philippine limited partnership
By: /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Title: Authorized Representative
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