SECOND AMENDMENT TO DEVELOPMENT, EPC AND PURCHASE AGREEMENT (PROJECT AALIYAH)
Exhibit 10.34B
*** Text Omitted and Filed Separately with the Securities Exchance Commission
Confidential Treatment Requested under 17 C.F.R. Sections 200.80(b)(4) and 230.406
SECOND AMENDMENT TO
DEVELOPMENT, EPC AND PURCHASE AGREEMENT
(PROJECT AALIYAH)
This SECOND AMENDMENT TO DEVELOPMENT, EPC AND PURCHASE AGREEMENT (this “Second Amendment”) is dated as of February 13, 2014 by and among Vivint Solar Developer, LLC, a Delaware limited liability company (“VSD”), Vivint Solar, Inc., a Delaware corporation (“VSI”, together with VSD, the “Sellers” and each a “Seller”), and Vivint Solar Aaliyah Project Company, LLC, a Delaware limited liability company (“Purchaser”).
RECITALS
WHEREAS, Sellers and Purchaser are each a party to that certain Development, EPC and Purchase Agreement dated as of November 5, 2013, as amended by that certain First Amendment to Development, EPC and Purchase Agreement, dated as of January 13, 2014 (the “Agreement”). Initially capitalized terms used but not otherwise defined herein shall have the meaning set forth in the Agreement.
WHEREAS, the Parties desire to amend the Agreement as set forth herein to modify certain provisions within the Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing, of mutual promises of the parties hereto and of other good and valuable consideration, the receipt and sufficiency of which hereby are acknowledged, the Parties hereby agree as follows:
| 1. | The definition of “Minimum Credit Criteria” in Section 1.1 of the Agreement is hereby amended to replace “***%” with “***%.” |
| 2. | The following racking suppliers are hereby added to Schedule 13 of the Agreement immediately below Zep Solar, Inc.: |
| • | Mounting Solutions |
| • | Ecofasten |
| • | Ecolibrium |
| 3. | Waiver. Purchaser hereby releases and discharges Sellers from any obligations that arose prior to the date hereof to satisfy the condition set forth in Section 2.3(n) of the Agreement that the Host Customers meet the Minimum Credit Criteria, provided that such waiver shall apply only to the extent that such Host Customers on the applicable Purchase Date satisfied the Minimum Credit Criteria as amended by this Second Amendment. |
| *** | Portions of this page have been omitted pursuant to a request for Confidential Treatment and filed separately with the Commission. |
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| 4. | Miscellaneous |
| a. | Ratification of Agreement. All other terms and conditions of the Agreement remain in full force and effect unless amended by the foregoing changes or any additional amendments made in a writing executed by all of the parties hereto. In the event of a conflict or ambiguity between this Second Amendment and the Agreement, this Second Amendment will control. |
| b. | Burden and Benefit. The covenants and agreements contained herein shall be binding upon and inure to the benefit of the heirs, executors, administrators, successors and permitted assigns of the respective parties hereto. |
| c. | Governing Law. This Second Amendment shall be construed and enforced in accordance with the laws of the State of New York. |
| d. | Counterparts. This Second Amendment may be executed in several counterparts, each of which shall be deemed to be an original copy and all of which together shall constitute one agreement binding on all parties hereto, notwithstanding that all the parties shall not have signed the same counterpart. |
| e. | Separability of Provisions. Each provision of this Second Amendment shall be considered separable and if for any reason any provision which is not essential to the effectuation of the basic purposes of this Second Amendment is determined to be invalid and contrary to any existing or future law, such invalidity shall not impair the operation of or affect those provisions of this Second Amendment which are valid so long as the economic and legal substance of this Second Amendment is not affected in any manner materially adverse to any Party. |
| f. | Entire Agreement. This Second Amendment, the Agreement and the documents referred to herein and therein (including the schedules and exhibits attached hereto and thereto) set forth all (and are intended by all parties to be an integration of all) of the representations, promises, agreements and understandings among the parties hereto with respect to the subject matter herein and therein, and there are no representations, promises, agreements or understandings, oral or written, express or implied, among them other than as set forth or incorporated herein or therein. |
[signature page follows]
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IN WITNESS WHEREOF, the parties have set their signatures to this Second Amendment to Development, EPC and Purchase Agreement as of the date first written above.
| SELLERS: | ||
| VIVINT SOLAR DEVELOPER, LLC, a Delaware limited liability company | ||
| By: | /s/ Paul Dickson | |
| Name: | Paul Dickson | |
| Title: | Vice President of Operations | |
| VIVINT SOLAR, INC., a Delaware corporation | ||
| By: | /s/ Paul Dickson | |
| Name: | Paul Dickson | |
| Title: | Vice President of Operations | |
| PURCHASER: | ||
| VIVINT SOLAR AALIYAH PROJECT COMPANY, LLC, a Delaware limited liability company | ||
| By: | /s/ Paul Dickson | |
| Name: | Paul Dickson | |
| Title: | Vice President of Operations | |
Acknowledged, Agreed and Consented to by the Members of Purchaser:
| STONECO IV CORPORATION, | ||
| a Delaware corporation | ||
| By: | /s/ John A. Magliano | |
| Name: | John A. Magliano | |
| Title: | Assistant Secretary | |
| VIVINT SOLAR AALIYAH MANAGER, LLC, a Delaware limited liability company | ||
| By: | /s/ Paul Dickson | |
| Name: | Paul Dickson | |
| Title: | Vice President of Operations | |
Signature Page to Second Amendment to Development, EPC and Purchase Agreement
(Project Aaliyah)
