Addendum Brightergy Easement Agreement

8/13/2019 Addendum Brightergy Easement Agreement

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46537416.2

ADDENDUM TO SOLAR SERVICE AND EASEMENT AGREEMENT

ADDENDUM (this Addendum) to Solar Service and Easement Agreement (theService Agreement) is made as of November ____, 2013, by and between Brightergy, LLC, aMissouri limited liability company (Lessor) and the City of Webster Groves, Missouri, aMissouri municipality (Lesseeand, with Lessor, the Parties). All terms not otherwise definedherein shall have the meaning ascribed in the Service Agreement.

WHEREAS, this Addendum is entered into contemporaneously with the ServiceAgreement and is a material inducement to Lessees execution and delivery of the ServiceAgreement; and

IN CONSIDERATION OFthe premises, and intending to be legally bound hereby, theParties agree as follows:

1. This Addendum amends and modifies the Service Agreement. If and to the extentany provision, or the application of any provision, of the Service Agreementconflicts or is inconsistent with this Addendum, this Addendum shall control inall respects and the Service Agreement shall be deemed amended and modifiedhereby.

2. Section 1 of the Service Agreement is amended in the following respects:(a) in the definition of Commercial Operations Date deleting the following

sentence: In the event the Solar System begins Commercial Operationson the first day of a calendar month such date shall be the Commercial

Operations Date. Also, at the end of subparagraph (a), add the following,In the event that Lessor is unable to obtain approval of an application forthe full $50,000 rebate offered by Ameren UE on or before December 30,2013, then this Agreement and Lease shall be void nunc pro tunc withoutfurther action required by either party and shall be as if the Agreementwere never made;

(b) in the definition of Due Date deleting the words and figures and 13.;

(c) in the definition of Initial Term adding to the end the words and figures, subject to earlier termination pursuant to Section 9 hereof.; and

(d) in the definition of Term substituting for the words and figures Section4(f) the words and figures Section 4(d).

3. Section 2 of the Service Agreement is amended in the following respects:(a) adding to subsection (a), after conditions hereinafter set forth, the

words for the Term;


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(b) in subsection (b)(i) substituting for the words first day the words firstbusiness day, and adding after the word regularly the words on thefirst business day of each month (the Due Date),; and

(c) adding to subsection (b)(ii), after the words and to pay, the wordover, substituting for the words such payment the words the same,and at the end of the penultimate sentence substituting for the words suchpayment the words collected funds..

4. Section 3 is amended by adding after the words over and across the Site thewords solely for the purpose set forth in the Agreement, and by inserting beforethe words necessary for completion the word reasonably.

5. Section 4 of the Service Agreement is amended in the following respects(a) adding to subsection (a) after the clause Lessor shall be the word

solely and after the words installation of the Solar System the words

, including making the same fully operational for the purposecontemplated by the Agreement;

(b) adding to subsection (a)(ii), before each incidence of the wordnecessary contained therein, the words reasonably;

(c) adding at the end of subsection (c) the words provided at Section 11.;and

(d) adding to subsection (k), before the word negligence, the word gross.

6. Section 8 of the Service Agreement is amended by adding before the wordresponsible the word solely.

7. Section 9 of the Service Agreement is amended in the following respects:(a) substituting for the words unless either Party the words provided the

Lessee;

(b) substituting for the words to the other Party the words to Lessor;

(c) substituting for the words and figures (six 6) months the words andfigures (three 3) months; and

(d) deleting the last two (2) sentences in their entirety and substituting thefollowing: Unless otherwise expressly agreed to in writing by the Parties,upon renewal as provided herein, the terms and conditions of thisAgreement shall remain the same except that Rent shall increase by 2%for each additional Renewal Term.

8. Section 11 of the Service Agreement is amended in the following respects:


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(a) in the third (3rd) sentence, after the clause shall remove anyencumbrances placed, adding the words or suffered; and

(b) deleting the last two (2) sentences in their entirety and substituting thefollowing: The Fair Market Value shall be the amount that Lessorand Lessee agree is the then saleable value of the Solar System in atransaction between a willing seller and a willing buyer taking intoconsideration however, the value of the used equipment, cost to a buyerto return roof to original condition, and cost to a buyer to remove thesystem. The Fair Market Value shall not be a negative number.

9. Section 15 of the Service Agreement is amended in the following respects:(a) deleting and Lessee in the first line;

(b) deleting the other Party in the second line and adding in lieu thereof,the word Lessee;

(c) deleting the words (each, in such case, an Indemnified Party) from thesecond and third lines; and

(d) deleting the Indemnifying Partys from the sixth line and adding in lieuthereof, the word Lessors.

10. Section 16 of the Service Agreement is amended in the following respects:(a) adding to the end of subsection (b)(i) the words and restoring the roof

to its original condition;;

(b) adding to subsection (b)(ii): (i) before the words all remainingpayments the words then present, and (ii) before the words subject torecapture the word then; and

(c) adding to subsection (b)(iii): (i) before the word expenses the wordreasonable, and (ii) after the words attorneys fees the word costs.

11. Section 21 of the Service Agreement is amended in the following respects:(a) deleting the entirety of the last sentence thereof and replacing it with the

following: No such assignment shall be effective until written notice

of such assignment is provided to Lessee and such assignment shallrelieve Lessor from any present or future performance, liabilities, andobligations under this Agreement..

12. This Addendum may be executed in one or more counterparts which need not besigned by each party hereto so long as each party signs a counterpart. All suchcounterparts shall be considered one and the same instrument, and shall be


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deemed to be incorporated with and into the Service Agreement upon executionwhether or not physically attached or affixed thereto.

IN WITNESS WHEREOF, Lessor and Lessee have executed this Addendum as of theday and year first above written.

LESSOR: BRIGHTERGY, LLC.

By: _________________________________Name: _______________________________Title: ________________________________

LESSEE: THE CITY OF WEBSTER GROVES, MISSOURI

By: _________________________________Name: _______________________________Title: _______________________________

Documents

Addendum Brightergy Easement Agreement