Item 1.01
Entry into a Material Definitive Agreement.
Kern Phase 2(b) Acquisition and Amendment to Purchase, Sale and Contribution Agreement
As previously disclosed, on January 26, 2016, 8point3 Operating Company, LLC (“OpCo”), a wholly-owned subsidiary of 8point3 Energy Partners LP (the “Partnership”), entered into a Purchase, Sale and Contribution Agreement (as amended on September 28, 2016 and November 30, 2016, the “Kern Purchase Agreement”) with SunPower Corporation (“SunPower”), pursuant to which OpCo agreed to purchase (the “Kern Acquisition”) a photovoltaic solar generating project with an aggregate nameplate capacity of up to 21 MWac located in Kern County, CA and which consists or will consist of solar generation systems attached to fixed-tilt carports located at 27 school sites in the Kern High School District (the “Kern Project”). Ownership and cash flows of the Kern Project are subject to a tax equity financing arrangement with an affiliate of Wells Fargo & Company.
On February 24, 2017, the parties thereto entered into the Third Amendment to Purchase, Sale and Contribution Agreement (the “Kern Third Amendment”), pursuant to which the parties amended the Kern Purchase Agreement to reflect the division of the fourth phase of the Kern Acquisition into two closings and to extend the date by which the closing of the fifth phase shall occur to September 30, 2017. Pursuant to the Kern Third Amendment, the Kern Acquisition will be effectuated in the following five phases:
(i) on January 26, 2016, simultaneously with the execution of the Kern Purchase Agreement, 8point3 OpCo Holdings, LLC, a wholly-owned subsidiary of OpCo (“OpCo Holdings”), acquired 100% of the class B limited liability company interests of SunPower Commercial II Class B, LLC (“Kern Holdco”), which indirectly holds the Phase 1(a) assets as of such date;
(ii) on September 9, 2016, OpCo caused OpCo Holdings to make a contribution of capital to Kern Holdco, which was used to acquire the Phase 1(b) assets from a SunPower subsidiary;
(iii) on November 30, 2016, OpCo caused OpCo Holdings to make a contribution of capital to Kern Holdco, which was used to acquire the Phase 2(a) assets from a SunPower subsidiary;
(iv) on February 24, 2017, OpCo caused OpCo Holdings to make a contribution of capital to Kern Holdco, which was used to acquire the Phase 2(b) assets from a SunPower subsidiary (the “Phase 2(b) Acquisition”); and
(v) at a future closing date on or prior to September 30, 2017, OpCo will cause OpCo Holdings to make an additional contribution of capital to Kern Holdco, which will be used to acquire the Phase 2(c) assets from a SunPower subsidiary.
As previously disclosed, OpCo will pay an aggregate purchase price of up to $36.6 million in cash for the interest it acquires in the Kern Project, of which OpCo paid approximately $4.9 million on January 27, 2016 in connection with the closing of the first phase on January 26, 2016, approximately $9.2 million on September 9, 2016 in connection with the closing of the
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second phase on September 9, 2016, approximately $8.4 million on November 30, 2016 in connection with the closing of the third phase on November 30, 2016 and approximately $6.0 million on February 24, 2017
in connection with the closing of the fourth phase on February 24, 2017. OpCo will pay the remaining balance of the purchase price at the closing of the fifth phase based upon the MWac of the assets in such phase.
All other material terms and conditions of the Kern Purchase Agreement were unchanged.
The foregoing description is not complete and is qualified in its entirety by reference to the full text of the Kern Third Amendment, which is filed as Exhibit 2.1 to this Current Report on Form 8-K and incorporated herein by reference.
Amendment No. 6 to Amended and Restated Omnibus Agreement
On February 24, 2017, in connection with the Phase 2(b) Acquisition, the Partnership entered into Amendment No. 6 to Amended and Restated Omnibus Agreement (the “Kern Phase 2(b) Omnibus Amendment”) with the Partnership’s general partner, 8point3 General Partner, LLC (the “General Partner”), 8point3 Holding Company, LLC (“Holdings”), First Solar, Inc. (“First Solar”), SunPower and OpCo. The Kern Phase 2(b) Omnibus Amendment (i) amends the schedules to the parties’ existing Amended and Restated Omnibus Agreement dated April 6, 2016, as amended (the “Amended and Restated Omnibus Agreement”), to include the solar systems held indirectly by Kern Holdco at the closing of the Phase 2(b) Acquisition for all purposes, and (ii) adjusts the period pursuant to which SunPower is required to pay certain liquidated damages or repurchase sites that have yet to reach commercial operation under the Amended and Restated Omnibus Agreement with respect to 1.4 MWac of assets held by Kern Holdco.
All other material terms and conditions of the Amended and Restated Omnibus Agreement were unchanged.
The foregoing description is not complete and is qualified in its entirety by reference to the full text of the Kern Phase 2(b) Omnibus Amendment, which is filed as Exhibit 10.1 to this Current Report on Form 8-K and incorporated herein by reference.