Exhibit 6
June 26, 2003
Xxxxxx X. Xxxxxx, Esq.
Schwartz, Cooper, Xxxxxxxxxxx & Xxxxxx, Chartered
000 Xxxxx XxXxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Re: Purchase and Sale Agreement (the "Duke Sale Agreement") dated June 27, 2003
between and among Duke Capital Partners, LLC ("Duke") and Cinergy Ventures
II, LLC, a Delaware limited liability company ("Cinergy"), SF Capital
Partners, a British Virgin Islands company ("SFCP"), Xxxxxxx X. Xxxxxxx
("Xxxxxxx") and Xxxxx X. Xxxxxxx ("Xxxxxxx");
Purchase and Sale Agreement (the "EPPF Sale Agreement") dated June 27,
2003 between and among EP Power Finance, L.L.C. ("EPPF") and Cinergy ,
SFCP, Xxxxxxx and Xxxx Xxxxxx Hurvis Trust ("Hurvis Trust"); and
Securities Purchase Agreement (the "ECC Sale Agreement") dated as of
June 27, 2003 by and among Electric City Corp., a Delaware corporation
("ECC"), Cinergy , SFCP, Xxxxxxx, Xxxxxx Trust and Xxxxxxx.
Xx. Xxxxxx:
Reference is made to the foregoing Duke Sale Agreement, EPPF Sale Agreement and
ECC Sale Agreement (collectively, the "Sale Agreements"). The undersigned,
severally and not jointly, hereby agree with you as follows:
1. Schwartz, Cooper, Xxxxxxxxxxx & Xxxxxx, Chartered shall act as escrow
agent (the "Escrow Agent") for each of the undersigned in respect of
delivery of the following specified items for purposes of closing under
the Sale Agreements to which the undersigned are respectively parties:
a. Deliveries by Duke (the "Duke Deliveries"):
i. the Duke Sale Agreement, together with six manually
executed undated signature pages of Duke to the Duke
Sale Agreement;
ii. common stock certificates evidencing ownership of
80,217 shares of ECC common stock, par value $0.0001
per share;
iii. preferred stock certificates evidencing ownership of
471,737 shares of Series A Convertible Preferred
Stock of ECC, par value $0.01 per share;
iv. warrant certificates evidencing ownership of warrants
to purchase 750,000 shares of ECC common stock;
v. one manually executed undated Assignment assigning
and transferring to Cinergy Ventures II, LLC the
following: (A) 188,695 shares of Series A Convertible
Preferred Stock of ECC, par value $0.01 per share,
(B) 32,087 shares of common stock of ECC, par value
$0.0001 per share, and (C) 300,000 warrants to
purchase shares of common stock of ECC;
vi. one manually executed undated Assignment assigning
and transferring to Xxxxxxx the following: (A)
165,108 shares of Series A Convertible Preferred
Stock of ECC, par value $0.01 per share, (B) 28,076
shares of common stock of ECC, par value $0.0001 per
share, and (C) 262,500 warrants to purchase shares of
common stock of ECC;
vii. one manually executed undated Assignment assigning
and transferring to SFCP the following: (A) 94,348
shares of Series A Convertible Preferred Stock of
ECC, par value $0.01 per share, (B) 16,044 shares of
common stock of ECC, par value $0.0001 per share, and
(C) 150,000 warrants to purchase shares of common
stock of ECC;
viii. one manually executed undated Assignment assigning
and transferring to Xxxxxxx the following: (A) 23,586
shares of Series A Convertible Preferred Stock of
ECC, par value $0.01 per share, (B) 4,010 shares of
common stock of ECC, par value $0.0001 per share, and
(C) 37,500 warrants to purchase shares of common
stock of ECC;
ix. the Joinder to Investor Rights Agreement referred to
in the ECC Sale Agreement, together with ten manually
executed undated original signature pages of Duke
thereto; and
x. this escrow letter agreement, together with nine
manually executed undated original signature pages of
Duke hereto.
b. Deliveries by EPPF (the "EPPF Deliveries"):
i. the EPPF Sale Agreement, together with six manually
executed undated signature pages of EPPF to the EPPF
Sale Agreement;
ii. common stock certificates evidencing ownership of
80,217 shares of ECC common stock, par value $0.0001
per share;
iii. preferred stock certificates evidencing ownership of
471,737 shares of Series A Convertible Preferred
Stock of ECC, par value $0.01 per share;
iv. warrant certificates evidencing ownership of warrants
to purchase 750,000 shares of ECC common stock;
v. one manually executed undated Assignment assigning
and transferring to Cinergy Ventures II, LLC the
following: (A) 188,695 shares of Series A Convertible
Preferred Stock of ECC, par value $0.01 per share,
(B) 32,087 shares of common stock of ECC, par value
$0.0001 per share, and (C) 300,000 warrants to
purchase shares of common stock of ECC;
vi. one manually executed undated Assignment assigning
and transferring to Xxxxxxx the following: (A)
165,108 shares of Series A Convertible Preferred
Stock of ECC, par value $0.01 per share, (B) 28,076
shares of common stock of ECC, par value $0.0001 per
share, and (C) 262,500 warrants to purchase shares of
common stock of ECC;
vii. one manually executed undated Assignment assigning
and transferring to SFCP the following: (A) 94,348
shares of Series A Convertible Preferred Stock of
ECC, par value $0.01 per share, (B) 16,044 shares of
common stock of ECC, par value $0.0001 per share, and
(C) 150,000 warrants to purchase shares of common
stock of ECC;
viii. one manually executed undated Assignment assigning
and transferring to Hurvis Trust the following: (A)
23,586 shares of Series A Convertible Preferred Stock
of ECC, par value $0.01 per share, (B) 4,010 shares
of common stock of ECC, par value $0.0001 per share,
and (C) 37,500 warrants to purchase shares of common
stock of ECC;
ix. the Joinder to Investor Rights Agreement referred to
in the ECC Sale Agreement, together with ten manually
executed undated original signature pages of EPPF
thereto; and
x. this escrow letter agreement, together with nine
manually executed undated original signature pages of
EPPF hereto.
c. Deliveries by ECC (the "ECC Deliveries"):
i. the ECC Sale Agreement, together with six manually
executed undated signature pages of ECC to the ECC
Sale Agreement;
ii. letter of direction to LaSalle Bank N.A., transfer
agent for ECC's common stock, directing that LaSalle
issue new common stock certificates as follows:
A. certificate for 9,025 shares to Cinergy;
B. certificate for 7,897 shares to Xxxxxxx;
C. certificate for 4,512 shares to SFCP;
D. certificate for 564 shares to Hurvis Trust; and
E. certificate for 564 shares to Xxxxxxx.
iii. preferred stock certificates, executed by ECC, for
shares of ECC's Series D Convertible Preferred Stock,
par value $0.01 per share, as follows:
A. 60,000 shares to Cinergy;
B. 52,500 shares to Xxxxxxx;
C. 30,000 shares to SFCP;
D. 3,750 shares to Hurvis Trust; and
E. 3,750 shares to Xxxxxxx;
iv. preferred stock certificates, executed by ECC, for
shares of ECC's Series A Convertible Preferred Stock,
par value $0.01 per share, as follows:
A. 377,390 shares to Cinergy;
B. 330,216 shares to Xxxxxxx;
C. 188,696 shares to SFCP;
D. 23,586 shares to Hurvis Trust; and
E. 23,586 shares to Xxxxxxx.
v. preferred stock warrant certificates, executed by
ECC, evidencing the right to purchase from ECC shares
of Series D Convertible Preferred Stock of ECC, for a
purchase price of $10 per share (subject to
adjustment), as follows:
A. 15,000 warrants to Cinergy;
B. 13,125 warrants to Xxxxxxx;
C. 7,500 warrants to SFCP;
D. 938 warrants to Hurvis Trust; and
E. 937 warrants to Xxxxxxx.
vi. common stock warrant certificates, executed by ECC,
evidencing the right to purchase from ECC shares of
common stock of ECC, par value $0.0001 per share, for
a purchase price of $1 per share (subject to
adjustment), as follows;
A. 684,375 warrants to Cinergy, consisting of
600,000 warrants having an expiry date of
September 7, 2008 and 84,375 warrants having
an expiry date of June 27, 2007;
B. 598,829 warrants to Xxxxxxx consisting of
525,000 warrants having an expiry date of
September 7, 2008 and 73,829 warrants having
an expiry date of June 27, 2007;
C. 342,188 warrants to SFCP consisting of
300,000 warrants having an expiry date of
September 7, 2008 and 42,188 warrants having
an expiry date of June 27, 2007;
D. 42,773 warrants to Hurvis Trust consisting
of 37,500 warrants having an expiry date of
September 7, 2008 and 5,273 warrants having
an expiry date of June 27, 2007; and
E. 42,773 warrants to Xxxxxxx consisting of
37,500 warrants having an expiry date of
September 7, 2008 and 5,273 warrants having
an expiry date of June 27, 2007;
vii. the Stock Trading Agreement referred to in the ECC
Sale Agreement, together with six manually executed
undated original signature pages of ECC thereto;
viii. the Joinder to Investor Rights Agreement referred to
in the ECC Sale Agreement, together with ten manually
executed undated original signature pages of ECC
thereto;
ix. at least one manually executed undated original
signature page to the Joinder to Investor Rights
Agreement referred to in the ECC Sale Agreement from
each of Newcourt Capital USA Inc., Newcourt Capital
Securities, Inc., Xxxxxx Xxxxxxx Xxxx Xxxxxx Equity
Funding, Inc., Originators Investment Plan, L.P.,
Leaf Mountain Company, LLC, and Xxxxxxx; and
x. this escrow letter agreement, together with nine
manually executed undated original signature pages of
ECC hereto.
d. Deliveries by Cinergy (the "Cinergy Deliveries"):
i. the Duke Sale Agreement, together with six manually
executed undated signature pages of Cinergy to the
Duke Sale Agreement;
ii. the EPPF Sale Agreement, together with six manually
executed undated signature pages of Cinergy to the
EPPF Sale Agreement;
iii. the ECC Sale Agreement, together with six manually
executed undated signature pages of Cinergy to the
ECC Sale Agreement;
iv. the Stock Trading Agreement referred to in the ECC
Sale Agreement, together with six manually executed
undated original signature pages of Cinergy thereto;
v. the Joinder to Investor Rights Agreement referred to
in the ECC Sale Agreement, together with ten manually
executed undated original signature pages of Cinergy
thereto;
vii. payment by wire transfer to the Disbursement Account
(as hereinafter defined) of the sum of $2,000,000;
and
viii this escrow letter agreement, together with nine
manually executed undated original signature pages of
Cinergy hereto.
e. Deliveries by Xxxxxxx (the "Xxxxxxx Deliveries"):
i. the Duke Sale Agreement, together with six manually
executed undated signature pages of Xxxxxxx to the
Duke Sale Agreement;
ii. the EPPF Sale Agreement, together with six manually
executed undated signature pages of Xxxxxxx to the
EPPF Sale Agreement;
iii. the ECC Sale Agreement, together with six manually
executed undated signature pages of Xxxxxxx to the
ECC Sale Agreement;
iv. the Stock Trading Agreement referred to in the ECC
Sale Agreement, together with six manually executed
undated original signature pages of Xxxxxxx thereto;
v. the Joinder to Investor Rights Agreement referred to
in the ECC Sale Agreement, together with ten manually
executed undated original signature pages of Xxxxxxx
thereto;
vi. payment by wire transfer to the Disbursement Account
(as hereinafter defined) of the sum of $1,750,000; and
vii this escrow letter agreement, together with nine
manually executed undated original signature pages of
Xxxxxxx hereto.
f. Deliveries by SFCP (the "SFCP Deliveries"):
i. the Duke Sale Agreement, together with six manually
executed undated signature pages of SFCP to the Duke
Sale Agreement;
ii. the EPPF Sale Agreement, together with six manually
executed undated signature pages of SFCP to the EPPF
Sale Agreement;
iii. the ECC Sale Agreement, together with six manually
executed undated signature pages of SFCP to the ECC
Sale Agreement;
iv. the Stock Trading Agreement referred to in the ECC
Sale Agreement, together with six manually executed
undated original signature pages of SFCP thereto;
vii. the Joinder to Investor Rights Agreement referred to
in the ECC Sale Agreement, together with ten manually
executed undated original signature pages of SFCP
thereto;
vi. payment by wire transfer to the Disbursement Account
(as hereinafter defined) of the sum of $1,000,000;
and
viii this escrow letter agreement, together with nine
manually executed undated original signature pages of
SFCP hereto.
g. Deliveries by Hurvis Trust (the "Hurvis Trust Deliveries"):
i. the EPPF Sale Agreement, together with six manually
executed undated signature pages of Hurvis Trust to
the EPPF Sale Agreement;
ii. the ECC Sale Agreement, together with six manually
executed undated signature pages of Hurvis Trust to
the ECC Sale Agreement;
iii. the Stock Trading Agreement referred to in the ECC
Sale Agreement, together with six manually executed
undated original signature pages of Hurvis Trust
thereto;
iv. the Joinder to Investor Rights Agreement referred to
in the ECC Sale Agreement, together with ten manually
executed undated original signature pages of Hurvis
Trust thereto;
v. payment by wire transfer to the Disbursement Account
(as hereinafter defined) of the sum of $125,000; and
vi this escrow letter agreement, together with nine
manually executed undated original signature pages of
Hurvis Trust hereto.
h. Deliveries by Xxxxxxx (the "Xxxxxxx Deliveries"):
i. the Duke Sale Agreement, together with six manually
executed undated signature pages of Xxxxxxx to the
Duke Sale Agreement;
ii. the ECC Sale Agreement, together with six manually
executed undated signature pages of Xxxxxxx to the
ECC Sale Agreement;
iii. the Stock Trading Agreement referred to in the ECC
Sale Agreement, together with six manually executed
undated original signature pages of Xxxxxxx thereto;
iv. the Joinder to Investor Rights Agreement referred to
in the ECC Sale Agreement, together with ten manually
executed undated original signature pages of Xxxxxxx
thereto;
v. payment by wire transfer to the Disbursement Account
(as hereinafter defined) of the sum of $125,000; and
vi this escrow letter agreement, together with nine
manually executed undated original signature pages of
Xxxxxxx hereto.
2. The Duke Deliveries, EPPF Deliveries, Cinergy Deliveries, Xxxxxxx
Deliveries, SFCP Deliveries, Hurvis Trust Deliveries and Xxxxxxx
Deliveries are herein referred to collectively as the "Closing
Deliveries". The funds to be transferred by Cinergy, Xxxxxxx, SFCP,
Hurvis Trust and Xxxxxxx are herein referred to collectively as the
"Closing Funds". The originals of each party's Closing Deliveries,
other than Closing Funds, shall be delivered to the Escrow Agent at the
following address by 12:00 noon on Friday, June 27 2003 to be held and
delivered pursuant to this Agreement:
Xxxxxx X. Xxxxxx, Esq.
Schwartz, Cooper, Xxxxxxxxxxx & Xxxxxx, Chartered
000 Xxxxx XxXxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
(For the convenience of the parties hereto, Xx. Xxxxxx'x telephone
number is 000-000-0000 and his facsimile number is 000-000-0000.)
3. The undersigned each acknowledge that an account (the "Disbursement
Account") has been established by the Escrow Agent with LaSalle Bank
N.A. for the purpose of receiving the Closing Funds and, subject to the
terms hereof, disbursing those funds as provided herein. The Closing
Funds of each of Cinergy, Xxxxxxx, SFCP, Hurvis Trust and Xxxxxxx shall
be sent to the Disbursement Account at the following:
LaSalle Bank N.A., Chicago, Illinois
ABA # 000000000
For Credit to: 2090067
For Further Credit to: 62-9253-90-7
SCGK Escrow Disbursement
Attn: Xxxxx X Xxxxxxx x42936
All Closing Funds are to be transferred by wire transfer to the
Disbursement Account at LaSalle Bank by not later than 10:00 a.m.
(Chicago time) on June 27, 2003. Funds held in the Disbursement Account
will not be invested and will not accrue or earn interest.
4. On Friday, June 27, 2003, by 12:00 noon (Chicago time), the Escrow Agent
shall inform each of the other parties hereto as to whether all Closing
Deliveries and all Closing Funds have been received. If all Closing
Deliveries and all Closing Funds have been received, the Escrow Agent shall
additionally request that each other party hereto confirm to the Escrow
Agent that such party authorizes the Escrow Agent to proceed with closing
under the Sale Agreements to which such party is a party. Each such other
party agrees that if it shall be obligated to close under the Sales
Agreements to which it is a party, it shall authorize the Escrow Agent to
proceed with closing on such party's behalf in accordance herewith. If the
Escrow Agent receives authorization from each of the other parties hereto
to proceed with closing at any time prior to 5:00 p.m. (Chicago time) on
July 2, 2003, then the Escrow Agent shall promptly take the following
actions:
a. direct LaSalle Bank N.A. to disburse the funds held in the
Disbursement Account as follows:
$1,610,000 shall be disbursed to Duke by wire transfer to:
Duke Capital Partners, LLC
XX Xxxxxx Xxxxx Bank
ABA No. 000000000
Acct. No. 323198570
$1,610,000 shall be disbursed to EPPF by wire transfer to:
EP Power Finance, LLC
Mellon Bank
ABA No. 000000000
Acct. No. 078-3121
$1,380,000 shall be disbursed to ECC by wire transfer to:
Electric City Corp
American Chartered Bank
ABA No. 000000000
Acct. No. 1137017
$400,000 shall be disbursed to Delano Group
Securities, LLC in payment of all placement agent
fees owing in respect of the Sale Agreement to Delano
Group Securities by Duke, EPPF and ECC, respectively,
by wire transfer to:
Delano Group Securities, LLC
Northern Trust Bank
ABA No. 000000000
Acct. No. 1329677
b. cause to be delivered by messenger as soon as possible to
LaSalle Bank N.A. as ECC transfer agent, the certificates for
ECC common stock received as part of the Duke Deliveries and
the EPPF Deliveries along with the original letter of ECC
referred to in clause 1.c.ii above directing that LaSalle
issue new common stock certificates as follows:
A. certificate for 9,025 shares to Cinergy;
B. certificate for 7,897 shares to Xxxxxxx;
C. certificate for 4,512 shares to SFCP;
D. certificate for 564 shares to Hurvis Trust; and
E. certificate for 564 shares to Xxxxxxx.
c. cause sufficient copies of the Duke Sale Agreement to be made
for each party thereto to have an original and affix to each
counterpart original an original signature of each party
thereto and cause such counterpart originals to be distributed
to the parties by reputable courier for delivery within two
business days thereafter;
d. cause sufficient copies of the EPPF Sale Agreement to be made
for each party thereto to have an original and affix to each
counterpart original an original signature of each party
thereto and cause such counterpart originals to be distributed
to the parties by reputable courier for delivery within two
business days thereafter;
e. cause sufficient copies of the ECC Sale Agreement to be made
for each party thereto to have an original and affix to each
counterpart original an original signature of each party
thereto and cause such counterpart originals to be distributed
to the parties by reputable courier for delivery within two
business days thereafter;
f. cause sufficient copies of the Stock Trading Agreement
referred to in the ECC Sale Agreement to be made for each
party thereto to have an original and affix to each
counterpart original an original signature of each party
thereto and cause such counterpart originals to be distributed
to the parties by reputable courier for delivery within two
business days thereafter;
g. cause sufficient copies of the Joinder to Investor Rights
Agreement referred to in the ECC Sale Agreement to be made for
each party thereto to have an original and affix to each
counterpart original an original signature of each party
thereto and cause such counterpart originals to be distributed
to the parties by reputable courier for delivery within two
business days thereafter;
h. by reputable courier for delivery within two business days,
transmit to ECC the certificates for ECC Series A Convertible
Preferred Stock and the warrants to purchase shares of common
stock received as part of the Duke Deliveries and the EPPF
Deliveries
i. by reputable courier for delivery within two business days,
transmit to Cinergy the following:
i the preferred stock certificate in favor of Cinergy
referred to in clause 1.c.iii above for 60,000 shares
of ECC's Series D Convertible Preferred Stock;
ii. the preferred stock certificate in favor of Cinergy
referred to in clause 1.c.iv above for 377,390 shares
of ECC's Series A Convertible Preferred Stock;
iii the preferred stock warrant certificate in favor of
Cinergy referred to in clause 1.c.v above for
warrants to purchase up to 15,000 shares of ECC's
Series D Convertible Preferred Stock; and
iv. the common stock warrant certificate in favor of
Cinergy referred to in clause 0.x.xx above for
warrants to purchase up to 684,375 shares of ECC's
common stock.
j. by reputable courier for delivery within two business days, transmit
to Xxxxxxx the following:
i the preferred stock certificate in favor of Xxxxxxx
referred to in clause 1.c.iii above for 52,500 shares
of ECC's Series D Convertible Preferred Stock;
ii. the preferred stock certificate in favor of Xxxxxxx
referred to in clause 1.c.iv above for 330,216 shares
of ECC's Series A Convertible Preferred Stock;
iii the preferred stock warrant certificate in favor of
Xxxxxxx referred to in clause 1.c.v above for
warrants to purchase up to 13,125 shares of ECC's
Series D Convertible Preferred Stock; and
iv. the common stock warrant certificate in favor of
Xxxxxxx referred to in clause 0.x.xx above for
warrants to purchase up to 598,829 shares of ECC's
common stock.
k. by reputable courier for delivery within two business days, transmit
to SFCP the following:
i the preferred stock certificate in favor of SFCP
referred to in clause 1.c.iii above for 30,000 shares
of ECC's Series D Convertible Preferred Stock;
ii. the preferred stock certificate in favor of SFCP
referred to in clause 1.c.iv above for 188,696 shares
of ECC's Series A Convertible Preferred Stock;
iii the preferred stock warrant certificate in favor of
SFCP referred to in clause 1.c.v above for warrants
to purchase up to 7,500 shares of ECC's Series D
Convertible Preferred Stock; and
iv. the common stock warrant certificate in favor of SFCP
referred to in clause 0.x.xx above for warrants to
purchase up to 342,188 shares of ECC's common stock.
l. by reputable courier for delivery within two business days, transmit
to Hurvis Trust the following:
i the preferred stock certificate in favor of Hurvis
Trust referred to in clause 1.c.iii above for 3,750
shares of ECC's Series D Convertible Preferred Stock;
ii. the preferred stock certificate in favor of Hurvis
Trust referred to in clause 1.c.iv above for 23,586
shares of ECC's Series A Convertible Preferred Stock;
iii the preferred stock warrant certificate in favor of
Hurvis Trust referred to in clause 1.c.v above for
warrants to purchase up to 938 shares of ECC's Series
D Convertible Preferred Stock; and
iv. the common stock warrant certificate in favor of
Hurvis Trust referred to in clause 0.x.xx above for
warrants to purchase up to 42,773 shares of ECC's
common stock.
m. by reputable courier for delivery within two business days, transmit
to Xxxxxxx the following:
i the preferred stock certificate in favor of Xxxxxxx
referred to in clause 1.c.iii above for 3,750 shares
of ECC's Series D Convertible Preferred Stock;
ii. the preferred stock certificate in favor of Xxxxxxx
referred to in clause 1.c.iv above for 23,586 shares
of ECC's Series A Convertible Preferred Stock;
iii the preferred stock warrant certificate in favor of
Xxxxxxx referred to in clause 1.c.v above for
warrants to purchase up to 937 shares of ECC's Series
D Convertible Preferred Stock; and
iv. the common stock warrant certificate in favor of
Xxxxxxx referred to in clause 0.x.xx above for
warrants to purchase up to 42,773 shares of ECC's
common stock; and
n. cause sufficient copies of this Agreement to be made for each
party hereto to have an original and affix to each counterpart
original an original signature of each party hereto and cause
such counterpart originals to be distributed to the parties by
reputable courier for delivery within two business days
thereafter
5. The undersigned severally acknowledge that it is their desire and intention
to close the transactions contemplated by the various Sale Agreements on
June 27, 2003. Notwithstanding the foregoing, if the Escrow Agent has not
received authorization from each other party hereto to proceed with closing
by 5:00 p.m. (Chicago time) on July 2, 2003, the Escrow Agent shall
a. direct LaSalle Bank N.A. to return to each of Cinergy,
Xxxxxxx, SFCP, Hurvis Trust and Xxxxxxx, without interest,
that portion of the Closing Funds which each of them
transferred to the Disbursement Account; and
b. return to each of the parties hereto the other Closing
Deliveries which such party has transmitted to the Escrow
Agent prior to such date.
Upon taking such actions, the Escrow Agent shall so notify the parties
hereto and thereupon this Agreement shall terminate and the Escrow
Agent shall have no further responsibilities hereunder, other than to
take any action which LaSalle Bank N.A. may reasonably require in
connection with carrying out the actions described in clause 3.a above.
6. All notices, consents and other communications under this Agreement shall
be in writing and shall be deemed to have been duly given when (a)
delivered by hand, (b) sent by email (with receipt confirmed), (c)
telecopier (with receipt confirmed), or (d) when received by the addressee,
if sent by Express Mail, Federal Express or other express delivery service
(receipt requested), in each case to the appropriate addresses and
telecopier numbers set forth on Schedule I hereto.
7. This Agreement shall be construed and enforced in accordance with, and the
rights of the parties shall be governed by, the laws of the State of
Illinois. This Agreement may not be changed orally, but only by an
agreement in writing signed by the party against whom enforcement is
sought.
8. This Agreement may be executed in two or more counterparts, all of which
shall be deemed but one and the same instrument and each of which shall be
deemed an original, and it shall not be necessary in making proof of this
Agreement to produce or account for more than one such counterpart for each
of the parties hereto. Delivery by facsimile by any of the parties hereto
of an executed counterpart of this Agreement or any agreement constituting
a Closing Delivery hereunder shall be effective as an original executed
counterpart hereof or thereof and shall be deemed a representation that an
original executed counterpart hereof or thereof will be delivered and the
Escrow Agent may act hereunder in reliance thereon.
9. The Escrow Agent shall not have any duties or responsibilities, except
those expressly set forth herein. The Escrow Agent shall not have, nor
shall he be deemed to have, any fiduciary relationship with or duty to any
other party hereto, and no implied covenants, functions or responsibilities
shall be read into this Agreement or otherwise exist against the Escrow
Agent. Notwithstanding any provision to the contrary in this Agreement, the
Escrow Agent shall not be liable for any action taken or omitted to be
taken by him under this Agreement, unless caused by the Escrow Agent's
gross negligence or willful misconduct. The Escrow Agent shall not be
personally liable with respect to any action taken or omitted to be taken
by him in good faith reliance on any provision of this Agreement. The
Escrow Agent shall be entitled to rely, and shall be fully protected in
relying, upon any note, writing, resolution, notice, consent, certificate,
affidavit, letter, telecopy, or email message, statement, order or other
document or conversation believed by the Escrow Agent to be genuine and
correct and to have been signed, sent or made by the proper person or
persons.
If, with respect to a proposed action to be taken by it, the Escrow Agent
shall determine in good faith that the provisions of this Agreement
relating to the functions or responsibilities of the Escrow Agent are
or may be ambiguous or inconsistent, the Escrow Agent shall notify the
other parties, identifying the proposed action and the provisions that
the Escrow Agent considers are or may be ambiguous or inconsistent,
and may decline to perform such function or responsibility unless he
has received the written confirmation of each other party that he or
it concurs in the circumstances that the action proposed to be taken
by the Escrow Agent is consistent with the terms of this Agreement or
is otherwise appropriate. The Escrow Agent shall be fully protected in
acting or refraining from acting upon the confirmation of the other
parties in this respect, and such confirmation shall be binding upon
the Escrow Agent and the other parties hereto.
10. ECC agrees to pay the reasonable costs and expenses of the Escrow
Agent hereunder, including all charges of LaSalle Bank N.A. in
connection with the Disbursement Account. No provision of this
Agreement shall require the Escrow Agent to expend or risk his
own funds or otherwise incur any financial liability in the
performance of any of his duties hereunder or in the exercise of
any of its rights, authority, or powers, if he shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not
reasonably assured or provided to the Escrow Agent. 11. ECC
agrees to indemnify, defend and hold harmless the Escrow Agent
from and against any and all claims, losses, liabilities,
penalties, obligations, actions, judgments, suits, damages
(including foreseeable and unforeseeable consequential and
punitive damages), costs, expenses and disbursements of any kind
or nature whatsoever which may at any time (including, without
limitation, at any time following the termination of this
Agreement) be imposed on, incurred by or asserted against the
Escrow Agent in any way relating to or arising out of this
Agreement or any documents contemplated by or referred to herein
or the transactions contemplated hereby or thereby or the
enforcement of any of the terms hereof or thereof; provided that
ECC shall not be required to so indemnify the Escrow Agent for
any and all such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or
disbursements incurred by reason of the gross negligence or
willful misconduct of the Escrow Agent. This provision shall
survive any termination of this Agreement.
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGES FOLLOW.]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
DUKE CAPITAL PARTNERS, LLC
By:/s/Xxxxxx Magna
Name: Xxxxxx Magna
Title: Managing Director
EP POWER FINANCE, L.L.C.
By: /s/Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: President
ELECTRIC CITY CORP.
By: /s/Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Chief Executive Officer
CINERGY VENTURES II, LLC
By: /s/X. Xxxxxx Xxxxxx
Name: X. Xxxxxx Xxxxxx
Title: President
/s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
SF CAPITAL PARTNERS LTD.
By: /s/Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: Authorized Signatory
XXXX XXXXXX HURVIS REVOCABLE TRUST
By: /s/Xxxx Xxxxxx Hurvis
Name: Xxxx Xxxxxx Hurvis
Title: Trustee
/s/Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
AGREED AND ACCEPTED BY THE ESCROW AGENT THIS 27th DAY OF JUNE, 2003
SCHWARTZ, COOPER, XXXXXXXXXXX & XXXXXX, CHARTERED
By: /s/Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx, Esq.
Title: Principal
SCHEDULE I
ADDRESSES FOR NOTICES
Duke Capital Partners, LLC
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, XX 00000
Attn: Xxxxxx Magna
xxxxxx@xxxx-xxxxxx.xxx
Telephone: 704
Facsimile: 000-000-0000
EP Power Finance, L.L.C.
0000 Xxxxxxxxx Xx.
Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxx
Xxxxxxx.Xxxxxx@XxXxxx.xxx
-------------------------
Telephone: 000-000-0000
Facsimile: 000-000-0000
Electric City Corp.
0000 Xxxxxxxxx Xxxx
Xxx Xxxxx Xxxxxxx, XX 00000
Attn: Xxxx Xxxxxxx
xxxxxxxx@xxxxxxx.xxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
Cinergy Ventures, LLC 000 Xxxx 0xx Xxxxxx 26th Floor Atrium II EA610 Xxxxxxxxxx,
XX 00000 Attn: Xxxxx Xxxxxxx Xxxxx.xxxxxxx@xxxxxxx.xxx Telephone: 000-000-0000
Facsimile: 000-000-0000
Xxxxxxx X. Xxxxxxx
c/o Xxxxxxx Xxxxx & Co.
000 X. Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
xxx@xxxxxxx.xxx
---------------
SF Capital Partners, Ltd.
C/x Xxxxx Asset Management, LLC
0000 Xxxxx Xxxx Xxxxx
Xx. Xxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attn: Xxxxx Xxxxxxxx
xxxxxxxxx@xxxxxxxxxxxxxxxx.xxx
------------------------------
Xxxxx X. Xxxxxxx
c/o Delano Group Securities, LLC
000 X. Xxxxxxx Xxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
xxxxxxxx@xxxxxxxxxxxxxxxx.xxx
Xxxx Xxxxxx Hurvis Revocable Trust Dated March 8, 2002
Xxxx Xxxxxx Hurvis Trustee
C/o Old World Industries
0000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attn: Xxx Xxxxxx
