JOINDER
to
INVESTOR RIGHTS AGREEMENT, STOCKHOLDERS AGREEMENT
AND STOCK TRADING AGREEMENT
This JOINDER TO INVESTOR RIGHTS AGREEMENT, STOCKHOLDERS
AGREEMENT AND STOCK TRADING AGREEMENT (this "Agreement") is made
as of November 29, 2001, by and between Electric City Corp., a
Delaware corporation (the "Company"), and Leaf Mountain Company,
LLC an Illinois limited liability company ("Purchaser").
WITNESSETH
WHEREAS, the Company, EP Power Finance, L.L.C., a Delaware
limited liability company, Newcourt Capital USA Inc., a Delaware
corporation, Xxxxxx Xxxxxxx Xxxx Xxxxxx Equity Funding, Inc., a
Delaware corporation, Originators Investment Plan, L.P., a
Delaware limited partnership, and Duke Capital Partners, LLC, a
Delaware limited liability company (collectively, the
"Investors"), entered into that certain Securities Purchase
Agreement dated as of July 31, 2001 (the "Securities Purchase
Agreement"), pursuant to which the Company sold, and the
Investors acquired, shares of the Company's Series A Preferred
Stock, par value $0.01 per share (the "Series A Preferred
Stock"), shares of Company common stock, warrants to purchase
Company common stock, and warrants to purchase Series A
Preferred Stock;
WHEREAS, in connection with the Securities Purchase
Agreement, the Company and the Investors entered into an
Investor Rights Agreement dated as of July 31, 2001, as amended
by that certain Consent and Amendment of Securities Purchase
Agreement, Stock Trading Agreement, Stockholders Agreement and
Investor Rights Agreement of even date herewith, copies of which
are attached hereto as Exhibit "A" (collectively, the "Investor
Rights Agreement");
WHEREAS, in connection with the Securities Purchase
Agreement, the Company and the Investors entered into a
Stockholders Agreement dated as of July 31, 2001, as amended by
that certain Consent and Amendment of Securities Purchase
Agreement, Stock Trading Agreement, Stockholders Agreement and
Investor Rights Agreement of even date herewith, copies of which
are attached hereto as Exhibit "B" (the "Stockholders
Agreement");
WHEREAS, in connection with the Securities Purchase
Agreement, the Company and the Investors entered into a Stock
Trading Agreement dated as of July 31, 2001, as amended by that
certain Consent and Amendment of Securities Purchase Agreement,
Stock Trading Agreement, Stockholders Agreement and Investor
Rights Agreement of even date herewith, copies of which are
attached hereto as Exhibit "C" (the "Stock Trading Agreement");
WHEREAS, the Company and Purchaser are entering into that
certain Securities Purchase Agreement of even date herewith (the
"Additional Purchase Agreement"); and
WHEREAS, as a condition to entering into the Additional
Purchase Agreement, the Company requires Purchaser to enter into
this Agreement and accept the rights and obligations created
pursuant to the Investor Rights Agreement, the Stockholders
Agreement and the Stock Trading Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants
contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties to this Agreement hereby agree as follows:
1. Definitions. Capitalized terms used herein and not
otherwise defined herein shall have the meanings given to them
in the Additional Purchase Agreement.
2. Joinder.
(a) Each of the Company and Purchaser hereby agrees
that, from and after the date hereof, Purchaser shall be a party
to and bound by the Investor Rights Agreement as if Purchaser
were an Investor and Holder (each as defined in the Investor
Rights Agreement) thereunder.
(b) Each of the Company and Purchaser hereby agrees
that, from and after the date hereof, Purchaser shall be a party
to and bound by the Stockholders Agreement as if Purchaser were
a Holder (as defined in the Stockholders Agreement) thereunder.
(c) Each of the Company and Purchaser hereby agrees
that, from and after the date hereof, Purchaser shall be a party
to and bound by the Stock Trading Agreement as if Purchaser were
a Purchaser and Party (each as defined in the Stock Trading
Agreement) thereunder.
3. Representations. Purchaser hereby represents and warrants
to the Company that this Agreement has been duly executed and
delivered by Purchaser and constitutes the valid and binding
obligation of Purchaser, enforceable in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles. Purchaser hereby acknowledges it has
received a copy of the Investor Rights Agreement, the
Stockholders Agreement and the Stock Trading Agreement.
4. Miscellaneous.
4.1 Successors and Assigns. All terms, covenants,
agreements, representations, warranties and undertakings in this
Agreement made by and on behalf of the Company or Purchaser
shall bind and inure to the benefit of the respective successors
and assigns of such party whether so expressed or not.
4.2 Amendments and Waivers. Changes in or additions to
this Agreement may be made or compliance with any term,
covenant, agreement, condition or provision set forth herein may
be omitted or waived, only in accordance with the provisions of
the Investor Rights Agreement, the Stockholders Agreement or the
Stock Trading Agreement, as applicable.
4.3 Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of New York
without giving effect to the conflict of laws principles
thereof.
4.5 Counterparts. This Agreement may be executed in
counterparts, each of which shall together constitute one and
the same instrument.
4.6 Effect of Headings. The section and paragraph
headings herein are for convenience only and shall not effect
the construction hereof.
4.7 Entire Agreement. This Agreement, the Investor Rights
Agreement, the Stockholders Agreement, the Stock Trading
Agreement and the Additional Purchase Agreement constitute the
entire agreement between the Company and Purchaser with respect
to the subject matter hereof. This Agreement supersedes all
prior agreements between the parties with respect to the subject
matter hereof.
4.8 Severability. The invalidity or unenforceability of
any provision hereof shall in no way affect the validity or
enforceability of any other provision.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the undersigned have executed this Agreement
as of the date first written above.
THE COMPANY
ELECTRIC CITY CORP., a Delaware corporation
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: CEO
PURCHASER
LEAF MOUNTAIN COMPANY, LLC, An Illinois limited liability
company
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Manager
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