EXHIBIT 13
JOINDER TO INVESTOR RIGHTS AGREEMENT
This Joinder To Investor Rights Agreement (this "Agreement") is dated
as of December 19, 2003 and is by and among Electric City Corp., a Delaware
corporation (the "Company"), Augustine Fund LP, an Illinois limited partnership
("Augustine"), Technology Transformation Venture Fund, LP, a Delaware limited
partnership ("TVP"), and Xxxx Xxxxxxx, an individual ("Xxxxxxx").
W I T N E S S E T H:
WHEREAS, the Company is a party to that certain Investor Rights
Agreement dated as of July 31, 2001, as amended (the "Existing Agreement") among
the Company and the holders of its outstanding Series A Convertible Preferred
Stock and CIT Capital Securities, Inc. (formerly named Newcourt Capital
Securities, Inc.); and
WHEREAS, Xxxxxx Xxxxxxx Xxxx Xxxxxx Equity Funding, Inc. ("MSDW") and
Originators Investment Plan, L.P. ("OIP"), as "Sellers", and Augustine, TVF and
Xxxxxxx, as "Purchasers", are parties to that certain Securities Purchase
Agreement, dated as of December 19, 2003, whereby MSDW and OIP have agreed to
sell and Augustine, TVF and Xxxxxxx have agreed to purchase certain outstanding
shares of the Company's Series A Convertible Preferred Stock, certain shares of
the Company's Common Stock and certain warrants to purchase additional shares of
the Company's Common Stock; and
WHEREAS, it is a condition precedent to the obligations of each of
Augustine, TVF and Xxxxxxx to purchase such securities from MSDW and OIP that
the parties hereto enter into this Agreement and the Company is agreeable to the
same; and
NOW, THEREFORE, the Parties agree as follows:
1. Definitions. All terms capitalized but not defined herein
shall have the meaning attributable to such terms in the Existing Agreement,
except where the context otherwise requires.
2. Joinder. Each of the parties to this Agreement hereby agrees
that from and after date hereof each of Augustine, TVF and Xxxxxxx shall be a
party to and be bound by the Investor Rights Agreement as an Investor and a
Holder thereunder (as such terms are defined therein).
3. Representations. Each of Augustine, TVF and Xxxxxxx, severally
for itself or himself only, hereby represents and warrants to the Company that
this Agreement has been duly executed and delivered by Augustine, TVF or Xxxxxxx
(as applicable) and constitutes the valid and binding obligation of such party,
enforceable against such party 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. Each of Augustine, TVF and Xxxxxxx hereby
acknowledges that it or he has received a copy of the Existing Agreement.
4. Miscellaneous.
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EXHIBIT 13
(a) All terms, covenants, agreements, representations, warranties
and undertakings in this Agreement shall bind and inure to the benefit of the
respective successors and assigns of the parties hereto whether so expressed or
not.
(b) 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
Existing Agreement.
(c) 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.
(d) 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 shall be effective as an original
executed counterpart hereof and shall be deemed a representation that an
original executed counterpart hereof will be delivered.
(e) The section and paragraph headings herein are for convenience
only and shall not effect the construction hereof.
(f) The invalidity or unenforceability of any provision hereof
shall in no way affect the validity or enforceability of any other provision.
[Balance of page intentionally left blank; signature pages follow.]
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EXHIBIT 13
IN WITNESS WHEREOF, the parties hereto have caused this Joinder To
Investor Rights Agreement to be executed as of the day and year first above
written.
ELECTRIC CITY CORP. TECHNOLOGY TRANSFORMATION
VENTURE FUND, LP
By:____________________________ By:_______________________________
Name:__________________________ Name:_____________________________
Title:_________________________ Title:____________________________
AUGUSTINE FUND LP.
__________________________________
By:____________________________ Xxxx Xxxxxxx
Name:__________________________
Title:_________________________
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