Exhibit 10.5
Execution Version
SUPPORT AGREEMENT
This Support Agreement is dated
June 1, 2008 among Environmental Power Corporation
(“EPC”), Microgy Grand Island, LLC (the
“Company”) and Wells Fargo Bank, National Association,
as trustee (the “Trustee”) under the Trust Indenture
dated as of June 1, 2008 (the “Indenture”) with
The City of Grand Island, Nebraska (the “Issuer”).
Capitalized terms not defined herein shall have the same meaning
ascribed to them in the Indenture.
WHEREAS, the Company is a
wholly-owned subsidiary of EPC; and
WHEREAS, the Company is engaged in
the construction, development and operation of facilities (the
“Facility”) consisting of an anaerobic digester system
used to extract combustible biogas from organic waste streams
produced by the beef processing operations of JBS Swift &
Company; and
WHEREAS, the Company is the obligor
with respect to $7,000,000 The City of Grand Island, Nebraska Solid
Waste Disposal Facilities Revenue Bonds (Microgy Grand Island
, LLC Project) Series 2008 (the “Bonds”) issued
under the Indenture; and
WHEREAS, the proceeds of the Bonds
are held by the Trustee to be applied to the costs of construction
of the Facility, and that portion of the Facility being funded with
the proceeds of the Bonds shall be known as the
“Project”; and
WHEREAS, to induce the purchasers of
the Bonds and all who may become holders of the Bonds to purchase
and hold the Bonds, EPC has agreed to enter into this
Agreement;
NOW, THEREFORE, in consideration of
the agreements contained herein and other good and valuable
consideration, receipt of which is hereby acknowledged, the parties
hereto agree as follows:
1. Funding . EPC will advance
funds, as equity contributions or as subordinated debt, to the
Company from time to time as may be required to fully pay all costs
of construction of the Facility, as well as to fund operating costs
of the Facility incurred prior to the Date of Completion of the
Facility, to the extent that funds are not available therefor under
the Construction Fund established pursuant to the Indenture or
otherwise available from the Company.
2. Determination of Date of
Completion . The Date of Completion of the Facility will be
established by a certificate of R.W. Beck, Inc. as independent
engineer, or such other firm as may at the time be acting as
independent engineer under the Indenture, delivered at the request
of the Company to the Trustee as the “Completion
Certificate” delivered under the Indenture.
3. Termination of Biogas
Agreement. In the event that (a) Swift terminates the
Biogas Agreement pursuant to Section 8.5 thereof, (b) the
Company elects not to continue operation of the Facility, as
evidenced by its termination of the Site Lease, and (c) the
Company has insufficient funds on hand to fund the redemption of
the full principal amount of the Bonds then outstanding,
after
applying to such redemption all funds then held
by the Trustee in the Construction Fund, the Debt Service Reserve
Fund and the Maintenance Fund, and all amounts realized from the
sale of the Company’s assets, then, and only then, EPC shall
fund
