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Exhibit 10.4
EXECUTION VERSION
JOINDER TO COLLATERAL TRUST AGREEMENT
JOINDER TO COLLATERAL TRUST AGREEMENT (this "Joinder
Agreement"), dated as of August 1, 2008, among MICROGY
HANFORD, LLC, a California limited liability company, MICROGY
RIVERDALE, LLC, a California limited liability company (together,
the "California Subsidiary Guarantors"), subsidiaries of MICROGY
HOLDINGS, LLC (or its permitted successor), a Delaware limited
liability company (the "Company"), the Company, the Texas
Subsidiary Guarantors (those subsidiary guarantors party to the
Collateral Trust Agreement defined below) and WELLS FARGO BANK,
NATIONAL ASSOCIATION, as collateral trustee (the "Collateral
Trustee").
WITNESSETH
WHEREAS, the Company and the Texas Subsidiary Guarantors have
heretofore executed and delivered to the Collateral Trustee a
Collateral Trust Agreement (the "Collateral Trust Agreement"),
dated as of October 1, 2006, to secure the Guarantee Agreement
(as amended and supplemented by the Supplemental Guarantee defined
below, the "Guarantee Agreement"), dated as of October 1, 2006
between the Company, the Texas Subsidiary Guarantors and the
Collateral Trustee providing for the Company’s guarantee of
the Guaranteed Obligations (as defined in the Guarantee Agreement),
which include the Gulf Coast Industrial Development Authority
Environmental Facilities Revenue Bonds (Microgy Holdings Project),
Series 2006 (the "Series 2006 Bonds"), and the Texas Subsidiary
Guarantors’ guarantees of the Guaranteed Obligations; and
WHEREAS, the California Statewide Communities Development
Authority has authorized the issuance of its Environmental
Facilities Revenue Bonds (Microgy Holdings Project) Series 2008A
(the "Series 2008A Bonds"), in an aggregate principal amount of
$62,425,000 to finance certain solid waste disposal facilities
located in California (the "California Facilities"); and
WHEREAS, pursuant to the Supplemental Guarantee Agreement (the
"Supplemental Guarantee Agreement"), dated as of August 1,
2008 between the Company, the Texas Subsidiary Guarantors, the
California Subsidiary Guarantors (the Texas Subsidiary Guarantors
and the California Subsidiary Guarantors together, the "Subsidiary
Guarantors") and the Collateral Trustee, as Trustee, the parties
agreed that the California Subsidiary Guarantors shall join as
parties to the Guarantee Agreement, the Company’s ownership
interests in the California Subsidiary Guarantors shall become part
of the Collateral, the assets comprising the California Facilities
shall become part of the Collateral, and Obligations issued to fund
the California Facilities shall be Guaranteed Obligations; and
WHEREAS, the Company, the Subsidiary Guarantors and the
Collateral Trustee have entered into this Joinder Agreement to
(a) join as parties to the Collateral Trust Agreement the
California Subsidiary Guarantors, (b) secure the Guarantee
Agreement, as supplemented by the Supplemental Guarantee Agreement,
and (c) establish the Series 2008 Cash Collateral Fund.
NOW, THEREFORE, in consideration of the premises
and the mutual agreements herein set forth, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
A. Capitalized Terms . Unless otherwise defined in this
Joinder Agreement, capitalized terms used herein without definition
shall have the meanings assigned to them in the Collateral Trust
Agreement
B. Agreement to be Bound . The California Subsidiary
Guarantors hereby become parties to the Collateral Trust Agreement
as Subsidiary Guarantors and agree to be bound by all of the
provisions of the Collateral Trust Agreement applicable to
Subsidiary Guarantors and to perform all of the obligations and
agreements of the Subsidiary Guarantors under the Collateral Trust
Agreement.
C. Pledge of Collateral . To secure the Guarantee
Agreement, as supplemented by the Supplemental Guarantee Agreement,
the Company hereby delivers to the Collateral Trustee a pledge and
assignment of the Company’s ownership interests in the
California Subsidiary Guarantors, and each of the California
Subsidiary Guarantors hereby delivers to the Collateral Trustee a
mortgage and security agreement on substantially all of
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