Exhibit 10.61


 


COMMITMENT TO PROVIDE FUNDS


 


This
Commitment to Provide Funds is made as of September 7, 2010 between Clean
Energy, a California corporation (“Clean Energy”),
Clean Energy Compression Corp., a British Columbia corporation (“CECC”), 0884808 B.C. Ltd., a British
Columbia corporation (“0884808”),
and HSBC Bank Canada (“HSBC”), a
Canadian chartered bank.


 


RECITALS


 


WHEREAS, Clean Energy, 0884808 and CECC are parties to an
Asset Purchase Agreement dated July 1, 2010 (the “Asset
Purchase Agreement”), pursuant to which CECC will acquire
substantially all of the assets and business of I.M.W. Industries Ltd. (“IMW”), a British Columbia
corporation ;


 


WHEREAS, at the closing of the transactions contemplated by
the Asset Purchase Agreement, CECC will deliver to IMW the following promissory
notes (collectively, the “Notes”): (i) a
promissory note with a principal amount of $12,500,000 that is due and payable
on January 31, 2011, (ii)  a promissory note with a principal amount
of $12,500,000 that is due and payable on January 31, 2012, (iii) a
promissory note with a principal amount of $12,500,000 that is due and payable
on January 31, 2013, and (iv) a promissory note with a principal
amount of $12,500,000 that is due and payable on January 31, 2014.


 


WHEREAS, HSBC and IMW are parties to an amended and
restated facilities letter dated December 19, 2007, as amended by letters
dated December 15, 2008, March 23, 2009, December 1, 2009, December 22,
2009, March 26, 2010 and June 14, 2010 (collectively, the “Commitment Letter”) pursuant to
which HSBC has provided to IMW certain credit facilities (the “Credit Facilities”) and pursuant to
which IMW and other parties thereto have granted certain security documents
(the “Security”) as security in
favour of HSBC.


 


WHEREAS, in connection with the closing of the transactions
contemplated by the Asset Purchase Agreement, HSBC, CECC, 0884808, Clean Energy
and certain other parties have entered or will enter into an Assumption
Agreement (the “Assumption Agreement”),
pursuant to which, inter alia, the
Credit Facilities and the obligations of IMW under the Commitment Letter will
be assumed by CECC.


 


WHEREAS, in order to induce HSBC to enter into the
Assumption Agreement, Clean Energy, 0884808 and CECC have agreed to enter into this
Commitment to Provide Funds.


 


NOW, THEREFORE, in consideration of the foregoing recitals
and the mutual representations, warranties, covenants and promises contained
herein, the adequacy and sufficiency of which are hereby acknowledged by each
of the parties, the parties hereto agree as follows:


 

















 


AGREEMENT


 


1.             Commitment
to Provide Funds.  Clean
Energy and 0884808 hereby agree that should the making of any scheduled payment
by CECC to IMW under the Notes, pursuant to the Asset Purchase Agreement, result
in CECC being in breach of any of the terms, conditions or provisos of the
Assumption Agreement, the Commitment Letter or the Security, Clean Energy and
0884808 shall, either directly or indirectly, furnish CECC with the necessary
funds (the “Funds”) to enable CECC to make
such payment to IMW and to remain in compliance with the terms, conditions and
provisos of the Assumption Agreement, the Commitment Letter and the Security.


 


2.             Assignment
and Postponement of Claims.  
0884808 agrees to grant to HSBC an assignment and postponement of claims
with respect to all amounts owing from time to time by CECC to 0884808
(including the repayment by CECC to 0884808 of the Funds in the aggregate),
which assignment and postponement of claims shall permit payments to be made by
CECC to 0884808 as agreed to between CECC and 0884808, provided that CECC is
not in breach of any of the terms, conditions or provisos under the Assumption
Agreement, the Commitment Letter or the Security at the time that such payments
are made by CECC, and provided that any such payment by CECC shall not result
in CECC being in breach of any of the terms, conditions or provisos of the
Assumption Agreement, the Commitment Letter or the Security.  Clean Energy agrees that in the event that
any Funds are furnished directly by Clean Energy (or any of its affiliates or
subsidiaries) to CECC, then Clean Energy shall enter, or cause such paying
affiliate or subsidiary company to enter, into an assignment and postponement
of claims in favour of HSBC with respect to any amounts owing by CECC to such
party.


 


3.             Entire
Agreement.  This
Commitment to Provide Funds constitutes the entire agreement between the
parties relating to the subject matter hereof and supersedes all prior oral and
written understandings, all contemporaneous oral negotiations and discussions,
and all other writings and agreements relating to the subject matter hereof.


 


4.             Notices.


 


(a)           All notices, requests, demands and other communications
hereunder shall be either (i) delivered in person, (ii) sent by
overnight courier service or other express commercial delivery service, or
(iii) sent by facsimile with confirmation of receipt and, in each case,
addressed as follows:


 


	
  If
  to CECC:

  	
   

  	
  Clean
  Energy Compression Corp.

  
	
   

  	
   

  	
  43676
  Progress Way

  
	
   

  	
   

  	
  Chilliwack,
  B.C. VR2 0C3

  
	
   

  	
   

  	
  Facsimile:
  (604) 792-3806

  
	
   

  	
   

  	
  Attention:
  Rick Wheeler

  



 

















 


	
  If
  to 0884808:

  	
   

  	
  0884808
  B.C. Ltd.

  
	
   

  	
   

  	
  43676
  Progress Way

  
	
   

  	
   

  	
  Chilliwack,
  B.C. VR2 0C3

  
	
   

  	
   

  	
  Facsimile:
  (604) 792-3806

  
	
   

  	
   

  	
  Attention:
  Rick Wheeler

  
	
   

  	
   

  	
   

  
	
  If
  to Clean Energy:

  	
   

  	
  Clean
  Energy

  
	
   

  	
   

  	
  3020
  Old Ranch Parkway, Suite 400

  
	
   

  	
   

  	
  Seal
  Beach, CA 90740

  
	
   

  	
   

  	
  Facsimile:
  (562) 493-4532

  
	
   

  	
   

  	
  Attention:
  Rick Wheeler

  
	
   

  	
   

  	
   

  
	
  If
  to HSBC:

  	
   

  	
  HSBC
  Bank Canada

  
	
   

  	
   

  	
  Vancouver
  Main Branch

  
	
   

  	
   

  	
  Suite 200
  – 885 West Georgia Street

  
	
   

  	
   

  	
  Vancouver,
  B.C. V6C 3G1

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Facsimile:
  (604) 641-1808

  
	
   

  	
   

  	
  Attention:
  Cam Rathwell, Senior Account

  
	
   

  	
   

  	
                   Manager,
  Commercial Banking

  



 


(b)           All notices, requests, instructions or documents given to
any party in accordance with this Section 4 shall be deemed to have
been given on the date of mailing or transmission, whether delivered by hand,
by overnight courier service, or by facsimile, with confirmation of receipt on
such date.  Any party hereto may change
its address specified for notices herein by designating a new address by notice
given in accordance with this Section 4.


 


5.             Modifications,
Amendments and Waivers.  This
Commitment to Provide Funds cannot be amended or changed nor any performance,
term, or condition waived in whole or in part, except by a writing signed by
the party against whom enforcement of the amendment, change or waiver is
sought.  No delay or failure on the part
of any party in exercising any rights hereunder, and no partial or single
exercise thereof, will constitute a waiver of such rights or of any other
rights hereunder.


 


6.             Governing
Law.  This Commitment to
Provide Funds is to be construed in accordance with and governed by the
internal laws of the State of Delaware or any similar successor provision,
without giving effect to any choice of law rule that would cause the
application of the laws of any jurisdiction other than the internal laws of the
State of Delaware to the rights and duties of the parties.


 


7.             Counterparts.  This Commitment to Provide Funds may be
executed in any number of counterparts which may be delivered by facsimile,
each of which shall be deemed to be an original, but all of which counterparts
shall together constitute one and the same instrument.


 

















 


8.             No
Third-Party Beneficiaries. 
The terms and provisions of this Commitment to Provide Funds are
intended solely for the benefit of each party hereto and their respective
successors and permitted assigns, and the parties do not intend to confer
third-party beneficiary rights upon any other individual or entity.


 


[Signatures Follow On a Separate Page]


 

















 


IN
WITNESS WHEREOF, each of the parties has caused this Commitment to Provide
Funds to be executed on its behalf by their respective officers thereunto duly
authorized all as of the date first written above.


 


	
   

  	
  Clean Energy

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  0884808 B.C. Ltd.

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Clean Energy Compression Corp.

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  HSBC

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title: