Exhibit 10.49


 


THIRD AMENDMENT TO CREDIT AGREEMENT


 


THIS THIRD AMENDMENT TO CREDIT
AGREEMENT (herein called the “Amendment”) is made as of May 5, 2009 by and
among CLEAN ENERGY FUELS CORP., a Delaware corporation (“CEF”), and CLEAN
ENERGY, a California corporation (“Clean Energy”; CEF and Clean Energy together
are the “Borrowers”), and PLAINSCAPITAL BANK, a Texas state chartered bank (“Lender”).


 


WITNESSETH:


 


WHEREAS, the Borrowers and
Lender entered into that certain Credit Agreement dated as of August 15,
2008, as amended by that certain First Amendment to Credit Agreement dated as
of February 13, 2009 and that certain Second Amendment to Credit Agreement
dated as of March 12, 2009 (as amended, supplemented, or restated to the
date hereof, the “Original Credit Agreement”), for the purpose and
consideration therein expressed, whereby Lender became obligated to make loans
to the Borrowers as therein provided; and


 


WHEREAS, the Borrowers and
Lender desire to amend the Original Credit Agreement as set forth herein;


 


NOW, THEREFORE, in
consideration of the premises and the mutual covenants and agreements contained
herein and in the Original Credit Agreement, in consideration of the loans
which may hereafter be made by Lender to the Borrowers, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto do hereby agree as follows:


 


ARTICLE I.


 


DEFINITIONS AND REFERENCES


 


§ 1.1.       Terms Defined in the Original Credit
Agreement.  Unless the context otherwise
requires or unless otherwise expressly defined herein, the terms defined in the
Original Credit Agreement shall have the same meanings whenever used in this
Amendment.


 


§ 1.2.       Other Defined Terms.  Unless the context otherwise requires, the
following terms when used in this Amendment shall have the meanings assigned to
them in this Section 1.2.


 


“Amendment”
means this Third Amendment to Credit Agreement.


 


“Credit
Agreement” means the Original Credit Agreement as amended hereby.


 

















 


ARTICLE II


 


AMENDMENTS TO ORIGINAL CREDIT AGREEMENT


 


§ 2.1.       Permitted Liens.  The definition of “Permitted Liens” in Section 1
of the Original Credit Agreement is hereby amended to include new sub-sections (m) and
(n) that read as follows:


 


“(m)        Liens on property of
the Borrowers or their Subsidiaries granted by the Borrowers or their
Subsidiaries in connection with contractual purchase rights existing under any
fueling station construction agreements of Borrowers or their Subsidiaries,
provided that such Liens cover only the property subject to such contractual
purchase rights; and


 


(n)           Liens granted on
property of the Borrowers or their Subsidiaries the acquisition of which by
Borrowers or their Subsidiaries is funded in whole or in part by any government
or non-profit entity funding program or grant award.”


 


§ 2.2.       Accounts
Receivable.  Section 7.11 of the
Original Credit Agreement is hereby amended and restated in its entirety to
read as follows:


 


“Section 7.11         Accounts
Receivable.  As of the end of each
calendar quarter, the aggregate amount of Accounts of the Restricted Persons
will not be less than $8,000,000.”


 


ARTICLE III


 


CONDITIONS OF EFFECTIVENESS


 


§ 3.1        Effective Date.  This Amendment shall become effective as of
the date first above written when and only when:


 


(a)           Lender shall have received, at Lender’s
office, this Amendment and the Consent and Agreement, each duly executed and
delivered and in form and substance satisfactory to Lender.


 


(b)           The Borrowers shall
have paid, in connection with the Loan Documents, all fees and reimbursements
to be paid to Lender pursuant to any Loan Documents, or otherwise due Lender
and including fees and disbursements of Lender’s attorneys.


 


ARTICLE IV


 


REPRESENTATIONS AND WARRANTIES


 


§4.1         Representations and Warranties of
the Borrowers.  In order to induce
Lender to enter into this Amendment, each Borrower represents and warrants to
Lender that:


 


(a)           The
representations and warranties contained in Article V of the Credit
Agreement are true and correct at and as of the time of the effectiveness
hereof, except to the extent that the facts on which such representations and
warranties are based have been changed by the extension of credit under the
Credit Agreement.


 


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(b)           Such
Borrower is duly authorized to execute and deliver this Amendment and is and
will continue to be duly authorized to borrow monies and to perform its
obligations under the Credit Agreement. Such Borrower has duly taken all
corporate action necessary to authorize the execution and delivery of this
Amendment and to authorize the performance of the obligations of such Borrower.


 


(c)           The
execution and delivery by such Borrower of this Amendment, the performance by
such Borrower of its obligations hereunder and the consummation of the
transactions contemplated hereby do not and will not conflict with any
provision of law, statute, rule or regulation or of the organizational
documents of such Borrower, or of any material agreement, judgment, license,
order or permit applicable to or binding upon such Borrower, or result in the
creation of any lien, charge or encumbrance upon any assets or properties of
such Borrower.  Except for those which
have been obtained, no consent, approval, authorization or order of any court
or governmental authority or third party is required in connection with the
execution and delivery by such Borrower of this Amendment or to consummate the
transactions contemplated hereby.


 


(d)           When
duly executed and delivered, each of this Amendment and the Credit Agreement
will be a legal and binding obligation of the Borrowers, enforceable in
accordance with its terms, except as limited by bankruptcy, insolvency or
similar laws of general application relating to the enforcement of creditors’
rights and by equitable principles of general application.


 


ARTICLE V


 


MISCELLANEOUS


 


§5.1         Ratification of
Agreements.  The Original Credit
Agreement as hereby amended is hereby ratified and confirmed in all
respects.  Any reference to the Credit
Agreement in any Loan Document shall be deemed to be a reference to the
Original Credit Agreement as hereby amended. 
The execution, delivery and effectiveness of this Amendment shall not,
except as expressly provided herein, operate as a waiver of any right, power or
remedy of Lender under the Credit Agreement, the Notes, or any other Loan
Document nor constitute a waiver of any provision of the Credit Agreement, the
Notes or any other Loan Document.


 


§ 1.3.       Survival of
Agreements.  All representations,
warranties, covenants and agreements of each Borrower herein shall survive the
execution and delivery of this Amendment and the performance hereof, including
without limitation the making or granting of the Loans, and shall further
survive until all of the Obligations are paid in full.  All statements and agreements contained in
any certificate or instrument delivered by any Borrower hereunder or under the
Credit Agreement to Lender shall be deemed to constitute representations and
warranties by, and/or agreements and covenants of, such Borrower under this
Amendment and under the Credit Agreement.


 


§5.3         Loan Documents.  This Amendment is a Loan Document, and all
provisions in the Credit Agreement pertaining to Loan Documents apply hereto.


 


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§5.4         Governing Law.  This Amendment shall be governed by and
construed in accordance the laws of the State of Texas and any applicable laws
of the United States of America in all respects, including construction,
validity and performance.


 


§5.5         Counterparts; Fax.  This Amendment may be separately executed in
counterparts and by the different parties hereto in separate counterparts, each
of which when so executed shall be deemed to constitute one and the same
Amendment.  This Amendment may be validly
executed by facsimile or other electronic transmission.


 


THIS
AMENDMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.  THERE ARE NO UNWRITTEN ORAL AGREEMENTS OF THE
PARTIES.


 


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IN WITNESS WHEREOF, this
Amendment is executed as of the date first above written.


 


	
   

  	
  CLEAN ENERGY FUELS CORP., as a Borrower

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Richard R. Wheeler

  
	
   

  	
   

  	
  Name:

  	
  Richard R. Wheeler

  
	
   

  	
   

  	
  Title:

  	
  Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CLEAN ENERGY, as a Borrower

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Richard R. Wheeler

  
	
   

  	
   

  	
  Name:

  	
  Richard R. Wheeler

  
	
   

  	
   

  	
  Title:

  	
  Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PLAINSCAPITAL BANK, as the
  Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Ronald C. Berg

  
	
   

  	
   

  	
  Name:

  	
  Ronald C. Berg

  
	
   

  	
   

  	
  Title:

  	
  President, Turtlecreek

  



 


[SIGNATURE PAGE TO THIRD AMENDMENT TO CREDIT
AGREEMENT]