exhibit10-1.htm


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    AMENDMENT
NO. 4

     

    This
AMENDMENT NO. 4, dated as of January 1, 2009 (the “Amendment”), is
entered into by and among New Earth LNG, LLC, a Delaware limited liability
company (the “Borrower”), the other
persons designated as “Loan Parties” on the signature pages hereto (the “Loan Parties”), and
Fourth Third LLC, a Delaware limited liability company, as agent for the Lenders
(“Agent”) and
as a Lender.

     

    WHEREAS,
Borrower, the other Loan Parties, Lenders (as defined therein) and Agent are
party to a certain Amended and Restated Credit Agreement, dated as of June 26,
2008, (as heretofore amended, restated, supplemented or otherwise modified, the
“Credit
Agreement”; all capitalized terms defined in the Credit Agreement and not
otherwise defined herein shall have the meanings assigned thereto in the Credit
Agreement); and

     

    WHEREAS,
Borrower, the other Loan Parties, Agent and Lenders have agreed to amend the
Credit Agreement to provide for certain modifications thereto subject to the
terms and conditions provided herein;

     

    NOW,
THEREFORE, in consideration of the premises and the agreements, provisions and
covenants herein contained, Borrower, the other Loan Parties, Lenders and Agent
agree as follows:

     

    SECTION
1

     

    DEFINED TERMS AND
SECTIONS

     

    Capitalized
terms set forth herein shall have the meanings when used herein as set forth in
the Credit Agreement.  Section references used herein shall, unless
otherwise expressly provided, be deemed to be references to Sections of the
Credit Agreement.

     

    SECTION
2

     

    AMENDMENTS

     

    Subject
to the satisfaction of the conditions to effectiveness referred to in Section 3 below,
Borrower, the other Loan Parties, Lenders and Agent agree that the Credit
Agreement is hereby amended as follows:

     

    2.1           Interest
Payments.  With respect to the interest payment due on January
1, 2009 pursuant to Section 2.4.2 (Interest Payment Dates), such amount (which
the parties agree is the sum of $285,458.33) shall be deemed to be
“paid-in-kind” (PIK), that is, added to the principal amount of the Loan; it
being understood and agreed that (1) the Interest Reserve Account has been
exhausted, (2) the foregoing accommodation to permit the interest payment due
January 1, 2009 to be PIK is a modification only to such interest payment and
(3) all future payments of accrued interest on the Loan must be paid in full, in
cash, when due, commencing on February 1, 2009, and continuing at all times
thereafter.

     


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    2.2           Principal
Payments.  There shall be added to Section 2.6.2 (Mandatory
Prepayments) a new clause (iv), to be added at the present end of said Section,
in respect of mandatory prepayments of the Loan, to read as
follows:

    (iv)   Commencing on
April 1, 2009, and continuing on the first day of each calendar month
thereafter, in addition to the sums specified in clauses (i) through (iii)
above, the sum of $50,000 per month until maturity.

     

    SECTION
3

     

    CONDITIONS TO
EFFECTIVENESS

     

    The
amendment(s) set forth hereinabove shall become effective retroactive to the
Closing Date (the “Effective Date”)
provided that
the following conditions are satisfied in full:

     

    (a)           Agent
shall have received one or more counterparts of this Amendment executed and
delivered by Borrower, the other Loan Parties, Agent and Lenders;

     

    (b)           Agent
shall have received one or more counterparts of the Consent and Reaffirmation in
the form of Exhibit
A hereto, executed and delivered by each of the Guarantors named
therein;

     

    (c)           no
Default or Event of Default is continuing or would result after giving effect to
this Amendment; and

     

    (d)           all
representations and warranties of the Loan Parties contained in this Amendment
and in the Credit Agreement shall be true and correct in all material respects
as of the date hereof and as of the Effective Date, except to the extent such
representations and warranties relate to a specific date.

     

    SECTION
4

     

    NO WAIVER ; LIMITATION
ON SCOPE ; CONSENT

     

    (a)           Except
as expressly amended hereby, all of the representations, warranties, terms,
covenants and conditions of the Loan Documents shall remain in full force and
effect in accordance with their respective terms.  The amendments set
forth herein shall be limited precisely as provided for herein and shall not be
deemed to be waivers of, amendments of, consents to or modifications of any term
or provision of the Loan Documents or any other document or instrument referred
to therein or of any transaction or further or future action on the part of
Borrower or any other Loan Party requiring the consent of Agent or Lenders
except to the extent specifically provided for herein.

     

    (b)           Agent
and Lenders hereby consent to the execution, delivery and performance by Applied
LNG and Arizona LNG of the Shell Note, a copy of which has been provided to
Agent, and agree that the same will not be deemed to be in violation of any
provision of the Credit Agreement, as amended, or any other Loan Documents;
provided, however, that the
foregoing is not intended as a consent to, and shall not permit, (i) Parent or
any Loan Party from granting any Liens to Shell Energy to secure any obligations
arising under the Shell Note or (ii)

     


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    Borrower
or any other Loan Party from issuing any guaranty in support of such obligations
or granting any Lien to secure the payment thereof.

    SECTION
5

     

    MISCELLANEOUS

     

    (a)           Borrower
and the other Loan Parties hereby represent and warrant that this Amendment has
been duly authorized and executed by Borrower and each of the other Loan Parties
and that the Credit Agreement, as amended by this Amendment, is the legal, valid
and binding obligation of Borrower and the other Loan Parties party thereto,
enforceable in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors rights generally and by
general equitable principles (whether enforcement is sought by proceedings in
law or in equity).

     

    (b)           Each
of Borrower and the other Loan Parties repeats and restates the representations
and warranties of such Person contained in the Credit Agreement as of the date
of this Amendment  and as of the Effective Date, except to the extent
such representations and warranties relate to a specific date; provided that
references to the Credit Agreement or “this Agreement” in such representations
and warranties shall be deemed to be references to the Credit Agreement as
amended pursuant to this Amendment.

     

    (c)           Borrower
agrees to pay on demand all of Agent’s costs and expenses arising in connection
with the execution and delivery of this Amendment.

     

    (d)           Borrower
and the other Loan Parties hereby ratify and confirm the Credit Agreement as
amended hereby, and agree that, as amended hereby, the Credit Agreement remains
in full force and effect.

     

    (e)           Borrower
and the other Loan Parties agree that the Loan Documents to which each such
Person is a party remain in full force and effect (as amended hereby in the case
of the Credit Agreement) notwithstanding the execution and delivery of this
Amendment and that nothing contained in this Amendment shall constitute a
defense to the enforcement of any Loan Document.

     

    (f)           This
Amendment may be executed by the parties hereto in separate counterparts, each
of which when so executed and delivered shall be deemed an original, but all of
which counterparts together shall constitute but one and the same
instrument.

     

    (g)           All
references in the Loan Documents to the “Credit Agreement” and in the Credit
Agreement as amended hereby to “this Agreement,” “hereof,” “herein” or the like
shall mean and refer to the Credit Agreement as amended by this Amendment (as
well as by all subsequent amendments, restatements, modifications and
supplements thereto).

     

    (h)           THIS
AMENDMENT SHALL BE GOVERNED BY AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE
WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF
LAW PRINCIPLES (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS
LAW).

     


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    (i)           This
Amendment is a “Loan Document” and each of the provisions set forth in Section 10 (Miscellaneous) of the
Credit Agreement applies to this Amendment and such Note to the same extent such
provision applies to any other Loan Document. Without limitation of the
foregoing, each of the following provisions of the Credit Agreement is hereby
incorporated herein by this reference with the same effect as though set forth
in its entirety herein, mutatis mutandis, and as if
“this Agreement” in any such provision read “this Amendment”: Section 10.2
(Notices), Section
10.10 (Captions), Section 10.13
(Severability), Section 10.14
(Entire Agreement), Section 10.15
(Successors and Assigns), Section 10.17
(Forum Selection; Consent to Jurisdiction) and Section 10.18
(Waiver of Jury Trial).

    [SIGNATURE
PAGE FOLLOWS]

     


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    WITNESS the due execution
hereof by the respective duly authorized officers of the undersigned as of the
date first written above.

     

    BORROWER:

     

    
      	
              NEW
      EARTH LNG, LLC

               

              By:  /s/ Kevin W.
      Markey

              Name:  Kevin
      W. Markey

              Title:    President

            


    

    LOAN
PARTIES:

     

    
      	
              PNG
      VENTURES, INC.

               

              By:   /s/
      Kevin W. Markey 

              Name:
      Kevin W. Markey

              Title:   Interim
      Chief Executive Officer

            
	
              APPLIED
      LNG TECHNOLOGIES USA, L.L.C.

               

              By:  New
      Earth LNG, LLC, its sole member

               

              By:
      /s/ Kevin W.
      Markey

              Name:
      Kevin W. Markey

              Title:   President

            
	
              FLEET
      STAR, INC.

               

              By:
      /s/ Kevin W.
      Markey

              Name:
      Kevin W. Markey

              Title:   President

            
	
              EARTH
      LEASING, INC.

               

               

              By:
      /s/ Kevin W.
      Markey

              Name:
      Kevin W. Markey

              Title:   President

            
	
              ARIZONA
      LNG, L.L.C.

               

              By:  New
      Earth LNG, LLC, its sole member

               

              By:
      /s/ Kevin W.
      Markey

              Name:
      Kevin W. Markey

              Title:   President

            


    


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    


    
      	
              AGENT
      AND LENDERS:

               

              FOURTH
      THIRD LLC,

              as
      Agent and a Lender

               

               

              By:
      /s/ Seth B.
      Taube

              Name:
      Seth B. Taube

              Title:
      Authorized Signatory

            
	 
      


    


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    


     

     

    


    


    


    EXHIBIT
A

     

     

     

     

     


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    


     

    CONSENT AND
REAFFIRMATION

     

    Each of
the undersigned (“Guarantors”) hereby
(i) acknowledges receipt of a copy of the foregoing Amendment No. 4; (ii)
consents to Borrower’s execution and delivery thereof and approves and consents
to the transactions contemplated thereby; (iii) agrees to be bound thereby; and
(iv) affirms that nothing contained therein shall modify or diminish in any
respect whatsoever its obligations under the Guarantee and Collateral Agreement
and the other Loan Documents to which it is a party and reaffirms that such
Guarantee and Collateral Agreement is and shall continue to remain in full force
and effect.  This acknowledgement by Guarantors is made and delivered
to induce Agent and Lenders to enter into Amendment No. 4, and Guarantors
acknowledge that Agent and Lenders would not enter into Amendment No. 4 in the
absence of the acknowledgements contained herein.  Although Guarantors
have been informed of the matters set forth herein and have acknowledged and
agreed to same, Guarantors understand that Agent and Lenders have no obligation
to inform Guarantors of such matters in the future or to seek Guarantors’
acknowledgment or agreement to future amendments or waivers, and nothing herein
shall create such a duty.  Capitalized terms used herein without
definition shall have the meanings given to such terms in the Amendment No. 4 to
which this Consent is attached or in the Credit Agreement referred to therein,
as applicable.

     


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    IN
WITNESS WHEREOF, the undersigned have executed this Consent and Reaffirmation on
and as of the date of Amendment No. 4.

     

    
      	
              PNG
      VENTURES, INC.

               

              By:
      /s/ Kevin W.
      Markey

              Name:
      Kevin W. Markey

              Title:   Interim
      Chief Executive Officer

            
	
              APPLIED
      LNG TECHNOLOGIES USA, L.L.C.

               

              By:  New
      Earth LNG, LLC, its sole member

               

              By:
      /s/ Kevin W.
      Markey

              Name:
      Kevin W. Markey

              Title:   President

            
	
              FLEET
      STAR, INC.

               

              By:
      /s/ Kevin W.
      Markey

              Name:
      Kevin W. Markey

              Title:   President

            
	
              EARTH
      LEASING, INC.

               

               

              By:
      /s/ Kevin W.
      Markey

              Name:
      Kevin W. Markey

              Title:   President

            
	
              ARIZONA
      LNG, L.L.C.

               

              By:  New
      Earth LNG, LLC, its sole member

               

              By:
      /s/ Kevin W.
      Markey

              Name:
      Kevin W. Markey

              Title:   President