Exhibit 10.65


 


FIFTH AMENDMENT TO CREDIT AGREEMENT


 


THIS
FIFTH AMENDMENT TO CREDIT AGREEMENT (herein called the “Amendment”) is made as
of August 13, 2010 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”).


 


W I T N E S S E T H:


 


WHEREAS,
the Borrowers and Lender entered into that certain Credit Agreement dated as of
August 15, 2008, as amended by (i) that certain First Amendment to
Credit Agreement dated as of February 13, 2009, (ii) that certain
Second Amendment to Credit Agreement dated as of March 12, 2009,
(iii) that certain Third Amendment to Credit Agreement dated as of May 5,
2009, (iv) that certain Fourth Amendment to Credit Agreement dated as of September 30,
2009, and (v) that certain letter agreement dated as of August 2,
2010 (as further 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 Fifth Amendment to the Original Credit
Agreement.


 


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


 

















 


ARTICLE II.


 


AMENDMENTS
TO ORIGINAL CREDIT AGREEMENT


 


§ 2.1.       Definitions.  The definition of “Facility A Maturity Date”
in Section 1.1 of the Original Credit Agreement is hereby amended in its
entirety to read as follows:


 


“Facility A Maturity Date” means August 14, 2011.


 


§ 2.2.       Facility A Loan.  The introductory clause in Section 2.1(a) of
the Original Credit Agreement which currently reads as follows:


 


Borrowers shall have the right and option to extend the Facility A
Maturity Date to August 15, 2011 (the “Extension Period”), subject to the
conditions that:


 


is
hereby amended in its entirety to read as follows:


 


Borrowers shall have the right and option to extend the Facility A
Maturity Date to August 14, 2012 (the “Extension Period”), subject to the
conditions that:


 


§ 2.3.       Fees.  Section 2.4 of the Original Credit
Agreement is hereby amended to add the following subsection (f):


 


(f)            Unused Facility
Fee.  For the Facility A Loans, on
the fifteenth day of each November, February, May and August, beginning on
November 15, 2010 and continuing regularly thereafter, Borrower shall pay
to Lender an unused line fee in an amount equal to one-tenth of one percent
(0.10%) times the result of (i) the Facility A Maximum Credit
Amount minus (ii) the average daily outstanding balance of the
Facility A Loans during the immediately preceding three (3) month period.


 


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)           All corporate and other proceedings taken or to be taken in connection
with the transactions contemplated hereby shall be reasonably satisfactory in
form and substance to Lender, and Lender shall have received all such
counterpart originals or certified copies of such documents as Lender may
reasonably request.


 


2

















 


(c)          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
Original 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.


 


(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.


 


3

















 


§ 5.3.       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.


 


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


 


§ 5.5.       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.


 


§ 5.6.       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.


 


[The remainder of this page has been
intentionally left blank.]


 


4

















 


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,
  Turtle Creek

  



 


 


[SIGNATURE
PAGE TO FIFTH AMENDMENT TO CREDIT AGREEMENT]


 

















 


CONSENT AND AGREEMENT


 


Reference
is made to that certain Credit Agreement dated as of April 15, 2008 as
amended by a First Amendment to Credit Agreement dated as of February 13,
2009, as amended by a Second Amendment to Credit Agreement dated as of March 12,
2009, by a Third Amendment to Credit Agreement dated as of May 5, 2009, a
Fourth Amendment to Credit Agreement dated as of September 30, 2009, a
letter agreement dated as of August 2, 2010, and a Fifth Amendment to
Credit Agreement dated as of August 13, 2010 (the “Fifth Amendment”, the
Credit Agreement, as so amended, the “Agreement”), by and among CLEAN ENERGY
FUELS CORP., a Delaware corporation, CLEAN ENERGY, a California corporation
(the “Borrowers”), and PLAINSCAPITAL BANK, a Texas state chartered bank (the “Lender”),
which Agreement is in full force and effect on the date hereof.  Terms which are defined the Agreement are
used herein with the meanings given them in the Agreement.


 


Each
of the undersigned (each a “Grantor”) hereby consents to the Fifth Amendment
and agrees and acknowledges, with respect to each Security Document executed by
it that (i) such Security Document is and shall continue in full force and
effect for the benefit of the Lender with respect to the Obligations secured
thereby; (ii) there are no offsets, claims or defenses of the undersigned
with respect to such Security Document, nor, to the knowledge of the
undersigned, with respect to the Loans; (iii) such Security Document is
not released, diminished or impaired in any way by the transaction contemplated
in connection with the Fifth Amendment; and (iv) such Security Document is
hereby ratified and confirmed in all respects.


 


Dated
as of  August 13, 2010


 


	
  BLUE FUELS GROUP L.P.

  	
  NATURAL FUELS COMPANY, LLC

  
	
   

  	
   

  
	
  By:

  	
  Blue
  Energy General LLC, its general

  partner

  	
  By:

  	
  Clean
  Energy & Technologies LLC, its

  sole member

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  Clean
  Energy & Technologies LLC, its

  sole member

  	
  By:

  	
  Clean Energy Fuels Corp., its sole member

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  Clean Energy Fuels Corp., its sole member

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Richard
  R. Wheeler

  	
   

  	
  By

  	
  /s/ Richard
  R. Wheeler

  
	
   

  	
   

  	
  Richard
  R. Wheeler

  	
   

  	
  Richard
  R. Wheeler

  
	
   

  	
   

  	
  Chief
  Financial Officer

  	
   

  	
  Chief
  Financial Officer

  
							



 


[CONSENT
AND AGREEMENT TO FIFTH AMENDMENT]


 

















 


	
  TRANSTAR ENERGY COMPANY L.P.

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  Blue Energy General LLC, its general partner

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  Clean Energy & Technologies LLC, its sole
  member

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  Clean Energy Fuels Corp., its sole member

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Richard R. Wheeler

  	
   

  
	
   

  	
   

  	
  Richard
  R. Wheeler

  	
   

  
	
   

  	
   

  	
  Chief
  Financial Officer

  	
   

  



 


[CONSENT AND AGREEMENT TO FIFTH AMENDMENT]