Exhibit 10.66


 


BIXBY OFFICE PARK

3010 & 3020 OLD RANCH PARKWAY

SEAL BEACH, CALIFORNIA


 


SEVENTH AMENDMENT TO LEASE 

(CLEAN ENERGY)


 


THIS SEVENTH AMENDMENT TO LEASE (this “Amendment”)
is made as of September 23, 2010, by and between BIXBYBIT -
BIXBY OFFICE PARK, LLC,  a Delaware
limited liability company (“Landlord”) and CLEAN ENERGY,  a California
corporation (Tenant”).


 


RECITALS


 


A.            Landlord (as
successor-in-interest to EOP-Bixby Ranch, L.L.C.) and Tenant (formerly known as
ENRG Fuel USA, Inc. and ENRG, Inc., as successor-in-interest to
Pickens Fuels Corporation) entered into that certain Lease Agreement dated as
of August 12, 1999, as amended by that certain First Amendment to Lease
dated as of March 11, 2002, that certain Second Amendment dated as of November 24,
2003, that certain Third Amendment dated as of January 13, 2006 (the “Third Amendment”), that certain Fourth Amendment dated as of
March 15, 2006, that certain Fifth Amendment dated as of October 17,
2006 (the “Fifth Amendment”), and that
certain Sixth Amendment to Lease Agreement dated as of August 1, 2008 (the
“Sixth Amendment”) (collectively, as
amended, the “Lease”), with respect to certain
premises located at 3010 Old Ranch Parkway, Seal Beach, California 90740 (the “3010 Building”) and 3020 Old Ranch Parkway, Seal Beach,
California 90740 (the “3020 Building”).  All capitalized terms used herein and not
otherwise defined herein shall have the meanings set forth in the Lease.


 


B.            Pursuant to the
Lease, Tenant leases from Landlord certain premises consisting of (i) 19,881
rentable square feet of space comprising the entire fourth (4th) floor of the 3020 Building
and (ii) 6,136 rentable square feet of space located on the fourth (4th) floor of the 3010 Building
and commonly known as Suite 440, for a total of 26,017
rentable square feet (collectively, the “Existing Premises”),
as more particularly described in the Lease.


 


C.            Landlord and
Tenant desire to expand the Existing Premises covered by the Lease to include 7,873 rentable square feet of space located on the second (2nd) floor of the 3020
Building, and commonly known as Suite 200 (the “Expansion
Premises”), as more particularly set forth on Exhibit A
attached hereto.


 


D.            Landlord and
Tenant desire to amend the Lease to extend the Term of the Lease, to expand the
size of the Premises, and to modify other provisions of the Lease, all as more
particularly set forth herein and subject to the terms hereof.


 


AGREEMENT


 


NOW, THEREFORE, in consideration of the mutual covenants
contained herein, Landlord and Tenant agree as follows:


 


1.             EXPANSION OF THE EXISTING PREMISES.  Effective as of the Extension
Date and continuing through to and including the Expiration Date (as those
terms are defined below), Landlord shall lease to Tenant and Tenant shall lease
from Landlord the Expansion Premises 


 


1

















 


on all of the terms and conditions of the Lease, as
amended hereby.  From and after the
Extension Date, all references to the “Premises” in
the Lease and this Amendment shall be deemed references to the Existing
Premises and the Expansion Premises, collectively, and shall measure 33,890 rentable square feet.


 


2.             TERM.  The Lease with respect to the Premises, as
amended by Section 1 above, is hereby amended to extend for a term
of eighty (86) months (the “Extended Term”),
commencing on the earlier of (i) the date Tenant commences business
operations in the Expansion Premises, or (ii) the date the Landlord Work
is Substantially Complete (as such terms are defined in Exhibit B
attached hereto), subject to the issuance of a certificate of occupancy from
the relevant governmental authority, if required, which date is anticipated to
be December 1, 2010 (the “Extension Date”),
and expiring on the last day of the eighty-sixth (86th)
month following the Extension Date (the “Expiration Date”).  From and after the date hereof, all
references to “Term” in the Lease or this Amendment shall be deemed references
to the Term, as extended by this Amendment, and all references to the date of
expiration of the Lease shall be deemed references to the Expiration Date.  It is understood and agreed that if for any
reason the Extension Date occurs pursuant to the terms of this Amendment on a
day other than the first (1st) day
of a calendar month, the period commencing on the Extension Date and ending on
the last day of the calendar month in which the Extension Date occurs shall be
an initial stub period which shall be added to the Extended Term and Tenant
shall pay all Rent and other charges with respect to such stub period (on a
prorated basis as referenced in Section 3.1 (Base Rent) of the
Lease) at the same rate applicable to the first (1st) full
calendar month of the Extended Term. 
Following such stub period and commencing as of the first (1st) day of the first (1st) full
calendar month following the month in which the Extension Date occurs, Tenant
shall commence the payment of Rent and other charges payable hereunder as if
the Extended Term had actually commenced on such date.  The use of the stub period described above is
intended to provide for ease of administration and calculation of all amounts
owed hereunder, it being agreed that all rental adjustments will be determined
as of the first (1st) day of a calendar
month and the Extended Term will end as of the last day of a calendar month
(unless earlier terminated pursuant to the terms hereof).  Within 30 days after the Extension Date,
Tenant shall return an executed Confirmation of Extension Date in the form
attached hereto as Exhibit C.  The Confirmation of Extension Date shall be
binding upon Tenant unless Tenant objects thereto in writing within such 30 day
period.  It is acknowledged and agreed
that the existing Term of the Lease is currently scheduled to expire January 31,
2015, and the Extended Term described herein shall supersede and replace the
currently remaining Term of the Lease pursuant to this Amendment.  In addition to the foregoing, Tenant shall
have one (1) option to extend the Term for an additional period of five (5) years,
pursuant to and in accordance with the terms and conditions of Rider No. 1,
Rider No. 2 and Rider No. 3 attached hereto.


 


3.             CONDITION OF THE EXISTING PREMISES; CONDITION AND
USE OF THE EXPANSION PREMISES.


 


a.             Condition of the Existing Premises.  Landlord shall have no obligation whatsoever
to construct leasehold improvements for Tenant or to repair or refurbish the
Existing Premises.  Tenant currently
occupies and will continue to occupy the Existing Premises in its current
configuration “AS-IS”, subject to Landlord’s
obligation to provide services, maintain the Premises and the Building, and to
comply with applicable laws, rules and regulations, all as more
particularly set forth in the Lease.


 


2

















 


b.             Condition and Use of the Expansion Premises.  Except as specifically set forth
in the Work Letter attached hereto as Exhibit B, Landlord shall
have no obligation whatsoever on or before the Extension Date to construct
leasehold improvements for Tenant or to repair or refurbish the Expansion
Premises, however, all terms and conditions in the Lease with respect to
Landlord’s repair obligations and obligations to provide services shall
continue with respect to the entire Premises during the Extended Term.  The taking of possession of the Expansion
Premises by Tenant following completion of the Landlord Work shall be
conclusive evidence that Tenant accepts the same “AS IS”
and that the Expansion Premises is in good and satisfactory condition at the
time such possession was taken.  Tenant
acknowledges that neither Landlord nor Landlord’s agents has made any
representation or warranty as to the condition of the Expansion Premises or the
Building or its suitability for Tenant’s purposes.  Tenant represents and warrants to Landlord
that (a) its sole intended use of the Expansion Premises is for general
office use, which has no special requirements, including but not limited to
special security requirements, (b) it does not intend to use the Expansion
Premises for any other purpose, and (c) prior to executing this Amendment
it has made such investigations as it deems appropriate with respect to the
suitability of the Expansion Premises for its intended use and has determined
that the Expansion Premises is suitable for such intended use.


 


 


4.             BASE RENT.


 


a.             Base Rent for the Existing Premises.  Effective as of the Extension Date, in
addition to all other amounts payable under the Lease, Tenant shall pay Monthly
Base Rent for the Existing Premises as set forth below, in accordance with the
terms of the Lease.  Upon execution of
this Amendment, Tenant shall pay to Landlord the sum of $72,102.00
constituting Base Rent due and payable by Tenant for the Existing Premises for
the first full calendar month of the Extended Term for which Base Rent is
payable hereunder.


 


	
  Months of the

  Extended Term/Rental

  Adjustment Dates**

  	
   

  	
  Annual

  Base Rent

  	
   

  	
  Monthly

  Base Rent

  	
   

  	
  Monthly Base Rent per

  Rentable Square Foot of

  the Existing Premises

  	
   

  
	
  Extension Date —
  November 30, 2011

  	
   

  	
  $

  	
  865,224.00

  	
   

  	
  $

  	
  72,102.00

  	
   

  	
  $

  	
  2.77

  	
   

  
	
  December 1, 2011 —
  November 30, 2012

  	
   

  	
  $

  	
  908,484.00

  	
   

  	
  $

  	
  75,707.00

  	
   

  	
  $

  	
  2.91

  	
   

  
	
  December 1, 2012 —
  November 30, 2013

  	
   

  	
  $

  	
  953,904.00

  	
   

  	
  $

  	
  79,492.00

  	
   

  	
  $

  	
  3.06

  	
   

  
	
  December 1, 2013 —
  November 30, 2014

  	
   

  	
  $

  	
  982,524.00

  	
   

  	
  $

  	
  81,877.00

  	
   

  	
  $

  	
  3.15

  	
   

  
	
  December 1, 2014 — February 28,
  2015

  	
   

  	
  $

  	
  1,012,008.00

  	
   

  	
  $

  	
  84,334.00

  	
   

  	
  $

  	
  3.24

  	
   

  
	
  March 1, 2015 —
  November 30, 2015

  	
   

  	
  $

  	
  685,207.32

  	
   

  	
  $

  	
  57,100.61

  	
   

  	
  $

  	
  2.19

  	
   

  
	
  December 1, 2015 —
  November 30, 2016

  	
   

  	
  $

  	
  705,763.56

  	
   

  	
  $

  	
  58,813.63

  	
   

  	
  $

  	
  2.26

  	
   

  
	
  December 1, 2016 —
  November 30, 2017

  	
   

  	
  $

  	
  726,936.36

  	
   

  	
  $

  	
  60,578.03

  	
   

  	
  $

  	
  2.33

  	
   

  
	
  December 1, 2017 —
  Expiration Date

  	
   

  	
  $

  	
  748,744.56

  	
   

  	
  $

  	
  62,395.38

  	
   

  	
  $

  	
  2.40

  	
   

  



 


3

















 


b.             Base Rent for the Expansion Premises.  Effective as of the Extension Date, in
addition to all other amounts payable under the Lease, Tenant shall pay Monthly
Base Rent for the Expansion Premises as set forth below, in accordance with the
terms of the Lease.  Upon execution of
this Amendment, Tenant shall pay to Landlord the sum of $15,352.35
constituting Base Rent due and payable by Tenant for the Expansion Premises for
the first full calendar month of the Extended Term for which Base Rent is
payable hereunder.


 


	
  Months of the

  Extended Term/Rental

  Adjustment Dates**

  	
   

  	
  Annual

  Base Rent

  	
   

  	
  Monthly

  Base Rent

  	
   

  	
  Monthly Base Rent per

  Rentable Square Foot of

  the Expansion Premises

  	
   

  
	
  *1 — 12

  	
   

  	
  $

  	
  184,228.20

  	
   

  	
  $

  	
  15,352.35

  	
   

  	
  $

  	
  1.95

  	
   

  
	
  13 — 24

  	
   

  	
  $

  	
  189,755.05

  	
   

  	
  $

  	
  15,812.92

  	
   

  	
  $

  	
  2.01

  	
   

  
	
  25 — 36

  	
   

  	
  $

  	
  195,447.70

  	
   

  	
  $

  	
  16,287.31

  	
   

  	
  $

  	
  2.07

  	
   

  
	
  37 — 48

  	
   

  	
  $

  	
  201,311.13

  	
   

  	
  $

  	
  16,775.93

  	
   

  	
  $

  	
  2.13

  	
   

  
	
  49 — November 30, 2015

  	
   

  	
  $

  	
  207,350.46

  	
   

  	
  $

  	
  17,279.21

  	
   

  	
  $

  	
  2.19

  	
   

  
	
  December 1, 2015 —
  November 30, 2016

  	
   

  	
  $

  	
  213,570.98

  	
   

  	
  $

  	
  17,797.58

  	
   

  	
  $

  	
  2.26

  	
   

  
	
  December 1, 2016 —
  November 30, 2017

  	
   

  	
  $

  	
  219,978.11

  	
   

  	
  $

  	
  18,331.51

  	
   

  	
  $

  	
  2.33

  	
   

  
	
  December 1, 2017 —
  Expiration Date

  	
   

  	
  $

  	
  226,577.45

  	
   

  	
  $

  	
  18,881.45

  	
   

  	
  $

  	
  2.40

  	
   

  



 






*Base
Rent due for the Expansion Premises for the first (1st) three (3) full months of the Extended Term
shall be abated, as set forth in Section 4.c below.


 


**Numbered
months referenced are to months of the Extended Term.  For purposes of clarification, Landlord and
Tenant have agreed that the Monthly Base Rent for the Premises (including the
Existing Premises and the Expansion Premises) shall be adjusted to a fixed rate
of $2.26 per rentable square foot effective as of December 1, 2015, and
the rental charts above reflect this fixed adjustment date.


 


4

















 


c.             Rent Abatement for the Expansion Premises.  Notwithstanding anything to the
contrary contained herein and provided that Tenant faithfully performs all of
the terms and conditions of the Lease, as amended, and no default by Tenant
occurs under the Lease and continues to exist beyond the expiration of any
applicable notice and cure period, Landlord hereby agrees that during the first
(1st) three (3) full months of the Extended Term (the “Abatement Period”), Tenant shall not be required to pay the
monthly installments of Base Rent and Tenant’s Share of Operating Costs and
Taxes due for the Expansion Premises only. 
During the Abatement Period, Tenant shall still be responsible for the
payment of all of its other monetary obligations under the Lease, as amended,
including, but not limited to, payment of Base Rent and Tenant’s Share of
Operating Costs and Taxes due for the Existing Premises.  In the event of a default by Tenant under the
terms of the Lease that results in termination of the Lease in accordance with
the provisions of Article 15 (Defaults and Remedies) of the Lease,
then as a part of the recovery set forth in Article 15 of the
Lease, Landlord shall be entitled to the recovery of the Base Rent that was
abated under the provisions of this Section 3.


 


 


5.             OPERATING COSTS AND TAXES.


 


a.             Tenant’s Share.  Effective as of the Extension Date, Tenant’s
Share of Operating Costs and Taxes shall be 12.73% (33,890 rentable square feet
within the Premises/266,287 rentable square feet within the Project).  Landlord and Tenant stipulate and agree that
the rentable square footage of the Building and the Premises are correct.


 


b.             Base Year.  Effective as of the Extension Date, Tenant’s
Share of Operating Costs and Taxes shall be calculated using calendar year 2011
as the Base Year.  Accordingly, in
addition to all other costs and expenses payable pursuant to the Lease, as
amended, including, without limitation, Base Rent set forth in Section 4
of this Amendment, Tenant shall pay Tenant’s Share of Operating Costs and Taxes
in excess of the Operating Costs and Taxes for the calendar year 2011.


 


c.             Building Occupancy.  Effective as of the date hereof, Section 3.2.(a).(3) (Operating
Costs) of the Lease is hereby revised as set forth in this Section 5.c.  If at any time during a calendar year the
Building is not 100% occupied or Landlord is not supplying services to 100% of
the total rentable square footage of the Building, Expenses shall be determined
as if the Building had been 95% occupied and Landlord had been supplying
services to 95% of the rentable square footage of the Building.


 


d.             Cap on Controllable Operating Costs.  Notwithstanding anything to the contrary contained
in Article 3 (Rent) of the Lease, effective as of the Extension
Date, the aggregate Controllable Operating Costs (as hereinafter defined)
included in Operating Costs in any calendar year after the Base Year shall not
increase by more than five percent (5%) on an annual, cumulative and compounded
basis, over the actual aggregate Controllable Operating Costs included in
Operating Costs for any preceding calendar year (including the Base Year), but
with no such limit on the amount of Controllable Operating Costs which may be
included in the Operating Costs incurred during the Base Year.  For purposes of this Section 4.c,
“Controllable Operating Costs” shall
mean all Operating Costs except:  (i) insurance
carried by Landlord with respect to the Property and/or the operation thereof; (ii) costs
of capital expenditures which constitute Operating Costs under Section 3.2.(a).(3) of
the Lease; and (iii) wages, salaries and other compensation and benefits
paid to Landlord’s employees, agents or contractors engaged in the operation,
management, maintenance (including, but not limited to, janitorial and cleaning
services) or security of the Building or Property, to the extent such wages,
salaries and other compensation are incurred as a result of union labor or government
mandated requirements including, but not limited to, prevailing wage laws and
similar requirements.  The provisions of
this Section 5.d do not apply to Taxes and utility services.


 


5

















 


6.             SECURITY DEPOSIT.  Landlord
is currently holding a Security Deposit in the amount of $92,776.40
under the Lease for the Existing Premises. 
Pursuant to the terms of Section 6 of the Sixth Amendment,
Tenant is entitled to a reduction of the Security Deposit effective as of October 31,
2010, in an amount equal to $48,690.36 (the
“Original Reduction Amount”).  Landlord and Tenant hereby agree to amend Section 6
of the Sixth Amendment to the reflect that effective as of the date of
execution and delivery of this Amendment, a portion of the Original Reduction
Amount, equal to $20,769.60 (110% of the last
monthly installment of Base Rent payable for the Expansion Premises, herein the
“Expansion Security Amount”), shall be
deemed applied to the Security Deposit held by Landlord under the Lease,
thereby reducing the Original Reduction Amount. 
Accordingly, Landlord hereby agrees that, effective as of the Extension
Date (and provided that no breach or default by Tenant has occurred under the
Lease after the date of this Amendment and prior to the Extension Date, and
remains uncured following the expiration of any applicable notice and cure
period), Tenant shall be entitled to a reduction of the Security Deposit in the
amount $27,920.76 (the “New
Reduction Amount”), which amount shall be applied to Base Rent next
coming due under the Lease.  From and
after the application of the New Reduction Amount to Base Rent next coming due
under the Lease as set forth herein, the Security Deposit amount held by
Landlord hereunder shall be $64,855.64.  Thereafter, provided that no breach or
default by Tenant occurs under the Lease after the date of this Amendment and
prior to December 1, 2011 (and remains uncured following the expiration of
any applicable cure period), Tenant shall be entitled to a reduction of the
Security Deposit effective as of December 1, 2011, in an amount equal to
the Expansion Security Amount, which amount shall be applied to Base Rent next
coming due under the Lease, as amended. 
It is understood and agreed that, if the Expansion Security Amount is
applied as set forth above, the Security Deposit shall total $44,086.04, and there shall be no further reduction in the
amount of the Security Deposit for the remainder of the Term, and the Security
Deposit, as reduced hereby, shall continue to be held pursuant to the terms Article VI
of the Lease, through the date Tenant has satisfied all of its obligations
under the Lease.  It is further
understood and agreed that the terms set forth in the last sentence of Section 6
of the Sixth Amendment requiring Tenant to restore the Security Deposit in the
event of a default by Tenant shall continue in full force and effect.


 


7.             PARKING.  From and after the Extension Date, Tenant
shall be entitled to use a total of one hundred thirty-six (136) parking passes
subject to and in accordance with the terms and conditions of Section 36
and Exhibit D of the Original Lease, and the terms of this Section 7.  Of those 136 parking passes, Tenant shall
have the right to maintain (a) up to twenty-four (24) reserved parking
passes at the monthly rate of $100.00 per reserved parking pass per month
throughout the Extended Term and (b) up to twenty-three (23) reserved
parking passes at no cost to Tenant during the Extended Term, subject, however,
to the payment of Operating Costs attributable to the parking areas.  All charges paid by Tenant for reserved
parking passes shall constitute Additional Rent under the Lease.  Notwithstanding the foregoing, it is
understood and agreed that Tenant’s existing twenty-four (24) reserved parking
passes shall remain in the same location, as more particularly shown on Exhibit D
(Parking Diagram) attached hereto.


 


8.             FIRST RIGHT TO LEASE.  During the period from the
Extension Date until the last day of the fiftieth (50th) full month of the Extended Term, Tenant shall have the First Right to
lease Suite 250 of the 3020 Building, subject to and in accordance with
the terms and conditions of Rider No. 4 attached hereto.


 


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9.             SNDA.  Landlord agrees to use commercially
reasonable efforts to obtain from the current lender holding a lien on the
Property as of the date hereof a subordination, non-disturbance and attornment
agreement (“SNDA”) in favor of Tenant with
respect to the Lease, in the current lender’s standard form.  If Tenant requests any material changes to
the current lender’s form of SNDA, then Tenant shall reimburse Landlord for any
actual fees charged to Landlord in obtaining such SNDA for Tenant (including
any actual processing fees or actual costs charged by the current lender).


 


10.          ADDITIONAL LEASE MODIFICATION.  Effective as of the date hereof,
Section 1.01 (Suite B250 Right of First Offer) of the Fifth
Amendment is hereby deleted in its entirety and shall be of no further force or
effect.  It is further understood and
agreed that the terms of Article 11 of the Lease relating to the
obligations of Tenant to carry insurance shall be revised as follows:  (i) Section 11(b) shall
require full replacement cost coverage to be carried by Tenant; (ii) Section 11(c) shall
be revised to reflect that the required financial size category rating of
Tenant’s insurers shall be “X” in the latest edition of the A.M. Best Key
Rating Guide.  Further, any blanket
policy shall be endorsed to provide that the required general aggregate
coverage limit shall apply separately and in total to this location only
(designate location general aggregate limit).


 


11.          FINANCIAL STATEMENTS.  At any time during the Term of the Lease,
upon thirty (30) days prior written notice from Landlord (but not more
frequently than once per calendar year), Tenant agrees to provide Landlord with
a current financial statement for Tenant and financial statements for the two (2) years
prior to the current financial statement year for Tenant.  Such statements are to be prepared in
accordance with generally accepted accounting principles and, if such is the
normal practice of Tenant, audited by an independent certified public
accountant.  Notwithstanding the
foregoing, following the occurrence of a breach or default by Tenant under the
Lease, which remains uncured following the expiration of any applicable notice
and cure period, Tenant shall provide financial statements as referenced above,
upon ten (10) business days notice from Landlord, and such financial
statements shall be audited by an independent certified public accountant
unless otherwise agreed by Landlord.


 


12.          BROKERS.  Tenant represents and warrants to Landlord
that, other than Jones Lang LaSalle (Paul Park) (“Tenant’s
Broker”), it has not engaged any broker, finder or other person who
would be entitled to any commission or fees in respect of the negotiation,
execution or delivery of this Amendment, and shall indemnify, defend and hold
harmless Landlord against any loss, cost, liability or expense incurred by
Landlord as a result of any claim asserted by any broker, finder or other
person on the basis of any arrangements or agreements made or alleged to have
been made by or on behalf of Tenant.  The
provisions of this section shall not apply to brokers with whom Landlord has an
express written broker agreement. 
Landlord shall pay a commission or finder’s fee due to Tenant’s Broker
in connection with this Amendment, pursuant to a separate written
agreement.   The provisions of this Section 12
shall survive the expiration or earlier termination of the Lease.  Landlord represents and warrants to Tenant
that, other than Cushman & Wakefield (James Estrada) (“Landlord’s Broker”), and other than Tenant’s Broker, it has
not engaged any broker, finder or other person who would be entitled to any
commission or fees in respect of the negotiation, execution or delivery of this
Amendment, and shall indemnify, defend and hold harmless Tenant against any
loss, cost, liability or expense incurred by Tenant as a result of any claim
asserted by any broker, finder or other person on the basis of any arrangements
or agreements made or alleged to have been made by or on behalf of Landlord.


 


7

















 


13.          OFFSET RIGHT FOR LANDLORD FAILURE TO PAY BROKERAGE
COMMISSION.  If Landlord fails to pay the brokerage
commission payable by Landlord with respect to this Amendment in accordance
with the terms and conditions of a separate written brokerage agreement executed
by Landlord, Tenant shall be entitled to deliver to Landlord written notice (“Payment Notice”) of such failure to pay.  Each Payment Notice shall include a
reasonably particularized breakdown of all the amounts Tenant contends are
owed.  If Landlord fails to fulfill any
such payment obligation within ten (10) days after Landlord’s receipt of
the Payment Notice from Tenant, Tenant shall be entitled to fund the entire
amount which is the subject of the Payment Notice, together with interest at
the Interest Rate from the date of payment by Tenant until the actual date of
offset, against Tenant’s first obligations to pay Rent.


 


14.          TENANT’S RIGHT TO TRANSFER TO AFFILIATES.  Effective as of the date hereof,
Article 14 (Assignment and Subletting) of the Lease is hereby
amended to add the following as a new Section 14.9:


 


“14.9       Affiliate Transfers.  Notwithstanding anything to the contrary
contained in this Article 14, an assignment of this Lease or a
subletting of all or a portion of the Premises to an entity which is controlled
by, controls, or is under common control with, Tenant or any corporation or
other business entity that succeeds to the business of Tenant as a result of a
merger, consolidation, sale of substantially all of the assets, or other business
reorganization (“Affiliate”) of
Tenant shall not be deemed a Transfer requiring Landlord’s consent under this Article 14,
provided that (i) Tenant notifies Landlord of any such assignment
or sublease prior to the effective date thereof and promptly supplies Landlord
with any documents or information requested by Landlord regarding such
assignment or sublease or such Affiliate (including, in the event of an
assignment, evidence of the assignee’s assumption of Tenant’s obligations under
this Lease or, in the event of a sublease, evidence of the sublessee’s
assumption, in full, of the obligations of Tenant with respect to the portion
of the premises so subleased, other than the payment of rent), (ii) such
assignment or sublease is not a subterfuge by Tenant to avoid its obligations
under this Lease, (iii) such assignment or sublease does not cause
Landlord to be in default under any lease at the Property, (iv) the net
worth of such Affiliate shall be reasonably sufficient to meet the obligations
undertaken by such Affiliate with respect to this Lease, taking into a account
all relevant factors, and (v) with respect to a subletting only, Tenant
and such Affiliate execute Landlord’s standard consent to sublease form.  The provisions of this Section 14.9
shall not be available to any assignee or sublessee of Tenant’s interest in
this Lease, unless such transferee obtained its interest in this Lease pursuant
to the provisions of this Section 14.9.  Notwithstanding the foregoing, any subtenant
or assignee shall comply with the terms and conditions of Section 13.A
(ERISA Compliance) of the Sixth Amendment.”


 


15.          CONTINUING EFFECTIVENESS.  The
Lease, except as amended hereby, remains unamended, and, as amended hereby,
remains in full force and effect.


 


16.          COUNTERPARTS; ELECTRONIC DELIVERY.  This Amendment may be executed in one or
more counterparts, each of which shall constitute an original and all of which
shall be one and the same agreement.  The
parties may exchange counterpart signatures by facsimile or electronic
transmission and the same shall constitute delivery of this Amendment with
respect to the delivering party.  If a
variation or discrepancy among counterparts occurs, the copy of
this Amendment in Landlord’s possession shall control.  Tenant confirms that no default exists under
the Lease.


 


17.          EXECUTION BY BOTH PARTIES.  Submission of this instrument
for examination or signature by Tenant does not constitute a reservation of or
option to lease, and it is not effective as an amendment to lease or otherwise until
execution and delivery by both Landlord and Tenant.


 


8

















 


18.          AUTHORIZATION. The
individuals signing on behalf of Tenant each hereby represents and warrants
that he or she has the capacity set forth on the signature pages hereof
and has full power and authority to bind Tenant to the terms hereof.  Two (2) authorized officers must sign on
behalf of Tenant and this Amendment must be executed by the president or
vice-president and the secretary or assistant secretary of Tenant, unless the
bylaws or a resolution of the board of directors shall otherwise provide.  In such case, the bylaws or a certified copy
of the resolution of Tenant, as the case may be, must be furnished to Landlord.


 


9

















 


IN WITNESS WHEREOF, the parties hereto have
executed this Amendment as of the date first above written.


 


	
   

  	
  LANDLORD:

  
	
   

  	
   

  
	
   

  	
  BIXBYBIT - BIXBY OFFICE PARK, LLC,

  
	
   

  	
  a Delaware limited
  liability company

  
	
   

  	
   

  
	
   

  	
  By:

  	
  BixbyBIT
  Investments, LLC,

  
	
   

  	
   

  	
  a
  Delaware limited liability company

  
	
   

  	
   

  	
  its
  sole member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  BLC
  Incentive Management, LLC,

  
	
   

  	
   

  	
   

  	
  a
  Delaware limited liability company,

  
	
   

  	
   

  	
   

  	
  its
  Managing Member

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  Bixby
  Land Company,

  
	
   

  	
   

  	
   

  	
   

  	
  a
  California corporation,

  
	
   

  	
   

  	
   

  	
   

  	
  its
  Managing Member

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  By:

  	
  /s/
  Aaron D. Hill

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Aaron
  D. Hill

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Vice
  President

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  BL
  #

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  DRE
  #

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  By:

  	
  /s/
  Martin T. O’Hea

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Martin
  T. O’Hea

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Chief
  Financial Officer

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  BL
  #

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  DRE
  #

  	
   

  



 


 


[SIGNATURES CONTINUED ON
FOLLOWING PAGE]


 


S-1

















 


	
   

  	
  TENANT:

  
	
   

  	
   

  
	
   

  	
  CLEAN ENERGY,

  
	
   

  	
  a California corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Andrew J. Littlefair

  
	
   

  	
  Name:

  	
  /s/
  Andrew J. Littlefair

  
	
   

  	
  Title:

  	
  President
  and CEO

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Richard R. Wheeler

  
	
   

  	
  Name:

  	
  Richard
  R. Wheeler

  
	
   

  	
  Title:

  	
  Chief
  Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Tenant’s
  Tax ID Number (SSN or FEIN)

  



 


S-2

















 


EXHIBIT A


 


EXPANSION PREMISES


 





 


TENANT’S INITIALS HERE:              


 




	
  [FINAL EXECUTION COPY]

  W02-WEST:1PLW2\402897854.6

  	
   

  	
  EXHIBIT
  A

  	
   

  	
  BIXBY
  OFFICE PARK

  Clean Energy

  
	
  092310

  	
   

  	
   

  	
   

  	
  14CZ-153365

  






 


1
















 


EXHIBIT B


 


WORK LETTER


 


This
Exhibit is attached to and made a part of the Seventh Amendment to Lease
by and between BIXBYBIT - BIXBY OFFICE PARK, LLC,  a Delaware limited liability company (“Landlord”)
and CLEAN ENERGY,  a
California corporation (“Tenant”) for
space in the buildings located at 3010 & 3020 Old Ranch Parkway, Seal
Beach, California 90740.


 


1.                                       Landlord, at
its sole cost and expense (subject to the terms and provisions of this Section 1
and Section 2 below) shall perform improvements to the Expansion
Premises in accordance with the space plan attached hereto as Schedule 1
(the “Space Plan”), using mutually agreed to
methods, materials and finishes, provided, however, Tenant
acknowledges and agrees that Landlord shall not be obligated to pay more than
$118,095.00 (calculated at a rate of $15.00 per rentable square foot of the
Expansion Premises) (the “Allowance”) to
complete the Landlord Work (as defined below), and Tenant shall pay to Landlord
(within fifteen (15) business days after invoice therefor, which invoice shall
include reasonable detail and supporting documentation) the amount of any
actual and reasonable costs incurred by Landlord to complete the Landlord Work
in excess of $118,095.00.  The improvements
to be performed in accordance with the Space Plan are hereinafter referred to
as the “Landlord Work”.  Landlord shall enter into a direct contract
for the Landlord Work with a licensed general contractor selected by Landlord,
which shall be DBAC.  The contract shall
provide a construction schedule for the Landlord Work with a goal of completing
the Landlord Work by no later than November 30, 2010.  In addition, Landlord shall have the right to
select and/or approve of any subcontractors used in connection with the
Landlord Work.  Landlord Work shall
include any and all architectural fees, engineering fees, and required
permits.  Tenant shall pay a construction management fee to Landlord in an amount
equal to five percent (5%) of the actual cost of construction of the Landlord
Work.


 


2.                                       All other work
and upgrades (including, without limitation, any change orders with respect to
the initial Space Plan), shall be subject to Landlord’s and Tenant’s mutual
approval, and shall be at Tenant’s sole cost and expense, plus any applicable
state sales or use tax thereon, payable upon demand as Additional Rent and a
construction management fee payable to Landlord equivalent to five percent (5%)
of the cost of such work and upgrades. 
Tenant shall be responsible for any delay (subject to force majeure) in
completion of the Expansion Premises resulting from any such other work and
upgrades requested or performed by Tenant.


 


3.                                       Landlord’s
supervision or performance of any work for or on behalf of Tenant shall not be
deemed to be a representation by Landlord that such work complies with
applicable insurance requirements, building codes, ordinances, Laws or
regulations or that the improvements constructed will be adequate for Tenant’s
use.


 


4.                                       Landlord and
Tenant agree to cooperate with each other in order to enable the Landlord Work
to be performed in a timely manner and with as little inconvenience to the
operation of Tenant’s business as is reasonably possible.  Notwithstanding anything herein to the
contrary, any delay in the completion of the Landlord Work or inconvenience
suffered by Tenant during the performance of the Landlord Work shall not
subject Landlord to any liability for any loss or damage resulting therefrom or
entitle Tenant to any credit, abatement or adjustment of Rent or other sums
payable under the Lease.


 




	
  [FINAL
  EXECUTION COPY]

  W02-WEST:1PLW2\402897854.6

  	
   

  	
  EXHIBIT B

  	
   

  	
  BIXBY OFFICE PARK

  Clean Energy

  
	
  092310

  	
   

  	
   

  	
   

  	
  14CZ-153365

  






 


1

















 


5.                                       For purposes of
this Seventh Amendment, including for purposes of determining the Extension
Date (pursuant to Section 2 of this Amendment), the Landlord Work
shall be “Substantially Complete”
upon (i) the completion of the Landlord Work in the Expansion Premises
pursuant to the Space Plan, and a temporary certificate of occupancy or other
required equivalent approval from the local governmental authority permitting
occupancy of the Premises has been obtained, subject only to any minor
adjustments or touch up work which may be necessary (which work Landlord agrees
to complete as soon as possible).


 


6.                                       This Exhibit shall
not be deemed applicable to any additional space added to the Expansion
Premises at any time or from time to time, whether by any options under the
Lease or otherwise, or to any portion of the original Premises or any additions
to the Expansion Premises in the event of a renewal or extension of the
original Term of the Lease, whether by any options under the Lease or
otherwise, unless expressly so provided in the Lease or any amendment or
supplement to the Lease.


 


7.                                       Landlord agrees
to reimburse Tenant for its actual reasonable costs charged by Tenant’s
architect for its representation of Tenant in the development of a space plan
for the Expansion Premises, within thirty (30) days of Landlord’s receipt of a
copy of the architect’s invoice from Tenant, which invoice shall detail such
actual reasonable costs charged by Tenant’s architect, provided that
such costs shall be limited to two (2) rounds of space plan drafts.


 


8.                                       Unless
otherwise agreed by Landlord and Tenant, Landlord shall be responsible for the
prompt payment of the Allowance directly to the contractor, in accordance with
the terms and conditions of this Work Letter. 
However, if Landlord fails to fund the Allowance in accordance with the
terms of this Work Letter, Tenant may deliver to Landlord written notice (“Allowance Payment Notice”) of such failure to fund, which
Allowance Payment Notice shall include a detailed description of the amounts
Tenant contends Landlord failed to fund pursuant to this Work Letter. If
Landlord objects to any Allowance amount set forth in an Allowance Payment
Notice, Landlord shall identify and provide the reasonable basis for such
objection(s).  If Landlord fails to fund
a portion of the Allowance as specifically set forth in an Allowance Payment
Notice within ten (10) business days after Landlord’s receipt of the
Allowance Payment Notice from Tenant and if Landlord fails to deliver written
notice to Tenant within such ten (10) day period explaining Landlord’s
reasons that the Allowance amounts described in Tenant’s Allowance Payment
Notice are not due and payable by Landlord (“Refusal
Notice”), Tenant shall be entitled to fund the portion of the
Allowance which is the subject of the Allowance Payment Notice (or, if Landlord
timely sent a Refusal Notice, only those amounts to which Landlord did not
object) itself and to offset such amount(s), against Tenant’s first obligations
to pay Base Rent.  If Landlord delivers a
Refusal Notice, and if Landlord and Tenant are not able to agree on the
Allowance amounts to be so paid by Landlord, if any, within twenty (20)
business days after Tenant’s receipt of a Refusal Notice, Landlord or Tenant
may elect to have such dispute resolved by expedited binding arbitration before
a retired judge of the Superior Court of the State of California under the
auspices of JAMS (or any successor to such organization, or if there is no such
successor, then to a comparable organization mutually agreed upon by Landlord
and Tenant) in Los Angeles, California, according to the then rules of
commercial arbitration of such organization. 
JAMS shall be instructed to complete the arbitration


 


2

















 


within
thirty (30) days.  If such dispute is so
submitted to arbitration, Tenant shall not be permitted any such offset against
Base Rent unless and until the arbitration proceedings are concluded in Tenant’s
favor.  The foregoing shall apply only to
a failure of Landlord to fund the Allowance and shall not be applicable to any
other obligation of Landlord under the Lease as amended hereby.  It is further understood and agreed that if
Landlord  has not funded a portion of the
Allowance and delivers a Refusal Notice with respect to the requested
disbursement amount, and such failure to fund results in the contractor
actually ceasing or threatening to cease construction of the Landlord Work,
then Landlord and Tenant work together to promptly agree upon a mutually
acceptable arrangement with respect to the Allowance such that there is no
delay in the completion (and no cessation) of the Landlord Work.


 


9.                                       Landlord shall
cause the contractor performing the Landlord Work to issue industry standard
construction warranties with respect to the Landlord Work, with coverage for
workmanship, materials and equipment, which warranties shall run to the benefit
of Landlord and Tenant or shall be assignable to Tenant such that Tenant will
be entitled to the benefit of any such warranties upon request.


 


3

















 


SCHEDULE 1 TO EXHIBIT B


 


SPACE PLAN


 





 


TENANT’S INITIALS HERE:               


 


	
  [FINAL
  EXECUTION COPY]

  W02-WEST:1PLW2\402897854.6

  	
  SCHEDULE 1 TO

  EXHIBIT B

  	
  BIXBY OFFICE PARK

  Clean Energy

  
	
  092310

  	
   

  	
  14CZ-153365

  



 


1

















 





 


TENANT’S INITIALS HERE:               


 


2

















 





 


TENANT’S INITIALS HERE:               


 


3

















 


EXHIBIT C


 


CONFIRMATION OF EXTENSION DATE


 


BIXBYBIT - BIXBY OFFICE PARK, LLC,  a
Delaware limited liability company (“Landlord”) and CLEAN ENERGY,  a California
corporation (“Tenant”), are parties to that
certain Seventh Amendment to Lease dated as of September 20, 2010 (the “Seventh Amendment”). 
All capitalized terms not defined herein shall have the same meaning as
set forth in the Seventh Amendment. 
Landlord and Tenant hereby confirm the following:


 


1)                                      The Extended
Term of the Lease (as more particularly defined in the Seventh Amendment)
commenced as of             ,
20      , which date shall be the “Extension Date” under the terms of the Lease.


 


2)                                      The “Expiration Date” of the Lease is
            ,
20      , subject to extension or earlier
termination in accordance with the terms and conditions of the Lease.


 


3)                                      The Lease, as
amended by the Seventh Amendment, remains in full force and effect.


 


[SIGNATURES ON NEXT PAGE]


 


EXHIBIT C


 


1

















 


	
   

  	
  LANDLORD:

  
	
   

  	
   

  
	
   

  	
  BIXBYBIT - BIXBY OFFICE PARK, LLC,

  
	
   

  	
  a Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
  By:

  	
  BixbyBIT
  Investments, LLC,

  
	
   

  	
   

  	
  a
  Delaware limited liability company

  
	
   

  	
   

  	
  its
  sole member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  BLC
  Incentive Management, LLC,

  
	
   

  	
   

  	
   

  	
  a
  Delaware limited liability company,

  
	
   

  	
   

  	
   

  	
  its
  Managing Member

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  Bixby
  Land Company,

  
	
   

  	
   

  	
   

  	
   

  	
  a
  California corporation,

  
	
   

  	
   

  	
   

  	
   

  	
  its
  Managing Member

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  By:

  	
  /s/
  Aaron D. Hill

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Aaron
  D. Hill

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Title:
  

  	
  Vice
  President

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  BL
  #

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  DRE
  #

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  By:

  	
  /s/
  Martin T. O’Hea

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Martin
  T. O’Hea

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Title:
  

  	
  Chief
  Financial Officer

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  BL
  #

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  DRE
  #

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TENANT:

  
	
   

  	
   

  
	
   

  	
  CLEAN
  ENERGY,

  
	
   

  	
  a
  California corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Andrew J. Littlefair

  
	
   

  	
  Name:

  	
  /s/
  Andrew J. Littlefair

  
	
   

  	
  Title:

  	
  President
  and CEO

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Richard R. Wheeler

  
	
   

  	
  Name:

  	
  Richard
  R. Wheeler

  
	
   

  	
  Title:

  	
  Chief
  Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Tenant’s
  Tax ID Number (SSN or FEIN)

  
								



 


2

















 


EXHIBIT D


 


PARKING DIAGRAM


 





 


TENANT’S INITIALS HERE:               


 


EXHIBIT D


 


1
















 


RIDER NO. 1 TO SEVENTH AMENDMENT


 


EXTENSION OPTION RIDER


 


This
Rider No. 1 is made and entered into by and between BIXBYBIT - BIXBY OFFICE PARK, LLC,  a
Delaware limited liability company (“Landlord”) and CLEAN ENERGY,  a California
corporation (“Tenant”), as of the day and year
of the Seventh Amendment to Lease between Landlord and Tenant to which this
Rider is attached.  Landlord and Tenant
hereby agree that, notwithstanding anything contained in the Lease to the contrary,
the provisions set forth below shall be deemed to be part of the Lease and
shall supersede any inconsistent provisions of the Lease.  All references in the Lease and in this Rider
to the “Lease” shall be construed to mean the Lease (and all exhibits and
Riders attached thereto), as amended and supplemented by this Rider.  All capitalized terms not defined in this
Rider shall have the same meaning as set forth in the Lease.


 


1.             Landlord hereby grants to Tenant (1) option
(the “Extension Option”) to extend the Term
of the Lease for an additional period of five (5) years (the “Option Term”), on the same terms, covenants and conditions
as provided for in the Lease during the Extended Term, except for the Monthly
Base Rent, which shall equal the greater of (a) the Monthly Base Rent
payable by Tenant during the last month of the then current Term immediately
preceding the Option Term or (b) the “fair market rental rate” for the
Premises for the Option Term as defined and determined in accordance with the
provisions of Section 3 below.


 


2.             The Extension Option must be
exercised, if at all, by written notice (“Extension Notice”)
delivered by Tenant to Landlord no sooner than that date which is twelve (12)
months and no later than that date which is nine (9) months prior to the
expiration of the then current term of the Lease.  The Extension Option shall not be deemed to
be properly exercised if, at the time the Extension Option is exercised or on
the scheduled commencement date for the Option Term, Tenant has (a) committed
an uncured event of default whose cure period has expired pursuant to Article 15
of the Lease (following the delivery of any written notice required
thereunder), (b) assigned all or any portion of the Lease or its interest
therein without Landlord’s consent (if required) or otherwise in violation of Article 14
of the Lease, or (c) sublet all or any portion of the Premises, other than
in strict accordance with the terms of Article 14 of the
Lease.  Upon Tenant’s written request in
connection with Tenant’s delivery of an Extension Notice, Landlord will provide
written confirmation to Tenant that Landlord is not aware of the existence of a
condition referenced in (a) through (c) above which would render
Tenant’s exercise of its Extension Option ineffective.  Provided Tenant has properly and
timely exercised the Extension Option, the then current term of the Lease shall
be extended by the Option Term, and all terms, covenants and conditions of the
Lease shall remain unmodified and in full force and effect, except that the
Monthly Base Rent shall be as set forth above. 
In connection with any exercise by Tenant of the Extension Option,
Landlord shall determine whether and to what extent any additional Security
Deposit may be required, after taking into account the then existing financial
strength of Tenant and all other relevant and industry standard factors,
consistent with market, provided, however, it is expressly
understood that Landlord will not require any addition to Tenant’s Security
Deposit in connection with Tenant’s exercise of its Extension Option so long as
(i) no uncured breach or default by Tenant exists under the Lease as of
the date of delivery of the Extension Notice or as of the date of the
commencement of the Option Term, and (ii) there has occurred no material
adverse change in the financial condition of Tenant as of the date of delivery
of the Extension Notice or as of the date of commencement of the Option Term.


 


RIDER NO. 1


 


1

















 


3.             If Landlord determines that the
Monthly Base Rent for the Option Term shall be the Monthly Base Rent payable by
Tenant during the last month of the then current Term pursuant to Section 1(a) above,
such determination shall be conclusive, Tenant shall have no right to object
thereto, and the following provisions regarding the determination of the fair
market rental rate shall not apply.  If,
however, Landlord determines that the Monthly Base Rent for the applicable
Option Term shall be the fair market rental rate pursuant to Section 1(b) above,
then such fair market rate shall be determined in accordance with the Fair
Market Rental Rate Rider attached to the Seventh Amendment to Lease as Rider
No. 2.


 


4.             Notwithstanding the fair market
rental rate determined pursuant to Section 3 above, in no event shall
the Monthly Base Rent payable during the Option Term be less than the Monthly
Base Rent payable during the last month of the immediately preceding Term.


 


5.             If Tenant wishes to determine prior
to exercise of the Extension Option whether Landlord intends to require that
Tenant pay the existing Monthly Base Rent for the Option Term, Tenant may
deliver to Landlord no less than eleven (11) months prior to the expiration of
the then current Term of the Lease a written inquiry to such effect, and
Landlord agrees to respond to such written inquiry within thirty (30) days
following receipt thereof.


 


2

















 


RIDER NO. 2 TO SEVENTH AMENDMENT


 


FAIR MARKET RENTAL RATE


 


This
Rider No. 2 is made and entered into by and between BIXBYBIT - BIXBY OFFICE PARK, LLC,  a
Delaware limited liability company (“Landlord”) and CLEAN ENERGY,  a California
corporation (“Tenant”), as of the day and year
of the Seventh Amendment to Lease between Landlord and Tenant to which this
Rider is attached.  Landlord and Tenant
hereby agree that, notwithstanding anything contained in the Lease to the
contrary, the provisions set forth below shall be deemed to be part of the
Lease and shall supersede any inconsistent provisions of the Lease.  All references in the Lease and in this Rider
to the “Lease” shall be construed to mean the Lease (and all exhibits and
Riders attached thereto), as amended and supplemented by this Rider.  All capitalized terms not defined in this
Rider shall have the same meaning as set forth in the Lease.


 


1.             The term “fair market rental rate” as used in the Lease and any Rider
attached thereto shall mean the annual amount per square foot, projected during
the Option Term that a willing, non-equity renewal tenant (excluding sublease and
assignment transactions) would pay, and a willing, institutional landlord of a
comparable Class “A” office building located in the West Orange County
market area (the “Comparison Area”)
would accept, in an arm’s length transaction (what Landlord is accepting in
then current transactions for the buildings located in the Project may be used
for purposes of projecting rent for the Option Term), for space of comparable
size, quality and floor height as the Premises, taking into account the age,
quality and layout of the existing improvements in the Premises, and taking
into account items that professional real estate brokers or professional real
estate appraisers customarily consider, including, but not limited to, rental
rates, space availability, tenant size, tenant improvement allowances, parking
charges and any other lease considerations, if any, then being charged or
granted by Landlord or the lessors of such similar office buildings.  All economic terms other than Monthly Base
Rent, such as tenant improvement allowance amounts, if any, operating expense
allowances, parking charges,  etc., will
be established by Landlord and will be factored into the determination of the
fair market rental rate for the Option Term. 
Accordingly, the fair market rental rate will be an effective rate, not
specifically including, but accounting for, the appropriate economic
considerations described above.  The fair
market rental rate shall include the periodic rental increases that would be
included for space leased for the period of the Option Term.


 


2.             In the event the determination of
fair market rental rate is required under the Lease (as set forth in Rider No. 1
above), Landlord shall provide written notice of Landlord’s determination of
the fair market rental rate not later than ninety (90) days following Landlord’s
receipt of Tenant’s Extension Notice. 
Tenant shall have ten (10) business days (“Tenant’s Review Period”) after receipt of
Landlord’s notice of the fair market rental rate within which to accept such
fair market rental rate or to reasonably object thereto in writing.  Failure of Tenant to so object to the fair
market rental rate submitted by Landlord in writing within Tenant’s Review
Period shall conclusively be deemed Tenant’s disapproval thereof.  If within Tenant’s Review Period Tenant
objects to or is deemed to have disapproved the fair market rental rate
submitted by Landlord, Landlord and Tenant will meet together with their
respective legal counsel to present and discuss their individual determinations
of the fair market rental rate for the Premises under the parameters set forth
in Section 1 above and shall diligently and in good faith attempt
to negotiate a rental rate on the basis of such individual determinations.  Such meeting shall occur no later than ten (10) days
after the expiration of Tenant’s Review Period. 
The parties shall each provide the other with such supporting
information and documentation as they deem


 


RIDER
NO. 2


 


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appropriate.  At such meeting if Landlord and Tenant are
unable to agree upon the fair market rental rate, they shall each submit to the
other their respective best and final offer as to the fair market rental
rate.  If Landlord and Tenant fail to
reach agreement on such fair market rental rate within five (5) business
days following such a meeting (the “Outside Agreement Date”),
Tenant’s Extension Option will be deemed null and void unless Tenant demands
arbitration, in which event each party’s determination shall be submitted to
arbitration in accordance with the provisions of Section 3 below
and neither party shall have the right to reject the decision or to nullify the
exercise of the applicable Option.


 


3.             (a)           Landlord
and Tenant shall each appoint one (1) competent, independent and impartial
commercial real estate broker with at least ten (10) years full time
commercial real estate brokerage experience in the Comparison  Area (each a “broker”).  The determination of the brokers shall be
limited solely to the issue of whether Landlord’s or Tenant’s last proposed (as
of the Outside Agreement Date) best and final fair market rental rate for the
Premises is the closest to the actual fair market rental rate for the Premises
as determined by the brokers, taking into account the requirements specified in
Section 1 above.  Each such
broker shall be appointed within fifteen (15) days after the Outside Agreement
Date.


 


(b)           The two (2) brokers so appointed
shall within fifteen (15) days of the date of the appointment of the last appointed
broker agree upon and appoint a third broker who shall be qualified under the
same criteria set forth hereinabove for qualification of the initial two (2) brokers.


 


(c)           The three (3) brokers shall
within thirty (30) days of the appointment of the third broker reach a decision
as to whether the parties shall use Landlord’s or Tenant’s submitted best and
final fair market rental rate, and shall notify Landlord and Tenant
thereof.  During such thirty (30) day
period, Landlord and Tenant may submit to the brokers such information and
documentation to support their respective positions as they shall deem
reasonably relevant and Landlord and Tenant may each appear before the brokers
jointly to question and respond to questions from the brokers.


 


(d)           The decision of the majority of the
three (3) brokers shall be binding upon Landlord and Tenant and neither
party shall have the right to reject the decision or to nullify the exercise of
the applicable Option.  If either
Landlord or Tenant fails to appoint an broker within the time period specified
in Section 3(a) hereinabove, the broker appointed by one of
them shall within thirty (30) days following the date on which the party
failing to appoint an broker could have last appointed such broker reach a
decision based upon the same procedures as set forth above (i.e., by selecting
either Landlord’s or Tenant’s submitted best and final fair market rental
rate), and shall notify Landlord and Tenant thereof, and such broker’s decision
shall be binding upon Landlord and Tenant and neither party shall have the
right to reject the decision or to nullify the exercise of the applicable
Option.


 


(e)           If the two (2) brokers fail to
agree upon and timely appoint a third broker, either party, upon ten (10) days
written notice to the other party, can apply to the Presiding Judge of the
Superior Court of Orange County to appoint a third broker meeting the
qualifications set forth herein.  The
third broker, however, selected, shall be a person who has not previously acted
in any capacity for either party.


 


(f)            The cost of each party’s broker
shall be the responsibility of the party selecting such broker, and the cost of
the third broker (or arbitration, if necessary) shall be shared equally by
Landlord and Tenant.


 


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(g)           If the process described hereinabove
has not resulted in a selection of either Landlord’s or Tenant’s submitted best
and final fair market rental rate by the commencement of the applicable lease
term, then the fair market rental rate estimated by Landlord will be used until
the broker(s) reach a decision, with an appropriate rental credit and
other adjustments for any overpayments of Monthly Base Rent or other amounts if
the brokers select Tenant’s submitted best and final estimate of the fair
market rental rate.  The parties shall
enter into an amendment to the Lease confirming the terms of the decision.


 


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RIDER NO. 3 TO SEVENTH AMENDMENT


 


OPTIONS IN GENERAL


 


This
Rider No. 3 is made and entered into by and between BIXBYBIT - BIXBY OFFICE PARK, LLC,  a
Delaware limited liability company (“Landlord”) and CLEAN ENERGY,  a California
corporation (“Tenant”), as of the day and year
of the Seventh Amendment to Lease between Landlord and Tenant to which this
Rider is attached.  Landlord and Tenant
hereby agree that, notwithstanding anything contained in the Lease to the
contrary, the provisions set forth below shall be deemed to be part of the Lease
and shall supersede any inconsistent provisions of the Lease.  All references in the Lease and in this Rider
to the “Lease” shall be construed to mean the Lease (and all exhibits and
Riders attached thereto), as amended and supplemented by this Rider.  All capitalized terms not defined in this
Rider shall have the same meaning as set forth in the Lease.


 


(a)           Definition.  As used in this Rider, the word “Option” means:


 


·                                          the Extension Option
pursuant to Rider No. 1 attached hereto.


 


·                                          the First Right pursuant to Rider
No. 4 attached hereto.


 


(b)           Option
Personal.  The Option
granted to Tenant is personal to the original Tenant executing this Seventh
Amendment to Lease (the “Original Tenant”)
and any Affiliate of Tenant pursuant to Section 14 of the Seventh
Amendment, and may be exercised only by the Original Tenant while occupying the
entire Premises and without the intent of thereafter assigning the Lease or
subletting the Premises and may not be exercised or be assigned, voluntarily or
involuntarily, by any person or entity other than the Original Tenant.  The Option granted to Tenant under the Lease
is not assignable separate and apart from the Lease, nor may the Option be
separated from the Lease in any manner, either by reservation or otherwise.


 


(c)           Effect
of Default on Options. 
Tenant will have no right to exercise any Option, notwithstanding any
provision of the grant of option to the contrary, and Tenant’s exercise of any
Option may be nullified by Landlord upon written notice to Tenant and deemed of
no further force or effect, if (i) Tenant is in default of any monetary
obligation or material non-monetary obligation under the terms of the Lease
(following the expiration of any applicable notice and cure period) as of
Tenant’s exercise of the Option in question or at any time after the exercise
of any such Option and prior to the commencement of the Option event, or (ii) Landlord
has given Tenant two (2) or more notices of default, whether or not such
defaults are subsequently cured, during any twelve (12) consecutive month
period of the Lease.


 


(d)           Option as Economic Term.  The Option is hereby deemed an economic term
which Landlord, in its sole and absolute discretion, may or may not offer in
conjunction with any future extensions of the Term.


 


RIDER NO. 3


 


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RIDER NO. 4 TO SEVENTH AMENDMENT


 


RIGHT OF FIRST OFFER TO EXPAND


 


This
Rider No. 4 is made and entered into by and between BIXBYBIT - BIXBY OFFICE PARK, LLC,  a
Delaware limited liability company (“Landlord”) and CLEAN ENERGY,  a California
corporation (“Tenant”), as of the day and year
of the Seventh Amendment to Lease between Landlord and Tenant to which this Rider
is attached.  Landlord and Tenant hereby
agree that, notwithstanding anything contained in the Lease to the contrary,
the provisions set forth below shall be deemed to be part of the Lease and
shall supersede any inconsistent provisions of the Lease.  All references in the Lease and in this Rider
to the “Lease” shall be construed to mean the Lease (and all exhibits and
Riders attached thereto), as amended and supplemented by this Rider.  All capitalized terms not defined in this
Rider shall have the same meaning as set forth in the Lease.


 


During
the period from the Extension Date until the last day of the fiftieth (50th) full month of the Extended
Term (subject to extension as set forth in the last paragraph hereof), Landlord
hereby grants Tenant the ongoing right (“First Right”)
to lease Suite 250 of the 3020 Building (the “First Right
Space”), as more particularly shown on Schedule 1 attached
hereto, in accordance with and subject to the provisions of this Rider No. 4.  At any time after the Extension Date, but
prior to leasing the First Right Space, or any portion thereof, to any other
party during the period that this First Right is in effect, Landlord shall give
Tenant written notice of the basic economic terms including but not limited to
the Base Rent, term, security deposit, and tenant improvement allowance
(collectively, the “Economic Terms”),
upon which Landlord is willing to lease such particular First Right Space to
Tenant or to a third party in response to a third party proposal or request for
proposal; provided that the Economic Terms shall exclude brokerage
commissions and other Landlord payments that do not directly inure to the
tenant’s benefit.  It is understood that
should Landlord intend to lease other space in addition to the First Right
Space as part of a single transaction, then Landlord’s notice shall so provide
and all such space shall collectively be subject to the following provisions.
Within five (5) business days after receipt of Landlord’s notice, and provided
Tenant is not then in default (beyond any applicable cure period provided for
in the Lease), Tenant must give Landlord written notice pursuant to which
Tenant shall elect to (i) lease all, or any portion thereof agreeable to
Landlord, of the space specified in Landlord’s notice (the “Designated Space”) upon such Economic Terms and the same
non-Economic Terms as set forth in the Lease; (ii) refuse to lease the
Designated Space, specifying that such refusal is not based upon the Economic
Terms, but upon Tenant’s lack of need for the Designated Space, in which event
Landlord may lease the Designated Space upon any terms it deems appropriate; or
(iii) refuse to lease the Designated Space, specifying that such refusal
is based upon said Economic Terms (or square footage), in which event Tenant
shall also specify revised Economic Terms (or square footage) upon which Tenant
shall be willing to lease the Designated Space. 
In the event that Tenant does not so respond in writing to Landlord’s
notice within said period, Tenant shall be deemed to have elected clause (ii) above.  In the event Tenant gives Landlord notice
pursuant to clause (iii) above, Landlord may elect to either (x) lease
the Designated Space to Tenant upon such revised Economic Terms (or square
footage) and the same other non-Economic Terms as set forth in the Lease, or (y) lease
the Designated Space to any third party upon Economic Terms which are not
materially more favorable to such party than those Economic Terms proposed by
Tenant or re-offer the space to Tenant if Economic Terms are materially more
favorable. Should Landlord so elect to lease the Designated Space to Tenant,
then Landlord shall promptly prepare and deliver to Tenant an amendment to
Lease consistent with the foregoing, and Tenant shall return same to Landlord
(executed or with reasonable comments to discuss with Landlord) within ten (10) business
days. Tenant’s failure to timely return the amendment shall entitle Landlord to
specifically enforce Tenant’s commitment to lease the Designated Space, to lease
such space to a third party, and/or to pursue any other available legal remedy.


 


RIDER NO. 4


 


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Notwithstanding
the foregoing, it is understood that Tenant’s First Right shall be subject to
any extension or expansion rights previously granted by Landlord to any
existing third party tenants as of the Lease execution date, and to any
extension or expansion rights which may hereafter be granted by Landlord to any
third party tenant occupying the First Right Space or any portion thereof who
leases the First Right Space prior to Tenant executing this Seventh
Amendment.  Currently, an existing tenant
on the second (2nd) floor of the
Building has an ongoing right of first offer with respect to space contiguous to
its premises, expiring on or about July 31, 2015.


 


It
is further acknowledged that the reference above to a cutoff date of the last
day of the 50th
full month of the Extended Term is based on the assumption that Tenant
will lease the Designated Space for a Term coterminous with the Extended Term
of the Lease.  Notwithstanding the
foregoing, Landlord hereby agrees to provide to Tenant throughout the Extended
Term written notice of the proposed Economic Terms for a lease of any
Designated Space, and Tenant shall have the First Right to lease such
Designated Space on the Economic Terms proposed by Landlord in such notice,
subject to and in accordance with the terms of this Rider No. 4.


 


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SCHEDULE 1 TO RIDER NO. 4


 


FIRST RIGHT SPACE


 





 


TENANT’S INITIALS HERE:              


 


SCHEDULE 1 TO

RIDER NO. 4


 


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