Exhibit 10.62


 


ASSUMPTION AGREEMENT


 


THIS AGREEMENT is dated September 7,
2010 (the “Effective Date”)


 


BETWEEN:


 


I.M.W.
INDUSTRIES LTD.


 


(“IMW”)


 


AND:


 


IMW CNG
BANGLADESH LTD.


 


(“IMW Bangladesh”)


 


AND:


 


IMW
COMPRESSOR GROUP (SHANGHAI) CO. LTD.


 


(“IMW China”)


 


AND:


 


IMW COLOMBIA LTDA.


 


(“IMW Colombia”)


 


(IMW
Bangladesh, IMW China and IMW Colombia collectively, the “Corporate Guarantors”)


 


AND:


 


BRADLEY
NORMAN MILLER


 


(“Mr. Miller”)


 


AND:


 


MARION
MILLER


 


(“Ms. Miller”)


 


(Mr. Miller and Ms. Miller
collectively, the “Personal Guarantors”)


 

















 


AND:


 


B&M
MILLER EQUITY HOLDINGS INC.


 


(“Miller Holdco”)


 


AND:


 


CLEAN
ENERGY COMPRESSION CORP.


 


(the “Purchaser”)


 


AND:


 


CLEAN
ENERGY


 


(“Clean Energy”)


 


AND:


 


0884808
B.C. LTD.


 


(“Canadian AcqCo”)


 


AND:


 


HSBC BANK
CANADA


 


(the “Lender”)


 


WHEREAS:


 


A.           IMW as
borrower, 652322 B.C. Ltd. (“652322”,
a predecessor amalgamating corporation of Miller Holdco), as corporate
guarantor, Mr. Miller, as personal guarantor,  Ms. Miller, as personal guarantor, and
the Lender entered into an amended and restated facility letter dated December 19,
2007, as amended by letters dated December 15, 2008 and March 23,
2009 (collectively, the “Letter Agreement”)
with respect to, inter alia, a
demand revolving loan in the original principal amount of CAD$3,000,000 (“Operating Loan”), a demand revolving
documentary credit line sub-limit to the Operating Loan in the original amount
of CAD$2,000,000 (“Import Line Sub-Limit”),
a demand revolving line in the original amount of CAD$1,980,000 (“Foreign Exchange Line”), a demand revolving
bank guarantee and standby letter of credit line in the original amount of
CAD$1,600,000 (“BG Line”) and a
Mastercard limit in the original amount of CAD$110,000 (“Mastercard Limit”), each  made by the Lender to IMW;


 


B.             By letters
dated December 1, 2009, December 22, 2009, March 26, 2010 and June 14,
2010 (collectively, with the Letter Agreement, the “Commitment Letter”), the terms of the Letter Agreement were
further amended such that, inter alia, IMW
Bangladesh, IMW China and IMW Colombia were added as additional parties
thereto and a demand 


 


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revolving
loan in the original amount of CAD$2,000,000 (“Subsidiary
BG Line”) was made by the Lender to IMW;


 


C.    The Operating Loan, Import
Line Sub-Limit, Foreign Exchange Line, BG Line, Mastercard Limit and Subsidiary
BG Line (collectively, the “Loan”)
are secured by the security documents granted by IMW, 652322, the Corporate
Guarantors and the Personal Guarantors pursuant to the Commitment Letter
(collectively, the “Security”),
including, inter alia, the security documents
referred to in the Schedule hereto;


 


D.    Pursuant to an asset
purchase agreement dated July 1, 2010 (the “Purchase Agreement”), between IMW, Miller Holdco, Miller
Family Trust, Mr. Miller and Ms. Miller (the foregoing collectively,
the “Vendors”), the Purchaser (formerly
named 0884810 B.C. Ltd.), Clean Energy and Canadian AcqCo, the Purchaser agreed
to purchase, and IMW agreed to sell, all of IMW’s right, title, and interest in
the assets, properties, goodwill and rights of IMW (collectively, the “Purchased Assets”) used, held for use, or intended to be
used, in its business of designing, manufacturing and supplying industrial
products, parts and services (the “Purchase Transaction”);


 


E.     The Purchaser wishes to
assume the obligations and liabilities of IMW under the Loan, the Commitment
Letter and the Security and to be bound by the terms thereof as of the
Effective Date;


 


F.     IMW and the Corporate
Guarantors wish to confirm and ratify all of the obligations and liabilities of
IMW and the Corporate Guarantors under the Loan, the Commitment Letter and the
Security, as applicable; and


 


G.    The Lender has agreed that
the Purchaser may assume the Loan and the obligations and liabilities of IMW
with respect thereto, including without limitation the Commitment Letter and
the Security, on the condition that the liabilities and obligations of IMW and
the Corporate Guarantors thereunder survive and continue from the Effective Date,
and that the parties enter into and satisfy the terms of this Agreement.


 


NOW THEREFORE THIS AGREEMENT
WITNESSES that in consideration of the sum of One Dollar ($1.00) and other good
and valuable consideration paid by each party to the other (the receipt and
sufficiency whereof is hereby acknowledged by each party) the parties hereto
covenant and agree each with the other as follows:


 


1.              Assumption of Loan and Security.


 


The Purchaser hereby assumes
all rights, benefits, obligations and liabilities of IMW under the Loan, the
Commitment Letter and the Security.  The
Purchaser hereby unconditionally undertakes, covenants and agrees with the
Lender, as principal debtor and not as surety, to pay the Loan, interest thereon
and all money now or hereafter due and payable to the Lender under the
Commitment Letter and the Security, including any amounts payable with respect
to any letter of credit issued on behalf of IMW, at the time and in the manner
as therein provided, and to perform and observe and be bound by all the terms,
covenants, liabilities and obligations (collectively, the “Assumed Obligations”) of IMW set forth in
the Commitment Letter and the 


 


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Security to the same extent
as if it had originally executed the Commitment Letter and the Security as the
borrower thereunder.


 


2.              Amendment of Commitment Letter.


 


The parties further agree
that the terms of the Commitment Letter shall be amended to incorporate the
following terms, and any such term being capitalized and not defined in this
section shall have the meaning ascribed thereto as set out in this Agreement:


 


(a)   Additional Equity:  Clean Energy shall
inject not less than USD$2,000,000 of additional working capital (the “Additional
Working Capital”) into Canadian AcqCo, which shall then inject the Additional
Working Capital into the Purchaser, concurrent with the closing of the Purchase
Transaction;


 


(b)   Financial Covenants:


 


i.                  Debt to
Tangible Net Worth:  The ratio of Debt to
Tangible Net Worth of the Purchaser shall not exceed:


 


a.               3.25 to 1 from
the Effective Date up to and including December 31, 2010; and


 


b.              3.00 to 1 from
and including January 1, 2011,


 


without the prior written
consent of the Lender, and such covenant herein shall be evaluated by the
Lender on a quarterly basis;


 


ii.     Tangible Net Worth:  The Tangible Net Worth of the Purchaser shall
not equal less than CAD$3,000,000 at any time;


 


iii.    Ratio of Current Assets to
Current Liabilities:  The ratio of
current assets to current liabilities of the Purchaser shall not equal less
than:


 


a.               1.15 to 1 from
the Effective Date up to and including December 31, 2010; and


 


b.              1.25 to 1 from
and including January 1, 2011,


 


and such covenant herein
shall be evaluated by the Lender on a quarterly basis; and


 


iv.           the Purchaser
shall not pay any interest, dividends, or other amounts to its shareholders,
subordinated lenders, or the Vendors, provided however that any funds that are
under postponement to the Lender may be paid to such parties so long as the
Purchaser is not in breach of any of the terms, conditions or provisos under
this Agreement, the Commitment Letter or the Security at the time that such
payments are made, and provided that any such payment shall not result in the
Purchaser being in breach of any of the terms, conditions or provisos under
this Agreement, the Commitment Letter or the Security;


 


v.              For the
purposes of the financial covenants in this section, the following terms shall
have the meanings indicated below:


 


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c.               “Debt”
includes all current and long term liabilities that have not been formally
postponed to the Lender; and


 


d.              “Tangible
Net Worth” means total equity less any intangible assets, goodwill, and
amounts due from any related parties, and plus liabilities that have been
formally postponed to the Lender;


 


(c)          Borrower:  Effective as and from the Effective Date, all
references in the Commitment Letter and the Security to IMW, as borrower, shall
mean and be deemed to mean the Purchaser; and


 


(d)         EDC Guarantees:  The Purchaser shall renew and/or extend each
EDC Guarantee not less than 15 days prior to the termination date thereof and
shall provide the Lender with written notice upon each such renewal and/or
extension confirming the same.


 


3.              Representations and Warranties.


 


The Purchaser represents and
warrants to the Lender that on the Effective Date, it will have acquired all of
the Purchased Assets pursuant to the terms of the Purchase Agreement and is or
will be the legal and beneficial owner thereof. 
Clean Energy and Canadian AcqCo each represent and warrant to the Lender
that on the Effective Date, they will be the legal and beneficial owners of all
of the issued and outstanding shares in the capital of the Purchaser.


 


4.              Lender Consent.


 


The Lender hereby consents
to the Purchase Transaction, to the assignment to and assumption by the
Purchaser of the Assumed Obligations, confirms such Purchase Transaction,
assignment and assumption will not constitute a default under the Commitment
Letter or the Security, provided that its consent shall not constitute consent
by the Lender of any subsequent sale, lease or other disposal of the Purchased
Assets, which approval the Purchaser agrees that it and any subsequent
purchaser or owner of the Purchased Assets shall be obligated to obtain, in
accordance with the provisions of the Commitment Letter and the Security, in
the event of any subsequent sale, lease or other disposal of the Purchased
Assets.


 


5.              No Novation/No Release of IMW and the Corporate Guarantors.


 


The parties agree that this
Agreement shall not constitute a novation or an accord and satisfaction between
the Purchaser, Clean Energy, Canadian AcqCo, IMW, the Corporate
Guarantors, or any of them, and the Lender, with respect to the Loan and any
other indebtedness owing under the Commitment Letter and the Security.  This Agreement shall in no way discharge or
release  IMW or the Corporate Guarantors from
their respective obligations, covenants and liabilities under the Commitment
Letter and the Security and that each of IMW, and the Corporate Guarantors
hereby ratify and confirm and are and shall respectively remain bound by the
Commitment Letter and the Security to which it is a party.  Each of the Corporate Guarantors hereby acknowledge
the Purchaser’s liability under the Assumed Obligations and confirm that the
unlimited guarantees given by each of them remain in full force and effect with
respect to the Purchaser as borrower under the Assumed Obligations.  Without limiting the foregoing, nothing in
this Agreement shall alter or prejudice the rights and remedies of the Lender
as against IMW or the Corporate Guarantors under


 


5

















 


the Commitment Letter and
the Security, all of which rights and remedies are hereby expressly reserved.


 


6.              Release of the Personal Guarantors and Miller Holdco.


 


Upon satisfaction of the
conditions precedent to closing set out in section 10 hereto, the Lender shall
release the Personal Guarantors and Miller Holdco from their respective
liabilities and obligations under the Commitment Letter and the Security which
arise after the Effective Date.  The
parties hereby acknowledge and consent to the release by the Lender of the
Personal Guarantors and Miller Holdco from their respective obligations and
liabilities under the Commitment Letter and the Security.


 


7.              Further Documents.


 


The parties covenant and
agree that they will upon request by the Lender acting reasonably do and
perform every reasonable act and execute every document necessary to better
assume the obligations under each of the Security.


 


8.              Further Sale of the Purchased Assets.


 


The Purchaser covenants and
agrees with the Lender that its obligations under the Security shall not be
affected or limited by any further or other sale of the Purchased Assets,
whether or not the Lender consents thereto unconditionally or on condition, and
all of the obligations of the Purchaser, Clean Energy and Canadian AcqCo set
out herein or in the Security shall continue and survive a further sale or any
dealing by the Lender with the Purchased Assets or any person interested
therein, unless released by the Lender.


 


9.              Lender’s Costs.


 


The Purchaser will pay, on
closing, the Lender’s assumption fee, reasonable outside costs (including
insurance review) and legal fees incurred by the Lender in connection with this
Agreement and the assumption of the Loan by the Purchaser.


 


10.       Deliveries on Closing: Conditions Precedent to Lender’s
Consent.


 


The Purchaser will provide
the following deliveries to the Lender’s solicitor on or before the Effective
Date in order for this Agreement and the Lender’s consent under this Agreement
to be effective, in each case in form and content satisfactory to the Lender:


 


(a)          confirmation of
the initial capital of the Purchaser, which capital shall include the amount of
USD$15,000,000 of initial equity of the Purchaser and the amount of
USD$2,000,000 that is to be provided by Clean Energy pursuant to subsection 2(a) hereto;


 


(b)         an assignment
and postponement of claims granted by Canadian AcqCo with respect to all
amounts owing from time to time by the Purchaser to Canadian AcqCo, which
assignment and postponement of claims will permit payments to be made by the
Purchaser to Canadian AcqCo as agreed to between the Purchaser and Canadian
AcqCo, provided that the Purchaser is not in breach of any of the terms,
conditions or provisos under this Agreement, the Commitment Letter or the
Security at the time when such 


 


6

















 


payments
are due, and provided that any such payment shall not result in the Purchaser
being in breach of any of the terms, conditions or provisos under this
Agreement, the Commitment Letter or the Security;


 


(a)          a commitment to
provide funds, executed by the Purchaser, Canadian AcqCo and Clean Energy,
wherein Clean Energy and/or Canadian AcqCo covenant, inter alia,
to furnish funds if necessary to the Purchaser which funds are to enable the
Purchaser to make payments in respect of certain promissory notes under the
Purchase Agreement;


 


(b)         a draft opening
balance sheet for the Purchaser, confirming compliance with all covenants and
conditions under this Agreement, the Commitment Letter and the Security;


 


(c)          an unlimited
guarantee and a general security agreement by Canadian AcqCo of the
indebtedness of the Purchaser to the Lender;


 


(d)         Officer’s Certificate of each of the Purchaser,
Canadian AcqCo and Clean Energy, together with a certified copy of the
resolutions of the board of directors of the Purchaser, Canadian AcqCo and
Clean Energy, confirming that all necessary corporate action has been taken by
them to authorize the execution, delivery and performance of this Agreement,
the Purchase Agreement, and other related security documents as required
herein;


 


(e)          favourable
letter(s) of opinion from the solicitors for the Purchaser, Canadian AcqCo
and Clean Energy confirming that each has the corporate power and capacity to
enter into the transactions contemplated herein and that the Purchase
Agreement, this Agreement, and other related security documents as required
herein, have been duly authorized, executed and delivered by each of them;


 


(f)            evidence
satisfactory to the Lender that all indebtedness of IMW to Vancity Capital
Corporation (“VCC”) has been repaid and that all
security granted in favour of VCC has been discharged (collectively, the “Discharges”), unless appropriate solicitors’ undertakings
are in place to provide the Lender with evidence of the Discharges within a
reasonable time following closing, such undertakings to be in a form
satisfactory to the Lender, acting reasonably;


 


(g)         approval and
confirmation from Export Development Canada (“EDC”),
addressed to the Lender, consenting to this Agreement and the assumption by the
Purchaser of the Assumed Obligations, and confirmation from EDC that the Master
Financing Guarantee Agreement dated February 11, 2008 (the
“EDC Guarantee Agreement”) and all
guarantees issued pursuant to the EDC Guarantee Agreement (collectively, the “EDC Guarantees”, and in the singular, the “EDC Guarantee”), including all guarantees with respect to
the Operating Loan, the BG Line and the Subsidiary BG Line, remain in full
force and effect with respect to the Purchaser as borrower thereunder;


 


(h)         Officer’s Certificate
of the Purchaser, Canadian AcqCo and Clean Energy, certifying that the Purchase
Transaction has closed in accordance with the terms of the Purchase Agreement;


 


7

















 


(i)             a certificate of good standing for the Purchaser
issued by the appropriate government authority;


 


(j)             evidence of all risk insurance (including extended
coverage endorsement) in amounts and from an insurer acceptable to the Lender,
on all of the Purchaser’s personal property including, without limitation, the
Purchased Assets and all other equipment and inventory owned by the Purchaser,
showing the Lender as first loss payee by way of standard mortgage endorsement;


 


(k)          the Lender’s assumption fee as advised by the Lender
to the Purchaser;


 


(l)             payment of the Lender’s solicitor’s estimated account;
and


 


(m)       confirmation
that the Purchaser is not in default under this Agreement, the Commitment
Letter or the Security.


 


11.       Confirmation re: Loan Amount.


 


The Lender acknowledges and
agrees with the Purchaser that:


 


(a)          the authorized
maximum amount of each of the Loan facilities is as set forth below:


 


i.                  Operating
Loan:  CAD$7,750,000;


 


ii.               Import Line
Sub-Limit:  CAD$2,000,000;


 


iii.            Foreign
Exchange Line:  CAD$13,750,000;


 


iv.           BG Line:  CAD$3,000,000;


 


v.              Mastercard
Limit:  CAD$150,000; and


 


vi.           Subsidiary BG
Line:  USD$1,050,000; and


 


(b)         to the
knowledge of the Lender, as of the Effective Date, no default or event of
default exists under the Commitment Letter or the Security, provided that the
acknowledgement of the Lender in this paragraph (b) shall not prevent
the Lender from acting on a default or an event of default of which it is not
now aware.


 


12.       Communications.


 


All communications to the
Purchaser shall be addressed as follows:


 


Clean Energy Compression
Corp.


c/o Clean Energy Fuels Corp.


Suite 400 — 3020 Old
Ranch Parkway


Seal Beach, CA, 90740, USA


 


Attention:  Mr. Richard R. Wheeler, Chief Financial
Officer


 


8

















 


Fax:  (562) 493-4532,


 


all communications to the
Lender shall be addressed as follows:


 


HSBC Bank Canada


Vancouver Main Branch


Suite 200 — 885 West
Georgia Street


Vancouver, BC  V6C 3G1


 


Attention:  Cam Rathwell, Senior Account Manager,
Commercial Banking


 


Fax:  (604) 641-1808,


 


and shall be subject to the
terms of the Security dealing with notices.


 


13.       Governing Law.


 


This Agreement shall be
construed in accordance with and governed by the laws of the Province of
British Columbia.


 


14.       Effect.


 


This Agreement shall be
effective as and from the Effective Date and shall be read and construed along
with the Commitment Letter and the Security, and the Commitment Letter and the
Security will, together with all the terms, covenants and conditions thereof,
be and continue to remain in full force and effect except as modified by this
Agreement.


 


15.       Successors.


 


This Agreement will enure to
the benefit of and be binding upon the parties hereto and their respective
heirs, executors, administrators, successors and permitted assigns.


 


16.       Counterparts.


 


This Agreement may be
executed in any number of counterparts, each of which when executed and
delivered is an original, but all of which taken together constitute one and
the same document.


 


17.       Independent Legal Advice.


 


Each of the parties for this
Agreement has received independent legal advice as to the nature and effect of
this Agreement.


 


[THE
REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK]


 


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IN
WITNESS WHEREOF this Agreement has been duly executed by the parties hereto as
of the Effective Date.


 


 


	
  HSBC BANK
  CANADA

  	
   

  	
  I.M.W.
  INDUSTRIES LTD.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
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  B&M
  MILLER EQUITY HOLDINGS INC.

  	
   

  	
  IMW CNG
  BANGLADESH LTD.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
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  IMW
  COMPRESSOR GROUP (SHANGHAI) CO. LTD.

  	
   

  	
  IMW COLOMBIA
  LTDA.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
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  CLEAN
  ENERGY

  	
   

  	
  0884808
  B.C. LTD.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
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  CLEAN
  ENERGY COMPRESSION CORP.

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
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  SIGNED, SEALED and DELIVERED by BRADLEY
  NORMAN MILLER in the presence of:

  	
   

  	
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  BRADLEY
  NORMAN MILLER

  
	
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  Occupation

  	
   

  	
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  SIGNED, SEALED and DELIVERED by MARION MILLER
  in the presence of:

  	
   

  	
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  MARION
  MILLER

  
	
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SCHEDULE


 


The Security


 


	
  1.

  	
  General
  Security Agreement granted by IMW dated January 29, 2007;

  
	
   

  	
   

  
	
  2.

  	
  General
  Security Agreement granted by 652322 dated January 29, 2007;

  
	
   

  	
   

  
	
  3.

  	
  General
  Security Agreement granted by Bradley Norman Miller dated January 29,
  2007;

  
	
   

  	
   

  
	
  4.

  	
  General
  Security Agreement granted by Marion Miller dated January 29, 2007;

  
	
   

  	
   

  
	
  5.

  	
  Priority
  Agreement granted by GE Canada Equipment Financing G.P. and GE Canada Leasing
  Services Company dated February 1, 2007;

  
	
   

  	
   

  
	
  6.

  	
  Libor
  Agreement granted by IMW dated March 8, 2007;

  
	
   

  	
   

  
	
  7.

  	
  Unlimited
  Guarantee granted by 652322 dated January 29, 2007;

  
	
   

  	
   

  
	
  8.

  	
  Joint
  and Several Unlimited Guarantees granted by the Personal Guarantors dated
  January 29, 2007;

  
	
   

  	
   

  
	
  9.

  	
  Trade
  Financing General Agreement granted by IMW dated January 29, 2007;

  
	
   

  	
   

  
	
  10.

  	
  Agreement
  For Foreign Exchange Contracts granted by IMW dated January 29, 2007;

  
	
   

  	
   

  
	
  11.

  	
  Agreement
  As To Loans And Advance And Security Therefor granted by IMW dated
  January 29, 2007;

  
	
   

  	
   

  
	
  12.

  	
  Assignment
  of Insurance Interest granted by IMW dated January 29, 2007;

  
	
   

  	
   

  
	
  13.

  	
  Assignment
  and Postponement granted by 652322 dated January 29, 2007;

  
	
   

  	
   

  
	
  14.

  	
  Security
  Over Cash, Credit Balances And Deposit Instruments By Customer granted by IMW
  dated January 29, 2007;

  
	
   

  	
   

  
	
  15.

  	
  Application
  For Credit And Promise To Give Bills Of Lading, Warehouse Receipts, Or
  Security Under All Or Any Of Paragraphs 427(1)(a), (b), (c), (d), (g), (h),
  (i), (j), (k), (l), (m), (n), (o), (p) Of The Bank Act granted by IMW
  dated January 29, 2007;

  
	
   

  	
   

  
	
  16.

  	
  Security
  Under Section 427 Of The Bank Act granted by IMW dated January 30,
  2007;

  
	
   

  	
   

  
	
  17.

  	
  Section 427
  Letter Agreement Re: Dating Of Documents granted by IMW dated
  January 29, 2007;

  
	
   

  	
   

  
	
  18.

  	
  Guarantee(s) by
  EDC under its Exporter Guarantee Program in respect of the Operating Loan;

  



 

















 


	
  19.

  	
  Guarantee(s) by
  EDC under its Performance Security Guarantee Program in respect of the
  advances made under the BG Line;

  
	
   

  	
   

  
	
  20.

  	
  Guarantee(s) by
  EDC under its Exporter Guarantee Program in respect of the advances made
  under the Subsidiary BG Line;

  
	
   

  	
   

  
	
  21.

  	
  Negative
  Pledge Agreement granted by IMW Bangladesh and IMW dated March 26, 2010;

  
	
   

  	
   

  
	
  22.

  	
  Negative
  Pledge Agreement granted by IMW China and IMW dated December 9, 2009;
  and

  
	
   

  	
   

  
	
  23.

  	
  Unlimited
  Guarantee granted by IMW Bangladesh dated January 27, 2007;

  
	
   

  	
   

  
	
  24.

  	
  Unlimited
  Guarantee granted by IMW China dated January 27, 2007; and

  
	
   

  	
   

  
	
  25.

  	
  Unlimited
  Guarantee granted by IMW Colombia dated January 27, 2007.

  



 


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