Exhibit 10.5


 


GUARANTY


 


This Guaranty Agreement (this “Guaranty”) dated effective as of November 7,
2008, is entered into by Clean Energy Fuels Corp (“Guarantor”), a Corporation
organized under the laws of Delaware, in favor of Shell Energy North America (US),
L.P., a limited partnership organized under the laws of Delaware (“Counterparty”).


 


Recitals:


 


A.            Guarantor desires that Counterparty enter
into transactions with Clean Energy (“Guaranteed Party”), under one or more
agreements and/or confirmations for the purchase and sale of natural gas (as
amended, supplemented, renewed, or extended, collectively, the “Contract”); and


 


B.            Guaranteed Party is a subsidiary or
affiliate of Guarantor and Guarantor will directly or indirectly benefit from
the Contract to be entered into between Counterparty and Guaranteed Party;


 


NOW, THEREFORE, in consideration of Counterparty entering into the
Contract with Guaranteed Party, Guarantor hereby covenants and agrees as
follows:


 


1.             Guaranty.  Subject to
the terms and conditions hereof, Guarantor hereby irrevocably and
unconditionally guarantees the timely payment when due of the obligations of
Guaranteed Party (the “Obligations”) to Counterparty under the Contract.  To the extent that Guaranteed Party shall
fail to pay any Obligation, Guarantor shall promptly pay to Counterparty the
amount due.  This Guaranty shall
constitute a guarantee of payment and not of collection.  Guarantor shall also be liable for the
reasonable attorneys’ fees and expenses of Counterparty’s external counsel
incurred in any effort to collect or enforce any of the Obligations under this
Guaranty; provided, however, such fees and expenses shall be payable by
Guarantor only to the extent that Counterparty is successful in enforcing
payment of the Obligations under this Guaranty.


 


2.             Limitations.  Guarantor’s
liability hereunder shall be limited to payments expressly required to be made
under the Contract (even if such payments are deemed to be damages) and in no
event shall Guarantor be subject hereunder to consequential, exemplary,
equitable, loss of profits, punitive, or any other damages, except to the
extent specifically provided in the Contract to be due from Guaranteed Party.  Guarantor reserves the right to assert
rights, setoffs, counterclaims and other defenses which Guaranteed Party may
have to payment of any Obligation under the Contract, other than defenses
arising from the bankruptcy, insolvency, dissolution, or liquidation of
Guaranteed Party and other defenses expressly waived herein.  The aggregate amount covered by this Guaranty
shall not exceed U.S. $15,000,000,
plus reasonable attorneys’ fees and expenses payable by Guarantor as provided
herein.


 


3.             Termination.  This Guaranty
shall remain in full force and effect until the earlier of five (5) years
from the effective date of this Guaranty, or the tenth (10th)
business day after this Guaranty is terminated by written notice from Guarantor
to Counterparty.  No termination shall
affect, release or discharge Guarantor’s liability with respect to any
Obligations existing or arising under the Contract prior to the effective date
of termination.


 


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4.             Nature of Guaranty.  The
Guarantor’s obligations hereunder with respect to any Obligation shall not be
affected by the existence, validity, enforceability, perfection, release, or
impairment of value of any collateral for such Obligations.  Counterparty shall not be obligated to file
any claim relating to the Obligations owing to it in the event that Guaranteed
Party becomes subject to a bankruptcy, reorganization, or similar proceeding,
and the failure of Counterparty to so file shall not affect the Guarantor’s
obligations hereunder.  In the event that
any payment to Counterparty in respect to any Obligations is rescinded or must
otherwise be returned for any reason whatsoever.  Guarantor shall remain liable hereunder in
respect to such Obligations as if such payment had not been made.


 


5.             Subrogation.  Guarantor
waives its right to be subrogated to the rights of Counterparty with respect to
any Obligations paid or performed by Guarantor until all Obligations have been
fully and indefeasibly paid to Counterparty, subject to no rescission or right
of return, and Guarantor has fully and indefeasibly satisfied all of Guarantor’s
obligations under this Guaranty.


 


6.             Waivers.  Guarantor
hereby waives any circumstance which might constitute a legal or equitable
discharge of a surety or guarantor, including but not limited to (a) notice
of acceptance of this Guaranty; (b) presentment and demand concerning the
liabilities of Guarantor; (c) notice of any dishonor or default by, or
disputes with, Guaranteed Party; and (d) any right to require that any
action or proceeding be brought against Guaranteed Party or any other person,
or to require that Counterparty seek enforcement of any performance against
Guaranteed Party or any other person, prior to any action against Guarantor
under the terms hereof.  Guarantor
consents to the renewal, compromise, extension, acceleration, or other
modification of the terms of the Obligations, and to any change, modification
or waiver of the terms of the Contract, without in any way releasing or
discharging Guarantor from its obligations hereunder.  Except as to applicable statutes of limitation,
no delay of Counterparty in the exercise of, or failure to exercise, any rights
hereunder shall operate as a waiver of such rights, a waiver of any other
rights, or a release of Guarantor from any obligations hereunder.


 


7.             Notice.  Any payment demand,
notice, correspondence or other document to be given hereunder by any party to
another (herein collectively called “Notice”) shall be in writing and delivered
personally or mailed by certified mail, postage prepaid and return receipt
requested, or by facsimile, to the addresses set forth below.  Notice given by personal delivery or mail
shall be effective upon actual receipt, or, if receipt is refused or rejected,
upon attempted delivery.  Notice given by
facsimile shall be effective upon actual receipt if received during the
recipient’s normal business hours, or at the beginning of the recipient’s next
business day after receipt if not received during the recipient’s normal
business hours.  All Notices by facsimile
shall be confirmed promptly after transmission in writing by certified mail or
personal delivery.  Any party may change
any address to which Notice is to be given to it by giving Notice as provided
above of such change of address.


 


8.             Miscellaneous.  THIS GUARANTY SHALL BE IN ALL RESPECTS GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAWS.  No term
or provision of this Guaranty shall be amended or modified except in a writing
signed by Guarantor and Counterparty.  Counterparty
may, upon notice to Guarantor, assign its rights hereunder without the consent
of Guarantor.  Guarantor may assign its
rights and obligations 


 


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hereunder only with the prior written consent of
Counterparty.  Subject to the foregoing,
this Guaranty shall be binding upon Guarantor, its successors and assigns, and
shall inure to the benefit of and be enforceable by Counterparty, its
successors and assigns.  All references
herein to Guaranteed Party shall be deemed to include all successors and
assigns, whether immediate or remote, of Guaranteed Party under the Contract.  This Guaranty embodies the entire agreement
and understanding between Guarantor and Counterparty, and supersedes all prior
guaranties issued by Guarantor in connection with Obligations under the
Contract.


 


IN WITNESS WHEREOF, Guarantor has executed this
Guaranty effective as of the date first herein written.


 


 


	
   

  	
  CLEAN ENERGY FUELS CORP

  
	
   

  	
  [Name of Guarantor] 

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Richard R. Wheeler

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Richard R. Wheeler

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  CFO

  
	
   

  	
   

  
	
  Address of Counterparty: 

  	
  Address of Guarantor: 

  
	
   

  	
   

  
	
  909 Fannin, Plaza Level One 

  	
  3020 Old Ranch Parkway, #200 

  
	
  Houston, Texas 77010 

  	
  Seal Beach, CA 90740 

  
	
  Attn: Credit Manager 

  	
  Attn:

  	
  Rick Wheeler 

  
	
  Fax No.: 713-230-7925

  	
  Fax No.:

  	
  (562)
  546-0097

  
							



 


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