Exhibit 10.4


 


FIRST
AMENDMENT TO

BASE CONTRACT FOR SALE AND PURCHASE OF NATURAL GAS


 


THIS First Amendment is made and entered into effective as of the first
day of November, 2008, by and between Shell Energy North America
(US), L.P. (“Shell Energy”) and Clean Energy, (“Clean
Energy”) referred to herein collectively as “Parties” and singularly as “Party”.


 


WHEREAS, Shell Energy and Clean Energy have made and entered into to
that certain Base Contract for Sale and Purchase of Natural Gas dated September 1,
2004, herein referred to as the “Agreement”, providing for the sale and
purchase of natural gas; and


 


WHEREAS, the Parties desire to amend the Agreement as hereinafter set
forth.


 


NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and in the Agreement, the Parties do hereby covenant and agree
as follows:


 


1.                                       The Agreement is hereby amended by
deleting the existing EXHIBIT B Credit Support Addendum.


 


2.                                       A new EXHIBIT B, Credit Support
Addendum, set forth in Attachment A to this Amendment, attached hereto and
incorporated by reference, is added to the Agreement following EXHIBIT A,
Confirmation.


 


3.                                       This Amendment shall be effective as of November 1,
2008.


 


Except as supplemented and amended herein, all of the terms, provisions,
covenants and conditions contained in the Agreement shall remain in full force
and effect.  The terms and provisions
hereof shall be binding upon and inure to the benefit of the Parties hereto,
their heirs, representatives, successors and assigns.


 


IN WITNESS WHEREOF, this Amendment is executed in duplicate originals
as of the date hereinabove written and shall be binding upon each party who
executes same.


 


	
  SHELL ENERGY NORTH

  	
   

  	
  CLEAN ENERGY

  
	
  AMERICA (US), L.P.

  	
   

  	
   

  
	
   

   

  	
   

  	
   

  
	
  By:

  	
  /s/ Beth
  Bowman

  	
   

  	
  By:

  	
  /s/ Richard R. Wheeler

  
	
  Name:
  Beth Bowman

  	
   

  	
  Name: 

  	
  Richard R. Wheeler

  
	
  Title:
  Senior Vice President

  	
   

  	
  Title: 

  	
  CFO

  
	
  Date:
  

  	
  11-04-08

  	
   

  	
  Date: 

  	
  11-7-08

  
								



 

















 


ATTACHMENT
A

TO

FIRST AMENDMENT TO BASE CONTRACT FOR SALE AND PURCHASE OF 

NATURAL GAS BETWEEN

SHELL ENERGY NORTH AMERICA (US), L.P. and CLEAN ENERGY


 

















 


Shell Energy NAESB
Credit Support Addendum


Credit Line -
Threshold Grid Form wholesale


(revised 06-01-08)


 


EXHIBIT B

TO BASE CONTRACT FOR SALE AND PURCHASE OF NATURAL GAS

BETWEEN

SHELL ENERGY NORTH AMERICA (US), L.P. (“Shell Energy”) and Clean Energy


 


CREDIT
SUPPORT ADDENDUM


 


1.             Credit Terms.  Defined terms used in this Credit Support
Addendum (“Addendum”) and not defined in the Base Contract shall have
the meaning set forth in Section 6 herein.


 


(a)(1)       Security Threshold
for Shell Energy.  As used in this
Addendum, “Security Threshold” means, on any date of determination, the
lowest of (i) the amount set forth in the following table based on the
highest applicable Credit Rating for Shell Energy or (ii) zero if a
Material Adverse Change or an Event of Default has occurred and is continuing
with respect to Shell Energy.


 


Shell
Energy’s Credit Rating


 




	
  Moody’s

  	
   

  	
  S&P

  	
   

  	
  Security Threshold

  	
   

  
	
  A3

  	
   

  	
  A-

  	
   

  	
  $

  	
  50,000,000

  	
   

  
	
  Baa1

  	
   

  	
  BBB+

  	
   

  	
  $

  	
  40,000,000

  	
   

  
	
  Baa2

  	
   

  	
  BBB

  	
   

  	
  $

  	
  25,000,000

  	
   

  
	
  Baa3

  	
   

  	
  BBB-

  	
   

  	
  $

  	
  10,000,000

  	
   

  
	
  Ba1

  	
   

  	
  BB+

  	
   

  	
  $

  	
  2,500,000

  	
   

  
	
  Below Ba1

  	
   

  	
  Below BB+

  	
   

  	
  $

  	
  0

  	
   

  






 


(a)(2)       Security Threshold
for Counterparty.  As used in this
Addendum, “Security Threshold” means with respect to Counterparty, on
any date of determination, the lowest of (i) $15,000,000;
or (ii) the amount of any dollar limit contained in a guaranty provided by
Counterparty’s Credit Support Provider pursuant to this Addendum, if
applicable, or (iii) zero if a Material Adverse Change or an Event of
Default has occurred and is continuing with respect to Counterparty or its
Credit Support Provider, as applicable.


 


(b)           Material
Adverse Change.  As used herein, “Material Adverse Change”
means, (i) the Credit Rating of Shell Energy falls below BB+ by S&P or
Bat by Moody’s, or Shell Energy is no longer rated by at least one of the
foregoing rating agencies; or (ii) in the reasonable opinion of Shell
Energy, that (x) a material adverse change has occurred in the business,
financial condition or operations of the Counterparty or its Credit Support
Provider, as applicable; or (y) the ability of the Counterparty or its
Credit Support Provider, as applicable, to meet its obligations under the
Contract and/or a guaranty provided hereunder has become materially impaired;
or (iii) a default has occurred with respect to indebtedness for borrowed
money of a Party or its Credit Support Provider, as applicable, that has
resulted in an acceleration of such indebtedness in an aggregate amount in
excess of its Cross Default Threshold. 
As used herein, “Cross-Default Threshold” means, with respect to
Shell Energy, fifty million dollars $50,000,000, and with respect to
Counterparty or its Credit Support Provider, as applicable, $1,000,000.


 

















 


(c)           Guaranties.


 


(i)                                     Shell Energy Guaranty.  Not
Applicable.


 


(ii)           Counterparty
Guaranty.  If necessary to secure all
payment obligations of Counterparty and to support its Security Threshold
hereunder, Counterparty shall cause its Credit Support Provider, Clean Energy Fuels Corp, to execute and deliver to Shell
Energy a guaranty agreement in the amount of $15,000,000 which guaranty can be
increased up to amount of Security Threshold. 
The guaranty agreement, if required, shall be in form and substance
reasonably satisfactory to Shell Energy and shall be executed and delivered
upon the execution and delivery of this Contract.


 


2.             Credit Requirements.  If at any
time, and from time to time, during the term of the Contract, the Contract
Exposure for a Party (the “Providing Party”) exceeds such Party’s
Security Threshold, then the other Party (the “Requesting Party”) may
request that the Providing Party provide Performance Assurance in an amount
equal to the amount by which its Contract Exposure exceeds its Security
Threshold.  On any Business Day (but no
more frequently than weekly with respect to Letters of Credit and daily with
respect to cash), the Providing Party, at its sole cost, may request that the
amount of Performance Assurance be reduced based upon a decrease in the
Contract Exposure as calculated on such Business Day.  Any Performance Assurance being provided or
returned shall be delivered within one (1) Business Day of the date
of such request.  The amount of
Performance Assurance being provided by the Providing Party shall be rounded
upwards to the next multiple of two hundred and fifty thousand
dollars ($250,000), and the amount of Performance Assurance being returned
by the Requesting Party shall be rounded down to the next multiple of two
hundred and fifty thousand dollars ($250,000).


 


3.             Grant of Security Interest; Remedies.  To secure its
obligations under the Contract, and to the extent it delivers Performance
Assurance hereunder as the Providing Party, each Party hereby grants to the
Requesting Party, as secured party, a present and continuing security interest
in, lien on, and right of setoff against, all Performance Assurance in the form
of cash, and any and all proceeds resulting therefrom, held by or on behalf of
the Requesting Party.  The Providing
Party agrees to take such further action as the Requesting Party may reasonably
require in order to perfect, maintain, and protect the Requesting Party’s
security interest in such collateral. 
Upon the occurrence and continuance of an Event of Default with respect
to the Providing Party, the Requesting Party may (i) exercise any of the
rights and remedies of a secured party under applicable law with respect to all
Performance Assurance; (ii) exercise its right of setoff against any and
all Performance Assurance; (iii) draw on any Letter of Credit issued for
its benefit, and (iv) liquidate all Performance Assurance then held by the
Requesting Party free from any claim or right of any nature whatsoever of the
Providing Party.  The Requesting Party
shall either apply the proceeds of the Performance Assurance realized upon
exercise of such rights or remedies to reduce the Providing Party’s obligations
under the Contract, in such order as it elects, and the Providing Party shall
remain liable for any amounts owing to the Requesting Party after such
application, subject to the Requesting Party’s obligation to return any surplus
proceeds remaining after such obligations are satisfied in full, or hold such
proceeds as collateral security for the Providing Party’s obligations under the
Contract.


 


2
















 


4.                                      Credit Events Of Default. 
The following events (“Credit Events”) shall be additional Events
of Default under Section 10.2 of the Contract and the Non-Defaulting Party
shall have the right to exercise any of the remedies provided for under Section 10
of the Contract upon the occurrence of a Credit Event as provided herein:


 


	
  (i)

  	
  the failure of the Defaulting Party to establish, maintain, extend or
  increase Performance Assurance when required pursuant to this Addendum; or

  
	
   

  	
   

  
	
  (ii)

  	
  the failure of the Defaulting Party’s Credit Support Provider, if
  any, to perform any covenant set forth in any guaranty agreement delivered
  pursuant to this Addendum; or

  
	
   

  	
   

  
	
  (iii)

  	
  the failure of the Defaulting Party or its Credit Support Provider,
  as applicable, to timely provide financial information as required in this
  Addendum, and such failure is not remedied within thirty (30) Days after
  written notice of such failure is given to the Defaulting Party; or

  
	
   

  	
   

  
	
  (iv)

  	
  the occurrence of a Letter of Credit Default.

  
	
   

  	
   

  
	
  (v)

  	
  The failure of the Counterparty’s Credit Support Provider Clean
  Energy Fuels Corp, to maintain its Current Ratio equal to 2 or above for each
  fiscal quarter and fiscal year.

  
	
   

  	
   

  
	
  (vi)

  	
  The failure of the Counterparty’s Credit Support Provider Clean
  Energy Fuels Corp, to maintain its Tangible Net Worth greater than or equal
  to one hundred and ninety million dollars.

  



 


5.                                      Financial Information. 
Upon request, a Party or its Credit Support Provider, as applicable,
shall deliver to the other Party (i) within one hundred twenty (120)
Days following the end of its fiscal year, a copy of the audited consolidated
financial statements for such fiscal year certified by independent certified
public accountants and (ii) within ninety (90) Days after the end of
each of the first three fiscal quarters of its fiscal year, a copy of the
quarterly unaudited consolidated financial statements for such fiscal
quarter.  In all cases, the statements
shall be for the most recent accounting period and prepared in accordance with
generally accepted accounting principles or such other principles then in
effect.


 


6.                                      Definitions. 
With respect to this Addendum, the following definitions shall apply:


 


“Current Assets” shall mean, as of any date, the aggregate
amount of all assets (other than cash) of such Person which would be classified
as current assets, each computed in accordance with GAAP.


 


“Current Liabilities” shall mean, as of any date, the aggregate
amount of all liabilities of said person (including tax and other proper
accruals) which would be classified as current liabilities.


 


3

















 


“Current Ratio” shall mean, as of any date, the quotient of
Current Assets divided by Current Liabilities.


 


“Contract Exposure” means the net amount (i) determined
pursuant to Section 10.3.1 of the Contract that would be payable from the
Providing Party to the Requesting Party, as if a Early Termination Date had
been declared pursuant to Section 10.3 of the Contract (notwithstanding
whether or not an Event of Default has occurred) and all transactions had been
terminated; (ii) plus the net amount of all other payments Shell Energy
owed but not yet paid between the Parties, whether or not such amounts are then
due, for performance already provided pursuant to any and all transactions
conducted under the Contract; (iii) less the amount of any Performance
Assurance then held by the Requesting Party.


 


“Shell Energy” means Shell Energy North America (US), L.P.


 


“Counterparty” means Clean Energy.


 


“Credit Rating” means (i) with respect to a Party or its
Credit Support Provider, as applicable, the lower of its long-term senior
unsecured debt rating (not supported by third party credit enhancement) or its
issuer rating by the specified rating agency, and (ii) with respect to a
financial institution, the lower of its long-term senior unsecured debt rating
(not supported by third party credit enhancement) or its deposit rating by the
specified rating agency.


 


“Credit Support Provider” means a third party providing a
guaranty for a Party pursuant to this Addendum. 
With respect to Counterparty, its Credit Support Provider shall be Clean
Energy Fuels Corp.


 


“Defaulting Party” has the meaning set forth in Section 10.2
of the Contract.


 


“GAAP” shall mean, with respect to any Person, accounting
principals that are generally accepted in the country in which said person is
organized.


 


“Intangible Assets” shall mean such assets to include
copyrights, patents, trademarks, and goodwill.


 


“Interest” means the interest rate to be paid by the Requesting
Party that should be calculated at the Federal Funds Effective Rate - the
rate for that day opposite the caption “Federal Funds (Effective)” as set forth
in the weekly statistical release designated as H.15(519), or any successor
publication, published by the Board of Governors of the Federal Reserve
System.  Such interest shall be
calculated on the basis of the actual number of days elapsed and on the basis
of a year of 360 days.  Upon
request, the transfer of the interest amount for each calendar month will be
made on the second business day of the next calendar month.


 


“Letter of Credit” means one or more irrevocable, standby
letters of credit issued by a Qualified Institution.


 


4

















 


“Letter of Credit Default” means with respect to an outstanding
Letter of Credit that is held by the Requesting Party, the occurrence of any of
the following events:  (i) the
Providing Party fails to extend or replace such Letter of Credit delivered as
Performance Assurance hereunder at least twenty (20) Business Days prior
to its expiration, or (ii) the Letter of Credit delivered hereunder shall
expire, terminate or otherwise fail to remain in full force and effect for any
reason, or (iii) the Qualified Institution which issued such Letter of
Credit hereunder fails to maintain the requirements of a Qualified Institution
as specified herein or fails to comply with or perform its obligations under
such Letter of Credit and such failure is not remedied within five (5) Business
Days after written notice of such failure is given to Requesting Party, or (iv) the
Qualified Institution which issued such Letter of Credit shall disaffirm,
disclaim, repudiate or reject, in whole or in part, or challenge the validity
of, such Letter of Credit, or (v) the Qualified Institution which issued
such Letter of Credit shall become Bankrupt. 
Upon the occurrence of a Letter of Credit Default, the Providing Party
agrees to transfer to the Requesting Party either a substitute Letter of Credit
or other Performance Assurance, in each case on or before the second (2nd)
Business Day after receipt by the Providing Party of written notice from the
Requesting Party.


 


“Moody’s” means Moody’s Investors Service, Inc., or its
successor.


 


“Non-Defaulting Party” has the meaning set forth in Section 10.2
of the Contract.


 


“Party” means a party to the Contract, and collectively referred
to as the “Parties”.


 


“Performance Assurance” means collateral in the form of cash,
Letters of Credit, or other security acceptable to the Requesting Party.  If the collateral is in the form of cash,
such cash shall be placed by the Requesting Party in a segregated,
interest-bearing account on deposit with a Qualified Institution and Interest
shall accrue to the Providing Party.  The
requirement to maintain a segregated account shall not apply if the Requesting
Party or its Credit Support Provider, as applicable, has a Credit Rating of at
least A- by S&P or A3 by Moody’s.


 


“Person” shall mean any individual, partnership, firm, corporation,
association, joint venture, trust or other entity, or any government or
political subdivision or agency, department or instrumentality thereof.


 


“Qualified Institution” means the domestic office of a
commercial bank or trust company (which is not an affiliate of either Party) (i) organized
under the laws of United States (or any state or a political subdivision
thereof), (ii) having assets of at least ten billion
dollars ($10,000,000,000), and (iii) having a Credit Rating of at
least A- by S&P and at least A3 by Moody’s.


 


“S&P” means Standard & Poor’s Ratings Services (a
division of McGraw-Hill, Inc.) or its successor.


 


“Tangible Net Worth” of any Person shall mean on any date an
amount equal to the value of (i) Total Assets minus (ii) the sum of the
values of Intangible Assets and Total Liabilities, in each case determined by
reference to the audited (or unaudited, if audited financials are not
available) quarterly consolidated financial statements or annual consolidated
financial statements of such Person prepared in accordance with GAAP.


 


5

















 


“Total Assets” of any Person shall mean, at any date, the
aggregate amount of all assets of such Person, which would be properly
classified as total assets shown on the balance sheet of such Person on such
date in accordance with GAAP.


 


“Total Liabilities” of any Person shall mean, at any date, the
aggregate amount of all liabilities of such Person (including tax and other
proper accruals) which would be properly classified as total liabilities shown
on the balance sheet of such Person on such date in accordance with GAAP.


 


7.                                      Successors.  In the event
of an assignment of the Contract by Counterparty as provided therein, the
provisions of this Addendum shall not be applicable to any such assignee.  In such event, an assignee will be required
to meet the reasonable credit requirements of Shell Energy for the extension of
unsecured credit before further deliveries of Gas are made.


 


 


	
   

  	
   

  	
  COUNTERPARTY

  	
  RW

  
	
   

  	
   

  	
  SHELL ENERGY

  	
  BB

  



 


6