Exhibit 4.14

 

THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR UNDER THE SECURITIES LAWS OF CERTAIN STATES.  THIS NOTE MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED EXCEPT AS PERMITTED UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR AN EXEMPTION THEREFROM.  THE ISSUER OF THIS NOTE MAY REQUIRE AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE ISSUER THAT SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION OTHERWISE COMPLIES WITH THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS.

 

PROMISSORY NOTE

 

$1,800,000.00

October 14, 2014

 

FOR VALUE RECEIVED, Clean Energy, a California corporation (“CLNE”) promises to pay to NG Advantage LLC, a Delaware limited liability company (“NGA”), or its permitted assigns, in lawful money of the United States of America the principal sum of $1,800,000.00 or such lesser amount as shall equal the outstanding principal amount hereof, as provided in this Promissory Note (the “Note”).

 

The following is a statement of the rights of NGA and the conditions to which this Note is subject, and to which NGA, by the acceptance of this Note, agrees:

 

1.                                      Definitions. As used in this Note, the following capitalized terms have the following meanings:

 

“Event of Default” has the meaning given in Section 3 hereof.

 

“Lease” shall mean that certain Lease dated October 14, 2014 between NGA and CLNE, pursuant to which CLNE has leased to NGA certain real property, improvements and personal property.

 

“NGA” shall mean the Person specified in the introductory paragraph of this Note or any Person who shall at the time be the permitted holder of this Note.

 

“Person” shall mean and include an individual, a partnership, a corporation (including a business trust), a joint stock company, a limited liability company, an unincorporated association, a joint venture or other entity or a governmental authority.

 

“Purchase Agreement” shall mean that certain Purchase Agreement dated October 14, 2014 between NGA and CLNE, pursuant to which NGA has sold certain real property, improvements and personal property to CLNE.

 

“Securities Act” shall mean the Securities Act of 1933, as amended.

 

 

2.                                      Payments.

 

(a)         No Interest.  The unpaid principal amount of this Note will not bear interest.

 

(b)         Payments.  The principal amount of this Note will be payable upon the Special Upgrade Work Rental Payment Date (as such term is defined in the Lease) (the “Payment Date”).  Notwithstanding the foregoing Payment Date, CLNE may prepay all or any part of the unpaid principal under this Note upon two business days prior written notice to NGA.

 

(c)          Right of Offset—Special Upgrade Work Rental Payment.  If the Special Upgrade Work Rent Payment (as such term is defined in the Lease) is not paid to CLNE on or prior to the Special Upgrade Work Rent Payment Date, CLNE may offset the amount of such Special Upgrade Work Rent Payment against the sums otherwise payable on this Note on the Payment Date or on any date on which sums payable on this Note are prepaid or are declared to be due and payable.  Nothing in this Section 2(c) shall limit CLNE’s remedies under the Lease.

 

3.              Events of Default.  The occurrence of any of the following shall constitute an “Event of Default” under this Note:

 

(a)         Failure to Pay.  CLNE shall fail to pay when due any principal payment on the due date hereunder and such payment shall not have been made within five (5) business days after CLNE’s receipt of written notice of such failure to pay; or

 

(b)         Voluntary Bankruptcy or Insolvency Proceedings.  CLNE shall (i) apply for or consent to the appointment of a receiver, trustee, liquidator or custodian of itself or of all or a substantial part of its property, (ii) admit in writing its inability to pay its debts generally as they mature, (iii) make a general assignment for the benefit of its or any of its creditors, (iv) be dissolved or liquidated, (v) commence a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or consent to any such relief or to the appointment of or taking possession of its property by any official in an involuntary case or other proceeding commenced against it, or (vi) take any action for the purpose of effecting any of the foregoing; or

 

(c)          Involuntary Bankruptcy or Insolvency Proceedings.  Proceedings for the appointment of a receiver, trustee, liquidator or custodian of CLNE, or of all or a substantial part of the property thereof, or an involuntary case or other proceedings seeking liquidation, reorganization or other relief with respect to CLNE, if any, or the debts thereof under any bankruptcy, insolvency or other similar law now or hereafter in effect shall be commenced and an order for relief entered or shall not be dismissed or discharged within 45 days of commencement.

 

4.                                      Rights of NGA upon Event of Default.  Notwithstanding any contrary provision of this Agreement, upon the occurrence of an Event of Default under Section 3, as NGA’s sole and exclusive remedy hereunder, (i) the entire unpaid principal balance of this Note shall become due and payable, by notice or demand upon CLNE and (ii) NGA may pursue the rights of a holder at law for collection of the sums due under an unsecured note, but subject, in each case, to CLNE’s offset rights provided for herein.

 

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5.                                      Representations of CLNE.  CLNE represents and warrants to NGA that:

 

(a)         Due Incorporation, Qualification, etc.  CLNE is a corporation duly organized and validly existing under the laws of the State of California.

 

(b)         Authority.  The execution and delivery of this Note and the performance by CLNE of its obligations hereunder (i) are within the power of CLNE and (ii) have been duly authorized by all necessary actions on the part of CLNE.

 

(c)          Enforceability.  This Note has been, or will be, duly executed and delivered by CLNE.

 

(d)         Approvals.  No consent, approval, order or authorization of, or registration, declaration or filing with, any governmental authority or other Person (including, without limitation, the shareholders of any Person) is required in connection with the execution and delivery of this Note by CLNE and the performance and consummation of the transactions contemplated hereby, other than such as have been obtained and remain in full force and effect and other than such qualifications or filings under applicable securities laws as may be required in connection with the issuance of this Note.

 

(e)          Litigation.  No actions (including, without limitation, derivative actions), suits, proceedings or investigations are pending or, to the knowledge of CLNE, threatened in writing against CLNE at law or in equity in any court or before any other governmental authority that seek to enjoin, either directly or indirectly, the execution or delivery of this Note by CLNE or the performance by CLNE of its obligations hereunder.

 

6.                                      Miscellaneous.

 

(a)         Successors and Assigns; Transfer of this Note.

 

(i)             Subject to the restrictions on transfer described in this Section 6(a), the rights and obligations of CLNE and NGA shall be binding upon and benefit the successors, assigns, heirs, administrators and transferees of the parties.

 

(ii)          Neither this Note nor any of the rights, interests or obligations hereunder may be assigned, by operation of law or otherwise, in whole or in part, by either party without the prior written consent of the other party.

 

(b)         Waiver and Amendment.  This Note may not be amended, waived or modified without the written consent of each of CLNE and NGA.

 

(c)          Notices.  All notices, requests, demands, consents, instructions or other communications required or permitted hereunder shall be in writing and mailed (including electronic mail) or delivered to each party at the respective addresses of the parties set forth on the signature page hereto, or at such other address or electronic mail addresses as a party shall have furnished to the other party in accordance with this Section 6(c).  All such notices and communications will be deemed effectively given the earlier of (i) when received, (ii) when delivered personally, (iii) one business day after being delivered by electronic mail message

 

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(with receipt of appropriate confirmation), (iv) one business day after being deposited with an overnight courier service of recognized standing or (v) four days after being deposited in the U.S. mail, first class with postage prepaid.

 

(d)         Waivers.  Except as set forth in Section 4, CLNE hereby waives notice of default, presentment or demand for payment, protest or notice of nonpayment or dishonor and all other notices or demands relative to this instrument.

 

(e)          Governing Law.  This Note and all actions arising out of or in connection with this Note shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to the conflicts of law provisions of the State of Delaware, or of any other state.

 

(f)           Waiver of Jury Trial.  By acceptance of this Note, NGA hereby agrees and CLNE hereby agrees to waive their respective rights to a jury trial of any claim or cause of action based upon or arising out of this Note.

 

(g)          Counterparts.  This Note may be executed in any number of counterparts and by different parties on separate counterparts, each of which, when executed and delivered, shall be deemed to be an original, and all of which, when taken together, shall constitute but one and the same Note.

 

(Signature Page Follows)

 

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CLNE has caused this Note to be issued as of the date first written above.

 

					CLEAN ENERGY,
					a California corporation
					By:	/s/ Andrew J. Littlefair
					Name:			Andrew J. Littlefair
					Title:		President and Chief Executive Officer
					Address: 4675 MacArthur Court, Suite 800
					Newport Beach, CA 92660
					Attention: Vice President and General Counsel
					Email:      njensen@cleanenergyfuels.com
Acknowledged and agreed to by:
NG ADVANTAGE LLC,
a Delaware limited liability company
By:	/s/ Tom Evslin
Name:			Tom Evslin
Title:		Chief Executive Officer
Address: 480 Hercules Drive
Colchester, VT 05446
Attention: Tom Evslin
Email:     tevslin@ngadvantage.com