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TABLE OF CONTENTS

As filed with the Securities and Exchange Commission on November 21, 2016

Registration No. 333-            


UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549

FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933

PLUG POWER INC.
(Exact name of Registrant as specified in its charter)

Delaware
(State or other jurisdiction of
incorporation or organization) 		  22-3672377
(I.R.S. Employer
Identification Number)

968 Albany Shaker Road
Latham, New York 12110
(518) 782-7700
(Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrant's Principal Executive Offices)

Andrew Marsh
President and Chief Executive Officer
Plug Power Inc.
968 Albany-Shaker Road
Latham, New York, 12110
(518) 782-7700
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent for Service)

Copies to:

Gerard L. Conway Jr., Esq.
General Counsel
Plug Power Inc.
968 Albany-Shaker Road
Latham, New York, 12110
(518) 782-7700
 
Robert P. Whalen, Jr., Esq.
Jocelyn M. Arel, Esq.
Goodwin Procter LLP
Exchange Place
Boston, Massachusetts 02109-2881
(617) 570-1000

Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this registration statement

             If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box.     o

             If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, as amended, or the Securities Act, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box.     ý

             If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.     o

             If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.     o

             If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box.     o

             If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box.     o

             Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of "large accelerated filer," "accelerated filer" and "smaller reporting company" in Rule 12b-2 of the Securities Exchange Act of 1934, as amended, or the Exchange Act.

Large accelerated filer  o   Accelerated filer  ý   Non-accelerated filer  o   Smaller reporting company  o

CALCULATION OF REGISTRATION FEE

               
 
Title of Each Class of
Securities To Be Registered
  Amount to be
Registered(1)(2)
  Proposed
Maximum
Offering Price Per
Unit(1)(2)
  Proposed
Maximum
Aggregate Offering
Price(1)(3)
  Amount of
Registration Fee
 

Common Stock, $0.01 par value per share(5)

              —
 

Preferred Stock, $0.01 par value per share

              —
 

Warrants

              —
 

Debt Securities

               
 

Units

              —
 

Total

          $200,000,000   $23,180(4)

 

(1)
There are being registered hereunder such indeterminate number of shares of common stock and preferred stock, such indeterminate number of warrants to purchase common stock, preferred stock and/or debt securities, such indeterminate amount of debt securities and such indeterminate number of units as may be sold by the registrant from time to time, which together shall have an aggregate initial offering price not to exceed $200,000,000. Any securities registered hereunder may be sold separately or as units with the other securities registered hereunder. The proposed maximum offering price per unit will be determined, from time to time, by the registrant in connection with the issuance by the registrant of the securities registered hereunder. The securities registered hereunder also include such indeterminate number of shares of common stock and preferred stock as may be issued upon conversion of or exchange for preferred stock or debt securities that provide for conversion or exchange, upon exercise of warrants or pursuant to the antidilution provisions of any of such securities. In addition, this registration statement also relates to an indeterminate number of shares of common stock and preferred stock that may be issued upon stock splits, stock dividends or similar transactions in accordance with Rule 416 under the Securities Act.

(2)
Such information is not required to be included pursuant to General Instruction II.D of Form S-3 under the Securities Act.

(3)
The proposed maximum aggregate offering price has been estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(o) under the Securities Act.

(4)
Calculated pursuant to Rule 457(o) under the Securities Act.

(5)
This registration statement also relates to the rights to purchase Series A Junior Participating Cumulative Preferred Stock of the registrant which are attached to all shares of common stock issued pursuant to the terms of the registrant's Shareholders Rights Agreement dated June 23, 2009, as amended. Until the occurrence of certain prescribed events, the rights are not exercisable, are evidenced by the certificates for the common stock and will be transferred with and only with such common stock. Because no separate consideration is paid for the rights, the registration fee therefore is included in the fee for common stock.

              The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment that specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act, or until the registration statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.

   

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The information in this prospectus is not complete and may be changed. We may not sell or accept an offer to buy these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting offers to buy these securities in any jurisdiction where such offer or sale is not permitted.

Subject to Completion, Dated November 21, 2016

PROSPECTUS

PLUG POWER INC.

$200,000,000
Common Stock
Preferred Stock
Warrants
Debt Securities
Units

        From time to time, we may offer up to $200,000,000 of any combination of the securities described in this prospectus, either individually or in units. The warrants and debt securities may be convertible into or exercisable or exchangeable for common stock or preferred stock and the preferred stock may be convertible into or exchangeable for common stock.

        Each time we offer securities, we will provide the specific terms of the securities offered in one or more supplements to this prospectus. We may also authorize one or more free writing prospectuses to be provided to you in connection with these offerings. The prospectus supplement and any related free writing prospectus may also add, update or change information contained in this prospectus. You should carefully read this prospectus, the applicable prospectus supplement and any related free writing prospectus, as well as any documents incorporated by reference, before buying any of the securities being offered.

        The securities offered by this prospectus may be sold directly by us to investors, through agents designated from time to time or to or through underwriters or dealers on a continuous or delayed basis. We will set forth the names of any underwriters or agents and any applicable fees, commissions, discounts and over-allotments in an accompanying prospectus supplement. For additional information on the methods of sale, you should refer to the section entitled "Plan of Distribution" in this prospectus and in the applicable prospectus supplement. The price to the public of such securities and the net proceeds we expect to receive from such sale will also be set forth in a prospectus supplement.

        Our common stock is traded on the NASDAQ Capital Market under the symbol "PLUG." On November 17, 2016, the last reported sale price of our common stock on the NASDAQ Capital Market was $1.51. The applicable prospectus supplement will contain information, where applicable, as to any other listing, if any, on the NASDAQ Capital Market or any securities market or other exchange of the securities covered by the applicable prospectus supplement.

         This prospectus may not be used to offer or sell any securities unless accompanied by a prospectus supplement.

         INVESTING IN OUR SECURITIES INVOLVES A HIGH DEGREE OF RISK. YOU SHOULD REVIEW CAREFULLY THE RISKS AND UNCERTAINTIES REFERENCED UNDER THE HEADING "RISK FACTORS" ON PAGE 6 OF THIS PROSPECTUS AS WELL AS THOSE CONTAINED IN THE APPLICABLE PROSPECTUS SUPPLEMENT AND ANY RELATED FREE WRITING PROSPECTUS, AND IN THE OTHER DOCUMENTS THAT ARE INCORPORATED BY REFERENCE INTO THIS PROSPECTUS OR THE APPLICABLE PROSPECTUS SUPPLEMENT.

         Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.

   

The date of this prospectus is                    , 2016.

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TABLE OF CONTENTS

 
  Page  

ABOUT THIS PROSPECTUS

    1  

SUMMARY

    2  

RISK FACTORS

    6  

FORWARD-LOOKING STATEMENTS

    6  

RATIO OF COMBINED FIXED CHARGES AND PREFERENCE DIVIDENDS TO EARNINGS

    8  

USE OF PROCEEDS

    8  

PLAN OF DISTRIBUTION

    8  

DESCRIPTION OF CAPITAL STOCK

    11  

DESCRIPTION OF WARRANTS

    18  

DESCRIPTION OF OUR DEBT SECURITIES

    21  

DESCRIPTION OF UNITS

    28  

LEGAL MATTERS

    29  

EXPERTS

    29  

WHERE YOU CAN FIND ADDITIONAL INFORMATION

    29  

INCORPORATION OF CERTAIN INFORMATION BY REFERENCE

    30  

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ABOUT THIS PROSPECTUS

        This prospectus is part of a registration statement on Form S-3 that we filed with the Securities and Exchange Commission, or the SEC, utilizing a "shelf" registration process. Under this shelf registration process, we may offer shares of our common stock and preferred stock, various series of warrants to purchase common stock or preferred stock and debt securities, either individually or in units, in one or more offerings, up to a total dollar amount of $200,000,000. This prospectus provides you with a general description of the securities we may offer. Each time we offer a type or series of securities under this prospectus, we will provide a prospectus supplement that will contain more specific information about the specific terms of the offering. We may also authorize one or more free writing prospectuses to be provided to you that may contain material information relating to these offerings. Each such prospectus supplement (and any related free writing prospectus that we may authorize to be provided to you) may also add, update or change information contained in this prospectus or in documents incorporated by reference into this prospectus. We urge you to carefully read this prospectus, any applicable prospectus supplement and any related free writing prospectus, together with the information incorporated herein by reference as described under the headings "Where You Can Find Additional Information" and "Incorporation of Certain Information by Reference" before buying any of the securities being offered.

         This prospectus may not be used to offer or sell securities unless it is accompanied by a prospectus supplement.

        You should rely only on the information contained or incorporated by reference in this prospectus, any applicable prospectus supplement and any related free writing prospectus. We have not authorized anyone to provide you with different information in addition to or different from that contained in this prospectus, any applicable prospectus supplement and any related free writing prospectus. No dealer, salesperson or other person is authorized to give any information or to represent anything not contained in this prospectus, any applicable prospectus supplement or any related free writing prospectus that we may authorize to be provided to you. You must not rely on any unauthorized information or representation. This prospectus is an offer to sell only the securities offered hereby, but only under circumstances and in jurisdictions where it is lawful to do so. You should assume that the information in this prospectus, any applicable prospectus supplement or any related free writing prospectus is accurate only as of the date on the front of the document and that any information incorporated by reference is accurate only as of the date of the document incorporated by reference, regardless of the time of delivery of this prospectus, any applicable prospectus supplement or any related free writing prospectus, or any sale of a security.

        This prospectus contains summaries of certain provisions contained in some of the documents described herein, but reference is made to the actual documents for complete information. All of the summaries are qualified in their entirety by the actual documents. Copies of some of the documents referred to herein have been filed, will be filed or will be incorporated by reference as exhibits to the registration statement of which this prospectus is a part, and you may obtain copies of those documents as described below under the heading "Where You Can Find Additional Information."

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SUMMARY

        This summary highlights selected information from this prospectus or incorporated by reference in this prospectus, and does not contain all of the information that you need to consider in making your investment decision. You should carefully read the entire prospectus, the applicable prospectus supplement and any related free writing prospectus, including the risks of investing in our securities referred to under the heading "Risk Factors" in this prospectus and contained in the applicable prospectus supplement and any related free writing prospectus, and in the other documents that are incorporated by reference into this prospectus. You should also carefully read the information incorporated by reference into this prospectus, including our financial statements, and the exhibits to the registration statement of which this prospectus is a part.

        Unless otherwise mentioned or unless the context requires otherwise, throughout this prospectus, any applicable prospectus supplement and any related free writing prospectus, the words "Plug Power," "we," "us," "our," the "Company" or similar references refer to Plug Power Inc. and its subsidiaries; and the term "securities" refers collectively to our common stock, preferred stock, warrants to purchase common stock or preferred stock, debt securities, or any combination of the foregoing securities.

        This prospectus and the information incorporated herein by reference includes trademarks, service marks and trade names owned by us or other companies. All trademarks, service marks and trade names included or incorporated by reference into this prospectus, any applicable prospectus supplement or any related free writing prospectus are the property of their respective owners.

Our Company

        We are a leading provider of alternative energy technology focused on the design, development, commercialization and manufacture of hydrogen fuel cell systems used primarily for the material handling and stationary power market.

        We are focused on proton exchange membrane, or PEM, fuel cell and fuel processing technologies, fuel cell/battery hybrid technologies, and associated hydrogen storage and dispensing infrastructure from which multiple products are available. A fuel cell is an electrochemical device that combines hydrogen and oxygen to produce electricity and heat without combustion. Hydrogen is derived from hydrocarbon fuels such as liquid petroleum gas, or LPG, natural gas, propane, methanol, ethanol, gasoline or biofuels. Plug Power develops complete hydrogen delivery, storage and refueling solutions for customer locations. Hydrogen can also be obtained from the electrolysis of water, or produced on-site at consumer locations through a process known as reformation. Currently we obtain hydrogen by purchasing it from fuel suppliers for resale to customers.

        We provide and continue to develop fuel cell product solutions to replace lead-acid batteries in material handling vehicles and industrial trucks for some of the world's largest distribution and manufacturing businesses. We are focusing our efforts on material handling applications (forklifts) at multi-shift high volume manufacturing and high throughput distribution sites where our products and services provide a unique combination of productivity, flexibility and environmental benefits. Our current product line includes: GenDrive, our hydrogen fueled PEM fuel cell system providing power to material handling vehicles; GenFuel, our hydrogen fueling delivery system; GenCare, our ongoing maintenance program for both the GenDrive fuel cells and GenFuel products; GenSure (formerly ReliOn), our stationary fuel cell solution providing scalable, modular PEM fuel cell power to support the backup and grid-support power requirements of the telecommunications, transportation, and utility sectors; GenKey, our turn-key solution combining either GenDrive or GenSure with GenFuel and GenCare, offering complete simplicity to customers transitioning to fuel cell power; and GenFund, a collaboration with leasing organizations to provide cost efficient and seamless financing solutions to customers.

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        We provide our products worldwide through our direct product sales force, and by leveraging relationships with original equipment manufacturers, or OEMs, and their dealer networks. Our subsidiary based in France, HyPulsion S.A.S., or HyPulsion France, develops and sells hydrogen fuel cell systems for the European material handling market.

        We were organized in the State of Delaware on June 27, 1997. Our principal executive offices are located at 968 Albany-Shaker Road, Latham, New York, 12110, and our telephone number is (518) 782-7700. Our corporate website address is www.plugpower.com. Information on our website is not deemed to be a part of this prospectus or any applicable prospectus supplement. Our common stock trades on the NASDAQ Capital Market under the symbol "PLUG."

The Securities We May Offer

        We may offer shares of our common stock and preferred stock, various series of warrants to purchase common stock or preferred stock and debt securities, in one or more series, as either senior or subordinated debt or as senior or subordinated convertible debt, either individually or in units, with a total value of up to $200,000,000 from time to time in one or more offerings under this prospectus at prices and on terms to be determined at the time of any offering. This prospectus provides you with a general description of the securities we may offer. Each time we offer a type or series of securities under this prospectus, we will provide a prospectus supplement and/or free writing prospectus that will describe the specific amounts, prices and other important terms of the securities.

        The prospectus supplement and any related free writing prospectus that we may authorize to be provided to you may also add, update or change information contained in this prospectus or in documents we have incorporated by reference. However, no prospectus supplement or free writing prospectus will offer a security that is not registered and described in this prospectus at the time of the effectiveness of the registration statement of which this prospectus is a part or any amendment thereto.

         This prospectus may not be used to offer or sell securities unless it is accompanied by a prospectus supplement.

        We may sell the securities directly to investors or to or through agents, underwriters or dealers. We, and our agents or underwriters, reserve the right to accept or reject all or part of any proposed purchase of securities. If we do offer securities to or through agents or underwriters, we will include in the applicable prospectus supplement:

    •
    the names of those agents or underwriters;

    •
    applicable fees, discounts and commissions to be paid to them;

    •
    details regarding over-allotment options or options to purchase additional securities, if any; and

    •
    the net proceeds to us.

        Common Stock.     We may issue shares of our common stock from time to time. Holders of shares of our common stock are entitled to one vote for each share held of record on all matters to be voted on by stockholders and do not have cumulative voting rights. Subject to the preferences that may be applicable to any then outstanding preferred stock, the holders of our outstanding shares of common stock are entitled to receive dividends, if any, as may be declared from time to time by our board of directors out of legally available funds. In the event of our liquidation, dissolution or winding up, holders of our common stock will be entitled to share ratably in the net assets legally available for distribution to stockholders after the payment of all of our debts and other liabilities, subject to the satisfaction of any liquidation preference granted to the holders of any outstanding shares of preferred stock.

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        Preferred Stock.     We may issue shares of our preferred stock from time to time, in one or more series. Our board of directors will determine the rights, preferences and privileges of the shares of each wholly unissued series, and any qualifications, limitations or restrictions thereon, including dividend rights, conversion rights, preemptive rights, terms of redemption or repurchase, liquidation preferences, sinking fund terms and the number of shares constituting any series or the designation of any series. Convertible preferred stock will be convertible into our common stock or exchangeable for other securities. Conversion may be mandatory or at your option and would be at prescribed conversion rates.

        If we sell any series of preferred stock under this prospectus, we will fix the rights, preferences and privileges of the preferred stock of such series, as well as any qualifications, limitations or restrictions thereon, in the certificate of designation relating to that series. We will file as an exhibit to the registration statement of which this prospectus is a part, or will incorporate by reference from reports that we file with the SEC, the form of any certificate of designation that describes the terms of the series of preferred stock we are offering before the issuance of that series of preferred stock. We urge you to read the applicable prospectus supplement (and any free writing prospectus that we may authorize to be provided to you) related to the series of preferred stock being offered, as well as the complete certificate of designation that contains the terms of the applicable series of preferred stock.

        Warrants.     We may issue warrants for the purchase of common stock, preferred stock and/or debt securities in one or more series. We may issue warrants independently or together with common stock, preferred stock and/or debt securities, and the warrants may be attached to or separate from these securities. In this prospectus, we have summarized certain general features of the warrants. We urge you, however, to read the applicable prospectus supplement (and any free writing prospectus that we may authorize to be provided to you) related to the particular series of warrants being offered, as well as the complete warrant agreements and warrant certificates that contain the terms of the warrants. Forms of the warrant agreements and forms of warrant certificates containing the terms of the warrants being offered will be filed as exhibits to the registration statement of which this prospectus is a part or will be incorporated by reference from reports that we file with the SEC.

        We will evidence each series of warrants by warrant certificates that we will issue. Warrants may be issued under an applicable warrant agreement that we enter into with a warrant agent. We will indicate the name and address of the warrant agent, if applicable, in the prospectus supplement relating to the particular series of warrants being offered.

        Debt Securities.     We may issue debt securities, in one or more series, as either senior or subordinated debt or as senior or subordinated convertible debt. In this prospectus, we have summarized certain general features of the debt securities. We urge you, however, to read the applicable prospectus supplement and any free writing prospectus that we may authorize to be provided to you related to the particular series of debt securities being offered, as well as the complete indenture that contains the terms of the debt securities. We will file as exhibits to the registration statement of which this prospectus is a part, the form of indenture and any supplemental agreements that describe the terms of the series of debt securities we are offering before the issuance of the related series of debt securities.

        We may evidence each series of debt securities by indentures we will issue. Debt securities may be issued under an indenture that we enter into with a trustee. We will indicate the name and address of the trustee, if applicable, in the prospectus supplement relating to the particular series of debt securities being offered.

        Units.     We may issue, in one or more series, units consisting of common stock, preferred stock, debt securities and/or warrants for the purchase of common stock and/or preferred stock in any combination. In this prospectus, we have summarized certain general features of the units. We urge

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you, however, to read the applicable prospectus supplement (and any free writing prospectus that we may authorize to be provided to you) related to the series of units being offered, as well as the complete unit agreement that contains the terms of the units. We will file as exhibits to the registration statement of which this prospectus is a part, or will incorporate by reference from reports that we file with the SEC, the form of unit agreement and any supplemental agreements that describe the terms of the series of units we are offering before the issuance of the related series of units.

        We will evidence each series of units by unit certificates that we will issue. Units may be issued under a unit agreement that we enter into with a unit agent. We will indicate the name and address of the unit agent, if applicable, in the prospectus supplement relating to the particular series of units being offered.

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RISK FACTORS

        Investing in our securities involves a high degree of risk. Before purchasing our securities, you should carefully consider the risks and uncertainties set forth under the heading "Risk Factors" in our Annual Report on Form 10-K for the fiscal year ended December 31, 2015, filed with the SEC on March 14, 2016, our quarterly reports on Form 10-Q for the quarters ended March 31, 2015, June 30, 2015 and September 30, 2016, filed on May 10, 2016, August 9, 2016 and November 8, 2016, respectively, which are incorporated by reference in this prospectus, as well as any updates thereto contained in subsequent filings with the SEC or any applicable prospectus supplement or free writing prospectus. If any of these risks were to occur, our business, financial condition or results of operations would likely suffer. In that event, the value of our securities could decline, and you could lose all or part of your investment. The risks and uncertainties we describe are not the only ones facing us. Additional risks not presently known to us or that we currently deem immaterial may also impair our business operations, the market price of our securities or the value of your investment.


FORWARD-LOOKING STATEMENTS

        This prospectus contains statements that are not historical facts and are considered forward-looking within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act. These forward-looking statements contain projections of our future results of operations or of our financial position or state other forward-looking information. In some cases you can identify these statements by forward-looking words such as "anticipate," "believe," "could," "continue," "estimate," "expect," "intend," "may," "should," "will," "would," "plan," "projected" or the negative of such words or other similar words or phrases. We believe that it is important to communicate our future expectations to our investors. However, there may be events in the future that we are not able to accurately predict or control and that may cause our actual results to differ materially from the expectations we describe in our forward-looking statements. Investors are cautioned not to unduly rely on forward-looking statements because they involve risks and uncertainties, and actual results may differ materially from those discussed as a result of various factors, including, but not limited to: the risk that we continue to incur losses and might never achieve or maintain profitability; the risk that we will need to raise additional capital to fund our operations and such capital may not be available to us; the risk of dilution to our stockholders and/or stock price should we need to raise additional capital; the risk that our lack of extensive experience in manufacturing and marketing products may impact our ability to manufacture and market products on a profitable and large-scale commercial basis; the risk that unit orders will not ship, be installed and/or converted to revenue, in whole or in part; the risk that a loss of one or more of our major customers could result in a material adverse effect on our financial condition; the risk that a sale of a significant number of shares of stock could depress the market price of our common stock; the risk that negative publicity related to our business or stock could result in a negative impact on our stock value and profitability; the risk of potential losses related to any product liability claims or contract disputes; the risk of loss related to an inability to maintain an effective system of internal controls; our ability to attract and maintain key personnel; the risks related to the use of flammable fuels in our products; the risk that pending orders may not convert to purchase orders, in whole or in part; the cost and timing of developing, marketing and selling our products and our ability to raise the necessary capital to fund such costs; our ability to obtain financing arrangements to support the sale or leasing of our products and services to customers; the ability to achieve the forecasted gross margin on the sale of our products; the cost and availability of fuel and fueling infrastructures for our products; the risk of elimination of government subsidies and economic incentives for alternative energy products; market acceptance of our products and services, including GenDrive units; our ability to establish and maintain relationships with third parties with respect to product development, manufacturing, distribution and servicing and the supply of key product components; the cost and availability of components and parts for our products; our ability to develop commercially viable products; our ability to reduce product and manufacturing costs; our ability to

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successfully market, distribute and service our products and services internationally; our ability to improve system reliability for our products; competitive factors, such as price competition and competition from other traditional and alternative energy companies; our ability to protect our intellectual property; the cost of complying with current and future federal, state and international governmental regulations; the risks associated with potential future acquisitions; the volatility of our stock price; and other risks and uncertainties referenced under "Risk Factors" above and in any applicable prospectus supplement or free writing prospectus and any documents incorporated by reference herein or therein. Readers should not place undue reliance on our forward-looking statements. These forward-looking statements speak only as of the date on which the statements were made and are not guarantees of future performance. Except as may be required by applicable law, we do not undertake or intend to update any forward-looking statements after the date of this prospectus or the respective dates of documents incorporated herein or therein that include forward-looking statements.

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RATIO OF COMBINED FIXED CHARGES AND PREFERENCE DIVIDENDS TO EARNINGS

        Our ratio of combined fixed charges and preference dividends to earnings for each of the five most recently completed fiscal years and any required interim periods will each be specified in a prospectus supplement or in a document that we file with the SEC and incorporate by reference pertaining to the issuance, if any, by us of debt securities and/or preference securities in the future.


USE OF PROCEEDS

        Except as described in any prospectus supplement or in any related free writing prospectus that we may authorize to be provided to you, the net proceeds received by us from our sale of the securities described in this prospectus will be added to our general funds and will be used for our general corporate purposes. From time to time, we may engage in additional public or private financings of a character and amount which we may deem appropriate.


PLAN OF DISTRIBUTION

        We may sell the securities from time to time pursuant to underwritten public offerings, negotiated transactions, block trades or a combination of these methods. We may sell the securities to or through underwriters or dealers, through agents, remarketing firms or other third parties and/or directly to one or more purchasers. In some cases, we or dealers acting with us or on our behalf may also purchase our securities and reoffer them to the public. We may also offer and sell, or agree to deliver, our securities pursuant to, or in connection with, any option agreement or other contractual arrangement. We may distribute securities from time to time in one or more transactions:

        Each time we offer and sell securities, we will provide a prospectus supplement that will set forth the terms of the offering of the securities, including:

        If underwriters are used in the sale, they will acquire the securities for their own account and may resell the securities from time to time in one or more transactions at a fixed public offering price or at varying prices determined at the time of sale. The obligations of the underwriters to purchase the securities will be subject to the conditions set forth in the applicable underwriting agreement. We may offer the securities to the public through underwriting syndicates represented by managing underwriters or by underwriters without a syndicate. If applicable, we will include the names of the specific managing underwriter or underwriters, as well as the names of any other underwriters, and the terms of

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the transactions, including the compensation the underwriters and dealers will receive, in the applicable prospectus supplement. Subject to certain conditions, the underwriters will be obligated to purchase all of the securities offered by the prospectus supplement, other than securities covered by any over-allotment option or option to purchase additional securities. Any public offering price and any discounts or concessions allowed or reallowed or paid to dealers may change from time to time. We may use underwriters with whom we or they have a material relationship. The prospectus supplement, naming the underwriter, will describe the nature of any such relationship.

        We may sell securities directly or through agents we or they designate from time to time. The prospectus supplement will name any agent involved in the offering and sale of securities and any commissions we will pay to them. Unless the prospectus supplement states otherwise, any agent will be acting on a best-efforts basis for the period of its appointment. Agents may be deemed to be underwriters under the Securities Act, of any of our securities that they offer or sell.

        We may use a dealer to sell our securities. If we use a dealer, we will sell our securities to the dealer, as principal. The dealer will then sell our securities to the public at varying prices that the dealer will determine at the time it sells our securities. We will include the name of the dealer and the terms of the transactions with the dealer in the applicable prospectus supplement.

        We may authorize agents or underwriters to solicit offers by certain purchasers to purchase securities from us or them at the public offering price set forth in the prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery on a specified date in the future. The prospectus supplement will set forth the conditions to these contracts and any commissions we must pay for solicitation of these contracts.

        We may effect sales of securities in connection with forward sale, option or other types of agreements with third parties. Any distribution of securities pursuant to any forward sale agreement may be effected from time to time in one or more transactions that may take place through a stock exchange, including block trades or ordinary broker's transactions, or through broker-dealers acting either as principal or agent, or through privately-negotiated transactions, or through an underwritten public offering, or through a combination of any such methods of sale, at market prices prevailing at the time of sale, prices relating to such prevailing market prices or at negotiated or fixed prices.

        We may engage in at the market offerings into an existing trading market in accordance with Rule 415(a)(4) under the Securities Act.

        We may provide agents and underwriters with indemnification against civil liabilities, including liabilities under the Securities Act, or contribution with respect to payments that the agents or underwriters may make with respect to these liabilities. Agents and underwriters may engage in transactions with, or perform services for, us in the ordinary course of business.

        All securities we may offer, other than common stock, will be new issues of securities with no established trading market. Any underwriters may make a market in these securities, but will not be obligated to do so and may discontinue any market making at any time without notice. We cannot guarantee the liquidity of the trading markets for any securities.

        Any underwriter may engage in over-allotment, stabilizing transactions, short-covering transactions and penalty bids in accordance with Regulation M under the Exchange Act. Over-allotment involves sales in excess of the offering size, which create a short position. Stabilizing transactions permit bids to purchase the underlying security so long as the stabilizing bids do not exceed a specified maximum price. Syndicate-covering or other short-covering transactions involve purchases of the securities, either through exercise of the over-allotment option or in the open market after the distribution is completed, to cover short positions. Penalty bids permit the underwriters to reclaim a selling concession from a dealer when the securities originally sold by the dealer are purchased in a stabilizing or covering transaction to cover short positions. Those activities may cause the price of the securities to be higher

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than it would otherwise be. If commenced, the underwriters may discontinue any of the activities at any time.

        Any underwriters that are qualified market makers on the NASDAQ Capital Market may engage in passive market making transactions in the common stock on the NASDAQ Capital Market in accordance with Regulation M under the Exchange Act, during the business day prior to the pricing of the offering, before the commencement of offers or sales of the common stock. Passive market makers must comply with applicable volume and price limitations and must be identified as passive market makers. In general, a passive market maker must display its bid at a price not in excess of the highest independent bid for such security; if all independent bids are lowered below the passive market maker's bid, however, the passive market maker's bid must then be lowered when certain purchase limits are exceeded. Passive market making may stabilize the market price of the securities at a level above that which might otherwise prevail in the open market and, if commenced, may be discontinued at any time.

        In compliance with guidelines of the Financial Industry Regulatory Authority, or FINRA, the maximum consideration or discount to be received by any FINRA member or independent broker dealer may not exceed 8% of the aggregate amount of the securities offered pursuant to this prospectus and any applicable prospectus supplement.

        The specific terms of the lock-up provisions, if any, in respect of any given offering will be described in the applicable prospectus supplement.

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DESCRIPTION OF CAPITAL STOCK

         This section describes the general terms of our common stock and preferred stock that we may offer from time to time. For more detailed information, a holder of our common stock and/or preferred stock should refer to our certificate of incorporation, our by-laws and our shareholder rights agreement with respect to our preferred share purchase rights, copies of which are filed with the SEC as exhibits to the registration statement of which this prospectus is a part.

General

        Our authorized capital stock consists of 450,000,000 shares of common stock, $0.01 par value per share, and 5,000,000 shares of preferred stock, $0.01 par value per share. As of November 18, 2016, there were 180,610,344 shares of our common stock outstanding and 5,231 shares of our Series C Redeemable Convertible Preferred Stock ("Series C Preferred Stock") outstanding.

        The following summary description of our capital stock is based on the provisions of our amended and restated certificate of incorporation and amended and restated bylaws and the applicable provisions of the Delaware General Corporation Law. This information is qualified entirely by reference to the applicable provisions of our amended and restated certificate of incorporation, amended and restated bylaws and the Delaware General Corporation Law. For information on how to obtain copies of our amended and restated certificate of incorporation and amended and restated bylaws, which are exhibits to the registration statement of which this prospectus is a part, see "Where You Can Find Additional Information" and "Incorporation of Certain Information by Reference."

Common Stock

        Holders of shares of our common stock are entitled to one vote for each share held of record on all matters to be voted on by stockholders, including the election of directors. Our amended and restated certificate of incorporation and amended and restated bylaws do not provide for cumulative voting rights. Because of this, the holders of a majority of our common stock entitled to vote in any election of directors can elect all of the directors standing for election. Subject to the preferences that may be applicable to any then outstanding preferred stock (including the Series C Preferred Stock), the holders of our outstanding shares of common stock are entitled to receive dividends, if any, as may be declared from time to time by our board of directors out of legally available funds. In the event of our liquidation, dissolution or winding up, holders of our common stock will be entitled to share ratably in the net assets legally available for distribution to stockholders after the payment of all of our debts and other liabilities, subject to the satisfaction of any liquidation preference granted to the holders of any outstanding shares of preferred stock (including the Series C Preferred Stock). Holders of our common stock have no preemptive, conversion or subscription rights, and there are no redemption or sinking fund provisions applicable to our common stock. The rights, preferences and privileges of the holders of our common stock are subject to, and may be adversely affected by, the rights of the holder of our Series C Preferred Stock as well as the rights of any series of our preferred stock that we may designate and issue in the future.

Preferred Stock

        Pursuant to our amended and restated certificate of incorporation, our board of directors has the authority, without further action by the stockholders (unless such stockholder action is required by applicable law or NASDAQ rules), to designate and issue up to 5,000,000 shares of preferred stock in one or more series, to establish from time to time the number of shares to be included in each such series, to fix the rights, preferences and privileges of the shares of each wholly unissued series, and any qualifications, limitations or restrictions thereon, and to increase or decrease the number of shares of any such series, but not below the number of shares of such series then outstanding.

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        We will fix the rights, preferences and privileges of the preferred stock of each such series, as well as any qualifications, limitations or restrictions thereon, in the certificate of designation relating to that series. We will file as an exhibit to the registration statement of which this prospectus is a part, or will incorporate by reference from reports that we file with the SEC, the form of any certificate of designation that describes the terms of the series of preferred stock we are offering before the issuance of that series of preferred stock. This description will include:

        The General Corporation Law of the State of Delaware, the state of our incorporation, provides that the holders of preferred stock will have the right to vote separately as a class (or, in some cases, as a series) on an amendment to our amended and restated certificate of incorporation if the amendment would change the par value, the number of authorized shares of the class or the powers, preferences or special rights of the class or series so as to adversely affect the class or series, as the case may be. This right is in addition to any voting rights that may be provided for in the applicable certificate of designation.

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        Our board of directors may authorize the issuance of preferred stock with voting or conversion rights that could adversely affect the voting power or other rights of the holders of our common stock. The issuance of preferred stock, while providing flexibility in connection with possible acquisitions and other corporate purposes, could, among other things, have the effect of delaying, deferring or preventing a change in our control and may adversely affect the market price of the common stock and the voting and other rights of the holders of common stock. Additionally, the issuance of preferred stock may have the effect of decreasing the market price of our common stock.

Series C Redeemable Convertible Preferred Stock

        The Series C Preferred Stock votes together with the common stock on an as-converted basis on all matters, including the election of directors, except as otherwise required by law. Each share of Series C Preferred Stock is entitled to a number of votes equal to the number of whole shares of common stock into which such share of Series C Preferred Stock is convertible.

        The Series C Preferred Stock ranks senior to the common stock with respect to rights upon the liquidation, dissolution or winding up of our company. The Series C Preferred Stock is entitled to receive dividends at a rate of 8% per annum, based upon the original issue price, payable in equal quarterly installments in cash or in shares of common stock, at our option. The Series C Preferred Stock is convertible into shares of common stock, at a conversion price equal to $0.2343 per share (as of November 17, 2016 and subject to future adjustments). As of November 17, 2016, the outstanding shares of our Series C Preferred Stock are convertible into an aggregate of 5,554,594 shares of common stock. The Series C Preferred Stock has customary redemption rights at the election of either us or the holder thereof as well as weighted average anti-dilution protection.

Delaware Anti-Takeover Law and Provisions of our Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws

        Delaware Anti-Takeover Law.     We are subject to Section 203 of the Delaware General Corporation Law. Section 203 generally prohibits a public Delaware corporation from engaging in a "business combination" with an "interested stockholder" for a period of three years after the date of the transaction in which the person became an interested stockholder, unless:

        Section 203 defines a business combination to include:

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        In general, Section 203 defines an interested stockholder as any entity or person beneficially owning 15% or more of the outstanding voting stock of the corporation or any entity or person affiliated with or controlling or controlled by the entity or person.

        Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws.     Provisions of our amended and restated certificate of incorporation and amended and restated bylaws may delay or discourage transactions involving an actual or potential change in our control or change in our management, including transactions in which stockholders might otherwise receive a premium for their shares or transactions that our stockholders might otherwise deem to be in their best interests. Therefore, these provisions could adversely affect the price of our common stock. Among other things, our amended and restated certificate of incorporation and amended and restated bylaws:

        The amendment of any of these provisions, with the exception of the ability of our board of directors to issue shares of preferred stock and designate any rights, preferences and privileges thereto, would require approval by the holders of at least 66-2/3% of our then outstanding common stock.

Shareholder Rights Plan

        We have a shareholder rights plan, the purpose of which is, among other things, to enhance our board's ability to protect stockholder interests and to ensure that stockholders receive fair treatment in the event any coercive takeover attempt of our company is made in the future. The shareholder rights plan could make it more difficult for a third party to acquire, or could discourage a third party from acquiring, us or a large block of our common stock. The following summarizes material terms of the

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shareholder rights plan and the associated preferred share purchase rights. This description is subject to the detailed provisions of, and is qualified by reference to, the shareholder rights agreement which has been filed as an exhibit to our Registration Statement on Form 8-A dated June 24, 2009, as amended by the Amendment No. 1 to Form 8-A filed with the SEC on May 6, 2011, the Amendment No. 2 to Form 8-A filed with the SEC on March 19, 2012, the Amendment No. 3 to Form 8-A filed with the SEC on March 26, 2012, the Amendment No. 4 to Form 8-A filed with the SEC on February 13, 2013 and the Amendment No. 5 to Form 8-A filed with the SEC on May 20, 2013.

        Each outstanding share of our common stock evidences one preferred share purchase right. Under the terms of the shareholder rights agreement, each preferred share purchase right entitles the registered holder to purchase from us one ten-thousandth of a share (each, a "unit") of our Series A Junior Participating Cumulative Preferred Stock, par value $0.01 per share, at a cash exercise price of $6.50 per unit, subject to adjustment. Initially, the preferred share purchase rights are not exercisable and are attached to and trade with all shares of common stock. The preferred share purchase rights will separate from the common stock and will become exercisable upon the earlier of:

        With respect to any person who beneficially owned 15% or more of the outstanding shares of common stock as of June 23, 2009, such person's share ownership will not cause the preferred share purchase rights to be exercisable unless:

        In the event that a person or group of affiliated or associated persons has acquired beneficial ownership of 15% or more of the outstanding shares of common stock, proper provision will be made so that each holder of a preferred share purchase right (other than an acquiring person or its associates or affiliates, whose preferred share purchase rights shall become null and void) will thereafter have the right to receive (a "subscription right") upon exercise, in lieu of a number of units, that number of shares of our common stock (or, in certain circumstances, including if there are insufficient shares of common stock to permit the exercise in full of the preferred share purchase rights, units of preferred stock, other securities, cash or property, or any combination of the foregoing) having a market value of two times the exercise price of the preferred share purchase rights.

        In the event that, at any time following the date that a person or group of affiliated or associated persons has acquired beneficial ownership of 15% or more of the outstanding shares of common stock:

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each holder of a preferred share purchase right (other than an acquiring person or its associates or affiliates, whose preferred share purchase rights shall become null and void) will thereafter have the right to receive (a "merger right"), upon exercise, common stock of the acquiring company having a market value equal to two times the exercise price of the preferred share purchase rights. The holder of a preferred share purchase right will continue to have this merger right whether or not such holder has exercised its subscription right. Preferred share purchase rights that are or were beneficially owned by an acquiring person may (under certain circumstances specified in the shareholder rights agreement) become null and void.

        The preferred share purchase rights may be redeemed in whole, but not in part, at a price of $0.001 per preferred share purchase right (payable in cash, common stock or other consideration deemed appropriate by the board of directors) by the board of directors only until the earlier of:

        Immediately upon the action of the board of directors ordering redemption of the preferred share purchase rights, the preferred share purchase rights will terminate and thereafter the only right of the holders of preferred share purchase rights will be to receive the redemption price.

        The shareholder rights agreement requires an independent committee of the board of directors to review at least once every three years whether maintaining the shareholder rights agreement continues to be in the best interests of our stockholders.

        The shareholder rights agreement may be amended by the board of directors in its sole discretion at any time prior to the time at which any person becomes an acquiring person. After such time the board of directors may, subject to certain limitations set forth in the shareholder rights agreement, amend the shareholder rights agreement only to cure any ambiguity, defect or inconsistency, to shorten or lengthen any time period, or to make changes that do not adversely affect the interests of preferred share purchase rights holders (excluding the interests of an acquiring person or its associates or affiliates). In addition, the board of directors may at any time prior to the time at which any person becomes an acquiring person, amend the shareholder rights agreement to lower the threshold at which a person becomes an acquiring person to not less than the greater of:

        Until a preferred share purchase right is exercised, the holder will have no rights as a stockholder of the Company (beyond those as an existing stockholder), including the right to vote or to receive dividends. While the distribution of the preferred share purchase rights will not be taxable to stockholders or to us, stockholders may, depending upon the circumstances, recognize taxable income in the event that the preferred share purchase rights become exercisable for units, our other securities, other consideration or for common stock of an acquiring company.

        The preferred share purchase rights will expire at the close of business on June 23, 2019, unless previously redeemed or exchanged by us.

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Transfer Agent and Registrar

        The transfer agent and registrar for our common stock is Broadridge Corporate Issuer Solutions, Inc. The transfer agent and registrar's address is 1717 Arch Street, Suite 1300, Philadelphia, Pennsylvania, 19103. The transfer agent and registrar for any series of preferred stock that we may offer under this prospectus will be named and described in the prospectus supplement for that series.

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DESCRIPTION OF WARRANTS

        We may issue warrants for the purchase of common stock, preferred stock and/or debt securities in one or more series. We may issue warrants independently or together with common stock, preferred stock and/or debt securities, and the warrants may be attached to or separate from these securities. While the terms summarized below will apply generally to any warrants that we may offer, we will describe the particular terms of any series of warrants in more detail in the applicable prospectus supplement. The terms of any warrants offered under a prospectus supplement may differ from the terms described below.

        We will file as exhibits to the registration statement of which this prospectus is a part, or will incorporate by reference from reports that we file with the SEC, the form of warrant agreement, including a form of warrant certificate, that describes the terms of the particular series of warrants we are offering before the issuance of the related series of warrants. The following summaries of material provisions of the warrants and the warrant agreements are subject to, and qualified in their entirety by reference to, all the provisions of the warrant agreement and warrant certificate applicable to the particular series of warrants that we may offer under this prospectus. We urge you to read the applicable prospectus supplements related to the particular series of warrants that we may offer under this prospectus, as well as any related free writing prospectuses, and the complete warrant agreements and warrant certificates that contain the terms of the warrants.

General

        If warrants for the purchase of common stock or preferred stock are offered, the prospectus supplement or free writing prospectus will describe the following terms, to the extent applicable:

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        Warrants for the purchase of debt securities will be in registered form only. If warrants for the purchase of debt securities are offered, the prospectus supplement or free writing prospectus will describe the following terms, to the extent applicable:

        Before exercising their warrants, holders of warrants will not have any of the rights of holders of the securities purchasable upon such exercise, including the right to receive dividends, if any, or, payments upon our liquidation, dissolution or winding up or to exercise voting rights, if any.

Exercise of Warrants

        Each warrant will entitle the holder to purchase the securities that we specify in the applicable prospectus supplement at the exercise price that we describe in the applicable prospectus supplement. Unless we otherwise specify in the applicable prospectus supplement, holders of the warrants may exercise the warrants at any time up to the specified time on the expiration date that we set forth in the applicable prospectus supplement. After the close of business on the expiration date, unexercised warrants will become void.

        Holders of the warrants may exercise the warrants by delivering the warrant certificate representing the warrants to be exercised together with specified information, and paying the required amount to the warrant agent in immediately available funds, as provided in the applicable prospectus supplement. We will set forth on the reverse side of the warrant certificate and in the applicable prospectus supplement the information that the holder of the warrant will be required to deliver to the warrant agent.

        Upon receipt of the required payment and the warrant certificate properly completed and duly executed at the corporate trust office of the warrant agent or any other office indicated in the applicable prospectus supplement, we will issue and deliver the securities purchasable upon such exercise. If fewer than all of the warrants represented by the warrant certificate are exercised, then we will issue a new warrant certificate for the remaining amount of warrants. If we so indicate in the applicable prospectus supplement, holders of the warrants may surrender securities as all or part of the exercise price for warrants.

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Governing Law

        Unless we provide otherwise in the applicable prospectus supplement, the warrants and warrant agreements will be governed by and construed in accordance with the laws of the State of New York.

Enforceability of Rights by Holders of Warrants

        Each warrant agent will act solely as our agent under the applicable warrant agreement and will not assume any obligation or relationship of agency or trust with any holder of any warrant. A single bank or trust company may act as warrant agent for more than one issue of warrants. A warrant agent will have no duty or responsibility in case of any default by us under the applicable warrant agreement or warrant, including any duty or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder of a warrant may, without the consent of the related warrant agent or the holder of any other warrant, enforce by appropriate legal action its right to exercise, and receive the securities purchasable upon exercise of, its warrants.

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DESCRIPTION OF OUR DEBT SECURITIES

        We may issue senior debt securities from time to time, in one or more series, under a senior indenture to be entered into between us and a senior trustee to be named in a prospectus supplement, which we refer to as the senior trustee. We may issue subordinated debt securities from time to time, in one or more series, under a subordinated indenture to be entered into between us and a subordinated trustee to be named in a prospectus supplement, which we refer to as the subordinated trustee. The forms of senior indenture and subordinated indenture are filed as exhibits to this registration statement of which this prospectus forms a part. Together, the senior indenture and the subordinated indenture are referred to as the indentures and, together, the senior trustee and the subordinated trustee are referred to as the trustees. This prospectus briefly outlines some of the provisions of the indentures.

        None of the indentures will limit the amount of debt securities that we may issue. The applicable indenture will provide that debt securities may be issued up to an aggregate principal amount authorized from time to time by us and may be payable in any currency or currency unit designated by us or in amounts determined by reference to an index.

        The following summaries of material provisions of the senior debt securities, the subordinated debt securities and the indentures are subject to, and qualified in their entirety by reference to, all of the provisions of the indenture applicable to a particular series of debt securities. We urge you to read the applicable prospectus supplement or free writing prospectus and any related free writing prospectuses related to the debt securities that we may offer under this prospectus, as well as the complete applicable indenture that contains the terms of the debt securities.

General

        We will describe in the applicable prospectus supplement or free writing prospectus the terms of the series of debt securities being offered, including:

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        We may, from time to time, without notice to or the consent of the holders of any series of debt securities, create and issue further debt securities of any such series ranking equally with the debt securities of such series in all respects (or in all respects other than (a) the payment of interest accruing prior to the issue date of such further debt securities or (b) the first payment of interest following the issue date of such further debt securities). Such further debt securities may be consolidated and form a single series with the debt securities of such series and have the same terms as to status, redemption or otherwise as the debt securities of such series.

Certain Terms of the Senior Debt Securities

        Conversion or Exchange Rights.     We will set forth in the applicable prospectus supplement or free writing prospectus the terms on which a series of senior debt securities may be convertible into or exchangeable for our common stock, our preferred stock or other securities (including securities of a third-party). We will include provisions as to whether conversion or exchange is mandatory, at the option of the holder or at our option. We may include provisions pursuant to which the number of shares of our common stock, our preferred stock or other securities (including securities of a third-party) that the holders of the series of senior debt securities receive would be subject to adjustment.

        Consolidation, Merger or Sale.     Unless we provide otherwise in the prospectus supplement or free writing prospectus applicable to a particular series of senior debt securities, the senior debt securities will not contain any covenant that restricts our ability to merge or consolidate, or sell, convey, transfer or otherwise dispose of all or substantially all of our assets. However, any successor to or acquirer of such assets must assume all of our obligations under the senior indentures or the senior debt securities, as appropriate. If the senior debt securities are convertible into or exchangeable for other securities of ours or securities of other entities, the person with whom we consolidate or merge or to whom we sell all of our property must make provisions for the conversion of the senior debt securities into securities that the holders of the senior debt securities would have received if they had converted the senior debt securities before the consolidation, merger or sale.

        No Protection in the Event of a Change in Control.     Unless we indicate otherwise in a prospectus supplement or free writing prospectus applicable to a particular series of senior debt securities, the senior debt securities will not contain any provisions that may afford holders of the senior debt securities protection in the event we have a change in control or in the event of a highly leveraged transaction (whether or not such transaction results in a change in control).

        Events of Default.     Unless we provide otherwise in the prospectus supplement or free writing prospectus applicable to a particular series of senior debt securities, the following are events of default under the senior indentures with respect to any series of senior debt securities that we may issue:

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        We will describe in each applicable prospectus supplement or free writing prospectus any additional events of default relating to the relevant series of senior debt securities.

        If an event of default with respect to senior debt securities of any series occurs and is continuing, other than an event of default specified in the last bullet point above, the trustee or the holders of at least a majority in aggregate principal amount of the outstanding senior debt securities of that series, by notice to us in writing, and to the trustee if notice is given by such holders, may declare the unpaid principal, premium, if any, and accrued interest, if any, due and payable immediately. If an event of default specified in the last bullet point above occurs with respect to us, the unpaid principal, premium, if any, and accrued interest, if any, of each issue of senior debt securities then outstanding shall be due and payable without any notice or other action on the part of the trustee or any holder.

        Unless otherwise specified in the prospectus supplement or free writing prospectus applicable to a particular series of senior debt securities originally issued at a discount, the amount due upon acceleration shall include only the original issue price of the senior debt securities, the amount of original issue discount accrued to the date of acceleration and accrued interest, if any.

        The holders of a majority in principal amount of the outstanding senior debt securities of an affected series may waive any default or event of default with respect to the series and its consequences, except defaults or events of default regarding payment of principal, premium, if any, or interest, unless we have cured the default or event of default in accordance with the senior indenture. Any waiver shall cure the default or event of default.

        Upon certain conditions, declarations of acceleration may be rescinded and annulled and past defaults may be waived by the holders of a majority in aggregate principal amount of all the senior debt securities of such series affected by the default. Furthermore, prior to a declaration of acceleration and subject to various provisions in the senior indenture, the holders of a majority in aggregate principal amount of a series of senior debt securities, by notice to the trustee, may waive an existing default or event of default with respect to such senior debt securities and its consequences, except a default in the payment of principal of, premium, if any, on or interest on such senior debt securities. Upon any such waiver, such default shall cease to exist, and any event of default with respect to such senior debt securities shall be deemed to have been cured, for every purpose of the senior indenture, but no such waiver shall extend to any subsequent or other default or event of default or impair any right consequent thereto.

        The holders of a majority in aggregate principal amount of a series of senior debt securities will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the trustee or exercising any trust or power conferred on the trustee with respect to such senior debt securities. However, the trustee may refuse to follow any direction that conflicts with law or the senior indenture that may involve the trustee in personal liability or that the trustee determines in good faith may be unduly prejudicial to the rights of holders of such series of senior debt securities not joining in the giving of such direction and may take any other action it deems proper that is not inconsistent with any such direction received from holders of such series of senior debt securities. A

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holder of the senior debt securities of any series will have the right to institute a proceeding under the senior indentures or the securities or to appoint a receiver or trustee, or to seek other remedies if:

        These limitations do not apply to a suit instituted by a holder of senior debt securities if we default in the payment of the principal, premium, if any, or interest on, the senior debt securities, or other defaults that may be specified in the applicable prospectus supplement or free writing prospectus.

        Modification and Waiver.     We and the trustee may amend, supplement or modify a senior indenture or the senior debt securities without the consent of any holders with respect to the following specific matters:

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        Other amendments and modifications of the senior indenture or the senior debt securities issued may be made, and our compliance with any provision of the senior indenture with respect to any series of senior debt securities may be waived, with the consent of the holders of a majority of the aggregate principal amount of the outstanding senior debt securities of all series affected by the amendment or modification (voting together as a single class); provided, however, that each affected holder must consent to any modification, amendment or waiver that:

        Satisfaction and Discharge.     We can elect satisfy and discharge our obligations with respect to one or more series of senior debt securities, except for specified obligations, including obligations to:

        In order to exercise our rights to be discharged, we must deposit with the trustee money or government obligations sufficient to pay all the principal of, any premium and interest on, the senior debt securities of the series on the dates payments are due.

        Under current U.S. federal income tax law, the deposit and our legal release from the senior debt securities would be treated as though we took back a holder's senior debt securities and gave such holder his or her share of the cash and debt securities or bonds deposited in trust. In that event, such holder could recognize gain or loss on the senior debt securities such holder gives back to us. Holders of the senior debt securities should consult their own advisers with respect to the tax consequences to them of such deposit and discharge, including the applicability and effect of tax laws other than the U.S. federal income tax law.

        Information Concerning the Trustee.     The trustee, other than during the occurrence and continuance of an event of default under a senior indenture, undertakes to perform only those duties as are specifically set forth in the applicable senior indenture. Upon an event of default under a senior indenture, the trustee must use the same degree of care as a prudent person would exercise or use in the conduct of his or her own affairs.

        Subject to this provision, the trustee is under no obligation to exercise any of the powers given it by the senior indentures at the request of any holder of senior debt securities unless it is offered reasonable security and indemnity against the costs, expenses and liabilities that it might incur.

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        We may have normal banking relationships with the trustee in the ordinary course of business.

Certain Terms of the Subordinated Debt Securities

        Other than the terms of the subordinated indenture and subordinated debt securities relating to subordination or otherwise as described in the prospectus supplement or free writing prospectus relating to a particular series of subordinated debt securities, the terms of the subordinated indenture and subordinated debt securities are identical in all material respects to the terms of the senior indenture and senior debt securities.

        Additional or different subordination terms may be specified in the prospectus supplement applicable to a particular series.

        Subordination.     The indebtedness evidenced by the subordinated debt securities is subordinate to the prior payment in full of all of our senior indebtedness, as defined in the subordinated indenture. During the continuance beyond any applicable grace period of any default in the payment of principal, premium, interest or any other payment due on any of our senior indebtedness, we may not make any payment of principal of, or premium, if any, on or interest on the subordinated debt securities (except for certain sinking fund payments). In addition, upon any payment or distribution of our assets upon any dissolution, winding-up, liquidation or reorganization, the payment of the principal of, or premium, if any, on and interest on the subordinated debt securities will be subordinated to the extent provided in the subordinated indenture in right of payment to the prior payment in full of all our senior indebtedness. Because of this subordination, if we dissolve or otherwise liquidate, holders of our subordinated debt securities may receive less, ratably, than holders of our senior indebtedness. The subordination provisions do not prevent the occurrence of an event of default under the subordinated indenture.

Governing Law

        The indentures and the debt securities will be governed by and construed in accordance with the internal laws of the State of New York.

Ranking of Debt Securities

        The senior debt securities will rank equally in right of payment to all our other senior unsecured debt. The subordinated debt securities will be subordinate and junior in priority of payment to certain of our other indebtedness (including senior debt securities) to the extent described in a prospectus supplement or free writing prospectus.

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DESCRIPTION OF UNITS

        We may issue, in one more series, units consisting of common stock, preferred stock, debt securities, and/or warrants for the purchase of common stock, preferred stock and/or debt securities in any combination. While the terms we have summarized below will apply generally to any units that we may offer under this prospectus, we will describe the particular terms of any series of units in more detail in the applicable prospectus supplement. The terms of any units offered under a prospectus supplement may differ from the terms described below.

        We will file as exhibits to the registration statement of which this prospectus is a part, or will incorporate by reference from reports that we file with the SEC, the form of unit agreement that describes the terms of the series of units we are offering, and any supplemental agreements, before the issuance of the related series of units. The following summaries of material terms and provisions of the units are subject to, and qualified in their entirety by reference to, all the provisions of the unit agreement and any supplemental agreements applicable to a particular series of units. We urge you to read the applicable prospectus supplements related to the particular series of units that we may offer under this prospectus, as well as any related free writing prospectuses and the complete unit agreement and any supplemental agreements that contain the terms of the units.

General

        Each unit will be issued so that the holder of the unit is also the holder of each security included in the unit. Thus, the holder of a unit will have the rights and obligations of a holder of each included security. The unit agreement under which a unit is issued may provide that the securities included in the unit may not be held or transferred separately, at any time or at any time before a specified date.

        We will describe in the applicable prospectus supplement the terms of the series of units being offered, including:

        The provisions described in this section, as well as those described under "Description of Capital Stock", "Description of Warrants" and "Description of Debt Securities" will apply to each unit and to any common stock, preferred stock or warrant included in each unit, respectively.

Issuance in Series

        We may issue units in such amounts and in such numerous distinct series as we determine.

Enforceability of Rights by Holders of Units

        Each unit agent will act solely as our agent under the applicable unit agreement and will not assume any obligation or relationship of agency or trust with any holder of any unit. A single bank or trust company may act as unit agent for more than one series of units. A unit agent will have no duty or responsibility in case of any default by us under the applicable unit agreement or unit, including any duty or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder of a unit may, without the consent of the related unit agent or the holder of any other unit, enforce by appropriate legal action its rights as holder under any security included in the unit.

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Title

        We, and any unit agent and any of their agents, may treat the registered holder of any unit certificate as an absolute owner of the units evidenced by that certificate for any purpose and as the person entitled to exercise the rights attaching to the units so requested, despite any notice to the contrary.


LEGAL MATTERS

        The validity of the securities being offered by this prospectus will be passed upon by Goodwin Procter LLP, Boston, Massachusetts.


EXPERTS

        The consolidated financial statements of Plug Power Inc. and subsidiaries as of December 31, 2015 and 2014, and for each of the years in the three-year period ended December 31, 2015, and management's assessment of the effectiveness of internal control over financial reporting as of December 31, 2015 have been incorporated by reference herein and in the registration statement in reliance upon the report of KPMG LLP, independent registered public accounting firm, incorporated by reference herein, and upon the authority of said firm as experts in accounting and auditing.

        The audit report contains an explanatory paragraph that states that the scope of management's assessment of internal control over financial reporting excluded the internal control over financial reporting of HyPulsion U.S. Holding, Inc. ("HyPulsion"), which the Company acquired in July 2015. HyPulsion represented 7.3% of total assets and 0.3% of total revenue included in the Company's consolidated financial statements as of and for the year ended December 31, 2015. KPMG LLP's audit of internal control over financial reporting of the Company also excluded an evaluation of the internal control over financial reporting of HyPulsion.


WHERE YOU CAN FIND ADDITIONAL INFORMATION

        This prospectus is part of a registration statement that we have filed with the SEC. Certain information in the registration statement has been omitted from this prospectus in accordance with the rules of the SEC. We are a public company and file proxy statements, annual, quarterly and special reports and other information with the SEC. The registration statement, such reports and other information can be inspected and copied at the Public Reference Room of the SEC located at 100 F Street, N.E., Washington D.C. 20549. Copies of such materials, including copies of all or any portion of the registration statement, can be obtained from the Public Reference Room of the SEC at prescribed rates. You can call the SEC at 1-800-SEC-0330 to obtain information on the operation of the Public Reference Room. Such materials may also be accessed electronically by means of the SEC's home page on the Internet (www.sec.gov) .

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INCORPORATION OF CERTAIN INFORMATION BY REFERENCE

        The SEC allows us to "incorporate by reference" the information we file with it, which means that we can disclose important information to you by referring you to those documents instead of having to repeat the information in this prospectus. The information incorporated by reference is considered to be part of this prospectus, and later information that we file with the SEC will automatically update and supersede this information. We incorporate by reference the documents listed below that we have filed with the SEC:

        We also incorporate by reference into this prospectus all documents (other than current reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits filed on such form that are related to such items) that are filed by us with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (i) after the date of the initial filing of the registration statement of which this prospectus is a part and prior to effectiveness of the registration statement, or (ii) after the date of this prospectus, in each case except as to any portion of any future report or document that is not deemed filed under such provisions, until we sell all of the shares covered by this prospectus or the sale of shares by us pursuant to this prospectus is terminated.

        You may access our Annual Report on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K and amendments to any of these reports, free of charge on the SEC's website. You may also access the documents incorporated by reference on our website at www.plugpower.com. Other than the foregoing documents incorporated by reference, the information contained in, or that can be accessed through, our website is not part of this prospectus.

        In addition, we will furnish without charge to each person, including any beneficial owner, to whom a prospectus is delivered, on written or oral request of such person, a copy of any or all of the documents incorporated by reference in this prospectus (not including exhibits to such documents, unless such exhibits are specifically incorporated by reference in this prospectus or into such documents). Such requests may be directed to Corporate Secretary, Plug Power Inc., 968 Albany-Shaker Road, Latham, New York, 12110, or call (518) 782-7700.

        This prospectus is part of a registration statement we filed with the SEC. We have incorporated exhibits into this registration statement. You should read the exhibits carefully for provisions that may be important to you.

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Plug Power Inc.


PROSPECTUS


                  , 2016

   

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PART II

INFORMATION NOT REQUIRED IN THE PROSPECTUS

Item 14.    Other Expenses of Issuance and Distribution.

        The following table sets forth the estimated costs and expenses, other than underwriting discounts and commissions, payable by the registrant in connection with the offering of the securities being registered. All the amounts shown are estimates, except for the SEC registration fee.

SEC registration fee

  $23,180  

NASDAQ Capital Market listing fee

           *

Accounting fees and expenses

           *

Legal fees and expenses

           *

Transfer Agent fees and expenses

           *

Printing and miscellaneous expenses

           *

Total

  $         *
​ ​ ​ ​
​ ​ ​ ​
​ ​ ​ ​
*
The amount of securities and number of offerings are indeterminable and the expenses cannot be estimated at this time.

Item 15.    Indemnification of Directors and Officers.

        In accordance with Section 145 of the Delaware General Corporation Law, Article VII of our amended and restated certificate of incorporation provides that no director of Plug Power shall be personally liable to Plug Power or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (1) for any breach of the director's duty of loyalty to Plug Power or its stockholders, (2) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (3) in respect of unlawful dividend payments or stock redemptions or repurchases, or (4) for any transaction from which the director derived an improper personal benefit. In addition, our amended and restated certificate of incorporation provides that if the Delaware General Corporation Law is amended to authorize the further elimination or limitation of the liability of directors, then the liability of a director of the corporation shall be eliminated or limited to the fullest extent permitted by the Delaware General Corporation Law, as so amended.

        Article V of our amended and restated by-laws provides for indemnification by Plug Power of its officers and certain non-officer employees under certain circumstances against expenses, including attorneys' fees, judgments, fines and amounts paid in settlement, reasonably incurred in connection with the defense or settlement of any threatened, pending or completed legal proceeding in which any such person is involved by reason of the fact that such person is or was an officer or employee of the registrant if such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of Plug Power, and, with respect to criminal actions or proceedings, if such person had no reasonable cause to believe his or her conduct was unlawful.

        In addition, we have entered into indemnification agreements with each of our directors. The indemnification agreements require, among other matters, that we indemnify our directors to the fullest extent permitted by law and advance to the director's all related expenses, subject to reimbursement if it is subsequently determined that indemnification is not permitted. Under these agreements, we must also indemnify and advance all expenses incurred by directors seeking to enforce their rights under the indemnification agreements and may cover directors under directors' and officers' liability insurance.

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Item 16.    Exhibits.

Exhibit
Number 		  Description of the Document
  1.1 (1) Form of Underwriting Agreement.

 
3.1
(2)
Amended and Restated Certificate of Incorporation of Plug Power Inc.

 
3.2
(3)
Third Amended and Restated By-laws of Plug Power Inc.

 
3.3
(2)
Certificate of Amendment to Amended and Restated Certificate of Incorporation of Plug Power Inc.

 
3.4
(4)
Second Certificate of Amendment to the Amended and Restated Certificate of Incorporation of Plug Power Inc.

 
3.5
(5)
Third Certificate of Amendment to Amended and Restated Certificate of Incorporation of Plug Power Inc.

 
3.6
(6)
Certificate of Designations, Preferences and Rights of a Series of Preferred Stock of Plug Power Inc. classifying and designating the Series C Redeemable Convertible Preferred Stock.

 
3.7
(7)
Certificate of Designations, Preferences and Rights of a Series of Preferred Stock of Plug Power Inc. classifying and designating the Series A Junior Participating Cumulative Preferred Stock.

 
4.1
(7)
Shareholder Rights Agreement, dated as of June 23, 2009, between Plug Power Inc. as Registrar and American Stock Transfer & Trust Company, LLC, as Rights Agent.

 
4.2
(8)
Amendment No. 1 to Shareholder Rights Agreement, effective as of May 6, 2011 by and between Plug Power Inc. and American Stock Transfer & Trust Company, LLC, as Rights Agent.

 
4.3
(9)
Amendment No. 2 to Shareholder Rights Agreement, effective as of March 16, 2012 by and between Plug Power Inc. and American Stock Transfer & Trust Company, LLC, as Rights Agent.

 
4.4
(10)
Amendment No. 3 to Shareholder Rights Agreement, effective as of March 23, 2012 by and between Plug Power Inc. and Broadridge Corporate Issuer Solutions, Inc., as Rights Agent.

 
4.5
(11)
Amendment No. 4 to Shareholder Rights Agreement, effective as of February 12, 2013 by and between Plug Power Inc. and Broadridge Corporate Issuer Solutions, Inc., as Rights Agent.

 
4.6
(12)
Amendment No. 5 to Shareholder Rights Agreement, effective as of May 8, 2013 by and between Plug Power Inc. and Broadridge Corporate Issuer Solutions, Inc., as Rights Agent.

 
4.7
(13)
Form of Common Stock Certificate of Plug Power Inc.

 
4.8
(1)
Specimen Preferred Stock Certificate and Form of Certificate of Designation of Preferred Stock.

 
4.9
(1)
Form of Common Stock Warrant Agreement and Warrant Certificate.

 
4.10
(1)
Form of Preferred Stock Warrant Agreement and Warrant Certificate.

 
4.11
(1)
Form of Indenture for Senior Debt Securities.

 
4.12
(1)
Form of Indenture for Subordinated Debt Securities.

 
4.13
(1)
Form of Unit Agreement.

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Exhibit
Number 		  Description of the Document
  5.1   Opinion of Goodwin Procter LLP.

 
10.1
*
Master Equipment Lease, dated as of June 30, 2014, between the Registrant and Manufacturers and Traders Trust Company.

 
10.2
 
First Amendment to Master Equipment Lease, dated as of December 19, 2014, between the Registrant and Manufacturers and Traders Trust Company.

 
10.3
*
Second Amendment to Master Equipment Lease, dated as of December 30, 2015, between the Registrant and Manufacturers and Traders Trust Company.

 
10.4
*
Waiver and Third Amendment to Master Equipment Lease, dated as of June 7, 2016, between the Registrant and Manufacturers and Traders Trust Company.

 
10.5
*
Master Lease Agreement, dated as of June 3, 2016, between the Registrant and Generate Capital, Inc.

 
12.1
(1)
Statement of Computation of Ratio of Fixed Charges and Preference Dividends to Earnings.

 
23.1
 
Consent of KPMG LLP, Independent Registered Public Accounting Firm.

 
23.2
 
Consent of Goodwin Procter LLP (included in Exhibit 5.1).

 
24.1
 
Power of Attorney (included on signature page).

 
25.1
(14)
Form T-1 Statement of Eligibility of Trustee for Senior Indenture under the Trust Indenture Act of 1939.

 
25.2
(14)
Form T-1 Statement of Eligibility of Trustee for Subordinated Indenture under the Trust Indenture Act of 1939.
*
Application has been made to the Securities and Exchange Commission for confidential treatment of certain provisions. Omitted material for which confidential treatment has been requested has been filed separately with the Securities and Exchange Commission.

(1)
To be filed, if necessary, subsequent to the effectiveness of this registration statement by an amendment to this registration statement or incorporated by reference pursuant to a Current Report on Form 8-K in connection with an offering of securities.

(2)
Incorporated herein by reference to the registrant's Annual Report on Form 10-K for the period ended December 31, 2008 filed with the SEC on March 16, 2009.

(3)
Incorporated herein by reference to the registrant's Current Report on Form 8-K dated October 28, 2009, filed with the SEC on November 2, 2009.

(4)
Incorporated herein by reference to the registrant's Current Report on Form 8-K dated May 19, 2011, filed with the SEC on May 19, 2011.

(5)
Incorporated herein by reference to the registrant's Current Report on Form 8-K dated July 23, 2014, filed with the SEC on July 25, 2014.

(6)
Incorporated by reference to the registrant's Current Report on Form 8-K dated May 20, 2013.

(7)
Incorporated herein by reference to the registrant's Registration Statement on Form 8-A dated June 24, 2009, filed with the SEC on June 24, 2009.

(8)
Incorporated herein by reference to the registrant's Current Report on Form 8-K dated May 6, 2011.

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(9)
Incorporated herein by reference to the registrant's Current Report on Form 8-K dated March 19, 2012.

(10)
Incorporated herein by reference to the registrant's Current Report on Form 8-K dated March 26, 2012.

(11)
Incorporated herein by reference to the registrant's Current Report on Form 8-K dated February 13, 2013.

(12)
Incorporated herein by reference to the registrant's Current Report on Form 8-K dated May 8, 2013.

(13)
Incorporated herein by reference to the registrant's Registration Statement on Form S-1/A (File Number 333-86089) dated October 1, 1999, filed with the SEC on October 1, 1999.

(14)
To be filed pursuant to Section 305(b)(2) of the Trust Indenture Act of 1939.

Item 17.    Undertakings.

        The undersigned registrant hereby undertakes:

    (1)
    To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:

    (i)
    To include any prospectus required by Section 10(a)(3) of the Securities Act;

    (ii)
    To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in the volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Securities and Exchange Commission, or the Commission, pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; and

    (iii)
    To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;

    provided, however, that paragraphs (1)(i), (1)(ii) and (1)(iii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.

    (2)
    That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

    (3)
    To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

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    (4)
    That, for the purpose of determining liability under the Securities Act to any purchaser:

    (A)
    Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and

    (B)
    Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however , that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.

    (5)
    That, for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:

    (i)
    Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;

    (ii)
    Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;

    (iii)
    The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and

    (iv)
    Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.

    (6)
    That, for purposes of determining any liability under the Securities Act, each filing of the registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of the securities at that time shall be deemed to be the initial bona fide offering thereof.

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    (7)
    That, for purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b) (1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective.

    (8)
    That, for the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

    (9)
    To file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of the Trust Indenture Act.

        Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Latham, State of New York, on November 21, 2016.

  PLUG POWER INC.

 

By:

 

/s/ ANDREW MARSH

      Name:   Andrew Marsh

      Title:   President, Chief Executive Officer and Director


POWER OF ATTORNEY

        KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby severally constitutes and appoints Andrew Marsh, Paul B. Middleton and Gerard L. Conway, Jr., and each of them, as his true and lawful attorneys in fact and agents, with full power of substitution and resubstitution, for him and in his name, place, and stead, in any and all capacities, to sign any and all amendments (including post effective amendments, exhibits thereto and other documents in connection therewith) to this registration statement and any subsequent registration statement filed by the registrant pursuant to Rule 462(b) of the Securities Act of 1933, as amended, which relates to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys in fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys in fact and agents, or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities and on the dates indicated.

/s/ ANDREW MARSH
Andrew Marsh 		  President, Chief Executive Officer and Director (Principal Executive Officer)   November 21, 2016

/s/ PAUL B. MIDDLETON
Paul B. Middleton
 
Chief Financial Officer (Principal Financial Officer)
 
November 21, 2016

/s/ MARTIN D. HULL
Martin D. Hull
 
Corporate Controller and Chief Accounting Officer(Principal Accounting Officer)
 
November 21, 2016

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/s/ LARRY G. GARBERDING
Larry G. Garberding 		  Director   November 21, 2016

/s/ MAUREEN O. HELMER
Maureen O. Helmer
 
Director
 
November 21, 2016

/s/ DOUGLAS T. HICKEY
Douglas T. Hickey
 
Director
 
November 21, 2016

/s/ GREGORY L. KENAUSIS
Gregory L. Kenausis
 
Director
 
November 21, 2016

/s/ GEORGE C. MCNAMEE
George C. McNamee
 
Director
 
November 21, 2016

/s/ XAVIER PONTONE
Xavier Pontone
 
Director
 
November 21, 2016

/s/ JOHANNES MINHO ROTH
Johannes Minho Roth
 
Director
 
November 21, 2016

/s/ GARY K. WILLIS
Gary K. Willis
 
Director
 
November 21, 2016

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EXHIBIT INDEX

Exhibit
Number 		  Description of the Document
  1.1 (1) Form of Underwriting Agreement.

 
3.1
(2)
Amended and Restated Certificate of Incorporation of Plug Power Inc.

 
3.2
(3)
Third Amended and Restated By-laws of Plug Power Inc.

 
3.3
(2)
Certificate of Amendment to Amended and Restated Certificate of Incorporation of Plug Power Inc.

 
3.4
(4)
Second Certificate of Amendment to the Amended and Restated Certificate of Incorporation of Plug Power Inc.

 
3.5
(5)
Third Certificate of Amendment to Amended and Restated Certificate of Incorporation of Plug Power Inc.

 
3.6
(6)
Certificate of Designations, Preferences and Rights of a Series of Preferred Stock of Plug Power Inc. classifying and designating the Series C Redeemable Convertible Preferred Stock.

 
3.7
(7)
Certificate of Designations, Preferences and Rights of a Series of Preferred Stock of Plug Power Inc. classifying and designating the Series A Junior Participating Cumulative Preferred Stock.

 
4.1
(7)
Shareholder Rights Agreement, dated as of June 23, 2009, between Plug Power Inc. as Registrar and American Stock Transfer & Trust Company, LLC, as Rights Agent.

 
4.2
(8)
Amendment No. 1 to Shareholder Rights Agreement, effective as of May 6, 2011 by and between Plug Power Inc. and American Stock Transfer & Trust Company, LLC, as Rights Agent.

 
4.3
(9)
Amendment No. 2 to Shareholder Rights Agreement, effective as of March 16, 2012 by and between Plug Power Inc. and American Stock Transfer & Trust Company, LLC, as Rights Agent.

 
4.4
(10)
Amendment No. 3 to Shareholder Rights Agreement, effective as of March 23, 2012 by and between Plug Power Inc. and Broadridge Corporate Issuer Solutions, Inc., as Rights Agent.

 
4.5
(11)
Amendment No. 4 to Shareholder Rights Agreement, effective as of February 12, 2013 by and between Plug Power Inc. and Broadridge Corporate Issuer Solutions, Inc., as Rights Agent.

 
4.6
(12)
Amendment No. 5 to Shareholder Rights Agreement, effective as of May 8, 2013 by and between Plug Power Inc. and Broadridge Corporate Issuer Solutions, Inc., as Rights Agent.

 
4.7
(13)
Form of Common Stock Certificate of Plug Power Inc.

 
4.8
(1)
Specimen Preferred Stock Certificate and Form of Certificate of Designation of Preferred Stock.

 
4.9
(1)
Form of Common Stock Warrant Agreement and Warrant Certificate.

 
4.10
(1)
Form of Preferred Stock Warrant Agreement and Warrant Certificate.

 
4.11
(1)
Form of Indenture for Senior Debt Securities.

 
4.12
(1)
Form of Indenture for Subordinated Debt Securities.

 
4.13
(1)
Form of Unit Agreement.

 
5.1
 
Opinion of Goodwin Procter LLP.

Table of Contents

Exhibit
Number 		  Description of the Document
  10.1 * Master Equipment Lease, dated as of June 30, 2014, between the Registrant and Manufacturers and Traders Trust Company.

 
10.2
 
First Amendment to Master Equipment Lease, dated as of December 19, 2014, between the Registrant and Manufacturers and Traders Trust Company.

 
10.3
*
Second Amendment to Master Equipment Lease, dated as of December 30, 2015, between the Registrant and Manufacturers and Traders Trust Company.

 
10.4
*
Waiver and Third Amendment to Master Equipment Lease, dated as of June 7, 2016, between the Registrant and Manufacturers and Traders Trust Company.

 
10.5
*
Master Lease Agreement, dated as of June 3, 2016, between the Registrant and Generate Capital, Inc.

 
12.1
(1)
Statement of Computation of Ratio of Fixed Charges and Preference Dividends to Earnings.

 
23.1
 
Consent of KPMG LLP, Independent Registered Public Accounting Firm.

 
23.2
 
Consent of Goodwin Procter LLP (included in Exhibit 5.1).

 
24.1
 
Power of Attorney (included on signature page).

 
25.1
(14)
Form T-1 Statement of Eligibility of Trustee for Senior Indenture under the Trust Indenture Act of 1939.

 
25.2
(14)
Form T-1 Statement of Eligibility of Trustee for Subordinated Indenture under the Trust Indenture Act of 1939.
*
Application has been made to the Securities and Exchange Commission for confidential treatment of certain provisions. Omitted material for which confidential treatment has been requested has been filed separately with the Securities and Exchange Commission.

(1)
To be filed, if necessary, subsequent to the effectiveness of this registration statement by an amendment to this registration statement or incorporated by reference pursuant to a Current Report on Form 8-K in connection with an offering of securities.

(2)
Incorporated herein by reference to the registrant's Annual Report on Form 10-K for the period ended December 31, 2008 filed with the SEC on March 16, 2009.

(3)
Incorporated herein by reference to the registrant's Current Report on Form 8-K dated October 28, 2009, filed with the SEC on November 2, 2009.

(4)
Incorporated herein by reference to the registrant's Current Report on Form 8-K dated May 19, 2011, filed with the SEC on May 19, 2011.

(5)
Incorporated herein by reference to the registrant's Current Report on Form 8-K dated July 23, 2014, filed with the SEC on July 25, 2014.

(6)
Incorporated by reference to the registrant's Current Report on Form 8-K dated May 20, 2013.

(7)
Incorporated herein by reference to the registrant's Registration Statement on Form 8-A dated June 24, 2009, filed with the SEC on June 24, 2009.

(8)
Incorporated herein by reference to the registrant's Current Report on Form 8-K dated May 6, 2011.

(9)
Incorporated herein by reference to the registrant's Current Report on Form 8-K dated March 19, 2012.

(10)
Incorporated herein by reference to the registrant's Current Report on Form 8-K dated March 26, 2012.

Table of Contents

(11)
Incorporated herein by reference to the registrant's Current Report on Form 8-K dated February 13, 2013.

(12)
Incorporated herein by reference to the registrant's Current Report on Form 8-K dated May 8, 2013.

(13)
Incorporated herein by reference to the registrant's Registration Statement on Form S-1/A (File Number 333-86089) dated October 1, 1999, filed with the SEC on October 1, 1999.

(14)
To be filed pursuant to Section 305(b)(2) of the Trust Indenture Act of 1939.



Exhibit 5.1

 

November 21, 2016

 

Plug Power Inc.

968 Albany-Shaker Road

Latham, New York, 12110

 

Re:                              Securities Being Registered under Registration Statement on Form S-3

 

Ladies and Gentlemen:

 

We have acted as counsel to you in connection with your filing of a Registration Statement on Form S-3 (as amended or supplemented, the “ Registration Statement ”) pursuant to the Securities Act of 1933, as amended (the “ Securities Act ”), relating to the registration of up to $200,000,000 of any combination of (i) common stock, par value $0.01 per share (the “ Common Stock ”), of Plug Power Inc., a Delaware corporation (the “ Company ”), (ii) preferred stock, par value $0.01 per share, of the Company (the “ Preferred Stock ”), (iii) debt securities of the Company (“ Debt Securities ”), (iv) warrants to purchase Common Stock, Preferred Stock and/or Debt Securities (“ Warrants ”), and (v)  units comprised of Common Stock, Preferred Stock, Debt Securities and/or Warrants in any combination ( “ Units ”).  The Common Stock, Preferred Stock, Debt Securities, Warrants and Units are sometimes referred to collectively herein as the “ Securities .”  Securities may be issued in an unspecified number (with respect to Common Stock, Preferred Stock, Warrants and Units) or in an unspecified principal amount (with respect to Debt Securities).  The Registration Statement provides that the Securities may be offered separately or together, in separate series, in amounts, at prices and on terms to be set forth in one or more prospectus supplements (each a “Prospectus Supplement”) to the prospectus contained in the Registration Statement.

 

We have reviewed such documents and made such examination of law as we have deemed appropriate to give the opinions set forth below.  We have relied, without independent verification, on certificates of public officials and, as to matters of fact material to the opinions set forth below, on certificates of officers of the Company.

 

The opinions set forth below are limited to the Delaware General Corporation Law (which includes reported judicial decisions interpreting the Delaware General Corporation Law), the law of New York, and the federal law of the United States. Without limiting the generality of the foregoing, we express no opinion with respect to (i) state securities or “blue sky” laws, or (ii) state or federal antitrust laws.

 

For purposes of the opinions set forth below, without limiting any other exceptions or qualifications set forth herein, we have assumed that after the issuance of any Securities offered pursuant to the Registration Statement, the total number of issued shares of Common Stock or Preferred Stock, as applicable, together with the total number of shares of such stock issuable upon the exercise, exchange, conversion or settlement, as the case may be, of any exercisable, exchangeable or convertible security (including without limitation any Unit), as the case may be, then outstanding, will not exceed the total number of authorized shares of Common Stock or Preferred Stock, as applicable, under the Company’s certificate of incorporation as then in effect (the “ Charter ”).

 

For purposes of the opinions set forth below, we refer to the following as the “ Future Authorization and Issuance ” of Securities:

 

·                   with respect to any of the Securities, (a) the authorization by the Company of the amount, terms and issuance of such Securities (the “ Authorization ”) and (b) the issuance of such Securities in accordance with the Authorization therefor upon the receipt by the Company of the consideration (which, in the case of shares of Common Stock or Preferred Stock, is not less than the par value of such shares) to be paid therefor in accordance with the Authorization;

 

·                   with respect to Preferred Stock, (a) the establishment of the terms of such Preferred Stock by the Company in conformity with the Charter and applicable law and (b) the execution,

 


 

acknowledgement and filing with the Delaware Secretary of State, and the effectiveness of, a certificate of designations to the Charter setting forth the terms of such Preferred Stock in accordance with the Charter and applicable law;

 

·                   with respect to Debt Securities, (a) the authorization, execution and delivery of the indenture or a supplemental indenture relating to such Securities by the Company and the trustee thereunder and/or (b) the establishment of the terms of such Securities by the Company in conformity with the applicable indenture or supplemental indenture and applicable law, and (c) the execution, authentication and issuance of such Securities in accordance with the applicable indenture or supplemental indenture and applicable law; and

 

·                   with respect to Warrants and Units, (a) the authorization, execution and delivery by the Company and the other parties thereto of any agreement under which such Securities are to be issued and (b) the establishment of the terms of such Securities, and the execution and delivery of such Securities, in conformity with any applicable agreement under which such Securities are to be issued and applicable law.

 

Based upon the foregoing, and subject to the additional qualifications set forth below, we are of the opinion that:

 

1.                                       Upon the Future Authorization and Issuance of shares of Common Stock, such shares of Common Stock will be validly issued, fully paid and nonassessable.

 

2.                                       Upon the Future Authorization and Issuance of shares of Preferred Stock, such shares of Preferred Stock will be validly issued, fully paid and nonassessable.

 

3.                                       Upon the Future Authorization and Issuance of Debt Securities, such Debt Securities will be valid and binding obligations of the Company.

 

4.                                       Upon the Future Authorization and Issuance of Warrants, such Warrants will be valid and binding obligations of the Company.

 

5.                                       Upon the Future Authorization and Issuance of Units, such Units will be valid and binding obligations of the Company.

 

The opinions expressed above are subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws of general application affecting the rights and remedies of creditors and to general principles of equity.

 

This opinion letter and the opinions it contains shall be interpreted in accordance with the Legal Opinion Principles issued by the Committee on Legal Opinions of the American Bar Association’s Business Law Section as published in 53 Business Lawyer 831 (May 1998).

 

We hereby consent to the inclusion of this opinion as Exhibit 5.1 to the Registration Statement and to the references to our firm under the caption “Legal Matters” in the Registration Statement. In giving our consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations thereunder.

 

 

Very truly yours,

 

 

 

/s/ Goodwin Procter LLP

 

 

 

GOODWIN PROCTER LLP

 



Exhibit 10.1

 

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Closing Document No. 01

 

MASTER EQUIPMENT LEASE

 

Lease Date: June 30, 2014

 

Lessee: Plug Power Inc. , a corporation organized and registered under the laws of the State of Delaware.

Organizational Identification Number: 3083208

 

Chief executive office/residence: 968 Albany Shaker Road, Latham, NY 12110

 

Lessor:  Manufacturers and Traders Trust Company , a New York corporation having its chief executive office at One M&T Plaza, Buffalo, New York 14203, Attn: Legal Department.

 

1.       Lease.   Subject to the terms hereof, Lessor shall lease to Lessee, and Lessee shall lease from Lessor, the units of personal property described on each Equipment Schedule (each an “Equipment Schedule” or “Schedule”) now or hereafter attached hereto, together with all substitutions, replacements, repairs, upgrades, additions, accessories, products and proceeds (collectively, the “Equipment” and separately, a “Unit”) described on each Equipment Schedule, each of which shall incorporate all the terms and conditions of this Master Equipment Lease.  Where rights to receive license fees for Software (as described below) and charges for Services (as described below) supplied or to be supplied to Lessee are included in the amount financed by Lessor under the Lease, references to leasing, purchasing, ownership and administration of Equipment under the Lease shall be broadly interpreted to include such Financed Fees (as defined below). “Software” means the software and all related documentation, corrections, updates and revisions used in connection with Equipment financed under a Schedule. “Services” means all training, installation, transportation, handling, maintenance, custom programming, integration, technical consulting and support services relating to Equipment and specified on a Schedule. “Financed Fees” means the Software license, usage or other fees and the charges for Services, if any, specified on a Schedule. Each Equipment Schedule, incorporating by reference the terms and conditions of this Master Equipment Lease, shall constitute a separate instrument of lease and the term “Lease” as used below shall refer to an individual Equipment Schedule which incorporates this Master Equipment Lease, together with the Certificate of Acceptance for that Schedule.  In case of inconsistency, the terms of the Schedule shall control.

 

2.       Term. The Term of a Lease shall consist of (i) the Interim Term, if any, and (ii) the Base Term.  The Interim Term, if any, shall commence on the date of the Lessee’s execution of the Certificate of Acceptance (provided such date is other than the first of the month) (“Acceptance Date”) and shall extend to the last day of that month (the “Interim Term”).  The Base Term shall commence on the first day of the month following the Interim Term, if any, and shall continue for the number of periods specified on the Schedule (the “Base Term”). If the Acceptance Date is the first day of the month there shall be no Interim Term.  Lessor is authorized to enter the commencement date and other ministerial information on the Schedule upon receipt of the Certificate of Acceptance.  The terms and conditions of this Master Equipment Lease shall continue in effect during any renewal term.

 

3.       Rent; Late Charge.   Lessee agrees to pay directly to Lessor at the above address or to Lessor’s assignee the rental payments plus any interim rent as specified on the Equipment Schedule together with all other amounts which may become due under this Master Equipment Lease (the “Rent”).  All Rent shall be paid without notice, setoff or demand.  If any Rent is not received within five (5) days of the due date, Lessor may charge and Lessee shall be obligated to pay a late charge in the amount specified on the Equipment Schedule, or, if none is so specified, five percent (5%) of the delinquent amount.

 

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4.       Net Lease; Lessee’s Obligations Absolute.   Each Lease is a net lease.  Lessee’s obligation to pay Rent shall be absolute and unconditional and shall not be subject to any abatement, deferral, reduction, defense, counterclaim, setoff or recoupment for any reason, including without limitation any claim against the manufacturer or loss of possession or use of the Equipment (“Abatement”).

 

5.       Disclaimer of Warranties; Lessee’s Obligations.  LESSEE ACKNOWLEDGES THAT FOR THE PURPOSES OF UCC ARTICLE 2A THIS IS A STATUTORY FINANCE LEASE AND LESSOR IS NOT AN AGENT OF THE MANUFACTURER OR VENDOR OF THE EQUIPMENT NOR A LICENSOR.  LESSEE SELECTED THE EQUIPMENT AND VENDOR OR LICENSOR.  LESSEE IS SATISFIED THAT THE EQUIPMENT IS SUITABLE AND FIT FOR LESSEE’S PURPOSES.  LESSOR MAKES NO WARRANTY EITHER EXPRESS OR IMPLIED, AS TO, WITHOUT LIMITATION, QUALITY, CONDITION, MERCHANTABILITY, DESIGN, CAPACITY, WORKMANSHIP OR PERFORMANCE OF THE EQUIPMENT, OR ITS FITNESS FOR ANY PARTICULAR PURPOSE.   No defect or unsuitability of the Equipment or delay in delivery shall relieve Lessee of the obligation to pay Rent or any other obligation under this Lease.  Lessor hereby assigns to Lessee any interest it may have in manufacturers’ warranties which Lessee may enforce in Lessee’s name and at Lessee’s sole expense.  Lessee knows it may have rights under any vendor purchase documents and can contact the vendor if any for a description of such rights.

 

6.       Assignment.  (a) LESSEE SHALL NOT ASSIGN, DELEGATE, TRANSFER OR ENCUMBER ANY OF ITS RIGHTS OR OBLIGATIONS HEREUNDER OR UNDER ANY SCHEDULE, OR ITS LEASEHOLD INTEREST, SUBLET THE EQUIPMENT OR OTHERWISE PERMIT THE EQUIPMENT TO BE OPERATED OR USED BY, OR TO COME INTO OR REMAIN IN THE POSSESSION OF, ANYONE BUT LESSEE, PROVIDED, THAT LESSEE MAY PERMIT THE EQUIPMENT TO BE USED BY WAL-MART STORES, EAST, LP, AND ITS AFFILIATES, PURSUANT TO THE POWER PURCHASE AGREEMENT DATED AS OF JUNE 27, 2014, BY AND BETWEEN LESSEE AND WAL-MART STORES, EAST, LP.  Without limiting the foregoing, Lessee may not attempt to dispose of any of the Equipment.   No disposition referred to in this Section shall relieve Lessee of its obligations, and Lessee shall remain primarily liable hereunder and under each Schedule. (b) Lessor may at any time with or without notice to Lessee grant a security interest in, sell, assign, delegate or otherwise transfer (an “Assignment”) all or any part of its interest in the Equipment, this Master Equipment Lease or any Schedule or any Rent thereunder, or the right to enter into any Schedule, and Lessee shall perform all of its obligations thereunder, to the extent so transferred, for the benefit of the beneficiary of such Assignment (such beneficiary, including any successors and assigns, an “Assignee”).  Lessee agrees not to assert against any Assignee any Abatement (without limiting the provisions of Section 2) or claim that Lessee may have against Lessor, and Assignee shall not be bound by, or otherwise required to perform any of Lessor’s obligations, unless expressly assumed by such Assignee.  Lessor shall be relieved of any such assumed obligations.  If so directed in writing, Lessee shall pay all Rent and all other sums that become due under the assigned Schedule directly to the Assignee or any other party designated in writing by Lessor or such Assignee.  Lessee acknowledges that Lessor’s right to enter into an Assignment is essential to Lessor and, accordingly, waives any restrictions under applicable law with respect to an Assignment and any related remedies.  Upon the request of Lessor or any Assignee, Lessee also agrees (i) to promptly execute and deliver to Lessor or to such Assignee an acknowledgment of the Assignment in form and substance satisfactory to the requesting party, an insurance certificate and such other documents and assurances reasonably requested by Lessor or Assignee, and (ii) to comply with all other reasonable requirements of any such Assignee in connection with any such Assignment.  Upon such Assignment and except as may otherwise be provided herein, all references in this Lease to “Lessor” shall include such Assignee.  (c) Subject always to the foregoing, this Lease and each Schedule shall inure to the benefit of, and are binding upon, Lessee’s and Lessor’s respective successors and assigns.

 

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7.       Title; No Other Liens; Security Interest; License.    Lessee and Lessor intend that: (1) each Schedule, incorporating by reference the terms of this Lease, constitutes a true “lease” and a “finance lease” as such terms are defined in Article 2A and not a sale or retention of a security interest; and (2) Lessor is and shall remain the owner of each item of Equipment (unless sold by Lessor pursuant to any Lease), and Lessee shall not acquire any right, title or interest in or to such Equipment except the right to use it in accordance with the terms of the related Schedule. Lessor and Lessee do not intend this agreement as a disguised installment sale or disguised security agreement.  Title to any replacement parts or integral additions to the Equipment shall automatically vest in Lessor. In the event that this transaction shall be determined to be something other than a “True Lease”, Lessee hereby grants to Lessor and any assignee of Lessor a continuing security interest in all of Lessee’s right, title and interest in and to the Equipment, together with any and all proceeds of the Equipment or other tangible and intangible property of Lessee resulting from the sale (authorized or unauthorized) or other disposition of the Equipment.  Lessee further agrees and covenants not to create or permit any lien or other encumbrance upon the Equipment or this Lease other than Assignee’s interest, and agrees that if Lessee breaches this covenant Assignee may cancel this Lease.  Lessor’s ownership interest in titled Equipment shall not be impaired though Lessee’s name may appear on the title certificate.  Without limiting the foregoing, Lessee hereby grants to Lessor an irrevocable license to use the Equipment and all other intellectual property relating to the Equipment.

 

8.       Risk of Loss.   Lessee assumes the entire risk of loss to the Equipment.  Lessee shall advise Lessor in writing promptly of the circumstances and extent of any damage to the Equipment.  If the Equipment is irreparably damaged, lost, stolen or taken by eminent domain or otherwise, on the next rent payment date Lessee shall, at Lessor’s option, (a) replace it with like equipment approved by Lessor and transfer title to such replacement item to Lessor, or (b) pay to Lessor all Rent due on that date plus the Stipulated Loss Value of such Equipment, less the net amount of any recovery actually received by Lessor from insurance or otherwise.  When, in Lessor’s sole discretion, the Equipment can be repaired, Lessee shall at its expense promptly effect such repairs as Lessor deems necessary for compliance with this Lease.  Any insurance proceeds received by Lessor for repair of the Equipment shall, at Lessor’s option, be paid either directly to the party completing the repairs, or to reimburse Lessee for the cost of such repairs; provided, however, that Lessor shall have no obligation to make any payment until receipt of evidence satisfactory to Lessor that such repairs have been completed; and further provided that Lessor may apply such proceeds to the payment of Rent if there shall have occurred and be continuing an Event of Default or any event which with lapse of time or notice, or both, would become an Event of Default.  Lessee shall, upon Lessor’s request, undertake, by litigation or otherwise, in Lessee’s name, the collection of any claim against any person for such loss or taking, but Lessor shall not be obligated to undertake the collection of any such claim.  As used in this Lease, “Stipulated Loss Value” shall mean the product of the cost of the applicable Equipment, times the percentage factor applicable to such rent payment date, as set forth in the Schedule of Stipulated Loss Values incorporated in such Schedule.  After the final rent payment date of the Base Term or any renewal term of a Schedule, the Stipulated Loss Value shall be determined as of the last rent payment date during the applicable term of such Schedule, and the applicable percentage factor shall be the last percentage factor set forth in the Schedule of Stipulated Loss Values incorporated in such Schedule.

 

9.       Representations and Warranties of Lessee.    If Lessee is a business entity, it is duly organized, validly existing and in good standing under the laws of the above-named state of organization.  Lessee has the full power and authority to execute, deliver and perform its obligations in accordance with this Lease.  The execution and delivery of this Lease will not (i) violate any applicable law of any governmental authority or any judgment or order of any court, other governmental authority or arbitrator; (ii) violate any agreement governing Lessee or to which Lessee is a party.  Lessee’s certificate of incorporation, by-laws or other organizational documents do not prohibit any term or condition of this Lease.  Each authorization, approval or consent from, each registration and filing with, each declaration and notice to, and each other act by or relating to, any party required as a condition of Lessee’s execution, delivery or performance of this Lease (including any shareholder or board of directors or similar approvals) has been duly obtained and is in full

 

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force and effect.  Lessee has the power and authority to transact the business in which it is engaged and is duly licensed or qualified and in good standing in each jurisdiction in which the conduct of its business or ownership of property requires such licensing or such qualifications.

 

10.     Maintenance and Repairs; Business Purpose Only; Use.   Lessee at its sole expense shall cause the Equipment to be maintained and kept in good repair according to the manufacturer’s specifications.  Lessee shall (1) use the Equipment solely in the continental United States and in the conduct of its business, for the purpose for which the Equipment was designed, in a careful and proper manner, and shall not permanently discontinue use of the Equipment; (2) operate, maintain, service and repair the Equipment, and maintain all records and other materials relating thereto, so as to cause the Equipment  to be in good repair and operating condition and in at least the same condition as when delivered to Lessee under a Lease, except for ordinary wear and tear resulting despite Lessee’s full compliance with the terms hereof; and (3) not attach or incorporate the Equipment to or in any other property in such a manner that the Equipment may be deemed to have become an accession to or a part of such other property.  Within a reasonable time, Lessee will replace any parts of the Equipment which become worn out, lost, destroyed, damaged beyond repair or otherwise unfit for use, by new or reconditioned replacement parts which are free and clear of all liens and have a value, utility, residual value, and remaining useful life at least equal to the parts replaced (assuming that they were in the condition required by and maintained in the same way as the Equipment under this Master Equipment Lease).  Any modification or addition to the Equipment that is required by this Master Equipment Lease shall be made by Lessee.  Title to all such parts, modifications and additions to the Equipment shall immediately vest in Lessor, without any further action by Lessor or any other person, and they shall be deemed incorporated in the Equipment for all purposes of the related Schedule.  Unless replaced in accordance with this Section, Lessee shall not remove any parts originally or from time to time attached to the Equipment, if such parts are essential to the operation of the Equipment, are required by any other provision of this Master Equipment Lease or cannot be detached from the Equipment without materially interfering with the operation of the Equipment or adversely affecting the value, utility, residual value, and remaining useful life which the Equipment would have had without the addition of such parts.  Except as permitted in this Section, Lessee shall not make any material alterations to the Equipment.

 

11.     Insurance.   Lessee shall maintain at its own expense and at all times property damage, fire, theft and comprehensive insurance for the full replacement value of the Equipment with loss payable provisions in favor of Lessor as loss payee as its interests may appear and maintain public liability insurance in the amounts required by Lessor for the relevant Equipment Schedule, naming Lessor as additional insured, all under policies in form, substance and amount and written by companies approved by Lessor.  All policies will require thirty (30) days’ prior written notice to Lessor of any amendment or cancellation. If Lessee fails to obtain the insurance as provided herein, Lessor may, but is not obligated, to obtain such insurance as Lessor may deem appropriate including, if it so chooses, “single interest insurance” which will cover only Lessor’s interest in the Equipment.  Lessee shall pay Lessor for the cost of such insurance.  Lessor shall have the option to apply any insurance proceeds toward Rent or apply the insurance proceeds towards repair or replacement of the item of Equipment in respect of which such proceeds were received.  Upon the request of Lessor, Lessee shall from time to time deliver to Lessor such insurance policies, or other evidence of such policies satisfactory to Lessor and such other related information Lessor may request.

 

12.     Compliance; Inspection.   Lessee shall comply with all governmental laws, regulations, requirements and rules, including without limitation environmental and licensing laws and all manufacturer’s operating instructions and warranty requirements for the Equipment, and with the conditions and requirements of all policies of insurance with respect to the Equipment and this Lease.  At any time during business hours, Lessor may enter the premises where the Equipment is located, to inspect the Equipment, provided, that, so long as the Equipment is located at a Wal-Mart facility pursuant to the Power Purchase Agreement dated as of June 27, 2014, by and between Lessee and Wal-Mart Stores, East, LP, (a) the prior approval of Wal-

 

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Mart Stores, East, LP will be required for access to such Wal-Mart facility, and (b) Lessee shall assist Lessor in obtaining such prior approval of Wal-Mart Stores, East, LP.

 

13.     Taxes and Costs.   Lessee shall pay all applicable sales, use and other taxes whether or not stated on the Schedule (including without limitation any amounts due pursuant to increases in rates effective during the Term), license and registration fees, assessments and other government charges, however designated, based upon the Equipment or the Rent or upon the purchase, ownership, use, operation, maintenance, repair, return or other disposition of the Equipment, or for titling or registering the Equipment, including taxes measured by the net income of Lessor to the extent that such taxes are assessed in lieu of other governmental charges.  If Lessee represents that Lessee is exempt from payment of income taxes and sales taxes, Lessee will provide Lessor with evidence of such exemptions.  Lessee shall pay all shipping and delivery charges and other expenses incurred in connection with the Equipment and pay all lawful claims which might become a lien on the Equipment.  Lessee will also pay all costs and expenses (including all reasonable fees and disbursements of all counsel retained for advice, suit, appeal or other proceedings or purpose and of any experts or agents it may retain), which Lessor may incur in connection with (i) the administration of each Lease, including any administrative fees Lessor may impose for the preparation of discharges, releases or assignments to third-parties; (ii) the enforcement and collection of any Rent or any guaranty thereof; (iii) the exercise, performance ,enforcement or protection of any of the rights of Lessor hereunder; or (iv) the failure of Lessee to perform or observe any provisions hereof.  After such demand for payment of any cost, expense or fee under this Section or elsewhere under this Master Equipment Lease, Lessee shall pay interest at the highest legal rate from the date payment is demanded by Lessor to the date reimbursed by Lessee.  All such costs, expenses or fees under this Master Equipment Lease shall be added to the Rent, and shall be due and payable on demand.

 

14.     Application of Payments.   Payment shall be applied first to Lessor’s costs and expenses including without limitation attorney’s fees, collection costs and expenses incurred in performing Lessee’s obligations under each Lease, next to charges and fees such as late charges, and last to Rent.

 

15.     General Indemnity. Lessee shall indemnify Lessor and its Affiliates and each officer, employee, accountant, attorney and other agent thereof (each such person being an “Indemnified Party”) on demand, without any limitation as to amount, against each liability, cost and expense (including all reasonable fees and disbursements of all counsel retained for advice, suit, appeal or other proceedings or purpose, and of any expert or agents an Indemnified Party may retain) heretofore or hereafter imposed on, incurred by or asserted against any Indemnified Party (including any claim involving any allegation of any violation of applicable law of any governmental authority (including any environmental law or criminal law)), however asserted and whether now existing or hereafter arising, arising out of or in connection with the manufacture, purchase, ownership, delivery, installation, possession, use, storage, operation, failure, maintenance, repair, return, repossession or other disposition of the Equipment or with a Lease including (without limitation) claims for injury to or death of persons and for damage to property (collectively “Claims”); provided, however, the foregoing indemnity shall not apply to liability, cost or expense solely attributable to an Indemnified Party’s gross negligence or willful misconduct.  Lessee shall give Lessor and any Assignee prompt notice of any Claim.  This indemnity agreement shall survive the termination of this Master Equipment Lease.

 

16.           Tax Indemnity.   Lessee represents, warrants and covenants that Lessee will take all actions requested at any time to protect Lessor’s tax ownership of the Equipment; the Equipment is, and will be used by Lessee so as to remain, property eligible for the MACRS Deductions; and the Equipment is not “limited use property” for purposes of Rev. Proc. 2001-28, 2001-1 C.B. 1156.  As used herein, “MACRS Deductions” shall mean the deductions under Section 167 of the Internal Revenue Code of 1986, as now or hereafter amended (the “Code”), determined in accordance with the modified Accelerated Cost Recovery System with respect to the cost of any item of the Equipment using the accelerated method set forth in Sections

 

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168(b)(1) or 168(b)(2) of the Code as in effect on the date of this Master Equipment Lease for property assigned to the class of property specified in the Schedule pertaining thereto.  Lessee agrees not to do anything to impair or lessen the value of Lessor’s anticipated tax benefits related to the Equipment and expressly agrees that Claims under the indemnity provided in Section 15 hereof shall include:  (a) any disallowance, elimination, recapture, reduction or disqualification, in whole or in part, of any tax benefits of Lessor incurred as a result of (1) any act or omission or misrepresentation of Lessee, (2) the entire Equipment cost to Lessor not qualifying as cost of “property” for purposes of Section 168 of the Code, and (3) a person other than Lessor claiming any tax deduction or credit related to the Equipment; and (b) any additional tax for which Lessor becomes liable as a result of Lessee having added an attachment or made an alteration to the Equipment, including (without limitation) any such attachment or alteration which would increase the productivity or capability of the Equipment so as to violate the provisions of Rev. Proc. 2001-28, 2001-1 C.B. 1156 (as it may hereafter be modified or superseded); hereinafter referred to as a “Loss”.  If Lessor suffers a Loss, Lessee shall pay to Lessor as additional Rent on the next succeeding rental payment date after Lessor delivers to Lessee written notice of a Loss, or if there is no such date, within thirty (30) days after such notice, the amount which, after deduction of all taxes, interest, additions to tax and penalties that have been or will be required to be paid by Lessor at the highest marginal corporate income or franchise tax rates under all applicable federal, state and local laws, regulations and ordinances, will preserve the Net Economic Return that would have been realized by Lessor had such Loss not occurred.  In the case of a Loss resulting from Lessor’s inability to offset, for federal or local income or state franchise tax purposes, income taxable at a rate equal to Lessor’s highest marginal corporate tax rate, basic Rent for the related Schedule shall be adjusted to preserve the Net Economic Return.  “Net Economic Return” means the maintenance, at a minimum, of Lessor’s (i) after-tax yield (ii) after-tax aggregate cash flows, and (iii) return on assets as computed by Lessor as of the date of the execution of the applicable Schedule.  All of Lessor’s rights and privileges arising from the indemnity in this Section shall survive the expiration or other termination of this Master Equipment Lease.  For purposes of this indemnity, the term “Lessor” shall include any affiliated group (within the meaning of Section 1504 of the Code) of which Lessor is a member for any year in which a consolidated income tax return is filed for such affiliated group.

 

17.     Location.   Lessee shall not remove the Equipment from its business location specified on the respective Equipment Schedule without Lessor’s prior written consent.  Upon the expiration or termination of this Lease, unless Lessee purchases the Equipment pursuant to the Rider (if any) attached to the Equipment Schedule, Lessee shall, at its sole expense, store and continue to insure the Equipment for up to one hundred eighty (180) days and shall deliver the Equipment to Lessor in good condition, ordinary wear and tear excepted, at a location within the United States designated by the Lessor.

 

18.1.        Financial Statements.   Lessee shall maintain a system of accounts established and administered in accordance with generally accepted accounting principles and practices for its industry consistently applied, and, promptly deliver to the Lessor (i) within sixty (60) days after the end of each of its first three fiscal quarters, an unaudited consolidating and consolidated financial statement of the Lessee and each of the Lessee’s subsidiaries as of the end of such quarter, which financial statement shall consist of income and cash flows for the quarter, for the corresponding quarter in the previous fiscal year and for the period from the end of the previous fiscal year, with a consolidating and consolidated balance sheet as of the quarter end all in such detail as the Lessor may request; (ii) within ninety (90) days after the end of each fiscal year, consolidating and consolidated statements of the Lessee’s and each of the Lessee’s subsidiaries’ income and cash flows and its consolidating and consolidated balance sheet as of the end of such fiscal year, setting forth comparative figures for the preceding fiscal year and to be (check applicable box, if no box is checked the financial statements shall be audited): a udited by an independent certified public accountant acceptable to the Lessor; all such statements shall be certified by the Lessee’s chief financial officer to be correct and in accordance with the Lessee’s and each of the Lessee’s subsidiaries’ records and to present fairly the results of the Lessee’s and each of the Lessee’s subsidiaries’ operations and cash flows and its financial position at year end; and (iii) with each statement of income, a certificate executed by the

 

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Lessee’s chief executive and chief financial officers or other such person responsible for the financial management of the Lessee (A) setting forth the computations required to establish the Lessee’s compliance with each financial covenant, if any, during the statement period, (B) stating that the signers of the certificate have reviewed this Lease and the operations and condition (financial or other) of the Lessee and each of Lessee’s subsidiaries during the relevant period and (C) stating that no Event of Default occurred during the period, or if an Event of Default did occur, describing its nature, the date(s) of its occurrence or period of existence and what action the Lessee has taken with respect thereto.  The Lessee shall also promptly provide the Lessor with copies of all annual reports, proxy statements and similar information distributed to shareholders, partners or members, and copies of all filings with the Securities and Exchange Commission and the Pension Benefit Guaranty Corporation, and shall provide, in form satisfactory to the Lessor, such additional information, reports or other information as the Lessor may from time to time reasonably request regarding the financial and business affairs of the Lessee or any of the Lessee’s subsidiaries.  If the Lessee is an individual, the Lessee shall provide annually a personal financial statement in form and detail acceptable to the Lessor and such other financial information as the Lessor may from time to time reasonably request.

 

18.2. Notice of Defaults and Material Adverse Changes.   Immediately upon acquiring reason to know of (i) any Event of Default (including, but not limited to, a default under a third party agreement), (ii) any event or condition that might have a material adverse effect upon the Lessee or a Lessee’s subsidiary, the Lessee will provide to Lessor a certificate executed by Lessee’s senior individual authorized to transact business on behalf of the Lessee, specifying the date(s) and nature of the event and what action the Lessee or its subsidiary has taken or proposes to take with respect to it.

 

19.     No Liens.   Lessee shall not create or suffer to exist any lien or other encumbrance of any kind upon the Equipment or this Lease and agrees that if Lessee breaches this covenant Lessor may, at its option, but without any obligation to do so: (i) cancel this Lease; or (ii) perform or comply, or otherwise cause performance or compliance, with such terms including the payment or discharge of all taxes, fees, security interest or other liens, encumbrances or claims, at any time levied or placed on the Equipment or this Lease.  Nothing in this Section shall be construed to limit, abridge, supersede, or otherwise invalidate the right of Lessor to make expenditures or to take action or perform an obligation of Lessee as set forth in Section 23 of this Lease.

 

20.     Quiet Enjoyment; Equipment is Personalty.   Lessor covenants that so long as no Event of Default shall have occurred, Lessee shall be entitled to quiet possession and use of the Equipment in accordance with this Lease.  Lessor and Lessee agree that the Equipment shall remain personal property.  Lessee will obtain and deliver upon Lessor’s request any landlord and mortgagee waivers in recordable form, satisfactory to Lessor, from all persons claiming any interest in the real property on or in which the Equipment is located.

 

21.           Events of Default. Any of the following events or conditions shall constitute an “Event of Default”:  (i) failure by the Lessee to pay when due (whether at the stated maturity, by acceleration, upon demand or otherwise) the Rent, or any part thereof, or there occurs any event or condition which after notice, lapse of time or after both notice and lapse of time will permit acceleration of Rent; (ii) default by the Lessee in the performance of any obligation, term or condition of this Lease, or any other agreement with the Lessor or any of its affiliates or subsidiaries (collectively, “Affiliates”); (iii) failure by the Lessee to pay when due (whether at the stated maturity, by acceleration, upon demand or otherwise) any indebtedness or obligation owing to any third party or any Affiliate, the occurrence of any event which could result in acceleration of payment of any such indebtedness or obligation or the failure to perform any agreement with any third party or any Affiliate; (iv) the Lessee is dissolved, becomes insolvent, generally fails to pay or admits in writing its inability generally to pay its debts as they become due; (v) the Lessee makes a general assignment, arrangement or composition agreement with or for the benefit of its creditors or makes, or sends notice of

 

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any intended, bulk sale; the sale, assignment, transfer or delivery of all or substantially all of the assets of the Lessee to a third party; or the cessation by the Lessee as a going business concern; (vi) the Lessee files a petition in bankruptcy or institutes any action under federal or state law for the relief of debtors or seeks or consents to the appointment of an administrator, receiver, custodian or similar official for the wind up of its business (or has such a petition or action filed against it and such petition action or appointment is not dismissed or stayed within forty-five (45) days); (vii) the reorganization, merger, consolidation or dissolution of the Lessee (or the making of any agreement therefor); (viii) the death or judicial declaration of incompetency of the Lessee, if an individual; (ix) the entry of any judgment or order of any court, other governmental authority or arbitrator against the Lessee; (x) falsity, omission or inaccuracy of facts submitted to the Lessor or any Affiliate (whether in a financial statement or otherwise); (xi) an adverse change in the Lessee, its business, assets, operations, affairs or condition (financial or otherwise) from the status shown on any financial statement or other document submitted to the Lessor or any Affiliate, and which change the Lessor determines will have a material adverse affect on (a) the Lessee, its business, assets, operations or condition (financial or otherwise), or (b) the ability of the Lessee to pay the Rent; (xii) any pension plan of the Lessee fails to comply with applicable law or has vested unfunded liabilities that, in the opinion of the Lessor, might have a material adverse effect on the Lessee’s ability to repay its debts; (xiii) any indication or evidence received by the Lessor that the Lessee may have directly or indirectly been engaged in any type of activity which, in the Lessor’s discretion, might result in the forfeiture or any property of the Lessee to any governmental authority; (xiv) any direct or indirect change in the beneficial ownership of Lessee or any Guarantor, whether by operation of law or otherwise, after which the percentage of any issued and outstanding shares of any class of stock of such Lessee or Guarantor, beneficially owned by any person or group of persons having beneficial ownership of any such shares, has changed by at least ten percent (10%) more or less than it was on the date of the Lease; (xv) the occurrence of any event described in Section 21 (i) through and including 21(xiv) with respect to any subsidiary or to any endorser, guarantor (“Guarantor”) or any other party liable for, or whose assets or any interest therein secures, payment of any of the Rent; or (xvi) the Lessor in good faith deems itself insecure with respect to payment of the Rent.  The occurrence of an Event of Default with respect to any Schedule shall, at the sole discretion of Lessor, constitute an Event of Default with respect to any or all Schedules.  Notwithstanding anything to the contrary set forth herein, Lessor may exercise all rights and remedies hereunder independently with respect to each Schedule.

 

22.     Remedies.   (a) Immediately upon the occurrence of any Event of Default, Lessor may, without notice or demand, take any or all of the following steps:  (1) immediately cancel the Lease and require Lessee, at its expense, promptly to return all or any portion of the Equipment to the possession of Lessor at such place or places as Lessor may designate; (2) without process of law, enter upon the premises where the Equipment is located and take immediate possession of the Equipment, free from all claims for loss or damage caused by repossession; (3) declare immediately due and payable an amount equal to the Liquidated Damages together with all Enforcement Costs (as defined below); (4) sell, re-lease or otherwise dispose of the Equipment as is or with any commercially reasonable preparation, at public or private sale, in one or more parcels, upon any terms, at such place(s) and time(s) and to such persons or firms as Lessor deems best, without demand or notice, although Lessee agrees ten (10) business days’ written notice if given shall be deemed reasonable notice; or (5) exercise any other right or remedy in equity or under applicable law, including without limitation remedies of a secured party under the Uniform Commercial Code.   As used herein, “Liquidated Damages” shall mean the liquidated damages (all of which, Lessee hereby acknowledges, are damages to be paid in lieu of future Rent and are reasonable in light of the anticipated harm arising by reason of an Event of Default, and are not a penalty) described in the first sentence of parts (1) or (2) of Section 22(b), depending upon the recovery and disposition of the Equipment leased under the applicable Schedule.  Upon the occurrence of the Event of Default described in Section 21(vi) or (vii) hereof, the remedy provided in Clause (3) above shall be automatically exercised without the requirement of prior written notice to Lessee or of any other act or declaration by Lessor, and the Liquidated Damages described therein shall be immediately due and payable.

 

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(b) (1) If an Event of Default occurs with respect to any Schedule, if Lessor recovers the Equipment and disposes of it by a lease or elects not to dispose of the Equipment after recovery, upon demand, Lessee shall pay to Lessor an amount equal to the sum of (A) any accrued and unpaid Rent as of the date Lessor recovers possession of the Equipment, plus (B) the present value as of such date of the total Rent for the then remaining term of such Schedule, minus (C) either, as applicable, (i) the present value, as of the commencement date of any substantially similar re-lease of the Equipment, of the re-lease rent payable for that period, commencing on such date, which is comparable to the then remaining term of such Schedule or (ii) the present value, as of that certain date which may be determined by taking into account Lessor’s having a reasonable opportunity to remarket the Equipment, of the “market rent” for such Equipment (as computed pursuant to UCC Article 2A) in the continental United States on that date, computed for that period, commencing on such date, which is comparable to the then remaining term of such Schedule; provided, however, Lessee acknowledges that if Lessor is unable after reasonable effort to dispose of the Equipment at a reasonable price and pursuant to other reasonable terms, or the circumstances reasonably indicate that such an effort will be unavailing, the “market rent” in such event will be deemed to be $0.00, but in the event that Lessor does eventually re-lease or otherwise dispose of the Equipment, it will apply the net proceeds of such disposition, to the extent received in good and indefeasible funds, as a credit or reimbursement, as applicable, in a manner consistent with the applicable provisions of UCC Article 2A.  Any amounts discounted to present value, shall be discounted at the rate of three percent (3%) per annum, compounded annually. Any amounts recovered by Lessor hereunder shall be applied by Lessor, with respect to the related Schedule: first , to pay all Enforcement Costs, to the extent not previously paid; second , to pay to Lessor an amount equal to any unpaid Rent due and payable, together with the liquidated damage amounts specified in this part (1), to the extent not previously paid; third , to pay to Lessor any interest accruing on the amounts covered by the preceding clauses, at the late charge rate, from and after the date the same becomes due, through the date of payment; and fourth , (A) if the Lessor under such Schedule is also the Lessor under any other Schedules (whether by retaining the same, or as Assignee), to satisfy any remaining obligations under any or all such other Schedules, or (B) if such Lessor is not the Lessor under any other Schedule, or if Lessee’s obligations to such Lessor under such other Schedules have been fully and indefeasibly satisfied, to reimburse Lessee for such amounts to the extent paid by Lessee as liquidated damages pursuant to this part (1).

 

(b) (2) If an Event of Default occurs with respect to any Schedule, if Lessee fails to return the Equipment in the manner and condition required by this Lease, or Lessor recovers and sells the Equipment, upon demand, Lessee shall pay to Lessor an amount calculated as the Stipulated Loss Value of the Equipment (determined as of the next rent payment date after the date of the occurrence of the subject Event of Default), together with all other Rent due with respect to the related Schedule as of such determination date, and all Enforcement Costs, less a credit for any disposition proceeds, if applicable pursuant to the application provisions in the next sentence.  If Lessor demands the Liquidated Damages under this part (2), and recovers and sells the Equipment, any proceeds received in good and indefeasible funds shall be applied by Lessor, with respect to the related Schedule: first , to pay all Enforcement Costs, to the extent not previously paid; second , to pay to Lessor an amount equal to any unpaid Rent due and payable, together with the liquidated damage amounts specified in this part (2), to the extent not previously paid; third , to pay to Lessor any interest accruing on the amounts covered by the preceding clauses, at the late charge rate, from and after the date the same becomes due, through the date of payment; and fourth , (A) if the Lessor under such Schedule is also the Lessor under any other Schedules (whether by retaining the same, or as Assignee), to satisfy any remaining obligations under any or all such other Schedules, or (B) if such Lessor is not the Lessor under any other Schedule, or if Lessee’s obligations to such Lessor under such other Schedules have been fully and indefeasibly satisfied, to reimburse Lessee for such amounts to the extent paid by Lessee as liquidated damages pursuant to this part (2).

 

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(c)   Enforcements costs, as used herein, shall include all of the following (“Enforcement Costs”): (1) all unpaid Rent due before, during or after exercise of any of the foregoing remedies, and (2) all reasonable legal fees (including consultation, drafting notices or other documents, expert witness fees, sending notices or instituting, prosecuting or defending litigation or arbitration) and other enforcement costs and expenses incurred by reason of any Default or Event of Default or the exercise of Lessor’s rights or remedies, including all expenses incurred in connection with the return or other recovery of any Equipment in accordance with the terms of this Lease or in placing such Equipment in the condition required hereby, or the sale, re-lease or other disposition (including but not limited to costs of transportation, possession, storage, insurance, taxes, lien removal, repair, refurbishing, advertising and brokers’ fees), and all other pre-judgment and post-judgment enforcement related actions taken by Lessor or any actions taken by Lessor in any bankruptcy case involving Lessee, the Equipment, or any other person.  Late charges shall accrue with respect to any amounts payable under this Section for as long as such amounts remain outstanding, and shall be paid by Lessee upon demand.  No right or remedy is exclusive and each may be used successively and cumulatively.  Any failure to exercise the rights granted hereunder upon any Default or Event of Default shall not constitute a waiver of any such right.  No extension of time for payment or performance of any of Lessee’s obligations hereunder shall operate to release, discharge, modify, change or affect the original liability of Lessee for such obligations, either in whole or in part.  In any action to repossess any Equipment, Lessee waives any bonds and any surety or security required by any applicable laws as an incident to such repossession.  Notices of Lessor’s intention to accelerate, acceleration, nonpayment, presentment, protest, dishonor or any other notice whatsoever (other than as expressly set forth herein) are waived by Lessee.  Any notice given by Lessor of any disposition of the Equipment or other intended action of Lessor which is given in accordance with this Lease at least five (5) business days prior to such action, shall constitute fair and reasonable notice of such action. The execution of a Schedule shall not constitute a waiver by Lessor of any pre-existing Default or Event of Default.  With respect to any disposition of any Equipment pursuant to this Section, (i) Lessor shall have no obligation, subject to the requirements of commercial reasonableness, to clean-up or otherwise prepare the same for disposition, (ii) Lessor may comply with any applicable law in connection with any such disposition, and any actions taken in connection therewith shall not be deemed to have adversely affected the commercial reasonableness of any disposition thereof, (iii) Lessor may disclaim any title or other warranties in connection with any such disposition, and (iv) Lessee shall remain responsible for any deficiency remaining after Lessor’s exercise of its remedies and application of any funds or credits against Lessee’s obligations under any Schedule, and Lessor shall retain any excess after such application.

 

23.     Lessor’s Right to Cure. If Lessee fails to perform or comply with any of the terms hereof, Lessor, at its option, but without any obligation to do so, may perform or comply, or otherwise cause performance or compliance, with such terms including the payment or discharge of all taxes, fees, security interest or other liens, encumbrances or claims, at any time levied or placed on the Equipment.  Lessee shall reimburse Lessor, upon demand, for all expenses incurred by Lessor in connection with such performance.  An election to make expenditures or to take action or perform an obligation of Lessee under the Lease, after Lessee’s failure to perform, shall not affect Lessor’s right to declare an Event of Default and to exercise its remedies.  The provisions of this Section shall not relieve Lessee of any of its obligations hereunder with respect to the Equipment or impose any obligation on Lessor to proceed in any particular manner with respect to the Equipment.

 

24.     Purchase Option and Automatic Renewal.   Lessee shall have only such option to purchase the Equipment upon expiration of the Lease as specified in a separate Purchase and Renewal Option Rider (“Rider”) to the Schedule.  Any option shall be suspended during the existence of any Event of Default. In addition, in the event Lessee does not intend to exercise the Purchase or Renewal Option as provided for in the Purchase and Renewal Rider attached to a Schedule and made a part thereof, Lessee must notify Lessor of its intent to return the Equipment at least one hundred twenty (120) days but not more than two hundred seventy (270) days prior to the Base Term Expiration Date.  If Lessee intends to return the Equipment, it

 

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must do so to a location of Lessor’s choosing under the terms and conditions set forth in the Lease.  Until and unless Lessee provides Lessor with the notice required hereunder, the Lease shall automatically renew for additional twelve (12) month terms, during which time all of the terms and conditions of the Lease will remain in full force and effect.

 

25.           Further Assurances; Reports.   Lessee will execute all documents and take all further actions requested by Lessor to protect Lessor’s interests under each Lease, including without limitation Uniform Commercial Code financing statements.  Lessee irrevocably authorizes Lessor to file UCC financing statements (“UCCs”), and other filings with respect to the Equipment.  Without Lessor’s prior written consent, Lessee agrees not to file any corrective or termination statements or partial releases with respect to any UCCs filed by Lessor pursuant to a Lease.  Lessee will pay all costs of filing financing statements with respect to a Lease, including (without limitation) documentary stamp taxes.  Lessee will cause Lessor’s interest in the Equipment to be noted on any certificate of title relating to the Equipment.  Lessee shall provide written notice to Lessor: (1) thirty (30) days prior to any change in Lessee’s name or jurisdiction or form of organization; (2) promptly upon the occurrence of any Event of Default or event which, with the lapse of time or the giving of notice, or both, would become an Event of Default (a “Default”); and (3) promptly upon Lessee becoming aware of any alleged violation of applicable law relating to the Equipment or any Lease.

 

26.     Power of Attorney.    Lessee hereby irrevocably appoints Lessor, its officers, employees and agents, or any of them, as attorneys-in-fact for Lessee with full power and authority in the place and stead of Lessee and in the name of Lessee or its own name from time to time in Lessor’s discretion, to (a) execute applications for certificates of title or notices of lien relating to titled Equipment, (b) endorse checks, drafts or other instruments drawn by the issuer of insurance covering the Equipment, or (c) execute and deliver any writing and take any other actions that Lessor deems necessary or desirable to perfect or protect Lessor’s interests under a Lease.  This power is coupled with an interest and if Lessee is a natural person shall not be affected by any subsequent disability of the Lessee.

 

27.     Enforceability.   This Master Equipment Lease shall be binding upon Lessee’s successors and assigns and shall be enforceable by Lessor’s successors and assigns.  Time is of the essence.

 

28.     Waivers; Changes in Writing.   No course of dealing nor any omission, failure or delay of the Lessor in exercising any power or right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. Lessee expressly disclaims any reliance on any course of dealing or usage of trade or oral representation of the Lessor and agrees that none of the foregoing shall operate as a waiver of any right or remedy of the Lessor.  No notice to or demand on the Lessee in any case shall entitle the Lessee to any other or further notice or demand in similar or other circumstances.  No waiver of any provision of this Lease or consent to any departure by the Lessee therefrom shall in any event be effective unless made specifically in writing by the Lessor and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given.  No modification to any provision of this Lease shall be effective unless made in writing in an agreement signed by the Lessee and the Lessor.

 

29.     No Commitment; Lessor’s Right to Terminate Commitments.   This Master Equipment Lease is not a legal commitment to lend and Lessor shall have no obligation to enter into any Schedule unless (1) Lessor has issued a specific commitment for such Schedule, (2) no Event of Default or any event which with lapse of time or notice, or both, would become an Event of Default exists with respect to any agreement or other obligation of Lessee in any capacity to Lessor or any of its Affiliates in any capacity, and (3) none of the following has occurred:  (a) there has been a material adverse change in Lessee’s financial position or credit standing as determined by Lessor in its sole discretion; (b) the Equipment fails to be delivered and

 

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accepted by Lessee before the commitment expires; (c) Lessee or any Guarantor fails to cause its counsel to deliver on its behalf any legal opinion requested by the Lessor; (d) Lessee fails to deliver evidence satisfactory to Lessor that Lessee has obtained and will maintain in force during the term of a Lease all federal, state and local permits, licenses and approvals necessary for the acquisition, transportation, operation and maintenance of the Equipment, including (without limitation) disposal of all associated wastes and by-products and protection of operators and other persons in the vicinity of the Equipment; or (e) any other condition specified in the Schedule has not been fulfilled.  Immediately upon Lessor’s termination or rejection of a Schedule or commitment based on this Section, Lessee will return, and reimburse Lessor on demand for all sums disbursed by Lessor with respect to, the Equipment and proposed Schedule, including (without limitation) all Lessor’s attorneys’ fees and disbursements, whereupon, if Lessee is not in default with respect to any agreement with Lessor, Lessor will transfer to Lessee without warranty or recourse any rights Lessor may have with respect to the Equipment.

 

30.     Software License; Service Financing.   To the extent that any Schedule includes Software:

 

(a)          Lessee acknowledges that (i) all Software listed on any Schedule, or incorporated as a component of any Equipment listed in a Schedule, is governed by separate software license agreement(s) between Lessee and manufacturer(s) or vendor(s) of the Software, solely in its (their) capacity as licensor of such Software (the “Licensor”) relating to Software (the “License Agreement”) governing Lessee’s rights thereto, (ii) the Lease does not convey any explicit or implicit license for the use of the Software or other intellectual property relating to the Equipment, and (iii) Lessor does not hold title to any Software and Lessee is or shall be the licensee of such Software directly from the Licensor.

 

(b)          Lessee shall not amend, modify or otherwise alter, any term or condition of the License Agreement, including, without limitation, any such term or condition related to (i) payment of any amounts due thereunder, (ii) any liabilities or obligations of Lessee as licensee, (iii) the payment of late fees on past due amounts, or (iv) the payment of applicable taxes; provided, however, that this provision shall not apply to those terms and conditions relating solely to amounts owing to Licensor which have not been financed under the Lease.

 

31.     Entire Agreement.   This Master Equipment Lease, each Equipment Schedule and each Acceptance Certificate executed pursuant hereto, constitutes the entire agreement between Lessor and Lessee relating to the Equipment and supersedes all prior dealings.  This Master Equipment Lease may be amended only in a writing signed by both parties.

 

32.     Notices.   Any demand or notice hereunder or under any applicable law pertaining hereto shall be in writing and duly given if delivered to Lessee (at its address on the Lessor’s records) or to the Lessor (at the address on page one and separately to the representative of the Lessor responsible for Lessee’s relationship with the Lessor).  Such notice or demand shall be deemed sufficiently given for all purposes when delivered (i) by personal delivery and shall be deemed effective when delivered, or (ii) by mail or courier and shall be deemed effective three (3) business days after deposit in an official depository maintained by the United States Post Office for the collection of mail or one (1) business day after delivery to a nationally recognized overnight courier service (e.g., Federal Express).  Notice by e-mail is not valid notice under this or any other agreement between Lessee and the Lessor. Lessee shall immediately notify Lessor and any assignee of any change in the location of the Equipment or in Lessee’s address, name, management, financial condition or form of organization.

 

33.     Generally Accepted Accounting Principles.   Any financial calculation to be made, all financial statements and other financial information to be provided, and all books and records, system of accounting and reserves to be kept in connection with the provisions of this Lease, shall be in accordance with generally accepted accounting principles consistently applied during each interval and from interval to interval;

 

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provided, however, that in the event changes in generally accepted accounting principles shall be mandated by the Financial Accounting Standards Board or any similar accounting body of comparable standing, or should be recommended by Lessee’s certified public accountants, to the extent such changes would affect any financial calculations to be made in connection herewith, such changes shall be implemented in making such calculations only from and after such date as Lessee and the Lessor shall have amended this Master Equipment Lease to the extent necessary to reflect such changes in the financial and other covenants to which such calculations relate.

 

34.     Cumulative Nature and Non-Exclusive Exercise of Rights and Remedies.   All rights and remedies of the Lessor pursuant to this Master Equipment Lease shall be cumulative, and no such right or remedy shall be exclusive of any other such right or remedy. No single or partial exercise by the Lessor of any right or remedy pursuant to this Master Equipment Lease or otherwise shall preclude any other or further exercise thereof, or any exercise of any other such right or remedy, by the Lessor.

 

35.     Governing Law; Jurisdiction.   This Master Equipment Lease has been delivered to and accepted by the Lessor and will be deemed to be made in the State of New York.  Except as otherwise provided under federal law, this Master Equipment Lease will be interpreted in accordance with the laws of the State of New York excluding its conflict of laws rules. LESSEE HEREBY IRREVOCABLY CONSENTS TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT IN THE STATE OF NEW YORK IN A COUNTY OR JUDICIAL DISTRICT WHERE THE LESSOR OR ANY OF ITS AFFILIATES MAINTAINS A BRANCH AND CONSENTS THAT THE LESSOR MAY EFFECT ANY SERVICE OF PROCESS IN THE MANNER AND AT LESSEE’S ADDRESS SET FORTH ABOVE FOR PROVIDING NOTICE OR DEMAND; PROVIDED THAT NOTHING CONTAINED IN THIS LEASE WILL PREVENT THE LESSOR FROM BRINGING ANY ACTION, ENFORCING ANY AWARD OR JUDGMENT OR EXERCISING ANY RIGHTS AGAINST LESSEE INDIVIDUALLY, AGAINST ANY SECURITY OR AGAINST ANY PROPERTY OF LESSEE WITHIN ANY OTHER COUNTY, STATE OR OTHER FOREIGN OR DOMESTIC JURISDICTION.    Lessee acknowledges and agrees that the venue provided above is the most convenient forum for both the Lessor and Lessee.  Lessee waives any objection to venue and any objection based on a more convenient forum in any action instituted under this Master Equipment Lease.

 

36.     Additional Waivers by Lessee.  Lessee  (a) waives personal service of process and subpoenas, (b) consents to the service of process and subpoenas by registered mail directed to the Lessee’s last known address, with such service deemed complete five days after mailing, (c) waives any right to assert any counterclaim or setoff or any defense based upon any statute of limitations or any claim of laches, (d) waives its right to attack any final judgment that is obtained as a direct or indirect result of any such action and (e) consents to each such final judgment being sued upon in any court having jurisdiction.  LESSEE WAIVES ANY AND ALL RIGHTS AND REMEDIES CONFERRED BY UCC ARTICLE 2A SECTIONS 505-522, INCLUDING WITHOUT LIMITATION ANY RIGHTS TO (a) CANCEL OR REPUDIATE THE LEASE, (b) REJECT OR REVOKE ACCEPTANCE OF THE EQUIPMENT, (c) RECOVER DAMAGES FROM THE LESSOR FOR BREACH OF WARRANTY OR FOR ANY OTHER REASON, (d) CLAIM A SECURITY INTEREST IN ANY REJECTED EQUIPMENT IN LESSEE’S POSSESSION OR CONTROL, (e) DEDUCT FROM RENT ALL OR ANY PART OF ANY CLAIMED DAMAGES RESULTING FROM THE LESSOR’S DEFAULT UNDER THE LEASE, (f) ACCEPT PARTIAL DELIVERY OF THE EQUIPMENT, (g) RECOVER FROM LESSOR OR ASSIGNEE ANY GENERAL, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES FOR ANY REASON WHATSOEVER, AND (h) SPECIFIC PERFORMANCE, REPLEVIN OR THE LIKE FOR ANY OF THE EQUIPMENT.  Lessee also waives any statutory right it may have now or in the future to require the Lessor to sell or re-lease the Equipment or otherwise to mitigate damages.

 

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37.     Interpretation.   Unless the context otherwise clearly requires, references to plural includes the singular and references to the singular include the plural; references to “individual” shall mean a natural person and shall include a natural person doing business under an assumed name ( e.g. , a “DBA”); the word “or” has the inclusive meaning represented by the phrase “and/or”; the word “including”, “includes” and “include” shall be deemed to be followed by the words “without limitation”; and captions or section headings are solely for convenience and not part of the substance of this Lease.  Any representation, warranty, covenant or agreement herein shall survive execution and delivery of this Lease and shall be deemed continuous.  Each provision of this Lease shall be interpreted as consistent with existing law and shall be deemed amended to the extent necessary to comply with any conflicting law.  If any provision nevertheless is held invalid, the other provisions shall remain in effect.  The Lessee agrees that in any legal proceeding, a photocopy of this Lease kept in the Lessor’s course of business may be admitted into evidence as an original.  The captions in this Lease are for convenience only.

 

38.  Waiver of Jury Trial.   LESSEE AND LESSOR HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE ANY RIGHT TO TRIAL BY JURY LESSEE AND LESSOR MAY HAVE IN ANY ACTION OR PROCEEDING, AT LAW OR IN EQUITY, IN CONNECTION WITH THIS MASTER EQUIPMENT LEASE OR ANY TRANSACTIONS RELATED HERETO.  LESSEE REPRESENTS AND WARRANTS THAT NO REPRESENTATIVE OR AGENT OF LESSOR HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT LESSOR WILL NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THIS JURY TRIAL WAIVER.  LESSEE ACKNOWLEDGES THAT LESSOR HAS BEEN INDUCED TO ENTER INTO THIS MASTER EQUIPMENT LEASE BY, AMONG OTHER THINGS, THE PROVISIONS OF THIS SECTION.

 

39.  Joint and Several Liability. If there is more than one Lessee, each of them shall be jointly and severally liable under this Master Equipment Lease and any Schedule entered into hereunder and the term “Lessee” shall include each as well as all of them.

 

40.     Miscellaneous.    (a) This Master Equipment Lease and all of the other lease documents may be executed in counterparts.  Photocopies or facsimile transmissions of signatures shall be deemed original signatures and shall be fully binding on the parties to the same extent as original signatures.  The transfer or possession of the “Original” of this Master Equipment Lease shall be irrelevant to the full or collateral assignment of, or grant of security interest in, any Schedule; provided, however, no security interest in any Schedule may be created through the transfer, possession or control, as applicable, of any counterpart of such Schedule other than the original thereof, which shall be identified as the document or record (as applicable) marked “Original” and all other counterparts shall be marked “Duplicate”.  (b) If Lessor is required by the terms hereof to pay to or for the benefit of Lessee any amount received as a refund of an imposition or as insurance proceeds, Lessor shall not be required to pay such amount, if any Default has occurred and not been cured or any Event of Default shall have occurred and not been waived by Lessor.  In addition, if Lessor is required by the terms hereof to cooperate with Lessee in connection with certain matters, such cooperation shall not be required if a Default or Event of Default has then occurred and is continuing.  (c) To the extent Lessor is required to give its consent or approval with respect to any matter, the reasonableness of Lessor’s withholding of such consent shall be determined based on the then existing circumstances; provided, that Lessor’s withholding of its consent shall be deemed reasonable for all purposes if (i) the taking of the action that is the subject of such request, might result (in Lessor’s discretion), in (A) an impairment of Lessor’s rights, title or interests hereunder or under any Schedule, or to the Equipment, or (B) expose Lessor to any Claims or impositions, or (ii) Lessee fails to provide promptly to Lessor any filings, certificates, opinions or indemnities required by Lessor as a condition to such consent.  (d) There is no restriction (either express or implied) on any disclosure or dissemination of the tax treatment or tax structure of the transactions contemplated by this Lease or any documents executed in connection herewith. Further, each party hereto acknowledges that it has no proprietary rights to any tax matter or tax idea or to any element of the transaction structure contemplated by this Lease; and each party hereto (and

 

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any employee, representative or agent of any party hereto) may disclose to any and all persons (without limitation of any kind), the Federal tax treatment and Federal tax structure of the transaction contemplated by this Lease.  This Section 40(d) is intended to cause the transaction contemplated by this Lease to be treated as not having been offered under conditions of confidentiality for purposes of Section 1.6011-4(b)(3) (or any successor provision) of the Treasury Regulations promulgated under Section 6011 of the Code and Section 6111 of the Code and the Treasury Regulations promulgated thereunder; and shall be construed in a manner consistent with such purpose.

 

(The remainder of this page is intentionally blank.  Signature page follows.)

 

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Acknowledgment .  LESSEE ACKNOWLEDGES THAT IT HAS READ AND UNDERSTANDS ALL THE PROVISIONS OF THIS MASTER EQUIPMENT LEASE, INCLUDING THE GOVERNING LAW , JURISDICTION AND WAIVER OF JURY TRIAL , AND HAS BEEN ADVISED BY COUNSEL AS NECESSARY OR APPROPRIATE.

 

LESSEE ALSO ACKNOWLEDGES THAT ONLY LESSOR’S ORIGINAL OF EACH EQUIPMENT SCHEDULE CONSTITUTES CHATTEL PAPER FOR PURPOSES OF THE UNIFORM COMMERCIAL CODE.  NO SECURITY INTEREST CAN BE PERFECTED BY POSSESSION OF ANY OTHER COUNTERPART.

 

Date: June 30, 2014

Accepted on: June 30, 2014

 

 

LESSEE:

LESSOR:

 

 

PLUG POWER INC.

MANUFACTURERS AND TRADERS TRUST COMPANY

 

 

 

 

By:

 

 

By:

 

Name:

David P. Waldek

 

Name:

Carlton Anderson

Title:

Chief Financial Officer

 

Title:

Vice President

 

(Signature Page — CDN 01 — Master Equipment Lease — Plug Power Inc.)

 

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Execution Copy

Closing Document No. 02-B

 

ADDITIONAL TERMS RIDER
to
EQUIPMENT SCHEDULE NO. 01
Dated as of June 30, 2014 (“SCHEDULE”)
to
MASTER EQUIPMENT LEASE
Dated as of June 30, 2014 (“Lease”)
between
MANUFACTURERS AND TRADERS TRUST COMPANY
(M&T BANK) (“LESSOR”)
And
PLUG POWER INC.
(“LESSEE”)

 

The following provisions are hereby agreed upon and made a part of the Lease.

 

1.              Financial Covenant . Lessee shall, at all times, have unencumbered Liquid Assets (as hereinafter defined) with cash value not less than $75,000,000.00, to be measured (a) quarterly, or (b) if M&T Bank/Wilmington Trust does not receive a sufficient level of investment management services business under Section 2(b) of this Rider, as determined by Lessor in its sole discretion, monthly. As used herein, the term “Liquid Assets” means cash on hand, plus the value of Marketable Securities, minus the value of restricted retirement assets.

 

2.              Bank Accounts. So long as any amounts remain outstanding under the Lease, Lessee must use (a) M&T Bank as its primary bank of account, and (b) M&T Bank/Wilmington Trust for investment management services.

 

3.            Lease Payment Accounts.

 

(a)          Lessor and Lessee shall establish the following accounts with Wilmington Trust, as escrow agent (the “Escrow Agent”): (1) an account (“Lease Payment Account B”), for the purpose of collecting payments under the Walmart Contract (as hereinafter defined); and (2) an account (“Lease Payment Account A”), for the purpose of establishing a reserve for payment of certain monies due to Lessee under the Walmart Contract. As used in this Section 3, the term “Walmart Contract” means a Power Purchase Agreement dated as of January 27, 2014, by and between Lessee and Wal-Mart Stores, East, LP (“Walmart”).

 

(b)          Lessee immediately will instruct Walmart to remit payments under the Walmart Contract to Lease Payment Account B.

 

(c)          Lessor and Lessee will enter into an agreement with the Escrow Agent with respect to each of Lease Payment Account B and Lease Payment Account A, providing for the terms under which monies received into such account will be disbursed by the Escrow Agent.

 

Except as specifically amended hereby, all of the terms and conditions set forth in the Lease are unaffected and remain in full force and effect.

 

(The remainder of this page is intentionally blank.  Signature page follows.)

 

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IN WITNESS WHEREOF, the parties have executed this Additional Terms Rider as of the date first above written.

 

LESSEE:

LESSOR:

 

 

PLUG POWER INC.

MANUFACTURERS AND TRADERS TRUST COMPANY

 

 

 

 

 

 

By:

 

 

By:

 

Name:

 

 

Name:

 

Title:

 

 

Title:

 

 

(Signature Page — CDN 02-B — Additional Terms Rider — Plug Power Inc.)

 

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Closing Document No. 02-G

 

SPECIAL TAX INDEMNITY RIDER

(Qualified Fuel Cell Property)

 

THIS SPECIAL TAX INDEMNITY RIDER dated as of June 30, 2014 (this “ Rider ”), is made by and between MANUFACTURERS AND TRADERS TRUST COMPANY (“ Lessor ”) and PLUG POWER INC. (“ Lessee ”), and is attached to, and made a part of, Equipment Schedule No. 001 dated as of June 30, 2014 (the “ Schedule ”) to the Master Equipment Lease dated as of June 30, 2014 (the “ Master Lease ”), each by and between Lessor and Lessee. The Schedule and the Master Lease, solely as it relates to the Schedule, are hereinafter collectively referred to as, this “ Lease ”.

 

Lessor and Lessee hereby agree that this Lease will be amended to include the following provisions:

 

(a)           Lessee acknowledges that Lessor has executed this Lease, and that the Rent payable by Lessee under this Lease has been computed, upon the assumptions that:

 

(1)           Lessor will be entitled to an energy credit under Sections 38, 46 and 48 of the Internal Revenue Code of 1986, as amended (the “ Code ”), in the amount of [***] (the “ Section 48 Credit ”), which amount is based on an energy percentage under Section 48(a)(2)(A)(i) of the Code equal to thirty percent (30%);

 

(2)           for the purposes of the Section 48 Credit: (A) the Equipment constitutes “energy property” within the meaning of Section 48(a)(3)(A)(iv) of the Code; (B) the Equipment constitutes “qualified fuel cell property” under such Section 48(c)(1)(A) of the Code; and (C) the Section 48 Credit can be claimed by Lessor during the same tax year in which the Equipment was placed in service; and

 

(3)           the Section 48 Credit does not (and will not) exceed the limitation set forth in Section 48(c)(1)(B) of the Code for the taxable year in which the Equipment is placed in service.

 

(b)           If, for any reason whatsoever, including, without limitation, a failure of the assumptions set forth in Section (a) above, Lessee having assumed all risk of the inaccuracy of such assumptions, the Section 48 Credit is lost, disallowed, deferred, eliminated, reduced, recaptured, compromised or otherwise unavailable to Lessor (together with any interest, penalties or additions to tax, hereinafter, a “ Tax Loss ”), then, within thirty (30) days of Lessee’s receipt of written notice from Lessor that such a Tax Loss has occurred, Lessee shall pay to Lessor an amount which, after deduction therefrom of all taxes to be paid in respect of the receipt thereof, will enable Lessor to receive the same Net Economic Return (as hereinafter defined) that Lessor would have realized on this Lease had such Tax Loss not occurred. Notwithstanding the foregoing, a Tax Loss will not be subject to indemnification under this Rider if such Tax Loss is solely the result of (1) Lessor’s failure to claim the Section 48 Credit on its applicable Federal income tax return, or (2) Lessor not having sufficient income to realize the full benefit of the Section 48 Credit.

 

(c)           As used in Section (b) above, the term “Net Economic Return” shall mean Lessor’s net after-tax yield, aggregate after-tax cash flow and return on assets, based on (1) the assumptions used by Lessor in originally calculating Rent percentages, including the assumptions set forth above (as such assumptions may have been revised pursuant to the last sentence of this subsection) and (2) the Highest Marginal Tax Rate actually in effect during each year from the date of such original calculations to the date of such Tax Loss, both dates inclusive. As used in this Section (c), the term “Highest Marginal Tax Rate” shall mean, collectively, the highest marginal Federal corporate rate then in effect plus the highest

 

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(d)           In the event Lessor shall suffer a Tax Loss with respect to which Lessee is required to pay an indemnity under this Rider, and the full amount of such indemnity has been paid or provided for under this Rider, the aforesaid assumptions, without further act of the parties hereto, shall thereupon be and be deemed to be amended, if and to the extent appropriate, to reflect such Tax Loss.

 

(e)           As used in this Rider, the term “ Lessor ” shall include any affiliated group (within the meaning of Section 1504 of the Code) of which Lessor is a member for any year in which a consolidated income tax return is filed for such affiliated group.

 

(f)            Lessee acknowledges that it has neither sought nor received any U.S. federal or state tax advice from Lessor as to the availability of the Section 48 Credit with respect to the Equipment. All of Lessor’s rights and privileges arising from the indemnities contained in this Lease, including this Rider, will survive the expiration or other termination or cancellation of this Lease. Such indemnities are expressly made for the benefit of, and are enforceable by, Lessor and its successors and assigns.

 

Except as specifically amended hereby, all of the terms and conditions set forth in this Lease are unaffected and remain in full force and effect.

 

(The remainder of this page is intentionally blank.  Signature page follows.)

 

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IN WITNESS WHEREOF, the parties have executed this Special Tax Indemnity Rider as of the date first above written .

 

LESSEE:

LESSOR:

 

 

PLUG POWER INC.

MANUFACTURERS AND TRADERS TRUST COMPANY

 

 

 

 

 

By:

 

 

By:

 

Name:

 

 

Name:

 

Title:

 

 

Title:

 

 

(Signature Page — CDN 02-G — Special Tax Indemnity Rider — Plug Power Inc.)

 

21



Exhibit 10.2

 

Execution Copy

Closing Document No. 18

 

FIRST AMENDMENT TO MASTER EQUIPMENT LEASE

 

THIS FIRST AMENDMENT TO MASTER EQUIPMENT LEASE dated as of December 19, 2014 (this “Amendment”), is made by and between MANUFACTURERS AND TRADERS TRUST COMPANY (“Lessor”) and PLUG POWER INC. (“Lessee”).

 

Background

 

Lessee and Lessor previously entered into that certain Master Equipment Lease dated as of June 30, 2014 (the “Agreement”). Lessee and Lessor desire to amend certain terms of the Agreement.

 

Agreement

 

For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Lessor and Lessee hereby agree as follows:

 

1.              Definitions. Each capitalized term used, but not defined, in this Amendment shall have the meaning given it in the Agreement.

 

2.              Amendment. The Agreement is hereby amended as follows:

 

(a)         The following is added as a new Section 18.3:

 

“18.3 Financial Covenant. So long as any obligations of Lessee remain outstanding under this Lease, including any obligations under any Equipment Schedule, Lessee shall, at all times, have unencumbered Liquid Assets (as hereinafter defined) with cash value not less than $75,000,000.00, to be measured (a) quarterly, or (b) if Lessee does not maintain a minimum of $75,000,000 invested or in cash balances with Wilmington Trust or M&T Bank, monthly. As used herein, the term “Liquid Assets” means cash on hand, plus the value of Marketable Securities, minus the value of restricted retirement assets.”

 

3.              General. This Amendment shall be governed by and construed, interpreted and enforced in accordance with the internal law of the State of New York, without regard to principles of conflict of laws. In this Amendment, headings of sections are for convenience of reference only, and are not of substantive effect. This Amendment may be executed in any number of counterparts, each of which constitute an original of this Amendment and all of which collectively constitute a single agreement. This Amendment may be executed and delivered by facsimile signature or by other electronic means (including Adobe’s Portable Document Format). Any such signature shall be of the same force and effect as an original signature. The exchange of this Amendment and related signature pages via facsimile or as an attachment to electronic mail (including Adobe’s Portable Document Format) shall constitute effective execution and delivery by the parties and may be used by the parties for all purposes. As specifically amended by this Amendment, the Agreement remains in full force and effect. Lessee ratifies and reaffirms the Agreement, as amended by this Amendment. Effective on the date of this Amendment, references in the Agreement to “this Agreement”, or equivalent phrasing, refer to the Agreement as amended by this Amendment.

 

(The remainder of this page is intentionally blank. Signature page follows.)

 


 

IN WITNESS WHEREOF, the parties have each executed this First Amendment to Master Equipment Lease as of the date set forth above.

 

Lessee:

Lessor:

 

 

PLUG POWER INC.

MANUFACTURERS AND TRADERS TRUST COMPANY

 

 

 

 

By:

/s/ Paul B. Middleton

 

By:

/s/ Carlton Anderson

Name:

Paul B. Middleton

 

Name:

Carlton Anderson

Title:

Chief Financial Officer

 

Title:

Vice President

 

(Signature Page — Closing Document No. 18 — Plug Power Inc.)

 



Exhibit 10.3

 

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Execution Copy

123015

  Closing Document No. 01

 

SECOND AMENDMENT TO MASTER EQUIPMENT LEASE

 

THIS SECOND AMENDMENT TO MASTER EQUIPMENT LEASE dated as of December 30, 2015 (this “ Amendment ”), is made by and between MANUFACTURERS AND TRADERS TRUST COMPANY (“ Lessor ”) and PLUG POWER INC. (“ Lessee ”).

 

Background

 

Lessee and Lessor previously entered into that certain Master Equipment Lease dated as of June 30, 2014 (as amended by that certain First Amendment to Master Equipment Lease dated as of December 19, 2014, the “ Lease Agreement ”).  Lessee and Lessor desire to amend certain terms of the Lease Agreement.

 

Agreement

 

For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Lessor and Lessee hereby agree as follows:

 

1.             Definitions .  Each capitalized term used, but not defined, in this Amendment shall have the meaning given it in the Lease Agreement.

 

2.             Amendment .  The Lease Agreement is hereby amended as follows:

 

(a)           Section 18.3 (Financial Covenant) is hereby deleted in its entirety and replaced with the following:

 

“ 18.3       Financial Covenant.

 

(a)           Existing Leases .  Reference is hereby made to the following equipment schedules to the Lease Agreement (collectively, the “ Existing Schedules ”): (1) Equipment Schedule Nos. 001 dated as of June 30, 2014, 006 dated as of December 18, 2014, and 010 dated as of March 31, 2015 (collectively, the “[***] Schedules ”); (2) Equipment Schedule Nos. 002 dated as of September 29, 2014, 007 dated as of December 18, 2014, and  011 dated as of March 31, 2015  (collectively, the “[***] Schedules ”); (3) Equipment Schedule Nos. 003 dated as of September 29, 2014, and 008 dated as of December 18, 2014 (the “[***] Schedule ”); (4) Equipment Schedule No. 009 dated as of March 31, 2015 (the “[***] Schedule ”); (5) Equipment Schedule No. 012 dated as of June 26, 2015 (the “[***] Schedule ”); (6) Equipment Schedule No. 013 dated as of June 30, 2015 (the “[***] Schedule ”); and (7) Equipment Schedule Nos. 904 dated as of December 19, 2014, and 905 dated as of December 19, 2014 (collectively, the “[***] Schedules ”).

 

(b)           Financial Covenant .  Lessee, at all times, shall have unencumbered Liquid Assets (as hereinafter defined) with a cash value of not less than $50,000,000, measured monthly.

 

(c)           Additional Collateral .  If (1) Lessee fails to maintain in Wilmington Bank account number [***] (the “ WT Account ”), at all times, unencumbered Liquid Assets with a cash value not le s than $50,000,000 (the “ Minimum Balance ”), [***] then, immediately upon demand from Lessor, Lessee will deposit into the Existing Cash Collateral Accounts (as hereinafter defined) an amount equal to the Additional Cash Collateral (as hereinafter defined), in accordance with the allocation set

 


 

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forth on Schedule A attached hereto and made a part hereof or such other allocation as Lessor may request in writing. Lessee hereby authorizes Lessor to re-allocate amounts in the Existing Cash Collateral Accounts across individual accounts in such fashion as Lessor shall determine in its sole discretion.

 

(d)           Definitions .  As used in this Section 18.3: (1) the term “ Additional Cash Collateral ” means an amount equal to the difference between (i) the aggregate Stipulated Loss Value on the Existing Schedules, as of February 1, 2016, and (ii) all cash collateral previously pledged to Lessor with respect to the Equipment Schedules, which difference is expected to equal the Anticipated SLV (as hereinafter defined); (2) “ Anticipated SLV ” means an amount equal to [***] (3) the term “ Existing Cash Collateral Accounts ” means the various cash collateral accounts established with respect to the Existing Schedules; and (4)  “Liquid Assets” means cash on hand, plus the value of marketable securities, minus the value of restricted retirement assets.

 

3.             General .  This Amendment shall be governed by and construed, interpreted and enforced in accordance with the internal law of the State of New York, without regard to principles of conflict of laws.  In this Amendment, headings of sections are for convenience of reference only, and are not of substantive effect.  This Amendment may be executed in any number of counterparts, each of which constitute an original of this Amendment and all of which collectively constitute a single agreement.  This Amendment may be executed and delivered by facsimile signature or by other electronic means (including Adobe’s Portable Document Format). Any such signature shall be of the same force and effect as an original signature. The exchange of this Amendment and related signature pages via facsimile or as an attachment to electronic mail (including Adobe’s Portable Document Format) shall constitute effective execution and delivery by the parties and may be used by the parties for all purposes.  As specifically amended by this Amendment, the Lease Agreement remains in full force and effect.  Lessee ratifies and reaffirms the Lease Agreement, as amended by this Amendment.  Effective on the date of this Amendment, references in the Lease Agreement to “this Lease Agreement”, or equivalent phrasing, refer to the Lease Agreement as amended by this Amendment.

 

(The remainder of this page is intentionally blank.  Signature page follows.)

 


 

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IN WITNESS WHEREOF, the parties have each executed this Second Amendment to Master Equipment Lease as of the date set forth above.

 

Lessee:

Lessor:

 

 

PLUG POWER INC.

MANUFACTURERS AND TRADERS TRUST COMPANY

 

 

 

 

By:

/s/ Paul B. Middleton

 

By:

/s/ Carlton S. Anderson

Name:

Paul B. Middleton

 

Name:

Carlton S. Anderson

Title:

CFO

 

Title:

VP

 

(Signature Page to Second Amendment to Master Equipment Lease)

 


 

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Schedule A

 

ANTICIPATED ALLOCATION ACROSS EXISTING CASH COLLATERAL ACCOUNTS

 

Location:

 

Account Number:

 

Allocation:

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

[***]

 

 

 

Total:

 

[***]

 

 



Exhibit 10.4

 

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Execution Copy

060716

 

WAIVER AND THIRD AMENDMENT TO MASTER EQUIPMENT LEASE

 

This Waiver and Third Amendment to Master Equipment Lease dated as of June 7, 2016 (this “ Amendment ”) is made by and between Manufacturers and Traders Trust Company, also known as M&T Bank (“ Lessor ”) and Plug Power Inc. (“ Lessee ”).

 

Background

 

Lessee and Lessor previously entered into that certain Master Equipment Lease dated as of June 30, 2014 (the “ Original Lease ”) as amended by that certain First Amendment to Master Equipment Lease dated as of December 19, 2014 (the “ First Amendment ”) and that certain Second Amendment to Master Equipment Lease dated as of December 30, 2015 (“ Second Amendment ”) (the Original Lease as amended by the First Amendment and the Second Amendment, the “ Lease Agreement ”). Certain conditions described in Section 18.3(c) of the Lease Agreement and the Riders (as defined below) have not been met by Lessee.  Lessor has agreed to waive the Existing Defaults (as defined below), so long as Lessee executes and delivers this Third Amendment. The Lease Agreement is hereby amended, and Lessor hereby waives the Existing Defaults, as expressly provided herein, subject to the terms and conditions set forth herein, as follows.

 

Agreement

 

For good and valuable consideration, including Lessor’s agreement to waive the Existing Defaults, the receipt and sufficiency of which is hereby acknowledged, Lessee and Lessor hereby agree as follows:

 

1.             Definitions .  Each capitalized term used, but not defined, in this Amendment shall have the meaning given it in the Lease Agreement.

 

2.             Amendment of Lease Agreement .  The Lease Agreement is hereby amended as follows:

 

(a)           Section 18.3 (Financial Covenant) is hereby deleted in its entirety and replaced with the following:

 

“ 18.3       Financial Covenant.

 

(a)           Existing Leases .  Reference is hereby made to the following equipment schedules to the Lease Agreement (collectively, the “ Existing Schedules ”): (1) Equipment Schedule Nos. 001 dated as of June 30, 2014, 006 dated as of December 18, 2014, and 010 dated as of March 31, 2015 (collectively, the “[***] Schedules ”); (2) Equipment Schedule Nos. 002 dated as of September 29, 2014, 007 dated as of December 18, 2014, and 011 dated as of March 31, 2015 (collectively, the “[***] Schedules ”); (3) Equipment Schedule Nos. 003 dated as of September 29, 2014, and 008 dated as of December 18, 2014 (the “[***] Schedule ”); (4) Equipment Schedule No. 009 dated as of March 31, 2015 (the “[***] Schedule ”); (5) Equipment Schedule No. 012 dated as of June 26, 2015 (the “[***] Schedule ”); (6) Equipment Schedule No. 013 dated as of June 30, 2015 (the “[***] Schedule ”); (7) Equipment Schedule Nos. 904 dated as of December 19, 2014, and 905 dated as of December 19, 2014 and 014 dated as of December 31, 2015 (collectively, the “[***] Schedules ”).

 


 

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(b)           New Cash Collateral Account .  As of the date of the Waiver and Third Amendment to Master Equipment Lease, between Lessee and Lessor dated as of June 7, 2016 (the “ Third Amendment ”), Lessee: (1) pursuant to the transfer authorization form described in clause (3) below, shall deposit (A) into account number [***] (the “ New Cash Collateral Account ”) at Lessor an amount equal to the Additional Cash Collateral Level (as hereinafter defined)(the “ Additional Cash Collateral ”), and (B) into the New Account, and amount equal to [***]; (2) shall execute and deliver to Lessor a Pledge and Assignment of Deposit Account, in form and substance satisfactory to Lessor, pursuant to which Lessee shall pledge to Lessor the Additional Cash Collateral and any additional monies in the New Cash Collateral Account as additional security for the performance of Lessee under the Existing Schedules; and (3) shall deliver to Wilmington Trust, National Association a transfer authorization form, in the form of Exhibit B attached hereto, authorizing the transfer of the Additional Cash Collateral from the WT Account to the New Cash collateral Account in connection with the transfers contemplated under clause (1) above.  Within forty-five (45) days after the date of the Third Amendment, Lessee shall deliver to Lessor a letter, in the form of Exhibit A attached hereto, from each of Generate Lending, LLC and such other secured party to whom Lessee has granted a blanket Lien or a specific Lien on the New Cash Collateral Account or the New Account.   Notwithstanding any transfers out of the New Cash Collateral Account, as contemplated under this Section 18.3, the New Cash Collateral Account (and the related pledge of the New Cash Collateral Account, shall remain in force and effect for the purposes of Section 18.3(d).

 

(c)           Transfer of Additional Cash Collateral; Minimum Combined Account Balance .  If all of the conditions set forth in clauses (1) and (2) below have been satisfied, then, upon receipt of a written request from Lessee, Lessor shall promptly transfer the New Cash Collateral Account Excess Balance (as hereinafter defined) into account number [***] (the “ New Account ”):

 

(1)                                  Lessor shall have received a letter, in the form of Exhibit A attached hereto, from each of Generate Lending, LLC and such other secured party to whom Lessee has granted a blanket Lien or a specific Lien on the New Cash Collateral Account or the New Account; and

 

(2)                                  (A) The then current unencumbered balance of the WT Account is at least $50,000,000 in Liquid Assets (as hereinafter defined); and (B) Lessee shall have agreed in writing, in the form of Exhibit C attached hereto, to maintain an unencumbered balance of at least $50,000,000 in Liquid Assets in the New Account and the WT Account, on a combined basis, for at least thirty (30) consecutive days from the date of the letter described in this Section 18.3(c)(2)(B).

 

(d)           If the conditions set forth in Section 18.3(c) have been satisfied and Lessor has transferred the New Cash Collateral Account Excess Balance into the New Account, then Lessee must maintain (x) at all times, in the New Account a minimum account balance equal to the Additional Cash Collateral Level, and (y) for a period of thirty (30) days following Lessor’s receipt of the letter described in Section 18.3(c)(2)(B) (the “ 50MM Level Period ”), in the New Account and the WT Account, on a combined

 


 

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unencumbered Liquid Assets (as hereinafter defined) with a cash value of not less than $50,000,000.00 (the “ Initial Minimum Combined Account Balance ”).

 

(e)           If (1) Lessee has maintained the Initial Minimum Combined Account Balance throughout the 50MM Level Period, and (2) at the expiration of the 50MM Level Period, Lessee has delivered to Lessor a Section 18.3(e) Compliance Certificate, in the form of Schedule C-1 attached hereto, confirming the satisfaction of the requirement under clause (1) above, then Lessee must maintain (x) in the New Account at all times a minimum account balance equal to the Additional Cash Collateral Level, and (y) in the New Account and the WT Account, on a combined basis, unencumbered Liquid Assets (as hereinafter defined) with a cash value of not less than $40,000,000.00, measured monthly at the end of each calendar month (the “ Ongoing Minimum Combined Account Balance ”).

 

(f)            Failure to Maintain Initial Minimum Combined Account Balance or the Ongoing Minimum Combined Account Balance; Existence of Liens .  If (1) Lessee fails to maintain either (i) the Initial Minimum Combined Account Balance at all times during the 50MM Level Period or (ii) the Ongoing Minimum Combined Account Balance after the expiration of the 50MM Level Period, measured monthly at the end of each calendar month, or (2) Lessee fails to comply with Sections 18.3(g) or (h), then Lessor, in either case, immediately and without any additional action on the part of Lessee, may transfer from the New Account or the WT Account to the New Cash Collateral Account an amount equal to the difference between (x) the Additional Cash Collateral Level, and (y) the Minimum New Cash Collateral Account Balance.  For the avoidance of doubt, should Lessor determine that Lessee has failed to comply with the provisions of this Section 18.3(f) and transfers the foregoing amount to the New Cash Collateral Account, then, during such period as the Additional Cash Collateral Level remains in the New Cash Collateral Account, Lessee shall not be subject to any minimum account balance requirements for the New Account or the WT Account (on a separate or combined basis).

 

(g)           New Account .  Without limiting Lessee’s covenant under Section 18.3(h), prior to entering into any future financing in which the related secured party shall have a blanket Lien or a specific Lien on the New Account, Lessee must deliver to Lessor a letter, in the form of Exhibit A attached hereto, from the related secured party.

 

(h)           No Liens on New Cash Collateral Account and New Account . Lessee shall not grant, permit or suffer to exist any Lien on the New Cash Collateral Account or the New Account, except liens in favor of Lessor.  Lessee represents and warrants to Lessor that, as of the date of the Third Amendment, Lessee has not granted, permitted or suffered to exist the imposition of any Lien on the New Cash Collateral Account or the New Account in favor of anyone.  Lessee intends that, so long as this Section 18.3(h) is in effect, Lessor, in its capacity as the depository institution with respect to the New Cash Collateral Account or the New Account, shall be entitled to rely on this Section 18.3(h) in denying requests by Lessee and any creditors of Lessee to execute account control agreements relating to the New Cash Collateral Account or the New Account.

 

(i)            Compliance Certificate .  Lessee shall provide Lessor a Section 18.3(i) compliance certificate, in the form of Schedule C-2 attached hereto, within five business days after the last day of each calendar month, commencing with the first month following the expiration of the 50MM Level Period.

 


 

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(j)            Definitions . As used in this Section 18.3, the following terms shall have the following meanings:

 

“ Additional Cash Collateral Level ” means an amount equal to the lesser of (1) $12,000,000, and (2) an amount equal to the difference between (i) aggregate Stipulated Loss Value on the Existing Schedules, as determined by Lessor, and (ii) all cash collateral previously pledged to Lessor with respect to the applicable Equipment Schedules.

 

“ New Cash Collateral Account Excess Balance ” means, as of any date of determination, the difference between (a) the then current balance of the New Cash Collateral Account, and (b) the Minimum New Cash Collateral Account Balance.

 

“ Lien ” means security interest, pledge, lien, charge, mortgage Or other encumbrance.

 

“ Liquid Assets ” means cash and cash equivalents on hand, plus the value of marketable securities.

 

“ Minimum New Cash Collateral Account Balance ” means [***].

 

“ No Interest Letter ” means a letter, in the form of Exhibit A attached hereto.

 

“ WT Account ” means Wilmington Trust Account number [***].

 

3.             Amendment of Riders . Section 1 (Financial Covenants) of the Additional Terms Rider (each, a “ Rider ”, and collectively, the “ Riders ”) to each of the following Equipment Schedules is hereby deleted in its entirety (each, a “ Rider Covenant ”, and collectively, the “ Rider Covenants ”): (a) Equipment Schedule No. 001 dated as of June 30, 2014; (b) Equipment Schedule No. 002 dated as of September 29, 2014; (c) Equipment Schedule No. 003 dated as of September 29, 2014; (d) Equipment Schedule No. 904 dated as of December 19, 2014; and (e) Equipment Schedule No. 905 dated as of December 19, 2014.

 

4.             Waiver . Lessor hereby waives any Default or Event of Default arising as a result of the Borrower’s breach of any of the following (the “ Existing Defaults ”): (a) the financial covenants set forth in Section 18.3 (Financial Covenant) of the Lease Agreement (as such Section has been amended from time to time), and (b) the Rider Covenants.  Such waiver is retroactive to the first date of each such Default and Event of Default.

 

5.             General . This Amendment shall be governed by and construed, interpreted and enforced in accordance with the laws of New York, without regard to principles of conflict of laws. This Amendment may be executed in any number of counterparts, each of which constitute an original of this Amendment and all of which constitute collectively a single agreement. This Amendment may be executed and delivered by facsimile signature or other electronic means, including Adobe’s Portable Document Format. Any such signature shall be of the same force and effect as an original signature. As specifically amended by this Amendment, the Lease Agreement remains in full force and effect. Lessee ratifies and reaffirms the Lease Agreement, as amended by this Amendment. Effective on the date of this Amendment, references in the Lease Agreement to “This Lease Agreement” or equivalent phrasing refer to the Lease Agreement as amended by this Amendment.

 


 

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6.             Reservation of Rights . Except for the waivers or amendments specifically contemplated by the provisions of this Amendment all the terms of the Lease Agreement are unaffected and remain in full force and effect.

 

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IN WITNESS WHEREOF, the parties have executed this Waiver and Third Amendment to Master Equipment Lease as of the date first above written.

 

Lessee:

Lessor:

 

 

PLUG POWER INC.

MANUFACTURERS AND TRADERS TRUST COMPANY

 

 

 

 

By:

/s/ Paul B. Middleton

 

By:

/s/ Carlton S. Anderson

Name: Paul B. Middleton

Name: Carlton S. Anderson

Title: Chief Financial Officer

Title: Vice President

 

 

Schedule A — (Intentionally Omitted)

Schedule B — (Intentionally Omitted)

Schedule C-1 — Form of Section 18.3(e) Compliance Certificate

Schedule C-2 — Form of Section 18.3(i) Compliance Certificate

Exhibit A - Form of No Interest Letter

Exhibit B — Form of Transfer Authorization Form

Exhibit C — Form of Agreement Regarding 30 Day Balance

 


 

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SCHEDULE C-1

 

Statement Date:                                

 

To: Manufacturers and Traders Trust Company, as Lessor

 

Ladies and Gentlemen:

 

Reference is made to that certain Master Equipment Lease, dated as of June 30, 2014, as amended by that certain First Amendment to Master Equipment Lease dated as of December 19, 2014, as amended by that certain Second Amendment to Master Equipment Lease dated as of December 30, 2015, and as amended by that Waiver and Third Amendment to Master Equipment Lease dated as of June 7, 2016 (as further amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “ Agreement ”; the terms defined therein being used herein as therein defined), between Plug Power Inc. (“ Lessee ”) and Manufacturers and Traders Trust Company (“ Lessor ”).

 

The undersigned hereby certifies as of the date hereof that he/she is the {chief executive officer / chief financial officer / treasurer / controller} of Lessee and that, as such, he/she is authorized to execute and deliver this Certificate to Lessor on behalf of the Lessee, and that:

 

1.  Status of Compliance with Section 18.3 (Financial Covenants):

 

18.3(d) - As of [LAST DAY OF PRECEDING MONTH]: (A) Lessee has maintained in the New Account (as defined in the Agreement) at all times a minimum account balance equal to the Additional Cash Collateral Level (as defined in the Agreement); (B) Lessee has maintained in the New Account and the WT Account (as defined in the Agreement), on a combined basis, unencumbered Liquid Assets (as defined in the Agreement) with a cash value of not less than $50,000,000.00; and (C) Lessee has not granted, permitted or suffered to exist the imposition of any Lien (as defined in the Agreement) on the New Account, except liens in favor of Lessor (if any).

 

18.3(e) — As of [LAST DAY OF PRECEDING MONTH], Lessee has maintained the Initial Minimum Combined Account Balance (as defined in the Agreement) throughout the 50MM Level Period (as defined in the Agreement).

 

2.  The undersigned has reviewed and is familiar with the terms of the Agreement and has made, or has caused to be made under his/her supervision, a detailed review of the transactions and condition (financial or otherwise) of Lessee during the accounting period covered by this Certificate.

 

3.  The financial covenant analyses and information set forth in this letter are true and correct on and as of the Statement Date of this Certificate.

 

IN WITNESS WHEREOF, the undersigned has executed this Certificate as of                          .

 

PLUG POWER INC.

 

 

 

 

 

By:

 

 

 

Name: Paul B. Middleton

 

Title: Chief Financial Officer

 

 


 

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SCHEDULE C-2

 

Statement Date:                                

 

To: Manufacturers and Traders Trust Company, as Lessor

 

Ladies and Gentlemen:

 

Reference is made to that certain Master Equipment Lease, dated as of June 30, 2014, as amended by that certain First Amendment to Master Equipment Lease dated as of December 19, 2014, as amended by that certain Second Amendment to Master Equipment Lease dated as of December 30, 2015, and as amended by that Waiver and Third Amendment to Master Equipment Lease dated as of June 7, 2016 (as further amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “ Agreement ”; the terms defined therein being used herein as therein defined), between Plug Power Inc. (“ Lessee ”) and Manufacturers and Traders Trust Company (“ Lessor ”).

 

The undersigned hereby certifies as of the date hereof that he/she is the {chief executive officer / chief financial officer / treasurer / controller} of Lessee and that, as such, he/she is authorized to execute and deliver this Certificate to Lessor on behalf of the Lessee, and that:

 

1.  Status of Compliance with Section 18.3 (Financial Covenants):

 

18.3(d) - As of [LAST DAY OF PRECEDING MONTH]: (A) Lessee has maintained in the New Account (as defined in the Agreement) at all times a minimum account balance equal to the Additional Cash Collateral Level (as defined in the Agreement); (B) Lessee has maintained in the New Account and the WT Account (as defined in the Agreement), on a combined basis, unencumbered Liquid Assets (as defined in the Agreement) with a cash value of not less than $40,000,000.00; and (C) Lessee has not granted, permitted or suffered to exist the imposition of any Lien (as defined in the Agreement) on the New Account, except liens in favor of Lessor (if any).

 

18.3(e) — As of [EXPIRATION OF THE 50MM LEVEL PERIOD], Lessee has maintained the Ongoing Minimum Combined Account Balance (as defined in the Agreement).

 

2.  The undersigned has reviewed and is familiar with the terms of the Agreement and has made, or has caused to be made under his/her supervision, a detailed review of the transactions and condition (financial or otherwise) of Lessee during the accounting period covered by this Certificate.

 

3.  The financial covenant analyses and information set forth in this letter are true and correct on and as of the Statement Date of this Certificate.

 

IN WITNESS WHEREOF, the undersigned has executed this Certificate as of                          .

 

PLUG POWER INC.

 

 

 

 

 

By:

 

 

 

Name: Paul B. Middleton

 

Title: Chief Financial Officer

 

 


 

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Exhibit A

 

FORM OF NO INTEREST LETTER

 

Manufacturers and Traders Trust Company

One M&T Plaza

Buffalo, New York 14203

 

RE:         Plug Power, Inc.

 

To Whom It May Concern,

 

Plug Power, Inc. (“ Debtor ”) has entered into financing arrangements with Manufacturers and Traders Trust Company (“ Lender ”), and has requested Lender to amend the documents evidencing such financing arrangements and to take certain other action with respect thereto.  Lender is unwilling to accommodate such request unless it receives assurances from the undersigned that the undersigned has no right, title and/or interest (including, a security interest) in and to M&T Bank account numbers [***] and [***] (collectively, the “ Restricted Account ”).

 

In order to induce Lender to accommodate Debtor’s request, in consideration therefor, and in recognition of the fact that Lender will rely on this letter agreement in entering into documents evidencing such request, the undersigned hereby agrees as follows:

 

Notwithstanding any security agreement heretofore or hereafter entered into between the undersigned and the Debtor or any financing statement heretofore or hereafter filed by the undersigned against Debtor, the undersigned has no right, title and/or interest (including, a security interest) in and to, and hereby releases and terminates any and all right, title and/or interest (including, a security interest) in and to: (a) the Restricted Account; and (b) any and all cash or non-cash proceeds of the Restricted Account.

 

This letter agreement inures to the benefit of Lender and its successors and assigns.

 

 

Very truly yours,

 

 

 

[INSERT - NAME OF SECURED PARTY]

 

 

 

 

 

 

By:

 

 

Name:

 

 

Title:

 

 


 

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Exhibit B

 

FORM OF TRANSFER AUTHORIZATION FORM

 

[LETTERHEAD OF PLUG POWER, INC.]

 

, 20

 

Wilmington Trust, National Association

1100 North Market Street

Wilmington, Delaware 19890

Attention: Mary Alice Avery

 

RE:                            Wilmington Trust Account No. [***]

 

To Whom It May Concern,

 

This letter serves as our direction to Wilmington Trust, National Association to transfer an amount equal to: (a) $12,000,000 from the referenced account to the following account at M&T Bank: [***]; and (a) [***] from the referenced account to the following account at M&T Bank: [***].

 

 

Very truly yours,

 

 

 

PLUG POWER INC.

 

 

 

 

 

 

By:

 

 

Name: Paul B. Middleton

 

Title: Chief Financial Officer

 


 

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Exhibit C

 

FORM OF AGREEMENT REGARDING 30 DAY BALANCE

 

, 20

 

Manufacturers and Traders Trust Company

One M&T Plaza

Buffalo, New York 14203

 

RE:                            Master Equipment Lease dated as of June 30, 2014, as amended by (a) that certain First Amendment to Master Equipment Lease dated as of December 19, 2014, (b) that certain Second Amendment to Master Equipment Lease dated as of December 30, 2015, and (c) that certain Waiver and Third Amendment to Master Equipment Lease dated as of June 7, 2016 (as further amended from time to time, the “ Lease ”)

 

To Whom It May Concern,

 

This letter is being sent pursuant to Section 18.3(c)(2)(B) of the Lease.  Plug Power, Inc. hereby agrees to maintain in the WT Account (as defined in the Lease) and the New Account (as defined in the Lease), on a combined basis, an unencumbered balance of at least $50,000,000 in Liquid Assets for a period of at least thirty (30) consecutive days from the date of the letter described in such Section 18.3(c)(2)(B).

 

This letter agreement inures to the benefit of Lender and its successors and assigns.

 

 

Very truly yours,

 

 

 

PLUG POWER INC.

 

 

 

 

 

 

By:

 

 

Name: Paul B. Middleton

 

Title: Chief Financial Officer

 



Exhibit 10.5

 

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Execution Copy

 

MASTER LEASE AGREEMENT

 

This Master Lease Agreement (this “ Agreement ”), dated as of June 3 , 2016 , is made between Generate Capital, Inc., a Delaware corporation (together with its successors and assigns, the “ Lessor ”), and Plug Power Inc., a corporation incorporated under the laws of Delaware (the “ Lessee ”).  Lessor and Lessee are referred to in this Agreement individually as a “ Party ” and, collectively, as the “ Parties ”.  Capitalized terms used but not defined herein shall have the meaning set forth for such terms in the Master Purchase Agreement (as defined below).

 

WHEREAS , Lessor is in the business of owning and leasing equipment and plans to purchase, from time to time, certain fuel cell equipment from Lessee pursuant to the Master Purchase and Sale Agreement, dated as of the date hereof, between Lessor and Lessee (the “ Master Purchase Agreement ”); and

 

WHEREAS , Lessee desires to lease from Lessor, and Lessor desires to lease to Lessee, the fuel cell equipment described in each Bill of Sale entered into pursuant to the Master Purchase Agreement and as further described in this Agreement, when and as the conditions to such lease are met as provided herein.

 

NOW, THEREFORE , in consideration of the mutual covenants, representations, warranties and agreements hereinafter set forth, and intending to be legally bound hereby, the Parties agree as follows:

 

1.              LEASE . Lessor agrees to lease to Lessee and Lessee agrees to lease from Lessor certain fuel cell equipment (the “ Equipment ”) as further described in one or more schedules to this Agreement, each in the form attached hereto as Exhibit A (each such schedule a “ Schedule ”, and, together with this Agreement, a separate “ Lease ”).  Lessee hereby agrees that its execution and delivery of a Schedule shall, without further act, irrevocably constitute acceptance by the Lessee of the Equipment described in such Schedule for all purposes of this Agreement and the applicable Lease. The terms of this Agreement and the applicable Schedule shall control and be effective as to each Lease, unless expressly amended or modified in writing.  Equipment shall be installed and placed in service at various locations as indicated in each Lease (each such location, a “ Site ”).

 

2.              TERM AND RENT . The initial term (“ Initial Term ”) for each Lease shall be for the period specified in the related Schedule, and Lessee shall pay Lessor the Rent specified in such Schedule throughout the Initial Term for the use of the Equipment.  To the extent applicable, each Schedule will also include schedules showing the allocation of Rent for federal income tax purposes among Rent payment periods, any portion of the Rent that results in a section 467 loan, the amortizing section 467 loan balance and the amount of interest in each rental period that the Lessor is considered to pay the Lessee on any such loan.  In no event shall any section 467 loan, section 467 interest or allocated Rent be separately payable (including upon any termination of a Lease, and regardless of whether or not Termination Value is payable in connection with such termination), it being agreed and understood that these items represent characterizations for federal income tax purposes only.  The Initial Term and Rent with respect to each item of Equipment shall

 


 

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commence on, and Lessee will be obligated to pay Rent from, the Rental Commencement Date.  For purposes of this Agreement, the term “ Rent ” shall mean and include all amounts payable by Lessee to Lessor for the lease of the Equipment.  As used in this Agreement, the term “ Lease Term ” means the Initial Term plus any Renewal Terms (as defined in Section 15 ).  All Rent payable under each Lease shall be paid to the account of Lessor in U.S. dollar same day funds to the account specified in the related Schedule (or such other account as Lessor shall notify to Lessee in writing), and Lessee shall make all arrangements necessary in order to permit Lessor to debit the account of Lessee at M&T Bank, Account Name: Plug Power Inc., Account Number: [***] , ABA Number [***], to make any payment of Rent when due under a Lease.  Lessee shall deliver to each counterparty to any Project Document or Pledged Equipment Project Document (as defined in Section 35(a) ) pursuant to which the Lessee is entitled to receive any payments for the use or operation of the Equipment or the Pledged Equipment (as defined in Section 35(a)) or for the energy generated thereby an irrevocable payment instruction executed by the Lessor and acknowledged by the Lessee, directing such counterparty to make all payments required to be made by such counterparty pursuant to such Project Document or Pledged Equipment Project Document to the account of the Lessor specified in the related Schedule (or such other account as Lessor shall notify to Lessee in writing).

 

3.              LATE CHARGES.  If any Rent or other amount due hereunder is not paid within ten (10) days after the due date thereof, Lessor shall have the right to receive and collect, and Lessee agrees to pay, in addition to such unpaid Rent or other amount due hereunder, an amount equal to 1.5% of such unpaid Rent or other amount due hereunder for each month or part thereof that such Rent or other amount due hereunder remains unpaid.

 

4.              DISCLAIMER OF WARRANTIES .  Lessee acknowledges that Lessor is not the manufacturer of the Equipment, nor manufacturer’s agent, and Lessee agrees that as between Lessor and Lessee, the Equipment leased hereunder is of a design, size, fitness and capacity selected by Lessee and that Lessee is satisfied that the same is suitable and fit for its intended purpose.  LESSEE FURTHER ACKNOWLEDGES THAT THE EQUIPMENT IS LEASED UNDER THIS AGREEMENT AND EACH LEASE ON AN ‘AS-IS,’ ‘WHERE IS’ BASIS AND THAT LESSOR MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO ANY OF THE EQUIPMENT, ITS MERCHANTABILITY, OR ITS FITNESS FOR A PARTICULAR PURPOSE.  LESSOR SHALL NOT BE LIABLE TO LESSEE OR ANY OTHER PERSON FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING FROM LESSEE’S USE OF THE EQUIPMENT, ANY DEFECT OR MALFUNCTION OF THE EQUIPMENT, OR FOR DAMAGES BASED ON STRICT OR ABSOLUTE TORT LIABILITY OR LESSOR’S NEGLIGENCE.  No defect or unfitness of the Equipment shall relieve Lessee of the obligation to timely pay Rent, or to perform any other obligation under this Agreement.

 

5.              ASSIGNMENT OF WARRANTIES .  Notwithstanding the foregoing, so long as no Default (as defined in Section 19 ) has occurred hereunder and is continuing, Lessee shall be entitled to the benefit of any applicable manufacturer’s warranties received or held by Lessor or from which Lessor otherwise benefits, and to the extent assignable, Lessor hereby assigns such warranties to Lessee for the Lease Term for each Lease.  In the event that any warranty is not assignable to Lessee, Lessor hereby appoints Lessee as Lessor’s agent and attorney-in-fact with

 

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respect to such warranty, which appointment is coupled with an interest, to assert and enforce, from time to time, in the name of and for the account of the Lessor and the Lessee, as their interests may appear, but in all cases at the sole cost and expense of the Lessee, any such warranty, and so long as no Default shall have occurred and be continuing, Lessee may retain any recovery from such claim.

 

6.              USE, OPERATION AND MAINTENANCE .               Lessee shall use the Equipment in the manner for which it was designed and intended, solely for Lessee’s business purposes, substantially in accordance with all manufacturer manuals and instructions and in compliance with Applicable Law and each Project Document.  As used herein, “ Applicable Law ” means all applicable laws, statutes, regulations, ordinances, orders and other requirements of any governmental authority (including such requirements necessary to ensure that the Equipment qualifies for all tax benefits and environmental attributes, in each case, to the extent available by law to the owner of the Equipment as of the date of the applicable Lease).  Lessee, at Lessee’s own cost and expense, shall keep the Equipment in good repair, condition and working order, ordinary wear and tear excepted, sufficient to perform according to the requirements of this Agreement and each Project Document, and shall furnish or otherwise obtain all parts, mechanisms, devices and servicing required therefore in the ordinary course.  Lessee shall also make, at Lessee’s own cost and expense, all modifications to the Equipment as are required from time to time for the Equipment to comply with Applicable Law and each Project Document, provided no such modifications shall diminish the current or estimated residual value, utility, function, operation or remaining useful life of the Equipment (or any portion thereof) or cause the Equipment (or any portion thereof) to constitute “limited use property” within the meaning of Rev. Proc. 2001-28, 2001-19 I.R.B. 1156 or Rev. Proc. 2001-29, 2001-19 I.R.B. 1160 (or any successors thereto).  All replacement parts and repairs at any time made to or placed upon the Equipment shall become the property of Lessor at no cost to Lessor and with no adjustment to the schedules of any Lease.  Lessee may, with Lessor’s prior written consent (at no cost to Lessor and with no adjustment to the schedules of any Lease), which shall not be unreasonably withheld, make such alterations, modifications or additions to the Equipment as Lessee may deem desirable in the conduct of its business; provided the same shall not diminish the current or estimated residual value, utility, function, operation or remaining useful life of the Equipment (or any portion thereof), cause the loss of any warranty thereon or any certification necessary for the maintenance thereof, or cause the Equipment (or any portion thereof) to constitute “limited use property” within the meaning of Rev. Proc. 2001-28, 2001-19 I.R.B. 1156 or Rev. Proc. 2001-29, 2001-19 I.R.B. 1160 (or any successors thereto).  All such alterations, modifications or additions to the Equipment shall be readily removable without causing damage to the Equipment (or any portion thereof).  Upon return to Lessor of the Equipment as to which such alterations, modifications or additions have been made, Lessee, if requested to do so by Lessor, shall remove the same and restore the Equipment to its original condition, ordinary wear and tear excepted, and, if not so removed, title thereto shall automatically vest in Lessor (at no cost to Lessor).  Lessor acknowledges that any data files or software developed or installed by Lessee which is resident or otherwise installed on the Equipment shall be and remain the property of Lessee; provided , however , that the Lessor shall have no obligation or responsibility to remove or return same to Lessee.

 

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7.              NET LEASE .  Each Lease is a “triple net lease”, and Lessee’s obligation to pay all Rent and other amounts due and owing under each Lease is absolute and unconditional and shall not be terminated, extinguished, diminished, setoff or otherwise impaired by any circumstance whatsoever, including by (a) any claim, setoff, counterclaim, defense or other right which Lessee may have against Lessor or any affiliate of Lessor; (b) any defect in the title, condition, design, operation, merchantability or fitness for use of the Equipment, or any eviction of the Equipment by paramount title or otherwise from the Site, or any unavailability of access to the Equipment at the Site; (c) any loss, theft or destruction of, or damage to, the Equipment or any portion thereof or interruption or cessation in the use or possession thereof or any part thereof for any reason whatsoever and of whatever duration; (d) the condemnation, requisitioning, expropriation, seizure or other taking of title to or use of the Equipment or the Site by any governmental entity or otherwise; (e) any ineligibility of the Equipment or any portion thereof for any particular use, whether or not due to any failure of Lessee to comply with any Applicable Law; (f) any event of “force majeure” or any frustration of purpose; (g) any insolvency, bankruptcy, reorganization or similar proceeding by or against Lessee; (h) any termination of a Project Document or the failure of any Project Document to be in full force and effect; or (i) any defect in the title to, or the existence of any lien with respect to, the Equipment, it being the intention of the Parties hereto that all Rent and other amounts payable under this Agreement shall continue to be payable in the manner and at times provided for herein.  If for any reason whatsoever this Agreement is terminated in whole or in part by operation of law or otherwise, Lessee nonetheless agrees, to the extent permitted by Applicable Law, to pay to Lessor an amount equal to each installment of Rent and all other amounts due and owing hereunder, at the time such payment would have become due and payable in accordance with the terms hereof had this Agreement not been so terminated.

 

8.              NO LIENS; REMOVAL; ABANDONMENT; QUIET ENJOYMENT .  Lessee shall keep the Equipment (and each item thereof) and each Project Document and all other collateral assigned to Lessor as security for Lessee’s obligations under each Lease free and clear from all liens, charges, encumbrances, legal process and claims other than Permitted Liens.  Lessee shall promptly notify Lessor of the imposition of any lien (other than Permitted Liens) of which the Lessee becomes aware and shall promptly use commercially reasonable efforts, at Lessee’s own cost and expense, to fully discharge and release any such lien.  Lessee shall not move the Equipment from the location specified in the Lease therefor without the prior written consent of Lessor.  Lessee agrees not to waive its right to use and possess the Equipment in favor of any party other than Lessor and further agrees not to abandon the Equipment to any party other than Lessor.  So long as Lessee faithfully performs and meets each and every term and condition to be performed or met by Lessee under this Agreement, Lessee’s quiet and peaceful possession and use of the Equipment will not be disturbed by Lessor or anyone claiming by, through or on behalf of Lessor.

 

9.              TITLE .  (a) Lessor and Lessee agree that the Equipment is and at all times shall remain the sole and exclusive personal property of Lessor (subject to Section 25 ), and Lessee covenants that it will at all times treat the Equipment as such and that no part of the Equipment shall be considered or treated as a fixture.  No right, title or interest in the Equipment shall pass to Lessee other than the right to maintain possession and use of the Equipment for the Lease Term, conditioned upon Lessee’s compliance with the terms and conditions of this Agreement.  If

 

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requested by Lessor, Lessee shall affix to or place on the Equipment, at Lessor’s expense, plates or markings indicating Lessor’s ownership.

 

(b)           The Parties agree that each Lease will be a “true lease,” and the Lessor will be treated as owner of the Equipment and Lessee will be treated as lessee and, accordingly, the Parties agree that the Lessor will be entitled to claim any and all benefits available to an owner of the Equipment, including (i) all Tax Benefits (as defined in Section 18) , and (ii) all rights and interests in and to any environmental attributes associated with the energy output from the Equipment that, as a matter of law, belong to the owner rather than the user of the Equipment (all such attributes in this clause (ii), specifically excluding any Tax Benefits, the “ Environmental Attributes ”).  Lessor hereby assigns to Lessee, solely for the duration of the Lease Term, all of its rights and interests in and to any and all Environmental Attributes currently available by law to an owner of the Equipment as of the date hereof.  For the avoidance of doubt, Lessor does not assign to Lessee any Environmental Attributes that, due to any future change in law, may become available to an owner of the Equipment (including, but not limited to, any carbon credits).  In the event that this Agreement or any Lease is deemed to be a lease intended for security, Lessee hereby grants Lessor a purchase money security interest in the Equipment (including any replacements, substitutions, additions, attachments and proceeds).

 

10.           TAXES .  Lessee shall promptly reimburse Lessor, or shall pay directly if so requested by Lessor, as additional Rent, all taxes, charges and fees (including any interest, additions to tax and penalties) that may now or hereafter be imposed or levied by any governmental body or agency upon or in connection with the purchase, ownership, control, lease, sublease, possession, manufacture, design, use, testing, repair, alteration, condition or location of the Equipment or otherwise in connection with the transactions contemplated by this Agreement or any Lease, including, without limitation, sales, use, property (real or personal and tangible or intangible), value added or other transfer taxes on (i) the initial sale of Equipment to Lessor, (ii) the Rents, (iii) the sale of power to, or the use of the Equipment by, the offtaker under the Amended and Restated Power Purchase Agreement, dated as of September 1, 2015 between Lessee and [***] (as the same may be amended, amended and restated, modified or supplemented from time to time, the “ Power Purchase Agreement ”), or otherwise with respect to any Project Document, (iv) any payment of Termination Value, and (v) upon any exercise of the Purchase Option, but excluding for purposes of this Section 10 any and all taxes, charges and fees (including any interest, additions to tax and penalties) (A) on or measured by the net income of Lessor, but excluding taxes that are in the nature of sales, use, property (real or personal and tangible or intangible), value added or other transfer taxes, (B) resulting from Lessor’s negligence, or (C) resulting from or arising out of any failure on the part of Lessor to file any tax returns or pay any taxes owing on a timely basis or any errors or omissions on Lessor’s tax returns unless the Lessee is responsible under this Agreement for filing the returns, Lessee has not provided information requested by Lessor that is necessary to file such tax returns or Lessor’s failure to file any tax returns or any errors or omissions on such tax returns is attributable to Lessee’s fraud, negligence or misrepresentation.  Lessee shall file, in a timely manner and in the name of the Lessor as owner, any personal property tax returns relating to the Equipment that are required to be filed covering periods during the Lease Term, pay the amounts shown on the returns and provide

 

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copies of such returns and proof of payment to the Lessor.  Failure of Lessee to pay promptly amounts due hereunder shall be treated the same as failure to pay any installment of Rent pursuant to Section 3 .  If Lessee is requested by Lessor to file any other returns or remit payments directly to any governmental body or agency, Lessee shall timely file such returns and remit such payments and shall provide proof of said timely filing or payment to Lessor

 

11.           RENT PREPAYMENT .  As a condition precedent to entering into each Lease, Lessee shall have caused to be paid to Lessor, as a prepayment of Rent for the Equipment to be leased under such Lease, the sum of twenty (20)% of the Purchase Price or such other amount as provided in the Schedule.

 

12.           LOSS OF OR DAMAGE TO EQUIPMENT .  Lessee hereby assumes and shall bear the risk of loss for destruction of or damage to the Equipment from any and every cause whatsoever, whether or not insured, until the Equipment is returned to Lessor.  No such loss or damage shall impair any obligation of Lessee under this Agreement, which shall continue in full force and effect.  In event of damage to or theft, loss or destruction of the Equipment (or any item thereof), Lessee shall promptly notify Lessor in writing of such fact and of all details with respect thereto, and shall, within thirty days of such event, at Lessee’s option, (a) at Lessee’s expense, place the same in good repair, condition and working order, (b) at Lessee’s expense, dispose of any Equipment in accordance with Applicable Law, replace such Equipment (or any item thereof) with equipment of equivalent or superior manufacture, make, model and features, unless this option is expressly prohibited in the Lease related to such Equipment, in good repair, condition and working order and with at least the value, expected end-of-term residual value, function and remaining useful life as the Equipment being replaced, assuming such Equipment being replaced had been maintained in accordance with the provisions of the Lease, and Lessee shall transfer clear title to such replacement property to Lessor whereupon such property shall be subject to the Lease and the applicable other Lease Documents and be deemed Equipment for purposes hereof and thereof, or (c) pay Lessor an amount equal to the sum of (i) all Rent accrued but unpaid to the date of such payment, plus (ii) the “Termination Value” of the Equipment as set forth in the applicable Lease (the “ Termination Value ”), whereupon such Lease shall terminate, subject to Section 22 , solely with respect to the Equipment (or any item thereof) for which such payment is received by Lessor.  Any insurance proceeds received with respect to the Equipment (or any item thereof) shall be applied, in the event option (c) is elected, in reduction of the then unpaid obligations, including the Termination Value, of Lessee to Lessor, if not already paid by Lessee, or, if already paid by Lessee, to reimburse Lessee for such payment, or, in the event option (a) or (b) is elected, to reimburse Lessee for the costs of repairing, restoring or replacing the Equipment (or any item thereof) upon receipt by Lessor of evidence, satisfactory to Lessor, that such repair, restoration or replacement has been completed, and an invoice has been provided therefor.

 

13.           INSURANCE .  (a) Lessee shall keep the Equipment insured against theft and all risks of loss or damage, subject to policy limitations or exclusions reasonably acceptable to Lessor, from every cause whatsoever for an amount equal to the higher of the replacement value of the Equipment and the Termination Value of the Equipment and shall carry general liability insurance, both for personal injury and property damage, and Lessee shall be liable for all deductible portions of all required insurance.  All such insurance shall be maintained with insurance companies rated

 

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A-X or better by Best’s Insurance Guide and Key Ratings (or an equivalent rating by another nationally recognized insurance rating agency of similar standing if Best’s Insurance Guide and Key Ratings shall no longer be published) or with other insurance companies of recognized responsibility satisfactory to Lessor.  All insurance for theft, loss or damage shall provide that losses, if any, shall be payable to Lessor, and all such liability insurance shall name Lessor (or Lessor’s assignee as appropriate) as additional insured and shall be endorsed to state that it shall be primary insurance as to Lessor. Lessee shall pay the premiums therefor and deliver to Lessor a certificate of insurance or other evidence satisfactory to Lessor that such insurance coverage is in effect; provided , however , that Lessor shall be under no duty either to ascertain the existence of or to examine such insurance policies or to advise Lessee in the event such insurance coverage shall not comply with the requirements hereof.  Each insurer shall agree by endorsement upon the policy or policies issued by it or by independent instrument furnished to Lessor, that it will give Lessor at least ten (10) days’ prior written notice of cancellation of the policy for nonpayment of premiums and at least thirty (30) days’ prior written notice for alteration or cancellation due to any other reason or for non-renewal of the policy.  The proceeds of such insurance payable as a result of loss of or damage to the Equipment shall be applied as set forth in Section 12 .

 

(b)           If Lessee fails to obtain insurance or provide evidence thereof to Lessor, Lessee agrees that Lessor may, but shall not be obligated to, obtain such insurance on Lessee’s behalf and charge Lessee for all costs and expenses associated therewith.  Without limiting the forgoing, Lessee specifically agrees that if Lessor obtains insurance on Lessee’s behalf, Lessee will be required to pay a monthly insurance charge.  The insurance charge will include reimbursement for premiums advanced to the insurer, finance charges (which will typically be at a rate higher than the rate used to determine the Rent), billing and tracking fees, administrative expenses and other related fees.  Lessor shall receive a portion of the insurance charges, which may include a profit from such finance charges, billing, tracking, administrative and other charges.

 

Except as provided in the immediately preceding paragraph, any other insurance obtained by or available to Lessor shall be secondary insurance, and Lessor shall be solely liable for all costs associated therewith.

 

14.           END OF LEASE TERM OPTIONS .  Not later than ninety (90) days prior to the expiration of the Initial Term or any Renewal Term (as defined below) of a Lease, Lessee shall notify the Lessor in writing whether it intends at the expiration of such term to (a) renew the Lease in accordance with Section 15 of this Agreement (the “ Renewal Option ”), (b) purchase the Equipment in accordance with Section 16 of this Agreement (the “ Purchase Option ”), or (c) return the Equipment to Lessor (the “ Return Option ”); provided that Lessee may only exercise the Renewal Option or the Purchase Option so long as no Default under this Agreement has occurred and is then continuing.  If Lessee does not provide this notice at the end of the Initial Term or any Renewal Term, then the Initial Term or Renewal Term (as applicable) shall be automatically extended on a month-to-month basis at the monthly rental rate equal to the final Rent payment due immediately prior to the end of such Initial Term or Renewal Term and such month-to-month renewal term (the “ Month-to-Month Renewal Term ”) shall be terminable by Lessee or Lessor by giving the other party not less than ninety (90) days prior written notice (the “ Month-to-Month

 

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Renewal Term Termination Notice ”).  If such Month-to-Month Renewal Term Termination Notice is given by either party, the Lessee shall be deemed to have elected the Return Option at the end of such Month-to-Month Renewal Term.  If the Equipment is not then in good repair, condition and working order, ordinary wear and tear excepted, or has not been maintained in accordance with Section  6 hereof, Lessee shall promptly reimburse Lessor for all reasonable costs incurred to restore the Equipment to such condition.  If, at the end of the Lease Term, Lessee has elected the Return Option and any Project Document with respect to the relevant Equipment is no longer in full force and effect, then Lessee shall, within sixty (60) days of the end of the Lease Term, at Lessee’s expense, (i) reimburse Lessor for the costs to restore the Equipment as provided above and (ii) remove all of the Equipment from the relevant Site, repair any damage to the relevant location caused by such removal so the Site is restored to its original condition at the time the Equipment was installed, pack the Equipment into appropriate shipping containers, insure the shipment for the fair market value of the Equipment at such time, and cause the Equipment to be delivered to such location within the United States as Lessor may specify. If, at the end of the Lease Term, Lessee has elected the Return Option and any Project Document with respect to the relevant Equipment is in full force and effect, then Lessee shall assign such Project Document to Lessor or Lessor’s designee.

 

15.           LEASE RENEWAL .  (a) If Lessee elects, or is deemed to elect, the Renewal Option for a Lease, then such Lease (with respect to all, but not less than all, of the Equipment under such Lease) shall be extended for a term of not less than twelve (12) months and not more than the lesser of (i) the renewal term of the applicable Project Document and (ii) seventy-two (72) months, or such other term or terms as Lessor may approve in its sole discretion (each such term, a “ Renewal Term ”), commencing on the day following the last day of the Initial Term or the prior Renewal Term, as applicable.  Rent payable during any Renewal Term shall be the Fair Market Rental Value for the Equipment as determined below.  The commencement of any Renewal Term is conditioned upon the counterparty to any Project Document renewing the terms of such Project Document and upon mutually agreeable Lease terms between Lessor and Lessee.

 

(b)           The Fair Market Rental Value (as defined below) of the Equipment, as of the commencement of any Renewal Term, shall be determined by agreement of Lessor and Lessee within sixty (60) days after receipt by Lessor of the irrevocable notice from the Lessee of its election to renew the Lease, or, if they shall fail to agree within such sixty (60) day period, shall be determined by a qualified appraiser appointed by Lessor and Lessee or, if they cannot agree on an appraiser, then by a panel of three (3) appraisers with one each chosen by Lessor and Lessee and the third appraiser appointed by the first two appraisers (the “ Appraisal Procedure ”), with the fair market rental value as determined by the third appraiser to be binding and conclusive on the Parties as the “ Fair Market Rental Value ” for purposes of the Lease.  The Rent payable during the Renewal Term shall be equal to the average of the Rent payable during the twelve (12) month period immediately preceding the Renewal Term until the Fair Market Rental Value is determined, at which time the prior Rent payments shall be adjusted to take into account such determination.

 

(c)           The amounts that are payable during any Renewal Term as Termination Value shall be determined on the basis of the fair market sales value of the Equipment as of the commencement

 

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of such Renewal Term and shall be set forth in a schedule to be mutually agreed by Lessor and Lessee prior to the commencement of such Renewal Term.  If Lessor and Lessee cannot agree on the fair market sales value, such amount shall be determined by the Appraisal Procedure, and the fees and expenses of the appraiser or panel of appraisers shall be shared equally by Lessor and Lessee.

 

16.           PURCHASE OPTION .  (a) If Lessee elects the Purchase Option in accordance with Section 14 of this Agreement with respect to a Lease, Lessee shall purchase all but not less than all of the Equipment described in such Lease from Lessor for an amount equal to the then fair market value of the Equipment as agreed by Lessee and Lessor, or if they shall fail to agree, as determined by the Appraisal Procedure (such amount, the “ Lessee Purchase Option Amount ”).  The Purchase Option shall be consummated as of the close of business on the closing date set forth in Lessee’s notice or on such other date the Parties may otherwise agree (the “ Lessee Purchase Date ”).

 

(b)           If Lessee elects to exercise the Purchase Option, then on the Lessee Purchase Date, Lessee shall pay to Lessor (i) the Lessee Purchase Option Amount and all sales, use, value added and other taxes required to be indemnified by the Lessee pursuant to Section 10 plus (ii) any unpaid Rent and any other outstanding amount due under this Agreement and the applicable Lease on or before such date.

 

(c)           Upon payment of all sums specified in this Section 16 , the applicable Lease shall terminate and, at the request of Lessee, Lessor shall transfer its rights in the Equipment to the Lessee on an “as is,” “where is” basis without representation or warranty.

 

17.           LESSEE INDEMNITY .  Lessee assumes liability for and shall indemnify, save, and hold harmless Lessor and Lessor’s officers, directors, employees, agents and assignees from and against any and all third party claims, actions, suits or proceedings of any kind and nature whatsoever, including all damages, liabilities, penalties, costs, expenses and reasonable consultant and legal fees (hereinafter “ Claim(s) ”) based on, arising out of, connected with or resulting from the Equipment, Lessee’s obligations under this Agreement, or Lessee’s possession, use or operation of the Equipment including, without limitation, Claims relating to ownership, use, possession or disposal of the Equipment, Claims arising in contract or tort (including negligence, strict liability or otherwise), Claims arising out of latent defects of the Equipment (regardless of whether the same are discoverable by Lessor or Lessee), Claims arising out of or relating to the violation of applicable law, including environmental law, or the existence or release of hazardous materials at the site where the Equipment is located, or Claims arising out of any trademark, patent or copyright infringement, but excluding (a) any Claims that accrue in respect of circumstances that occur after Lessor has taken possession of the Equipment after termination of this Agreement, provided that such Claims do not relate to Lessee’s use, possession or operation of the Equipment, (b) any Claims that result from the gross negligence or willful misconduct of Lessor, and (c) Claims for Taxes (it being agreed that Lessee’s indemnification obligations with respect to Taxes are set forth in Sections 10 and 18 ).  If any Claim is made against Lessee or Lessor, the Party receiving notice of such Claim shall promptly notify the other, but the failure of such person

 

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receiving notice to notify the other shall not relieve Lessee of any obligation hereunder. If so provided in the applicable Schedule, the aggregate liability of the Lessee pursuant to this Section 17, Section 10 and Section 18 with respect to the related Lease, shall be capped at the amount set forth in such Schedule.

 

18.           TAX INDEMNITY .

 

(a)       Lessee acknowledges that the Rent in each Lease has been calculated on the assumption that the Lessor will be the owner of the Equipment for federal, state and local income tax purposes on the date it acquires the Equipment pursuant to the Master Purchase Agreement, that  it will remain the sole owner after entering into the applicable Lease and that, for federal, state and local income tax purposes, it will be able to (i) claim an investment tax credit (for federal income tax purposes) under section 48(a)(3)(iv) of the Code for 30% of its purchase price for the Equipment on the Lease commencement date, (ii) depreciate 85% of its purchase price (100% for state and local income tax purposes) for the Equipment over five (5) years using the 200% declining-balance method and the half-year convention beginning on the Lease Commencement, (iii) deduct interest on any section 467 loan as the interest accrues according to the Rent schedule in the Lease and (iv) amortize transaction expenses incurred in connection with each Lease over the applicable Lease Term. The foregoing investment tax credit, depreciation deductions, amortization deductions and interest deductions are referred to herein as the “ Tax Benefits . ” Lessee acknowledges further that the Rent in each Lease has been calculated on the assumption that Lessor will have to report the Rent as income in the periods and amounts shown on the Rent schedule to such Lease.

 

(b)       Lessee represents, warrants and covenants to Lessor the following: (i) all of the Equipment was originally placed in service by the Lessee on a date that is no more than three (3) months before the closing on the purchase of the Equipment by the Lessor and lease back of such Equipment under this Agreement to the Lessee (the “ Original Placed-in-Service Date ”), (ii) during the period beginning on the Original Placed-in-Service Date and ending on the date of the purchase of the Equipment by the Lessor and lease back of such Equipment under this Agreement to the Lessee, no person or entity other than the Lessee has had any ownership interest in the Equipment or any part thereof, (iii) all of the Equipment was new when it was originally placed in service by the Lessee, (iv) all of the Equipment will be considered “qualified fuel cell property” within the meaning of Section 48(c)(1) of the Code and 100% of the applicable purchase price for the Equipment will qualify for a 30% investment tax credit under section 48(a)(3)(iv) in the hands of the Lessor, (v) all of the Equipment qualifies as “5-year property” within the meaning of Section 168(e)(3)(B)(vi)(I) of the Code, (vi) the Lessor will have a tax basis for purposes of calculating the investment tax credit equal to its purchase price for the Equipment, for state and local income tax depreciation purposes equal to the Equipment’s purchase price, and for federal income tax depreciation purposes equal to 85% of the Equipment’s purchase price, which takes into account a reduction in basis equal to 50% of the 30% investment tax credit amount, (vii) the Equipment will not be considered “tax-exempt use property” within the meaning of section 168(h) of the Code during the Initial Term or any Renewal Term other than solely due to the fact that the Lessor (or

 

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any member of the Lessor) is or becomes a tax-exempt entity within the meaning of section 168(h)(2) of the Code, (viii) the Equipment will not be considered used by a tax-exempt entity within the meaning of section 50(b)(3) of the Code or governmental unit or foreign person or entity within the meaning of section 50(b)(4) of the Code during the Initial Term or any Renewal Term (in each case, other than as a result of the status of the Lessor or any member of the Lessor), (ix) as of the applicable Lease commencement date, no portion of the Equipment is, and at no time during the Initial Term or any Renewal Term will any portion of the Equipment become, tax-exempt bond financed property within the meaning of Section 168(g)(5) of the Code or financed with “subsidized energy financing” within the meaning of Section 48(a)(4) of the Code, other than as a result of the status of the Lessor or any member of the Lessor or actions taken by the Lessor, (x) the Equipment will be used solely in the United States, (xi) the Equipment will not be subject to the alternative depreciation system under section 168(g) of the Code (assuming no election by Lessor under section 168(g)(1)(E) of the Code), (xii) the Power Purchase Agreement will be treated as a service contract under Section 7701(e) of the Code and not as a lease for income tax purposes, (xiii) the Lessee has not claimed and will not claim, or cause to be claimed, an investment tax credit under section 48(a)(3)(iv) of the Code, other federal tax credit or a cash grant under Section 1603 of the American Recovery and Reinvestment Act of 2009, as amended, or any depreciation deductions under Section 168 of the Code, in each case with respect to the Equipment or any portion thereof (xiv) on the Lease commencement date applicable to the Equipment, the Equipment will not require any improvements, modifications or additions (other than ancillary items of a kind customarily selected and furnished by lessees of property of the same kind as the Equipment) in order for the Equipment to be rendered complete for its intended use by the Lessee, (xv) the Lessee will not take a position for U.S. federal or state income tax purposes that it is the owner of any portion of the Equipment during the Initial Term or any Renewal Term or that is inconsistent with any of the tax assumptions set forth in this Section 18 , (xvi) at no time during the period beginning on the applicable Lease commencement date and ending on the fifth anniversary of such date (the “ Recapture Period ”) will the Equipment or any portion thereof be disposed of or otherwise cease to be (in each case within the meaning of section 50 of the Code) “qualified fuel cell property” within the meaning of Section 48(c)(1) of the Code, other than as a result of the status of the Lessor or any member of the Lessor or actions taken by the Lessor, (xvii) none of the property comprising any part of the Equipment is or will be “limited use property” within the meaning of Rev. Proc. 2001-28, 2001-19 I.R.B. 1156 or Rev. Proc. 2001-29, 2001-19 I.R.B. 1160 or any successors thereto, “public utility property” within the meaning of section 168(f)(2) of the Code or “imported property” within the meaning of section 168(g)(6) of the Code, and (xviii) all written information provided by or on behalf of the Lessee to the Appraiser (as defined in the Master Purchase Agreement) was accurate and complete in all material respects and remains accurate and complete on the applicable Lease commencement date.

 

(c)       Lessee covenants that it has not, and will not at any time from such delivery through the term of this Agreement, take any action or omit to take any action (whether or not the same is permitted or required hereunder) that is inconsistent with the tax assumptions at the start of this section, that could contribute to loss by Lessor of all or any part of the Tax Benefits or that could require the Lessor to report Rent as income ahead of the periods to which the Rent is allocated in

 

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the applicable Rent schedule.  Lessee covenants that it will include in income interest on any section 467 loan as it accrues in accordance with the applicable Lease schedule. Lessee covenants that it will provide Lessor promptly upon request any information that Lessor requires in connection with claiming any Tax Benefits and responding to questions from the Internal Revenue Service.

 

(d)       If as a result of any act, omission, breach of warranty or covenant or misrepresentation by Lessee, the Tax Benefits are lost, disallowed, eliminated, reduced, delayed, recaptured, compromised or are otherwise unavailable to Lessor (any of the foregoing being a “ Loss ” ) or the Lessor is required to report Rent as income ahead of the periods to which the Rent is allocated in the applicable Rent schedule (an “ Inclusion ”), then Lessee will pay the Lessor promptly on demand an amount that will compensate the Lessor fully for the Loss or Inclusion (including any interest, penalties or additions to tax) on an after-tax basis. For this purpose, “after-tax basis” means an amount determined by dividing the amount of the Loss or Inclusion by one minus the maximum composite federal, state and local corporate income tax rates in effect at time of payment. Upon payment of the full indemnity amount by Lessee, the act, omission, breach of warranty or covenant or misrepresentation of Lessee that caused a Loss will not be deemed a Default hereunder. If requested by Lessee, Lessor agrees to attempt in good faith to challenge any assertion by the Internal Revenue Service that will lead to a Loss; provided, however, Lessee has first paid to Lessor the amount of such Loss and agreed in writing to indemnify Lessor for all reasonable expenses (including attorneys’ fees), liabilities or losses that Lessor may incur in the contest. Lessor will have the sole discretion to determine whether or not to undertake judicial or administrative proceedings beyond the level of an Internal Revenue Service auditing agent and to select counsel to handle the contest; provided that if the claim must be paid before the matter can be heard in court, Lessee will advance the funds necessary to do so on an interest-free basis. For purposes of this Section 18 , the term “Lessor” shall include the entity or entities, if any, with which Lessor files a consolidated income tax return.

 

19.           DEFAULT AND REMEDIES .  (a) Lessee shall be in default under this Agreement and each Lease if: (i) Lessee fails to pay Rent or any other payment due and owing under any Lease, including an tax indemnity set forth in Section 18 , within five (5) days of the due date thereof; (ii) any representation or warranty made by Lessee herein or in any document delivered to Lessor in connection herewith shall prove to be false or misleading and the false or misleading nature of such representation or warranty is not corrected within thirty (30) days following receipt of written notice thereof from Lessor; (iii) a breach of the covenant set forth in Section 18(b) , Section 26(c)  or Section 36 shall have occurred; (iv) a Lease fails to be considered a “true lease” for federal income tax purposes as a result of any act, omission, breach of warranty or covenant or misrepresentation by Lessee; (v) Lessee becomes insolvent, dissolves, or assigns its assets for the benefit of creditors, or enters any bankruptcy or reorganization proceeding; (vi) (A) any Project Document or Pledged Equipment Product Document (as defined in Section 35 ) has been terminated without the prior written approval of Lessor or (B) any default has occurred and is continuing under any provision of a Project Document or a Pledged Equipment Product Document and any cure period provided thereunder has terminated without such default having been cured; (vii) Lessee fails to observe, keep or perform any other term or condition of this

 

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Agreement or any other Lease Document and such failure continues for thirty (30) days following receipt of written notice from Lessor; (viii) Lessee undergoes a change in ownership or control of any type without the prior written approval of Lessor; (ix) Lessor fails to have a valid and perfected security interest in and security title to the Pledged Equipment Collateral, free and clear of any Liens other than Permitted Liens, and/or (x) any default has occurred and is continuing under any master lease agreement or lease entered into in connection therewith that currently or may hereinafter exist between Lessor and any affiliate of Lessee (each of (i) through (x), a “ Default ”).

 

(b)           If a Default shall have occurred and be continuing, Lessor shall have the right to take any one or more of the following actions:  (i) cancel or terminate each Lease or any of them and repossess the Equipment subject to such Lease; (ii) proceed by appropriate court action or actions at law or in equity to enforce performance by Lessee of the terms and conditions of each Lease and/or recover damages for the breach thereof; (iii) accelerate all of the amounts due under each Lease or any of them by requiring Lessee to pay Lessor an amount equal to the sum of (A) all Rent and any other amounts accrued to the date of such payment, plus (B) the Termination Value; (iv) take any other action as provided for in the Assignment Agreement and Section 35 of this Agreement; (v) apply amounts on deposit from Lessee against the obligations of Lessee to Lessor under each Lease (including the obligation to pay the amount described in clause (iii) above); and/or (vi) exercise any other right or remedy available at law or in equity.

 

(c)           Upon payment in full to Lessor of the amounts set forth in Section 19(b)(iii) , from the Lessee and/or as a result of the application of amounts on deposit from the Lessee, the Lease shall terminate (except as set forth in Section 22 ) solely with respect to the Equipment (or any item thereof) for which such payment is received by Lessor.

 

20.           REPORTS .  (a) Within sixty (60) days after the end of each quarterly period during the Lease Term, Lessee shall deliver to Lessor unaudited quarterly financial statements for the Lessee as of the end of such quarterly period, prepared in accordance with generally accepted accounting principles in the United States (“ GAAP ”), it being understood that this Section 20(a)  shall be deemed satisfied if such quarterly financial statements are timely filed by Lessee with the Securities and Exchange Commission in compliance with applicable law.

 

(b)           Within one hundred twenty (120) days after the end of each calendar year during the Lease Term, Lessee shall deliver to Lessor audited annual financial statements for the Lessee, the counterparty to each Project Document as of the end of such calendar year, prepared in accordance with GAAP; provided that if audited annual financial statements are not prepared for Lessee in the ordinary course for any year then unaudited annual financial statements for Lessee for such year may be provided if they are certified by the chief financial officer of Lessee  as prepared in accordance with GAAP, it being understood that this Section 20(b)  shall be deemed satisfied if such annual financial statements are timely filed by Lessee with the Securities and Exchange Commission in compliance with applicable law.

 

(c)           Promptly, but in any event within ten (10) business days after receipt thereof, a copy of each periodic report received by the Lessee during the Lease Term from each maintenance

 

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provider for the Equipment and each periodic report or other notice sent to or received by a counterparty to a Project Document.

 

(d)           Promptly upon, but no later than ten (10) business days after, Lessor’s request from time to time, such data, certificates, reports, statements, documents and further information regarding the business, assets, liabilities, financial condition, or results of operations of the Lessee as the Lessor may reasonably request.

 

21.           FURTHER ASSURANCES .  Lessee agrees (a) at the written request of Lessor, to execute and deliver to Lessor any Uniform Commercial Code financing statements, fixture filings or other instruments Lessor deems necessary for expedient filing, recording or perfecting the interest and title of Lessor in this Agreement, any Lease and the Equipment, (b) that a copy of this Agreement and any Lease may be filed in accordance with clause (a), provided the economic terms not necessary for filing shall have been deleted therefrom, (c) that all costs incurred in connection with any actions taken in accordance with clause (a), including, without limitation, costs for filing fees and taxes, shall be paid by Lessee, and (d) to promptly, at Lessee’s expense, deliver such other reasonable documents and assurances, and take such further action as Lessor may reasonably request in writing, in order to effectively carry out the intent and purpose of this Agreement and each Lease.

 

22.           SURVIVAL .  Lessee’s covenants, representations, warranties and indemnities contained in Sections 8, 10, 14 , 17 , 18 , 19(b)  and 26 hereof are made for the benefit of Lessor and shall survive, remain in full force and effect and be enforceable after the expiration or termination of this Agreement for any reason.  Each other provision set forth in the Lease Documents that, by its terms, survives termination of this Agreement shall also survive, remain in full force and effect and be enforceable after the expiration or termination of this Agreement for any reason.

 

23.           INSPECTION .  During the Lease Term and subject to any applicable Project Document, Lessor may, during normal business hours, on reasonable prior written notice to Lessee, inspect the Equipment and the records with respect to the operations and maintenance thereof, in Lessee’s custody or to which Lessee has access.  Lessee may be present at such inspection.  Any such inspection will not unreasonably disturb or interfere with the normal operation or maintenance of the Equipment or the conduct by Lessee of its business and will be in accordance with Lessee’s health, safety and insurance programs.  In no event shall Lessor have any duty or obligation to make any such inspection and Lessor shall not incur any liability or obligation by reason of not making any such inspection.

 

24.           ACCEPTANCE OF EQUIPMENT: NON CANCELABLE .  Lessee’s acceptance of the Equipment shall be conclusively and irrevocably evidenced by Lessee signing the Certificate of Acceptance in the form attached hereto and upon acceptance, each Lease shall be noncancelable for the Initial Term thereof unless otherwise provided in such Lease.

 

25.           ASSIGNMENT; STATUS OF LESSEE .  (a) Lessee acknowledges and agrees that Lessor may, at any time, without prior notice to or consent of Lessee, assign its rights and obligations under this Agreement in whole or in part and/or mortgage, or pledge or sell the

 

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Equipment subject to Lessee’s rights under this Agreement.  Such assignee or mortgagee may re-assign this Agreement and/or mortgage without notice to Lessee.  To the extent so assigned or transferred, any such assignee, buyer, transferee, grantee or mortgagee shall have and be entitled to exercise any and all rights and powers of, and shall perform all obligations of, Lessor under this Agreement. If any such Lessor assignment is a partial assignment of this Agreement by Generate Capital, Inc. (for purposes of this Section 25 , “ Generate ”), (i) so long as no Default shall have occurred, Generate shall maintain its administrative role under this Agreement with Lessee and shall act as an intermediary between Lessee and any Generate partial assignee, and (ii) unless Lessee receives notice from Generate or Generate’s assignee to the contrary, Lessee’s satisfaction of its obligations under the Lease Documents to Generate shall be deemed to satisfy such obligations to all Lessors.

 

(b)           Without limiting the foregoing, Lessee further acknowledges and agrees that upon written notice of an assignment from Lessor, Lessee will pay all Rent and any and all other amounts payable by Lessee under any Lease to such assignee or mortgagee or as instructed by Lessor, notwithstanding any defense or claim of whatever nature, whether by reason of breach of such Lease or otherwise which it may now or hereafter have as against Lessor (Lessee reserving its right to make claims directly against Lessor).  Lessee agrees to confirm in writing receipt of notice of assignment as may be reasonably requested by assignee or mortgagee.

 

(c)           Except as otherwise set forth in this Agreement and any Lease and except for the lease or any other right to use the Equipment granted under a Project Document, Lessee shall not assign, sublet, hypothecate, sell, transfer or part with possession of the Equipment or any interest in this Agreement or any Lease, and any attempt to do so shall be null and void and shall constitute a Default hereunder.

 

(d)           Lessee shall not allow a Blocked Person (as defined below) or Blocked Persons to have a fifty percent (50%) or greater ownership interest in or control of Lessee. “ Blocked Person ” means any person or  entity that is now or at any time (i) on a list of Specially Designated Nationals issued by the Office of Foreign Assets Control (“ OFAC ”) of the United States Department of the Treasury or any sectoral sanctions identification list; or (ii) whose property or interests in property are blocked by OFAC or who is subject to sanctions imposed by law, including any executive order or any branch or department of the United States government; or (c) otherwise designated by the United States or any regulator having jurisdiction or regulatory oversight over Lessor, to be a person to whom Lessor is not permitted to extend credit or with regard to whom a debtor relationship may result in penalties against Lessor or limitations on a secured party’s ability to enforce a transaction.

 

26.           REPRESENTATIONS, WARRANTIES AND COVENANTS .  (a) Lessee represents and warrants to Lessor that: (i) the execution and delivery by Lessee of this Agreement, any Lease and any Certificate of Acceptance are duly authorized on the part of Lessee and constitute valid obligations binding upon, and enforceable against, Lessee; (ii) neither the execution and delivery of this Agreement, any Lease or any Certificate of Acceptance, nor the due performance thereof by Lessee, including the commitment to pay (and payment of) Rent, will

 

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result in any breach of, or constitute a default under, or violation of, Lessee’s constitutive documents, or any material agreement to which Lessee is a party or by which Lessee is bound that relates to the subject matter hereof; (iii) Lessee is duly incorporated, validly existing and in good standing in its state of incorporation and in any jurisdiction where the Equipment is located; and (iv) no material approval, consent or withholding of objection is required from any governmental authority or entity with respect to the entering into, or performance of this Agreement, any Lease or any Certificate of Acceptance by Lessee.

 

(b)           Lessee has provided to Lessor true and correct copies of its constitutive documents, authorizing resolutions for the transactions contemplated hereby, and a certificate of incumbency, each certified by a duly appointed officer of Lessee.

 

(c)           Lessee shall not amend, modify, supplement, assign, transfer or terminate any Project Document, renew (or request renewal of) the term of any Project Document, or enter into any agreement with respect to any Equipment after the date of the applicable Lease, in each case, without the prior written consent of Lessor.

 

(d)           Lessee will use its commercially reasonable efforts to enforce its rights under each Project Document and shall take or omit to take any action thereunder as directed by Lessor from time to time.

 

27.           NOTICES .  Any notice required or given hereunder shall be deemed properly given when provided in writing (a) three (3) business days after mailed first class, overnight, or certified mail, return receipt requested, postage prepaid, addressed to the designated recipient at its address set forth below or such other address as such Party may advise by notice given in accordance with this provision or (b) upon receipt by the Party to whom addressed in writing by personal delivery, commercial courier service, fax or other means which provides a permanent record of the delivery of such notice.  Notices shall be delivered to the Parties at the following addresses:

 

If to Lessee :

 

Plug Power Inc.
968 Albany Shaker Road
Latham, NY 12110
Attn: Paul Middleton
Telephone: (518) 738-0281
Facsimile: (518) 782-7884
Email:  Paul_Middleton@plugpower.com

 

If to Lessor :

 

Generate Capital, Inc.
555 De Haro Street
San Francisco, CA 94107

Attn:  Matan Friedman
Email:  matan@generatecapital.com

 

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28.           DOCUMENTATION .  Except for the payment of Rent set forth in the applicable Leases, for which invoices are provided as an accommodation to Lessee and not as a condition precedent to payment, Lessor shall use its best efforts to provide Lessee with reasonable documentation, including, statements, tax bills and/or invoices, evidencing payment obligations or reimbursement due to Lessor pursuant to the terms of this Agreement.

 

29.           ANTI-MONEY LAUNDERING; INTERNATIONAL TRADE LAW COMPLIANCE.   Lessee represents and warrants to Lessor, as of the date of this Agreement,  the date of each advance of proceeds pursuant to this Agreement, the date of any renewal, extension or modification of this Agreement or any Lease, and at all times until this Agreement and each Lease has been terminated and all amounts thereunder have been indefeasibly paid in full, that: (a) no Covered Entity (i) is a Sanctioned Person; (ii) has any of its assets in a Sanctioned Country or in the possession, custody or control of a Sanctioned Person; or (iii) does business in or with, or derives any of its operating income from investments in or transactions with, any Sanctioned Country or Sanctioned Person in violation of any law, regulation, order or directive enforced by any Compliance Authority; (b) the proceeds of any Lease will not be used to fund any operations in, finance any investments or activities in, or, make any payments to, a Sanctioned Country or Sanctioned Person in violation of any law, regulation, order or directive enforced by any Compliance Authority; (c) the funds used to repay any Lease are not derived from any unlawful activity; and (d) each Covered Entity is in compliance with, and no Covered Entity engages in any dealings or transactions prohibited by, any laws of the United States, including but not limited to any Anti-Terrorism Laws.  Lessee covenants and agrees that it shall immediately notify Lessor in writing upon the occurrence of a Reportable Compliance Event.

 

As used herein: “Anti-Terrorism Laws” means any laws relating to terrorism, trade sanctions programs and embargoes, import/export licensing, money laundering, or bribery, all as amended, supplemented or replaced from time to time; “Compliance Authority” means each and all of the (a) U.S. Treasury Department/Office of Foreign Assets Control, (b) U.S. Treasury Department/Financial Crimes Enforcement Network, (c) U.S. State Department/Directorate of Defense Trade Controls, (d) U.S. Commerce Department/Bureau of Industry and Security, (e) U.S. Internal Revenue Service, (f) U.S. Justice Department, and (g) U.S. Securities and Exchange Commission; “Covered Entity” means Lessee, its affiliates and subsidiaries, all guarantors, pledgors of collateral, all owners of the foregoing, and all brokers or other agents of Lessee acting in any capacity in connection with this Agreement or any Lease; “Reportable Compliance Event” means that any Covered Entity becomes a Sanctioned Person, or is indicted, arraigned, investigated or custodially detained, or receives an inquiry from regulatory or law enforcement officials, in connection with any Anti-Terrorism Law or any predicate crime to any Anti-Terrorism Law, or self-discovers facts or circumstances implicating any aspect of its operations with the actual or possible violation of any Anti-Terrorism Law; “Sanctioned Country” means a country subject to a

 

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sanctions program maintained by any Compliance Authority; and “Sanctioned Person” means any individual person, group, regime, entity or thing listed or otherwise recognized as a specially designated, prohibited, sanctioned or debarred person or entity, or subject to any limitations or prohibitions (including but not limited to the blocking of property or rejection of transactions), under any order or directive of any Compliance Authority or otherwise subject to, or specially designated under, any sanctions program maintained by any Compliance Authority.

 

30.           USA PATRIOT ACT NOTICE.   To help the government fight the funding of terrorism and money laundering activities, Federal law requires all financial institutions to obtain, verify and record information that identifies each lessee that opens an account.  What this means: when Lessee opens an account, Lessor will ask for the business name, business address, taxpayer identifying number and other information that will allow Lessor to identify Lessee, such as organizational documents. For some businesses and organizations, Lessor may also need to ask for identifying information and documentation relating to certain individuals associated with the business or organization.

 

31.           GOVERNING LAW .  This Agreement and each Lease are entered into, under and shall be construed in accordance with, and governed by, the laws of the State of New York, without giving effect to conflict of laws principles.  Each Party consents to the exclusive jurisdiction of any state or federal court in the State of New York over any action or proceeding brought in connection with this Agreement.  LESSEE AND LESSOR EXPRESSLY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO WHICH LESSOR AND/OR LESSEE MAY BE PARTIES ARISING OUT OF OR IN ANY WAY PERTAINING TO THIS AGREEMENT.

 

32.           FINANCE LEASE STATUS .  Lessee agrees that if Article 2A-Leases of the Uniform Commercial Code of the State of New York (the “ Uniform Commercial Code ” or “ UCC ”) applies to this Agreement and any Lease, this Agreement and each such Lease shall be considered a “Finance Lease” as that term is defined in Article 2A.  TO THE EXTENT PERMITTED BY APPLICABLE LAW, LESSEE WAIVES ANY AND ALL RIGHTS AND REMEDIES CONFERRED UPON A LESSEE BY SECTIONS 508-522 OF ARTICLE 2A OF THE UNIFORM COMMERCIAL CODE.

 

33.           BUSINESS DAY .  For all purposes hereof, the term “business day” means any day which is not a Saturday, Sunday or other day on which banks are required to close for business in the State of New York.

 

34.           SPV LESSEE .  Lessee shall use commercially reasonable efforts to cause the Power Purchase Agreement to be amended to expressly permit an assignment thereof by Lessee and, if so amended, Lessee shall, promptly following a request by Lessor, assign all of its right, title and interest in and to each Lease, each other Lease Document and each Project Document to a special purpose bankruptcy remote Delaware limited liability company that is wholly owned by Lessee (such limited liability company, a “ SPV Lessee ”) and the SPV Lessee shall assume all of the obligations of Lessee under each Lease, each other Lease Document and each Project Document.  In connection with such assignment and assumption, (i) Lessee shall pledge to Lessor,

 

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pursuant to a pledge agreement in form and substance satisfactory to Lessor all of its membership interests in the SPV Lessee, (ii) SPV Lessee shall execute and deliver a security agreement in form and substance acceptable to Lessor pursuant to which SPV Lessee collateral assigns all of its assets to Lessor as security for the obligations of SPV Lessee under each Lease and each other Lease Document, (iii) executed and deliver a guaranty in favor of Lessor guarantying all of the SPV Lessee’s obligations under each Lease and each other Lease Document, such guaranty to be in form and substance satisfactory to Lessor, (iv) enter into an Operations and Maintenance Agreement with the SPV Lessee in form and substance satisfactory to Lessor providing for the operation and maintenance of the Equipment by Lessee on behalf of the SPV Lessee in compliance with the terms of each Lease and each Project Document, (v) obtain all consents and approvals from each counterparty to each Project Document that are required or desirable in connection with such assignment to the SPV Lessee, (vi) obtain all governmental, administrative and regulatory consents and approvals that are required or desirable in connection with such assignment to the SPV Lessee, and (vi) cause the limited liability company agreement or operating agreement of the SPV Lessee to include such bankruptcy remote and separateness provisions as Lessor may require to establish the SPV Lessee as a bankruptcy remote entity separate from Lessee.

 

35.           PLEDGED EQUIPMENT . (a) As collateral security for the payment and performance in full when due (whether at stated maturity, by acceleration or otherwise) of Lessee’s obligations under this Agreement and under each Lease (the “ Obligations ”), Lessee hereby assigns, pledges and grants to Lessor, a security interest in, and continuing lien on all of Lessee’s right, title and interest (if any) in, to and under the following, in each case whether tangible or intangible, wherever located, and whether now owned by Lessee or hereafter acquired and whether now existing or hereafter coming into existence (the “ Pledged Equipment Collateral ”): (i) that certain fuel cell equipment owned or to be owned by Lessee and located or to be located at the [***] and more particularly described on Exhibit B hereto (the “[***] Equipment ”), (ii) that certain fuel cell equipment owned or to be owned by Lessee and located or to be located at the [***] and more particularly described on Exhibit C hereto (the “[***] Equipment ” and, together with the [***] Equipment, the “ Pledged Equipment ”), (iii) all agreements, existing or hereafter entered into by Lessee relating to the construction, installation, operation, maintenance or use of the Pledged Equipment, including without limitation, all instruments and documents executed and delivered with respect to such agreements, as the same may be amended, supplemented or otherwise modified from time to time in accordance with the terms thereof and this Lease (such agreements as so amended, supplemented or modified, being the “ Pledged Equipment Project Documents ”), including, without limitation, all rights of Lessee to receive moneys due and to become due under or pursuant to the Project Documents, including, without limitation, the operations and maintenance agreements related to the Pledged Equipment, any power purchase agreement relating to the Pledged Equipment, and all warranties covering the Pledged Equipment, (iii) all General Intangibles, Accounts, Instruments, Chattel Paper and Commercial Tort Claims arising out of the use of the Pledged Equipment or the sale of energy derived thereby, and (iv) all Proceeds of the foregoing.  Lessee shall provide Lessor with acknowledgements from the counterparties to the Pledged Equipment Project Documents that acknowledge and consent to the collateral assignment of such contracts and Lessor’s rights to such contracts. Lessee shall deliver to each counterparty

 

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to any Pledged Equipment Project Document pursuant to which the Lessee is entitled to receive any payments for the use or operation of the Pledged Equipment or for the energy generated thereby an irrevocable payment instruction directing such counterparty to make all payments required to be made by such counterparty pursuant to such Pledged Equipment Project Document to the account of the Lessor specified in the a Schedule identified by Lessor (or such other account as Lessor shall notify to Lessee in writing).

 

(b)           Capitalized terms used in this Section 35 and not otherwise defined in this Agreement shall have the meanings set forth in the Uniform Commercial Code as from time to time in effect in the State of New York, or in any other applicable or specified jurisdiction (the “ UCC ”).

 

(c)           The Lessee shall use, operate, maintain, repair, replace and insure the Pledged Equipment in compliance with Section 6 , Section 8 , Section 12 , Section 13 and Section 20(c)  of this Agreement, to the same extent as if the Pledged Equipment was “Equipment” leased pursuant to a Lease hereunder except that (i) the location of the Pledged Equipment for purposes of Section 8 shall be the location identified on Exhibit B or Exhibit C , as applicable, (ii) in lieu of option (c) in Section 12 , all insurance proceeds payable in connection with any damage to, theft, loss or destrcuition of the Pledged Equipment shall be paid to Lessor and held by Lessor as security for the payment and performance in full when due (whether at stated maturity, by acceleration or otherwise) of Lessee’s obligations under this Agreement and under each Lease, and (iii) the amount of casualty insurance required pursuant to Section 13(a)  shall be an amount equal to the replacement value of the Pledged Equipment.  Lessor shall have the same inspection rights with respect to the Pledged Equipment as it has with respect to Equipment pursuant to Section 23 .

 

(d)           Upon the occurrence of a Default and during the continuation thereof Lessor shall have all of the rights and remedies available at law (including, without limitation, those provided to a secured party by the UCC), or in equity to collect, enforce or satisfy any Obligations then owing, whether by acceleration or otherwise.  In addition thereto, Lessee further agrees that (i) in the event that notice is necessary under applicable laws, written notice mailed to Lessee in accordance with the terms of this Agreement, at least ten (10) business days prior to the date of public sale of any of the Pledged Equipment Collateral subject to the security interest created herein or prior to the date after which private sale or any other disposition of said Pledged Equipment Collateral will be made shall constitute reasonable notice, but notice given in any other reasonable manner or at any other time shall be sufficient; (ii) in the event of sale or other disposition of any such Pledged Equipment Collateral, Lessor may apply the proceeds of any such sale or disposition to the satisfaction of Lessor’s reasonable attorneys’ fees, legal expenses, and other costs and expenses incurred in connection with Lessor’s taking, retaking, holding, preparing for sale, and selling of the Pledged Equipment Collateral; (iii) without precluding any other methods of sale, the sale of Pledged Equipment Collateral shall have been made in a commercially reasonable manner if conducted in conformity with reasonable commercial practices of banks disposing of similar property but in any event Lessor may sell on such terms as Lessor may choose, without assuming any credit risk and without any obligation to advertise or give notice of any kind; (iv) Lessor may require Lessee to assemble the Pledged Equipment Collateral, taking all necessary

 

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or appropriate action to preserve and keep it in good condition, and make such available to Lessor at a place and time convenient to both parties, all at the expense of Lessee; (v) Lessor has no obligation to repair, clean-up or otherwise prepare the Pledged Equipment Collateral for sale; and (vi) Lessor may comply with any applicable state or federal law requirements in connection with a disposition of the Pledged Equipment Collateral and compliance will not be considered adversely to affect the commercial reasonableness of any sale of the Pledged Equipment Collateral.  Furthermore, in any such event, to the extent permitted under applicable laws, full power and authority are hereby given Lessor to sell, assign, and deliver the whole of the Pledged Equipment Collateral or any part(s) thereof, at any time(s) at any broker’s board, or at public or private sale, at Lessor’s option, and no delay on Lessor’s part in exercising any power of sale or any other rights or options hereunder, and no notice or demand, which may be given to or made upon Lessee by Lessor with respect to any power of sale or other right or option hereunder, shall constitute a waiver thereof, or limit or impair Lessor’s right to take any action or to exercise any power of sale or any other rights hereunder, without notice or demand, or prejudice Lessor’s rights as against Lessee in any respect.  Lessee hereby waives and releases to the fullest extent permitted by law all rights, if any, of marshaling the Pledged Equipment Collateral and any other security for the Obligations or otherwise.  At any such sale, unless prohibited by Applicable Laws, Lessor may bid for and purchase all or any part of the Pledged Equipment Collateral so sold.  If Lessor sells any of the Pledged Equipment Collateral upon credit, Lessee will be credited only with payments actually made by the purchaser, received by Lessor and applied to the indebtedness of the purchaser.  In the event the purchaser fails to pay for the Pledged Equipment Collateral, Lessor may resell the Pledged Equipment Collateral and Lessee shall be credited with the proceeds of the sale as and when received, less expenses.  In the event Lessor purchases any of the Pledged Equipment Collateral being sold, Lessor may pay for the Pledged Equipment Collateral by crediting some or all of the Obligations.  Lessor shall not be liable for failure to collect or realize upon any or all of the Pledged Equipment Collateral or for any delay in so doing nor shall Lessor be under any obligation to take any action whatsoever with regard thereto.  Lessor has no obligation to attempt to satisfy the Obligations by collecting them from any other person liable for them and Lessor may release, modify or waive any collateral provided by any other Person to secure any of the Obligations, all without affecting Lessor’s rights against Lessee.  Lessee waives any right it may have to require Lessor to pursue any third Person for any of the Obligations.  Lessor may sell the Pledged Equipment Collateral without giving any warranties as to the Pledged Equipment Collateral and may specifically disclaim any warranties of title or the like.  This procedure will not be considered to adversely affect the commercial reasonableness of any sale of the Pledged Equipment Collateral.

 

(e)           Lessee hereby irrevocably authorizes Lessor at any time and from time to time to file in any relevant jurisdiction any financing statements with respect to the Pledged Equipment Collateral or any part thereof and amendments thereto that contain the information required by the UCC of each applicable jurisdiction for the filing of any financing statement or amendment  Lessee agrees to reimburse Lessor for the expense of any such filings in any location deemed necessary and appropriate by Lessor.

 

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(f)            Lessee shall perform or cause to be performed such acts as as are necessary to establish and maintain for Lessor a valid and perfected security interest in and security title to the Pledged Equipment Collateral, free and clear of any Liens other than Permitted Liens.

 

36.           MISCELLANEOUS .  The captions of this Agreement are for convenience only and shall not be read to define or limit the intent of the provision that follows such captions.  This Agreement contains the entire agreement and understanding between Lessor and Lessee relating to the subject matter hereof.  Any variation or modification hereof and any waiver of any of the provisions or conditions hereof shall not be valid unless in writing signed by an authorized representative of the Parties hereto.  Any provision of this Agreement that is unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.  Lessor’s failure at any time to require strict performance by Lessee or any of the provisions hereof shall not waive or diminish Lessor’s right thereafter to demand strict compliance therewith or with any other provision.

 

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IN WITNESS WHEREOF, the Parties hereto have duly executed this Agreement as of the date first above written.

 

LESSOR:

 

 

 

GENERATE CAPITAL, INC.

 

 

 

 

By:

/s/ Matan Friedman

 

 

Name: Matan Friedman

 

 

Title: CIO

 

 

 

LESSEE:

 

 

 

PLUG POWER INC.

 

 

 

 

By:

/s/ Paul B. Middleton

 

 

Name: Paul B. Middleton

 

 

Title: CFO

 

 

(Signature Page to Plug Power Master Lease Agreement)

 


 

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EXHIBIT A

RENTAL SCHEDULE NO. [        ]

 

This Rental Schedule dated and effective as of [      ], 2016 (this “ Lease ”) incorporates by reference the terms and provisions of the Master Lease Agreement dated as of June 3, 2016 (the “ Master Lease Agreement ”) by and between Generate Capital, Inc. (together with its successors and assigns, “ Lessor ”) and Plug Power Inc. (“ Lessee ”).  This Lease shall be accompanied by a Certificate of Acceptance in the form attached as Attachment #1 .

 

All terms used within this document that are defined in the Master Lease Agreement shall have the same meaning herein.

 

1.               Description of Equipment:

 

[  ] GenDrive Fuel Cells, as more fully described on Schedule A hereto, and located at [                     ].

[  ] GenKey Hydrogen Fueling System, as more fully described on Schedule A hereto, and located at [                     ].

 

Lease Terms:

 

Initial Term :     [               ]

Rental Commencement Date :    [      ], 2016

Rent :   As set forth on Attachment #2 attached hereto and incorporated herein

Prepayment:  $[              ](1)

Lessor Account Information: All payments of Rent shall be made to the following account of Lessor   [              ](2)

 

The Initial Term of this Lease shall commence upon the Acceptance Date as indicated on the Certificate of Acceptance (“ Lease Commencement Date ”) and, unless earlier terminated pursuant to the terms of the Master Lease Agreement, shall continue until expiration of the number of months specified above after the Rental Commencement Date specified above.  Rent shall begin accruing on the Rental Commencement Date and shall be due and payable, along with applicable taxes, in advance each month during the Initial Term on the dates and in the amounts specified for such date on Attachment #2.

 

Lessee shall pay Rent throughout the Initial Term on each Rent payment date listed on Attachment #2 in the amount specified under the column heading “Cash Rent Payment” for such Rent payment date. The Rent payable on each Rent payment date shall be applied to satisfy the Lessee’s obligation with respect to the cash Rent owed on each “Rental Date”, as further set forth on Attachment #2 hereto.

 

The total “Cash Rent Payment” due from Lessee for use of the Equipment during the Initial Term shall accrue in advance from the Lease Commencement Date throughout the Initial

 

(1)  To equal 20% of the Purchase Price for the Equipment

(2)  Account information to be inserted

 

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Term and shall be allocated to each full or partial calendar year during such Initial Term (each, an “ Allocation Period ”) in the amounts shown under the column heading “Annual Allocation for Federal Income Tax Rent” (the “ Allocated Rent ”) on Attachment #4 hereto. Within each Rental Period, such Allocated Rent shall be allocated on a level daily basis.

 

The Lessor and the Lessee agree that the “Allocated Rent” shown on Attachment #4 is intended to constitute a specific allocation of fixed rent within the meaning of Treasury Regulation §1.467-1(c)(2)(ii)(A) to each Rental Period and, thus, does not represent any exchange of cash or a deduction against “Cash Rent Payment.” The rent that the Lessor and Lessee will report for use of the Equipment for income tax purposes is the Allocated Rent as shown in Attachment #4.

 

If, from time to time, there is a difference in the cumulative “Cash Rent Payments” and “Allocated Rents”, then the Lessor and the Lessee will treat the difference for income tax purposes as a loan as described in Section 467 of the Code. Lessor and Lessee agree that the “Interest” shown on Attachment #4 is intended as adequate interest on fixed rent within the meaning of Treasury Regulation §1.467-1(e)(2) and §1.467-2(b)(1)(ii), and the “Interest” shown on Attachment #4 will be reported as interest expense of the Lessor and interest income of the Lessee when the difference between the cumulative amounts is ‘negative’ (a “Prepaid Rent Balance”) and as interest income of the Lessor and interest expense of the Lessee when the cumulative difference is ‘positive’(a “Deferred Rent Balance”).

 

2.               Termination Values are as set out on Attachment #3 attached hereto and incorporated herein.

 

3.               All purchase and end of term options awarded to Lessee in respect of this Lease shall apply to all, but not less than all, Equipment leased under this Lease.

 

[ Signature page follows. ]

 

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IN WITNESS WHEREOF, the Parties hereto have caused this Lease to be duly executed on the date set forth below by their authorized representatives.

 

THIS LEASE CANNOT BE CANCELLED

 

LESSOR:

 

 

 

GENERATE CAPITAL, INC.

 

 

 

 

 

By:

 

 

 

 

Name:

 

 

 

Title:

 

 

 

 

 

 

LESSEE:

 

 

 

PLUG POWER INC.

 

 

 

 

 

By:

 

 

 

 

Name:

 

 

 

Title:

 

 

 

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Schedule A
TO EXHIBIT A

 

DESCRIPTION OF EQUIPMENT

 

Equipment

 

Site

 

Description

 

Model

 

Quantity

 

Serial
Numbers

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Attachment #1
TO EXHIBIT A

 

CERTIFICATE OF ACCEPTANCE

to

 

Rental Schedule No.

Dated [      ], 2016

 

In compliance with the terms, conditions and provisions of the Master Lease Agreement dated as of June 3, 2016 (the “ Lease ”) between the undersigned (“ Lessee ”) and Generate Capital, Inc. (together with its successors and assigns, “ Lessor ”), Lessee hereby:

 

(a)                                  certifies and warrants that all Equipment described in the above-referenced Rental Schedule (the “ Equipment ”) is delivered, inspected and fully installed, and operational as of the Acceptance Date as indicated below;

 

(b)                                  accepts all the Equipment for all purposes under the Lease and all attendant documents as of the date above (the “ Acceptance Date ”); and

 

(c)                                   restates and reaffirms, as of the Acceptance Date, each of the representations, warranties and covenants heretofore given to Lessor in the Lease.

 

Lessor is hereby authorized to insert serial numbers on the above-referenced Rental Schedule.

 

 

LESSEE:

 

PLUG POWER INC.

 

 

 

 

 

 

By:

 

 

Name:

 

Title:

 

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Attachment #2
TO EXHIBIT A

 

Rents
for Rental Schedule No. [         ]

 

Rent shall be due and payable in accordance with the following schedule.(3)  Rent is stated exclusive of all applicable sales and/or use taxes.  Lessee is responsible for all sales and/or use taxes on the Rent.

 

(3)  Rent payments will be due monthly in advance.

 

6

 

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Attachment #3
TO EXHIBIT A

 

Termination Value Schedule
Rental Schedule No. [           ]

 

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Attachment #4
TO EXHIBIT A

 

Allocated Rents For
Rental Schedule No.

 

Annual Allocation for Federal Income Tax

 

Allocation Period

 

Allocated Rent

 

Interest

 

 

 

 

 

 

 

 

 

$

 

 

$

 

 

 

8



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Exhibit 23.1

Consent of Independent Registered Public Accounting Firm

The Board of Directors
Plug Power Inc.:

        We consent to the use of our report with respect to the consolidated financial statements and the effectiveness of internal control over financial reporting incorporated by reference herein and to the reference to our firm under the heading "Experts" in the prospectus.

        Our report dated March 14, 2016 contains an explanatory paragraph that states that the scope of management's assessment of internal control over financial reporting excluded the internal control over financial reporting of Hypulsion U.S. Holding, Inc. ("HyPulsion"), which the Company acquired in July 2015. HyPulsion represented 7.3% of total assets and 0.3% of total revenue included in the Company's consolidated financial statements as of and for the year ended December 31, 2015. Our audit of internal control over financial reporting of the Company also excluded an evaluation of the internal control over financial reporting of HyPulsion.

    /s/ KPMG LLP  

Albany, New York
November 21, 2016



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Consent of Independent Registered Public Accounting Firm