EXHIBIT 10.1

SEVENth AMENDMENT TO LOAN AGREEMENT

This SEVENTH AMENDMENT TO LOAN AGREEMENT (this “Amendment”), dated as of September 30, 2019, is made by and among FUELCELL ENERGY FINANCE, LLC, a Connecticut limited liability company having its principal office located at 3 Great Pasture Road, Danbury, Connecticut 06810 (hereinafter referred to as “Parent”), CENTRAL CA FUEL CELL 2, LLC, a Delaware limited liability company (hereinafter referred to as “Co-Borrower”, and, together with Parent, the “Credit Parties”), and NRG ENERGY, INC., a Delaware corporation having an office address located at 804  Carnegie Center Drive, Princeton, New Jersey 08540, its permitted successors and/or assigns (hereinafter referred to as “Lender”).  Each capitalized term used and not otherwise defined herein shall have the meaning assigned thereto in Article I of the Loan Agreement (as defined below).

WHEREAS, Parent and Lender entered into that certain Loan Agreement dated as of July 30, 2014, as amended by that certain First Amendment to Loan Agreement dated as of April 18, 2016, that certain Second Amendment to Loan Agreement dated as of December 13, 2018, that certain Third Amendment to Loan Agreement dated as of March 29, 2019, that certain Fourth Amendment to Loan Agreement dated as of June 13, 2019, that certain Fifth Amendment to Loan Agreement dated as of July 11, 2019, and that certain Sixth Amendment to Loan Agreement dated as of August 8, 2019 (collectively, the “Loan Agreement”) pursuant to which Lender agreed to make certain Project Debt available to Co-Borrowers pursuant to the terms thereof; and

WHEREAS, Co-Borrower became a party to the Loan Agreement pursuant to that certain Joinder Agreement dated December 13, 2018, by and between Co-Borrower and Lender; and

WHEREAS, the Credit Parties have requested that Lender agree to amend the Loan Agreement as more particularly set forth herein and to avoid the occurrence of an Event of Default; and

WHEREAS, Lender is willing to agree to certain amendments specified below, in each case subject to the terms and conditions set forth herein.

NOW, THEREFORE, in consideration of the foregoing premises, and other good and valuable consideration, the receipt, sufficiency and adequacy of which are hereby acknowledged, the parties hereto agree as follows:

Section 1.Amendments to the Loan Agreement.  Subject to the terms and conditions of this Amendment, Lender agrees to amend the Loan Agreement as of the Effective Date as follows:  

(a)The definition of “Maturity Date” is hereby deleted in its entirety and replaced with the following:

“Maturity Date” shall mean, with respect to each Note, the earlier of (i) October 31, 2019 and (ii) the date on which the Parent closes on a corporate refinancing or other form of liquidity; provided, however, in the event the Lender determines, in its sole discretion, that the Credit Parties are not making sufficient progress toward the

completion of the Project, the Lender may accelerate the Maturity Date on the date of such determination.

Section 2.Acknowledgments.  To induce the Lender to enter into this Amendment, the Credit Parties acknowledge and agree that (i) the Loan Documents are legal, valid, and binding obligations of, and enforceable in accordance with their respective terms against, the Credit Parties who are parties thereto; (ii) the Liens on and security interests in the Collateral in favor of the Lender are valid, legal, binding, and properly perfected and are reaffirmed and ratified in all respects, and nothing contained herein is intended to alter the priority of, or terminate any, Lien on or security interest in any Collateral in favor of the Lender, for itself and the ratable benefit of the Lenders; (iii) the Credit Parties do not have any rights of offset, defenses, claims, or counterclaims under any Loan Document, at law, or in equity with respect to any of their obligations under the Loan Documents, all of which are valid and outstanding obligations of the Credit Parties; (iv) nothing contained herein extinguishes, discharges, or releases any of the obligations or any Loan Document or constitutes an accord, satisfaction, novation, or substitution of any of the obligations or any Loan Document; and (v) the Credit Parties have been represented (or had the opportunity to be represented) by the legal counsel of the Credit Parties’ choice, understand and are fully aware of the terms and conditions contained in this Amendment, and have voluntarily, without coercion or duress of any kind, entered into this Amendment.

Section 3.Release by the Co-Borrowers and the Corporate Guarantor.  The Co-Borrower and the Parent, on behalf of themselves, and any person or entity claiming by or through them (hereinafter collectively referred to as the “Releasors”), hereby unconditionally remise, release and forever discharge the Lender, its past and present officers, directors, shareholders, agents, parent corporations, subsidiaries, affiliates, trustees, administrators, attorneys, predecessors, successors and assigns and the heirs, executors, administrators, successors and assigns of any such person or entity, as releasees (hereinafter collectively referred to as the “Releasees”), of and from any and all manner of actions, causes of action, suits, debts, dues, accounts, bonds, covenants, contracts, agreements, promises, warranties, guaranties, representations, liens, mechanics’ liens, judgments, claims, counterclaims, crossclaims, defenses, claims for damages (whether direct or indirect, consequential, special, exemplary, or punitive) and/or demands whatsoever, including claims for contribution and/or indemnity, whether now known or unknown, past or present, asserted or unasserted, contingent or liquidated, at law or in equity, or resulting from any assignment, if any (hereinafter collectively referred to as the “Claims”), which any of the Releasors ever had or now have against any of the Releasees, for or by reason of any cause, matter or thing whatsoever, arising from the beginning of time to the date hereof.  The Co-Borrower and the Parent hereby warrant and represent that they have not assigned, pledged, hypothecated, and/or otherwise divested themselves and/or encumbered all or any part of the Claims being released hereby and that they hereby agree to indemnify and hold harmless any and all of Releasees against whom any Claim so assigned, pledged, hypothecated, divested and/or encumbered is asserted.

Section 4.Reservation of Rights.  Lender reserves any and all rights which it has, or may now or in the future have, to exercise any and all powers, rights, remedies and privileges under the Loan Agreement and any other Loan Documents with no impairment or prejudice of such power, right, remedy or privilege.  No single or partial exercise of any such power, right, remedy or privilege shall preclude any other or further exercise thereof or of any other right, power,

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remedy or privilege, and all of such rights, powers, remedies and privileges are and shall continue to be cumulative.  No failure of Lender to immediately exercise any such power, right, remedy or privilege shall constitute or be deemed to constitute a waiver thereof or the acquiescence by Lender with respect to any Default or Event of Default.

Section 5.No Course of Dealing or Performance.  Each Credit Party acknowledges and agrees that the execution, delivery and performance of this Amendment by it does not and shall not create (nor shall either Credit Party rely upon the existence of or claim or assert that there exists) any obligation of Lender to consider or agree to any other amendment of or waiver or consent with respect to the Loan Agreement or any other Loan Document, or any other instrument or agreement to which Lender is a party (collectively, an “Amendment or Consent”), and in the event that Lender subsequently agrees to consider any requested Amendment or Consent, neither the existence of this Amendment nor any other conduct of Lender related hereto, shall be of any force or effect on Lender’s consideration or decision with respect to any such requested Amendment or Consent, and Lender shall not have any obligation whatsoever to consider or agree to any such Amendment or Consent.

Section 6.Representations and Warranties.  To induce Lender to enter into this Amendment, each Credit Party does hereby represent and warrant that as of the Effective Date, after giving effect to the amendments contained herein:

(a)each representation and warranty of each Credit Party under the Loan Agreement and the other Loan Documents is true and correct in all material respects on and as of the Effective Date as if made on and as of such date, except to the extent such representation or warranty relates to an earlier date in which case it was true and correct as of such earlier date;

(b)Each Credit Party has the power and authority, and has taken all the necessary actions, to authorize the execution, delivery and performance of this Amendment;

(c)this Amendment has been duly executed and delivered by a duly authorized officer of each Credit Party, and this Amendment, the Loan Agreement as amended hereby (the “Amended Agreement”) and the other Loan Documents, are the legal, valid and binding obligation of each Credit Party enforceable against it in accordance with their terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other similar laws affecting creditors’ rights generally and by principles of equity relating to enforceability; and

(d)the execution and delivery of this Amendment and performance of this Amendment and the Amended Agreement in accordance with their respective terms do not and will not, with the passage of time, the giving of notice or otherwise: (A) require any consent, approval, authorization, permit or license, governmental or otherwise that has not already been obtained or is not in full force and effect or violate any applicable law relating to each Credit Party; (B) conflict with, result in a breach of or constitute a default under (1) the articles or certificate of incorporation or formation or bylaws, operating agreement or the partnership agreement, as the case may be, of each Credit Party, or (2) any material agreements of each Credit Party or by which any of its properties may be bound; or (C)

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result in or require the creation or imposition of any Lien upon or with respect to any property now owned or hereafter acquired by each Credit Party other than Permitted Liens.

Section 7.Payments, Fees and Expenses.  

(a)Parent agrees to pay all reasonable attorneys’ fees of Lender related to the preparation and finalization of this Amendment, such payment to be made no later than ten (10) business days after the Effective Date.

(b)In addition, this Amendment shall not become effective until the date on which the Lender receives a payment pursuant to this Amendment of two million dollars ($2,000,000), which shall be applied to the principal of the Loan. The Credit Parties further agree to make an additional payment of five hundred thousand dollars ($500,000) on October 15, 2019, which shall be applied to principal of the Loan.

Section 8.Loan Agreement; Other Loan Documents.  The Amended Agreement and the other Loan Documents remain in full force and effect in accordance with their respective terms and are hereby ratified and affirmed in all respects.  Except for the amendments set forth in Section 1, nothing herein shall be construed to limit, affect, modify or alter each Credit Party’s obligations under the Loan Agreement or elsewhere under the Loan Documents.  This Amendment shall not be construed to: (i) impair the validity, perfection or priority of any lien or security interests securing the Obligations; (ii) waive or impair any rights, powers or remedies of Lender under the Loan Agreement and the other Loan Documents; (iii) constitute an agreement by Lender or require Lender to extend the time for payment of any of the Obligations; or (iv) constitute a waiver of any right of Lender to insist on strict compliance by each Credit Party with each and every term, condition and covenant of this Amendment, the Amended Agreement and the other Loan Documents to which it is a party in accordance therewith.

Section 9.General.   This Amendment (a) shall be deemed to be a Loan Document and (b) embodies the entire understanding and agreement among the parties hereto and thereto with respect to the subject matter hereof and thereof and supersedes all prior agreements, understandings and inducements, whether express or implied, oral or written.

Section 10.Successors and Assigns.  This Amendment shall be binding upon and inure to the benefit of the successors and permitted assigns of the parties hereto.

Section 11.Execution in Counterparts.  This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.  Delivery of an executed counterpart by facsimile shall be equally effective as delivery of a manually executed counterpart to this Amendment.

Section 12.GOVERNING LAW.  THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

[signatures appear on the following pages]

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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective duly authorized representatives as of the date first written above.

Signature Page to the Seventh Amendment to Loan Agreement

EXHIBIT 10.2

THIRD AMENDMENT TO CONSTRUCTION LOAN AGREEMENT

THIS THIRD AMENDMENT TO CONSTRUCTION LOAN AGREEMENT (this “Amendment”) is dated as of September 30, 2019, by and among FUELCELL ENERGY FINANCE II, LLC, a Connecticut limited liability company (“Borrower”), BAKERSFIELD FUEL CELL 1, LLC, a Delaware limited liability company (“Bakersfield”), BRT Fuel Cell, LLC, a New York limited liability company (“BRT”), CR FUEL CELL, LLC, a New York limited liability company (“CR”), Yaphank Fuel Cell Park, LLC, a New York limited liability company (“Yaphank”), Homestead Fuel Cell 1, LLC, a Connecticut limited liability company (“Homestead”), DERBY FUEL CELL, LLC, a Connecticut limited liability company (“Derby”, and collectively with Bakersfield, BRT, CR, Yaphank and Homestead, each, an “Initial Project Company Guarantor”, and together, the “Initial Project Company Guarantors”), and GENERATE LENDING, LLC, a Delaware limited liability company (the “Lender”).

WHEREAS, the Borrower, the Initial Project Company Guarantors and the Lender are parties to a Construction Loan Agreement dated as of December 21, 2018 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Loan Agreement”), pursuant to which the Lender has made a construction loan facility available to the Borrower; and

WHEREAS, the Borrower and the Lender have agreed to modify certain provisions of the Loan Agreement as more particularly set forth in this Amendment.

NOW, THEREFORE, in consideration of the premises and of the mutual covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:

“(i) The Lender may, in its sole discretion, at any time, issue a notice to Borrower stating that Lender is terminating the Commitment and that all Working Capital Loans are due and payable; provided that such notice may be in the form of an e-mail message or other memorandum.  If the Lender delivers such notice, the Commitment shall immediately terminate and all of the Working Capital Loans, together with all accrued and unpaid interest thereon and all other Obligations then outstanding, shall be due and payable in their entirety, without penalty or premium, within two (2) Business Days of delivery of such notice.  The obligation of the Borrower to repay the Working Capital Loans, all accrued and unpaid interest thereon and all other then outstanding Obligations as contemplated by this Section 2.3(i) has been guaranteed by the Parent pursuant to the Parent Guaranty.  In the event that Lender issues the foregoing notice, from and after such date, Lender shall not be entitled to any Disposition Fee under Section 2.3 (c) or have any rights under Section 2.3(d) with respect to any Disposition or Refinancing that occurs after such date; provided,

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however, the Lender shall be entitled to a Disposition Fee on any Disposition of the Bakersfield Project, regardless of when such Disposition occurs.”

“(j)Until such time as all Obligations have been repaid in full, no Initial Project Company Guarantor shall be released from any of its obligations as a Loan Party under this Agreement and the other Loan Documents, including without limitation its guaranty of the Obligations pursuant to Section 10 of this Agreement.”

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(f)To provide daily reports to Lender in form and substance reasonably satisfactory to Lender.

The Borrower and the Initial Project Guarantors acknowledge and agree that the failure to timely comply with any of the foregoing covenants shall constitute a Facility Event of Default under the Loan Agreement.  

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[Remainder of page intentionally blank; signature pages follow.]

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IN WITNESS WHEREOF, the Borrower, the Initial Project Company Guarantors and the Lender have caused this Amendment to be duly executed by their duly authorized officers, under seal, all as of the date first above written.

[Signatures continue on following page.]

THIRD AMENDMENT TO LOAN AGREEMENT

SIGNATURE PAGE

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THIRD AMENDMENT TO LOAN AGREEMENT

SIGNATURE PAGE

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THIRD AMENDMENT TO LOAN AGREEMENT

SIGNATURE PAGE

THIRD AMENDMENT TO LOAN AGREEMENT

SIGNATURE PAGE

ACKNOWLEDGMENT AND AGREEMENT

OF

PARENT

September 30, 2019

Reference is made to (i) that certain Third Amendment to Construction Loan Agreement, dated as of the date hereof (as amended, restated, supplemented or otherwise modified from time to time, the “Amendment”), by and among FUELCELL ENERGY FINANCE II, LLC, a Connecticut limited liability company (“Borrower”), BAKERSFIELD FUEL CELL 1, LLC, a Delaware limited liability company (“Bakersfield”), BRT Fuel Cell, LLC, a New York limited liability company (“BRT”), CR FUEL CELL, LLC, a New York limited liability company (“CR”), Yaphank Fuel Cell Park, LLC, a New York limited liability company (“Yaphank”), Homestead Fuel Cell 1, LLC, a Connecticut limited liability company (“Homestead”), DERBY FUEL CELL, LLC, a Connecticut limited liability company (“Derby”, and collectively with Bakersfield, BRT, CR, Yaphank and Homestead, each, an “Initial Project Company Guarantor”, and together, the “Initial Project Company Guarantors”), and GENERATE LENDING, LLC, a Delaware limited liability company (the “Lender”); (ii) that certain Construction Loan Agreement, dated as of December 21, 2018 (as amended, restated, supplemented or otherwise modified from time to time, the “Loan Agreement”), by and among the Borrower, the Initial Project Company Guarantors and the Lender; and (iii) that certain Guaranty Agreement, dated as of December 21, 2018 (as amended, restated, supplemented or otherwise modified from time to time, the “Parent Guaranty”), by FUELCELL ENERGY, INC., a Delaware corporation (the “Parent”).   Capitalized terms used herein and not otherwise defined herein shall have the respective meanings given to such terms in the Loan Agreement.

The Parent, a guarantor of the full and prompt payment of all of the indebtedness, obligations and liabilities of the Borrower to the Lender to pursuant the Parent Guaranty, hereby:

(a)acknowledges receipt of a copy of the Amendment, which amends the Loan Agreement to, among other things, provide for a new period during which the Lender may exercise its option to terminate its Commitment under the Loan Agreement and cause all Working Capital Loans to become immediately due and payable and sets forth a repayment schedule for the outstanding Working Capital Loans and certain prepayment requirements;

(b)acknowledges and agrees that all obligations of the Borrower to the Lender under the Loan Agreement, as amended by the Amendment, and the other Loan Documents, are in each case guaranteed by the Parent pursuant to the Parent Guaranty, and reaffirms all of its obligations under the Parent Guaranty;

(c)acknowledges and agrees that the Parent Guaranty, and the Parent’s obligations thereunder, remain in full force and effect, without release, diminution or impairment, notwithstanding the execution and delivery of the Amendment or the modifications to the Loan Agreement set forth therein; and

(d)represents, warrants, acknowledges and agrees to and with Lender that (i) the Parent does not hold or claim any right of action, claim, cause of action or damages, either at law or in equity, against Lender which arises from, may arise from, allegedly arise from, are based upon or are related in any manner whatsoever to the Loan Agreement, the Amendment, any other Loan Document or any other related agreement, document or instrument, which are based upon acts or omissions of Lender in connection therewith and (ii) the indebtedness, obligations and liabilities owing by the Parent pursuant to the Parent Guaranty are absolutely owed to Lender, without offset, deduction or counterclaim.

[Remainder of page intentionally blank; signature page follows.]

IN WITNESS WHEREOF, the undersigned has executed this Acknowledgment and Agreement under seal as of the date first written above.

THIRD AMENDMENT TO LOAN AGREEMENT

(ACKNOWLEDGEMENT AND AGREEMENT OF PARENT)

SIGNATURE PAGE

SCHEDULE 1

List of Assets of Borrower and Each Project Company Guarantor

CURRENT INFORMATION

1.Tangible Personal Property

Inventory and Equipment.  Set forth below are all the locations where Holdco and each Loan Party currently maintains inventory and equipment of Holdco or such Loan Party, as applicable (whether or not in the possession of Holdco or such Loan Party):  

** On June 7, 2019, Lender received an e-mail attaching a PDF, which included the project asset information identified above, along with pictures of such collateral. In addition, the information on collateral identified above was provided to Lender identifying project values.

2.Real Estate Related UCC Collateral – Owned or Leased Real Property.  

Set forth below are all the locations where Holdco or any Loan Party owns or leases any real property or otherwise conducts business:

EXHIBIT 10.3

THIRD AMENDMENT TO RIGHT TO FINANCE AGREEMENT

THIS THIRD AMENDMENT TO RIGHT TO FINANCE AGREEMENT (this "Amendment") is dated as of September 30, 2019 (the "Effective Date"), by and among FUELCELL ENERGY, INC., a Delaware corporation (the "Parent"), FUELCELL ENERGY FINANCE II, LLC, a Connecticut limited liability company, a wholly-owned subsidiary of the Parent (the "Borrower") ,and GENERATE LENDNG, LLC, a Delaware limited liability company (the "Lender").

WHEREAS, the Borrower, the Parent and the Lender are parties to a Right to Finance Agreement dated December 21, 2018, (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the "Right to Finance"); and

WHEREAS, the Borrower, the Initial Project Company Guarantors and the Lender are parties to a Construction Loan Agreement dated as of December 21, 2018 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the "Loan Agreement"), pursuant to which the Lender has made a construction loan facility available to the Borrower; and

WHEREAS, concurrently with the execution of this Amendment, the Borrower, the Initial Project Company Guarantors, and the Lender are entering into that certain Third Amendment to Construction Loan Agreement (the "Third Amendment"), which Third Amendment includes an acknowledgement and agreement of the Parent; and

WHEREAS, the Borrower, the Parent and the Lender have agreed to modify certain provisions of the Right to Finance, subject to the terms and conditions set forth herein.

NOW, THEREFORE, in consideration of the premises and of the mutual covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:

1.Capitalized Terms. Capitalized terms used in this Amendment which are not otherwise defined herein shall have the meanings assigned thereto in the Right to Finance.

2.Amendment of the Right to Finance. Each of the parties hereto hereby agrees that, on and as of the Effective Date:

(a)The last sentence of Paragraph 6 of the Right to Finance is hereby amended by deleting such sentence in its entirety and substituting in lieu thereof the following new sentence to read in its entirety as follows:

"In addition, if the Lender exercises its right to terminate the Commitment and require repayment of the Working Capital Loans pursuant to Section 2.3(i) of the Loan Agreement, this Agreement shall terminate as of the date of such exercise of such right."

(b)Paragraph 8 of the Right to Finance is hereby amended by adding the following new sentence to the end of such Paragraph 8:

“Notwithstanding the foregoing, this Agreement shall automatically terminate and be of no further force or effect after September 30^th, 2019.”

3.Applicable Law. THIS AMENDMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICTS OF LAW PROVISIONS.

4.Counterparts; Electronic Delivery. This Amendment may be executed in one or more counterparts (all counterparts together reflecting the signature of all parties) each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. Delivery by any party to this Amendment of its signatures hereon through facsimile or other electronic image file (including .pdf) (i) may be relied upon as if this Amendment were physically delivered with an original hand-written signature of such party, and (ii) shall be binding on such party for all purposes.

5.Successors. This Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.

6.Final Agreements. This Amendment represents the final agreement of the Borrower, the Parent and the Lender with respect to the subject matter hereof, and may not be contradicted, modified or supplemented in any way by evidence of any prior or contemporaneous written or oral agreements of the Borrower, the Parent and the Lender.

[Remainder of page intentionally blank; signature page follows.]

IN WITNESS WHEREOF, the Borrower, the Parent and the Lender have caused this Amendment to be duly executed by their duly authorized officers, under seal, all as of the date first above written.

EXHIBIT 10.4

September 30, 2019

FuelCell Energy, Inc.

3 Great Pasture Road

Danbury, CT 06810

Attention: Chief Financial Officer and Legal Department

Reference is hereby made to that certain Loan and Security Agreement (as amended from time to time, the “Loan Agreement”), entered into and effective as of April 14, 2016, by and among FuelCell Energy, Inc., a Delaware corporation, and each of its Qualified Subsidiaries(collectively referred to as the “Borrower”), the several banks and other financial institutions or entities from time to time parties thereto (collectively referred to as the “Lender”) and Hercules Capital, Inc., in its capacity as administrative agent and collateral agent for itself and the Lender (in such capacity, the “Agent”).  Capitalized terms used herein, but not otherwise defined, shall have the meaning set forth in the Loan Agreement.

We have been advised that the Borrower intends to pay off all of its indebtedness to the Lender, including principal, accrued and unpaid interest, fees, costs and expenses (collectively, the “Obligations”) payable under the Loan Agreement.  This letter (the “Payoff Letter”) will confirm that, upon receipt by the Lender of the Payoff Amount (together with any applicable Per Diem Amount; both as defined below) from or on behalf of the Borrower, all of the Obligations shall be paid in full.

Payoff Amount; Wiring Instructions.  The “Payoff Amount” is U.S. $835,178.00 through and until 5:00 p.m. Eastern time on September 30, 2019 (the “Payoff Date”).  If Lender does not receive funds in an amount sufficient to repay the Payoff Amount in full by 5:00 p.m. Eastern time on the Payoff Date, additional interest and fees shall accrue and be payable in the amount of U.S. $144.44 per day (the “Per Diem Amount”) until the Payoff Amount is paid in full. The Payoff Amount must be received, in immediately available funds, by 5:00 p.m. Eastern time on the Payoff Date in order for the Borrower to avoid the accrual of the Per Diem Amount.  The Payoff Amount and Per Diem Amount quoted herein are effective through October 31, 2019.

The Payoff Amount (together with any applicable Per Diem Amount) should be paid by or on behalf of the Borrower by wire transfer in accordance with the following instructions:

{Fuelcell Energy Payoff Letter}

Termination of Obligations. Upon the acceptance of this Payoff Letter by the Borrower as evidenced by their countersignature hereto and Lender’s receipt of the Payoff Amount (together with any applicable Per Diem Amount), the Lender’s commitments to extend further credit to the Borrower under the Loan Agreement shall terminate, all obligations, covenants, debts and liabilities of the Borrower under the Loan Agreement shall be satisfied and discharged in full, and the Loan Agreement and all other documents entered into in connection with the Loan Agreement shall be terminated, all liens or security interests granted to secure the obligations under the Loan Agreement shall automatically terminate and all guaranties of the obligations under the Loan Agreement shall automatically terminate.  Notwithstanding the foregoing, provisions set forth in Sections 6.3, 11.14 and 11.17 of the Loan Agreement shall survive the termination of the Loan Agreement.

Lender’s Agreements.  Upon the Lender’s receipt of the Payoff Amount (together with any applicable Per Diem Amount):

(a)The undersigned hereby agrees that upon the payment in full of the Payoff Amount, this Payoff Letter shall be deemed to be an authorization for the Borrower or any agent or other designee of the Borrower (i) to file UCC-3 financing statement terminations with respect to each financing statement filed against the Borrower and its Subsidiaries for the benefit of the Lender, and (ii) to deliver a copy of this letter or any other termination or release contemplated hereby to any insurance company, insurance broker, bank, landlord, tenant, warehouseman or other Person to evidence (and/or reflect on public record) the termination and release of all security interests, pledges, liens, assignments or other encumbrances which the Borrower or any guarantor or other obligor has granted to the Lender to secure the Obligations, and thereafter any contract, agreement, mortgage, commitment to deliver insurance certificates and proceeds and the like executed by any such party in favor of the Lender in connection with the transactions contemplated by the Loan Agreement shall be automatically terminated, without further action of or consent by the Lender.

(b)Lender will immediately return to Borrower for the benefit of the Borrower and its Subsidiaries all of the collateral it has in its possession including, without limitation all promissory notes, certificates representing the Collateral, any transfers therefore and any other instruments.

(c)Lender shall execute and deliver the Termination of Control Agreement attached hereto as Schedule A for each agreement by which Lender obtained control of a deposit account and / or a securities account to terminate its control over such deposit and / or securities account.

(d)Lender shall execute and deliver the Confirmation of Receipt of Full Payment of the Payoff Amount attached hereto as Schedule B.

The Lender further agrees that, at any time and from time to time following its receipt of the Payoff Amount, it will promptly execute and deliver such other termination statements or other agreements and instruments in form and substance reasonably satisfactory to the Borrower and take such other actions as the Borrower or its counsel may reasonably request to evidence, effect or reflect on public record the release of the security interests, pledges, liens and other encumbrances granted to the Lender pursuant to the Loan Agreement or any other agreement executed and/or delivered in connection therewith.

Release.  For and in consideration of the agreements of the Lender contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Borrower hereby forever releases and discharges the Lender, each of its respective officers, directors, employees, agents, affiliates, representatives, successors and assigns (collectively, the “Released Parties”) from any and all claims, causes of actions, damages and liabilities of any nature whatsoever,

known or unknown, which the Borrower ever had, now has or might hereafter have against one or more of the Released Parties which relates, directly or indirectly, to the Loan Documents or the transactions relating thereto, to the extent that any such claim, cause of action, damage or liability shall be based in whole or in part upon facts, circumstances, actions or events existing on or prior to the Payoff Date.  

Counterparts; Facsimile Delivery.  Lender hereby requests that the Borrower acknowledges its receipt and acceptance of and agreement to the terms and conditions set forth in this Payoff Letter by signing a copy of it in the appropriate space indicated below and returning it to the Lender.  This Payoff Letter may be signed by the parties hereto in several counterparts.  Delivery of a photocopy or facsimile of an executed counterpart of this Payoff Letter shall be effective as delivery of a manually executed original counterpart of this Payoff Letter.

Governing Law.  The validity, construction and effect of this Payoff Letter shall be governed by the laws of the State of California (without giving effect to principles of conflicts of law).

400 Hamilton Avenue

Suite 310

Palo Alto, CA  94301

650.289.3060

650.473.9194

www.HerculesTech.com

{Fuelcell Energy Payoff Letter}

Schedule B

CONFIRMATION OF RECEIPT OF FULL PAYMENT

OF THE PAYOFF AMOUNT

By its signature below, the undersigned hereby confirms its receipt of full payment of the Payoff Amount on the Payoff Date and releases its security interest in all of the Collateral as provided in our Payoff Letter dated as of September 30, 2019 (the “Payoff Letter”) to FuelCell Energy, Inc.  All terms used herein and not defined shall have the meaning attributed to them in the Payoff Letter.

400 Hamilton Avenue

Suite 310

Palo Alto, CA  94301

650.289.3060

650.473.9194

www.HerculesTech.com

{Fuelcell Energy Payoff Letter}