Second Amendment to Fifth Third Bank Construction Loan Agreement

As previously disclosed, on February 28, 2019, FuelCell Energy, Inc. (the “Company”), through its indirect wholly-owned subsidiary, Groton Station Fuel Cell, LLC (“Groton Borrower”), entered into a Construction Loan Agreement (the “Groton Agreement”) with Fifth Third Bank (“Fifth Third”) pursuant to which Fifth Third agreed to make available to Groton Borrower a construction loan facility in an aggregate principal amount of up to $23.0 million (the “Groton Facility”) to fund the manufacture, construction, installation, commissioning and start-up of the 7.4 MW fuel cell power plant for the Connecticut Municipal Electric Energy Cooperative located on the U.S. Navy submarine base in Groton, Connecticut.  Groton Borrower made an initial draw under the Groton Facility on the date of closing of $9.7 million and made a draw of $1.4 million in April 2019.  The total outstanding balance as of October 21, 2019 was $11.1 million.

On August 13, 2019, Groton Borrower and Fifth Third entered into Amendment No. 1 to the Groton Agreement, which reduced the aggregate principal amount available to Groton Borrower under the Groton Facility from $23.0 million to $18.0 million and pursuant to which Groton Borrower committed to, among other things, deliver to Fifth Third, no later than September 28, 2019 (which deadline was automatically extended to October 21, 2019 upon the Company’s repayment of its corporate loan facility with Hercules Capital, Inc. on September 30, 2019), a binding loan agreement for permanent financing and one or more binding letters of intent from tax equity investors.

On October 21, 2019, Groton Borrower and Fifth Third entered into Amendment No. 2 to the Groton Agreement (the “Second Groton Amendment”), pursuant to which Groton Borrower agreed to deliver to Fifth Third, no later than December 16, 2019, a binding agreement, in form and substance reasonably acceptable to Fifth Third:  (i) executed by Groton Borrower and one or more Take-out Lenders (as defined in the Groton Agreement), pursuant to which the Take-out Lenders shall have, individually or collectively, agreed to provide a Take-out Financing (as defined in the Groton Agreement); or (ii) executed by Groton Borrower and one or more tax equity investors or other third parties, pursuant to which such tax equity investors or third parties, via a tax equity or other financing transaction, shall have, individually or collectively, agreed to provide funds to Groton Borrower in an amount no less than the then-outstanding Construction Loans (as defined in the Groton Agreement) under the Groton Agreement and accrued interest; provided, however, that if (A) neither such binding agreement nor a commitment letter for either of such agreements (which commitment letter shall not include a due diligence or similar funding condition) is provided to Fifth Third by November 21, 2019, then commencing on November 22, 2019 until delivery of such commitment letter, the interest rate on the loans shall be the LIBOR rate plus 4% per annum and within three business days after such date, Groton Borrower shall pay to Fifth Third a fee of $15,000 and (B) such binding agreement is not provided to Fifth Third by December 16, 2019, then commencing on December 17, 2019, the outstanding obligations under the Groton Agreement will bear interest at a rate equal to the LIBOR rate plus 6% per annum.  

In conjunction with execution of the Second Groton Amendment, Groton Borrower will pay an amendment fee of $15,000 to Fifth Third.

The foregoing summary of the terms of the Second Groton Amendment is qualified in its entirety by reference to the full text of the Second Groton Amendment, a copy of which is attached as Exhibit 10.1 to this Current Report on Form 8-K and incorporated herein by reference.