EXHIBIT 10.1

FIRST AMENDMENT TO CREDIT AGREEMENT

This FIRST AMENDMENT TO CREDIT AGREEMENT (this “Amendment”), dated as of November 22, 2019, is entered into by and among FuelCell Energy, Inc., a Delaware corporation (the “Borrower”), each of the Guarantors party to the Credit Agreement, the lenders party to the Credit Agreement referred to below (collectively, the “Lenders” and each individually a “Lender”) that are signatories hereto, and Orion Energy Partners Investment Agent, LLC, as administrative and collateral agent for the Lenders (in such capacity, the “Administrative Agent”).  Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed thereto in the Credit Agreement (as defined below).

W I T N E S S E T H:

WHEREAS, the Borrower and the Guarantors have entered into financing arrangements pursuant to which the Lenders have made and provided loans and other financial accommodations, and may in the future make additional loans and financial accommodations, to the Borrower as set forth in the Credit Agreement, dated as of October 31, 2019, by and among the Borrower, the Guarantors, the Lenders and the Administrative Agent (as the same may hereafter be, amended, modified, supplemented, extended, renewed, restated, amended and restated or replaced, the “Credit Agreement”);

WHEREAS, the Borrower and the Guarantors desire to amend certain provisions of the Credit Agreement as set forth herein;

WHEREAS, pursuant to Section 10.02(b) of the Credit Agreement, in order to effect the amendments to the Credit Agreement contemplated by this Amendment, this Amendment must be executed by the Borrower and the Required Lenders and acknowledged by the Administrative Agent; and

WHEREAS, the undersigned Lenders constitute the Required Lenders.

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

SECTION 1.  Amendments to the Credit Agreement.  Subject to the terms and conditions hereof, effective as of the First Amendment Effective Date (as defined below) and subject to the satisfaction of the conditions precedent set forth in Section 2:

(a)Annex I to the Credit Agreement is hereby amended and restated to read in its entirety as set forth on Annex I hereto.

(b)Schedule 1.01(b) to the Credit Agreement is hereby amended and restated to read in its entirety as set forth on Annex II hereto.

(c)Schedule 5.13 to the Credit Agreement is hereby deleted in its entirety.

(d)Each of the following definitions set forth in Section 1.01 of the Credit Agreement is hereby amended and restated to read in its entirety as follows:

“Bolthouse Construction Budget” means the Construction Budget as provided by the Borrower to, and acknowledged as the “Bolthouse Construction Budget” in writing by, the Administrative Agent on November 21, 2019, as may be modified from time to time in accordance with Section 5.21.

“Groton Construction Budget” means the Construction Budget as provided by the Borrower to, and acknowledged as the “Groton Construction Budget” in writing by, the Administrative Agent on November 21, 2019, as may be modified from time to time in accordance with Section 5.21.

“Material Agreements” means:

“Tulare Construction Budget” means the Construction Budget as provided by the Borrower to, and acknowledged as the “Tulare Construction Budget” in writing by, the Administrative Agent on November 21, 2019, as may be modified from time to time in accordance with Section 5.21.

“Yaphank Construction Budget” means the Construction Budget as provided by the Borrower to, and acknowledged as the “Yaphank Construction Budget” in writing by, the Administrative Agent on November 21, 2019, as may be modified from time to time in accordance with Section 5.21.

(e)Each of the following definitions are hereby inserted into Section 1.01 of the Credit Agreement in the appropriate alphabetical location therein:

“Approved REC Contract” means a fully executed contract, in form and substance reasonably satisfactory to the Administrative Agent, for Renewable Energy Certificates to be produced and sold by Groton Station Fuel Cell, LLC that provides for:

(a)Cal2021 and Cal2022 strips; and

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“Biogas Sale and Purchase Agreement” means an agreement for the purchase of directed biogas at the Tulare Project through December 31, 2021 substantially in the form disclosed by the Borrower to, and acknowledged as the “Biogas Sale and Purchase Agreement” in writing by, the Administrative Agent prior to the Second Funding Date.

“Cash Reserve Release Date” means the first date following the Second Funding Date on which all of the events set forth in the following clauses (a), (b) and (c) shall have occurred:

“Groton Estoppel and Acknowledgement” means an Estoppel and Acknowledgement agreement substantially in the form disclosed by the Borrower to, and acknowledged as the “Groton Estoppel and Acknowledgement” in writing by, the Administrative Agent prior to the Second Funding Date.

“IP Collateral Documents” means a security agreement or intellectual property security agreement and any other notices, consents, acknowledgments, filings, registrations and recordings requested by the Administrative Agent, in

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each case, in form and substance acceptable to the Administrative Agent, necessary or advisable to create in favor of the Collateral Agent for the benefit of the Secured Parties a legal, valid and enforceable first-priority Lien on and security interest in all of the Intellectual Property of each of the Loan Parties, prior and superior to all other Liens that may be delivered to Administrative Agent if required pursuant to clause (b) or (c) of Section 5.24; provided, that, the IP Collateral Documents shall provide that the Liens created thereunder in the Intellectual Property of each of the Loan Parties shall automatically terminate and be released upon the execution and delivery of all of the agreements, consents and instruments referred to in clauses (b)(i), (c)(i)(A), (c)(i)(B) and (c)(i)(C) of Section 5.24.

“Second Funding Date Funds Flow Memo” means a funds flow memo agreed by the Borrower and the Administrative Agent over email on or about the Second Funding Date.

“Seventh Modification to Lease” means a Seventh Modification to Lease N40085-12-RP-00109 in the form executed by CMEEC and disclosed by the Borrower to, and acknowledged as the “Seventh Modification to Lease” in writing by, the Administrative Agent prior to the Second Funding Date.

(f)The definition of “Permitted Release” set forth in Section 1.01 of the Credit Agreement is hereby deleted in its entirety.

(g)Section 2.02 of the Credit Agreement is hereby amended to insert the following sentence as the end of such Section 2.02:

With respect to the Loans funded on the Second Funding Date, the Administrative Agent shall distribute the funds in accordance with the Second Funding Date Funds Flow Memo.

(h)Clause (c) to Section 2.03 of the Credit Agreement is hereby amended and restated to read in its entirety as follows:

(c)In the event that the Lenders shall have not funded at least $65,500,000 in aggregate principal amount of Loans in respect of the Second Funding Commitments (less, for, the avoidance of doubt, certain items in accordance with the Second Funding Date Funds Flow Memo) on or prior to November 22, 2019, the Borrower may, upon delivery to the Administrative Agent of written notice thereof at any time after November 22, 2019 but prior to the earlier of the occurrence of the satisfaction of the foregoing and December 31, 2019 (a “Second Funding Termination Notice”), elect to terminate the Second Funding Commitments and prepay the Obligations under Section 2.05(b)(v).

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(i)Clause (a) to Section 5.13 of the Credit Agreement is hereby amended to replace the phrase “as set forth on Schedule 5.13” set forth therein with the phrase “as set forth in the Second Funding Date Funds Flow Memo”.

(j)Clause (b) to Section 5.18 of the Credit Agreement is hereby amended and restated to read in its entirety as follows:

(b)Borrower Funding Account.  

(i)On or prior to the Account Establishment Date, the Borrower shall open and establish the Borrower Funding Account at the Depositary Bank.  Following the opening and establishment of the Borrower Funding Account, the Borrower shall at all times thereafter maintain the Borrower Funding Account and cause the Borrower Funding Account to be subject to a Blocked Account Control Agreement.  

(ii)The Borrower shall not have any right to withdraw any amounts from the Borrower Funding Account or to direct the Depositary Bank to release or distribute any amounts contained in the Borrower Funding Account.

(iii)On the Second Funding Date, pursuant to the Second Funding Date Funds Flow Memo, an aggregate amount of $5,000,000 shall be deposited into the Borrower Funding Account (such $5,000,000 is herein referred to as the “Cash Reserve”).  From and after the Second Funding Date, the Cash Reserve shall remain held in the Borrower Funding Account and shall not be released or distributed from the Borrower Funding Account for any purpose; provided, that, upon the occurrence of the Cash Reserve Release Date, the Administrative Agent shall instruct the Depositary Bank to release the Cash Reserve from the Borrower Funding Account and transfer such funds to a Business Unit Account specified by the Borrower.

(iv)On each Funding Date after the Second Funding Date, the Administrative Agent shall deposit the proceeds of the Loans funded on such Funding Date into the Borrower Funding Account.  With respect to any amounts funded into the Borrower Funding Account on any Funding Date after the Second Funding Date, the Administrative Agent shall instruct the Depositary Bank to release and distribute the amounts contained in the Borrower Funding Account for the purposes, and in the amounts, as agreed in writing by the Lenders and the Borrower in connection with such Funding Date.

(k)Clause (e)(v) to Section 5.18 of the Credit Agreement is hereby amended and restated to read in its entirety as follows:

(v)the Administrative Agent shall (i) instruct the Depositary Bank to release and distribute the amounts contained in such Covered Project Account from time to time in accordance with, and subject to the satisfaction of any applicable conditions set forth in, the applicable Construction Budget and/or Operating Budget in respect of such Covered Project Company, and (ii) on each Quarterly Payment Date, instruct the Depositary Bank to release and distribute to the Borrower Waterfall Account an amount contained in such Covered Project Account equal to (x) the total aggregate amount then contained in such Covered Project Account, minus (y) the amount required or permitted to be retained in

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such Covered Project Account on such date as set forth in the applicable Construction Budget and/or Operating Budget in respect of such Covered Project Company.

(l)Clause (f)(iv)(D) to Section 5.18 of the Credit Agreement is hereby amended and restated to read in its entirety as follows:

(D)[Intentionally Omitted];

(m)Clause (h)(ii) to Section 5.18 of the Credit Agreement is hereby amended and restated to read in its entirety as follows:

(ii)neither the Borrower nor any other Borrower Group Company shall have any right to withdraw any amounts from the Mandatory Prepayment Account or to direct the Depositary Bank to release or distribute any amounts contained in the Mandatory Prepayment Account;

(n)Article V of the Credit Agreement is hereby amended to insert the following new Section 5.24 in the appropriate numerical location therein to read in its entirety as follows:

Section 5.24Project Requirements.

(a)No later than December 31, 2019 (or such later date as the Administrative Agent may, in its sole discretion, agree in writing), Central CA Fuel Cell 2, LLC and the counterparty previously identified to the Administrative Agent in writing prior to the Second Funding Date shall execute and deliver the Biogas Sale and Purchase Agreement and the Biogas Sale and Purchase Agreement shall become effective.

(b)No later than December 31, 2019 (or such later date as the Administrative Agent may, in its sole discretion, agree in writing), either (i) Groton Station Fuel Cell, LLC shall enter into an Approved REC Contract and such Approved REC Contract shall become effective, or (ii) the Loan Parties shall execute and deliver the IP Collateral Documents.

(c)No later than January 31, 2020 (or such later date as the Administrative Agent may, in its sole discretion, agree in writing), either:

(i)all of the following shall occur:

(A)each of (x) Groton Station Fuel Cell, LLC and Connecticut Municipal Electric Energy Cooperative (“CMEEC”) shall execute and deliver the Groton Estoppel and Acknowledgement, (y) the United States of America, acting by and through the Department of the Navy, shall have approved the Groton Estoppel and Acknowledgement in the manner contemplated by Section 19 of the Groton Estoppel and

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Acknowledgement, and (z) the Groton Estoppel and Acknowledgement shall become effective;

(B)the Borrower shall cause the CMEEC to execute and deliver a customary estoppel certificate, in form and substance reasonably acceptable to the Administrative Agent, in respect of the PPA in respect of the Groton Project; and

(C)Groton Station Fuel Cell, LLC, CMEEC and the United States of America, acting by and through the Department of the Navy, shall execute and deliver the Seventh Modification to Lease and the Seventh Modification to Lease shall become effective; or

(ii)the Loan Parties shall execute and deliver the IP Collateral Documents.

(o)Clause (e)(vii) to Section 6.07 of the Credit Agreement is hereby amended to replace the phrase “does not exceed $5,000,000” set forth therein with the phrase “does not exceed $1,000,000”.

(p)Clause (d)(i) to Section 7.01 of the Credit Agreement is hereby amended and restated to read in its entirety as follows:

(i)Sections 5.01 (as to existence), 5.11(f), 5.13, 5.24 or Article VI; or

(q)For the avoidance of doubt, Lenders and Administrative Agent agree that, upon the Second Funding Date, the provisions of Section 7.14 (c) of the Security Agreement shall apply and nothing in this Amendment shall be construed to revise the foregoing.

SECTION 2.  Conditions Precedent.  This Amendment shall only become effective upon the date (the “First Amendment Effective Date”) on which each of the following conditions precedent shall have been satisfied in a manner reasonably satisfactory to the Administrative Agent:

(a)the Administrative Agent shall have received counterparts of this Amendment, duly authorized, executed and delivered by the Borrower, the Guarantors and the Required Lenders;

(b)after giving effect to this Amendment, the representations and warranties of the Borrower and the Guarantors contained in the Credit Agreement, the Security Agreement and the other Financing Documents shall be true, correct and complete in all material respects (without duplication of any materiality provision contained therein) on and as of the First Amendment Effective Date (or any earlier date with respect to which any such representation or warranty relates);

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(c)after giving effect to this Amendment, no Default or Event of Default has occurred and is continuing;

(d)the Administrative Agent shall have received a certificate executed by an Authorized Representative of the Borrower certifying on behalf of each Loan Party a correct and complete copy of resolutions duly adopted by the board of directors, member(s), partner(s) or other authorized governing body of such Loan Party authorizing this Amendment and that such resolutions or other evidence of authority have not been modified, rescinded or amended and are in full force and effect; and

(e)the Administrative Agent shall have received a closing certificate executed by an Authorized Representative of the Borrower certifying on behalf of each Loan Party that the conditions set forth in this Section 2 have been satisfied.

SECTION 3.  Representations and Warranties.  The Borrower and each Guarantor hereby represents and warrants to the Administrative Agent and Lenders as follows,  which representations and warranties shall survive the execution and delivery hereof.

(a)Each of the Loan Parties has full corporate, limited liability company or other organizational powers, authority and legal right to enter into, deliver and perform its respective obligations under this Amendment and has taken all necessary corporate, limited liability company or other organizational action to authorize the execution, delivery and performance by it of this Amendment.  

(b)This Amendment has been duly executed and delivered by each Loan Party and is in full force and effect and constitutes a legal, valid and binding obligation of such Loan Party, enforceable against such Loan Party in accordance with its terms, except as enforcement may be limited (i) by Bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws affecting creditors’ rights generally, (ii) by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (iii) by implied covenants of good faith and fair dealing.

(c)The execution, delivery and performance by each Loan Party of this Amendment does not and will not, as applicable, (i) conflict with the Organizational Documents of such Loan Party, (ii) conflict with or result in a breach of, or constitute a default under, any indenture, loan agreement, mortgage, deed of trust or other material instrument or agreement to which any Loan Party is a party or by which it is bound or to which any Loan Party’s property or assets are subject, or (iii) conflict with or result in a breach of, or constitute a default under, in any material respect, any Applicable Law.

(d)After giving effect to this Amendment, the representations and warranties of the Borrower and each of the other Loan Parties contained in the Credit Agreement, the Security Agreement and the other Financing Documents are true, correct and complete in all material respects (without duplication of any materiality provision contained therein) on and as of the First Amendment Effective Date (or any earlier date with respect to which any such representation or warranty relates).

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(e)After giving effect to this Amendment, no Default or Event of Default has occurred and is continuing.

SECTION 4.  Effect of this Amendment, Ratification.

(a)Except as expressly set forth herein, no other amendments, consents, changes or modifications to the Credit Agreement, the Security Agreement or any other Financing Document are intended or implied, and in all other respects the Credit Agreement, the Security Agreement and each other Financing Document is hereby specifically ratified and confirmed by all parties hereto as of the First Amendment Effective Date and neither the Borrower nor any other Loan Party shall be entitled to any other or further amendment solely by virtue of the provisions of this Amendment or the subject matter of this Amendment.  This Amendment is not a novation, satisfaction, release or discharge of any of the obligations of the Borrower or any other Loan Party under the Credit Agreement, the Security Agreement or any other Financing Document.  This Amendment shall be deemed to be a Financing Document.

(b)The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any obligation of the Borrower or any other Loan Party under, or any right, power, or remedy of the Administrative Agent or the Lenders under, the Credit Agreement, the Security Agreement or any other Financing Document (which rights, powers and remedies are expressly reserved), nor constitute a consent to or waiver of any past, present or future violations of any provision of the Credit Agreement, the Security Agreement or any other Financing Document.

(c)For the benefit of the Administrative Agent and the Lenders, the Borrower and each other Loan Party hereby (i) affirms and confirms its guarantees, pledges, grants of collateral and security interests and other undertakings under the Credit Agreement, the Security Agreement and the other Financing Documents, (ii) ratifies and reaffirms all of its payment and performance obligations, contingent or otherwise, under the Credit Agreement, the Security Agreement and each of the other Financing Documents, (iii) agrees that (x) the Credit Agreement, the Security Agreement and each other Financing Document shall continue to be in full force and effect and (y) all guarantees, pledges, grants of collateral and security interests and other undertakings under the Credit Agreement, the Security Agreement and each other Financing Document shall continue to be in full force and effect and shall accrue to the benefit of the Administrative Agent and the Lenders, (iv) confirms and agrees that it is truly and justly indebted to the Lenders and the Administrative Agent in the aggregate amount of the Obligations without defense, counterclaim or offset of any kind whatsoever, and (v) reaffirms and admits the validity and enforceability of the Financing Documents.

SECTION 5.  Expenses.  The Borrower and the other Loan Parties agree to pay, or reimburse, the Administrative Agent for all expenses reasonably incurred for the preparation and negotiation of this Amendment and related agreements and instruments and the transactions contemplated hereby, including, but not limited to, the reasonable and documented fees and expenses of counsel to the Administrative Agent.

SECTION 6.  Governing Law, Jurisdiction, Etc.

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SECTION 7.  Binding Effect.  This Amendment shall be binding upon and inure to the benefit of each of the parties hereto and their respective successors and permitted assigns.

SECTION 8.  Captions.  The captions in this Amendment are intended for convenience only and do not constitute and shall not be interpreted as part of this Amendment.

SECTION 9.  No Course of Dealing.  The Borrower and each other Loan Party acknowledges that (a) except as expressly set forth herein, neither the Administrative Agent nor any Lender has agreed (and has no obligation whatsoever to discuss, negotiate or agree) to any restructuring, modification, amendment, extension, waiver, or forbearance with respect to the Credit Agreement, the Security Agreement or any other Financing Document or any of the terms thereof, and (b) the execution and delivery of this Amendment has not established any course of dealing between the parties hereto or created any obligation or agreement of the Administrative Agent or any Lender with respect to any future restructuring, modification, amendment, extension, waiver, or forbearance with respect to the Credit Agreement, the Security Agreement or any other Financing Document or any of the terms thereof.

SECTION 10.  Counterparts.  This Amendment may be executed in any number of and by different parties hereto on separate counterparts, all of which, when so executed, shall be deemed an original, but all such counterparts shall constitute one and the same agreement. Any signature delivered by a party by facsimile or electronic transmission (including email transmission of a PDF image) shall be deemed to be an original signature hereto.

[Signature Pages Follow]

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EXHIBIT 10.1

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.

EXHIBIT 10.2

November 22, 2019

Groton Station Fuel Cell, LLC

c/o FuelCell Energy, Inc.

3 Great Pasture Road

Danbury, CT 06810

Re:Payoff Letter, Termination, and Release

Ladies and Gentlemen:

Reference is made to (i) the Construction Loan Agreement, dated as of February 28, 2019 (as amended from time to time, the “Loan Agreement”), among Groton Station Fuel Cell, LLC, a Connecticut limited liability company (the “Borrower” or “you”), Fifth Third Bank, National Association (the “Lender” or “us”); all capitalized terms not defined herein shall have the meanings set forth in the Loan Agreement), (ii) the other Loan Documents, including the Note, the Guaranty, the Security Agreement, the Pledge Agreement, the Mortgage, the Consents and other documents and instruments relating thereto (together with the Loan Agreement, collectively, the “Loan Documents”).

You have advised us of your intention to prepay all outstanding Loans and terminate all Commitments and we agree that such prepayment and termination shall occur and become effective upon the Payoff Effective Time (as defined below).  You have also advised us of your intention to satisfy all of the other Obligations under the Loan Agreement and the other Loan Documents (except for such obligations that survive termination of the Loan Agreement and the other Loan Documents as specified therein) and obtain the release of all of the Liens granted to the Lender with respect to the Collateral.

The Lender understands that on the Payoff Effective Time (as hereinafter defined), the Borrower expects to repay in full all obligations and liabilities of the Borrower under or in respect of the Loan Agreement.

The current outstanding amount of all such obligations constituting principal, interest, fees and expenses under the Loan Agreement is, as of November 22, 2019, as follows:

Upon (i) the Lender’s receipt no later than 1:00 pm New York City time, on November 22, 2019, of a federal funds wire transfer in the amount of the Payoff Amount, which amount represents all Obligations outstanding under the Loan Documents (the time at which the foregoing condition shall be satisfied is herein referred to as the “Payoff Effective Time”), the Lender agrees and acknowledges that:

The Payoff Amount referred to above, shall be sent by federal funds wire transfer to:

Receiving Bank Name: Fifth Third Bank

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Receiving Bank ABA: XXXXXXXXX

Name of Account to Credit: Commercial Loan Wires

Credit Account Number: XXXXXXXX

Dollar Amount $ 11,104,422.92

Attention: Commercial Loan Payoffs

This letter shall be governed by and construed in accordance with the laws of the State of New York.  The parties hereto agree and intend that this letter shall be binding on them and on their successors and assigns of all kinds and types whatsoever.  This letter may be executed in one or more counterparts, and it shall not be necessary that the signatures of all parties hereto be contained in any one counterpart hereof, each counterpart shall be deemed an original, but all of which together shall constitute one in the same instrument.  Delivery of this letter by facsimile transmission shall be effective as delivery of a manually executed counterpart hereof.

(Signatures follow)

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If the foregoing correctly states your understanding with respect to the matters stated in this letter, please acknowledge by signing in the space provided below.

[Signature Page to Payoff Letter (FCE–Groton)]

ACCEPTED and AGREED:

[Signature Page to Payoff Letter (FCE–Groton)]