FUELCELL ENERGY INC (Form: 8-K, Received: 02/13/2020 16:07:53)

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the

Securities Exchange Act of 1934

Date of report (Date of earliest event reported): February 11, 2020

FUELCELL ENERGY, INC.

(Exact Name of Registrant as Specified in its Charter)

Delaware	1-14204	06-0853042
(State or Other Jurisdiction of Incorporation)	(Commission File Number)	(IRS Employer Identification No.)

	3 Great Pasture Road, Danbury, Connecticut	06810
	(Address of Principal Executive Offices)	(Zip Code)

Registrant’s telephone number, including area code: (203) 825-6000

Not Applicable

(Former Name or Former Address, if Changed Since Last Report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

☐	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

☐	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

☐	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

☐	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Securities registered pursuant to Section 12(b) of the Act:

Title of each class		Trading Symbol(s)		Name of each exchange on which registered
Common Stock, $0.0001 par value per share		FCEL		The Nasdaq Stock Market LLC (Nasdaq Global Market)

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company ☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐

Item 1.01.Entry into a Material Definitive Agreement.

Crestmark Sale-Leaseback Transaction

On February 11, 2020, a wholly owned subsidiary of FuelCell Energy, Inc. (the “Company”) entered into a Purchase and Sale Agreement (the “Purchase Agreement”) and an Equipment Lease Agreement (the “Lease”) with Crestmark Equipment Finance, a division of MetaBank (“Crestmark”). Under these agreements, the subsidiary, Central CA Fuel Cell 2, LLC (“CCFC2”), sold the 2.8 MW fuel cell power plant (the “Plant”) located at the Tulare wastewater treatment plant in Tulare, California to Crestmark and then leased the Plant back from Crestmark through this sale-leaseback transaction. The Plant was designed, manufactured and installed by the Company, and commercial operations began on December 27, 2019. In operating the Plant, CCFC2 purchases biogas from the City of Tulare and will sell the power produced by the Plant to Southern California Edison under a twenty year Power Purchase Agreement under the California Bioenergy Market Adjusting Tariff, which was separately entered into on April 20, 2018 (the “PPA”). The PPA provides the Company with predictable long-term revenue and cash flow.

Under the terms of the Purchase Agreement, Crestmark paid CCFC2 an aggregate purchase price of $14.4 million. A portion of these proceeds were used by CCFC2 to make a down payment and an initial rental payment under the Lease totaling $2.9 million to Crestmark, and to pay taxes and transaction costs totaling approximately $1.0 million, resulting in net proceeds to CCFC2 of approximately $10.5 million. Approximately $4.0 million of the net proceeds will be used by the Company to fund certain reserves, dividends and other payments, while the remaining $6.5 million of the net proceeds has been deposited into the Project Proceeds Account under the October 31, 2019 Credit Agreement among the Company, certain of its subsidiaries as guarantors, Orion Energy Partners Investment Agent, LLC and certain of its affiliated lenders, all as discussed under “Third Amendment to Orion Credit Agreement” below.

The Lease has an initial term of ten years but may be extended at the option of CCFC2. An initial rental down payment and one month’s rent totaling $2.9 million was paid using the proceeds from the sale of the Plant. Rental payments are due on a monthly basis in the amount of $71,530. Lease payments are expected to be funded with proceeds from the sale of power under the PPA. Following the sale-leaseback transaction, the remaining rental payments due over the term of the Lease total approximately $8.5 million.

CCFC2 and Crestmark entered into an Assignment Agreement on February 11, 2020 (the “Assignment Agreement”) and FuelCell Energy Finance, LLC (the direct parent of CCFC2) and Crestmark entered into a Pledge Agreement on February 11, 2020 (the “Pledge Agreement”) pursuant to which collateral was provided to Crestmark to secure CCFC2’s obligations under the Lease. Specifically, CCFC2 and FuelCell Energy Finance, LLC have granted Crestmark a security interest in (i) certain agreements relating to the sale-leaseback transaction, (ii) the revenues CCFC2 receives with respect to the Plant, (iii) two fuel cell modules to be maintained by CCFC2 as replacement modules for the Plant, and (iv) FuelCell Energy Finance, LLC’s equity interest in CCFC2. CCFC2 and the Company also entered into a Technology License and Access Agreement with Crestmark on February 11, 2020, which provides Crestmark with certain intellectual property license rights to have access to the Company’s proprietary fuel cell technology, but only for the purpose of maintaining and servicing the project in certain circumstances where the Company is not satisfying its obligations under its service agreement with regard to the maintenance and servicing of the Plant.

Pursuant to the Lease, CCFC2 has an obligation to indemnify Crestmark for the amount of any actual reduction in the U.S. Investment Tax Credit anticipated to be realized by Crestmark in connection with the foregoing sale-leaseback transaction. Such obligations would arise as a result of reductions to the value of the underlying fuel cell project as assessed by the U.S. Internal Revenue Service (“IRS”). The Company does not believe that any such obligation is likely based on the facts known as of February 11, 2020. The maximum potential future payments that CCFC2 could have to make under these obligations would depend on the difference between the fair values of the fuel cell projects sold or financed and the values the IRS would determine as the fair value for the systems for purposes of claiming the Investment Tax Credit. The value of the Investment Tax Credit in the sale-leaseback agreements is based on guidelines provided by the statutory regulations from the IRS. The Company and Crestmark used fair values determined with the assistance of an independent third-party appraisal.

The Purchase Agreement and the Lease contain customary representations and warranties, affirmative and negative covenants, and customary events of default that entitle Crestmark to cause CCFC2’s indebtedness under the Lease to become immediately due and payable.

Pursuant to a Guaranty Agreement executed on February 11, 2020 by the Company for the benefit of Crestmark (the “Guaranty”), the Company has guaranteed the payment and performance of CCFC2’s obligations under the Lease.

The foregoing summary of the terms of the Purchase Agreement, the Lease, the Assignment Agreement, the Pledge Agreement, the Guaranty and the Technology License and Access Agreement is qualified in its entirety by reference to (i) the full text of the Purchase Agreement, a copy of which is attached as Exhibit 10.1 to this Current Report on Form 8-K and incorporated herein by reference, (ii) the full text of the Lease, a copy of which is attached as Exhibit 10.2 to this Current Report on Form 8-K and incorporated herein by

reference, (iii) the full text of the Assignment Agreement, a copy of which is attached as Exhibit 10.3 to this Current Report on Form 8-K and incorporated herein by reference, (iv) the full text of the Pledge Agreement, a copy of which is attached as Exhibit 10.4 to this Current Report on Form 8-K and incorporated herein by reference, (v) the full text of the Guaranty, a copy of which is attached as Exhibit 10.5 to this Current Report on Form 8-K and incorporated herein by reference, and (vi) the full text of the Technology License and Access Agreement, a copy of which is attached as Exhibit 10.6 to this Current Report on Form 8-K and incorporated herein by reference.

Third Amendment to Orion Credit Agreement

On October 31, 2019, the Company and certain of its subsidiaries as guarantors entered into a Credit Agreement (as amended from time to time, the “Orion Credit Agreement”) with Orion Energy Partners Investment Agent, LLC, as Administrative Agent and Collateral Agent (the “Agent”), and its affiliates, Orion Energy Credit Opportunities Fund II, L.P., Orion Energy Credit Opportunities Fund II GPFA, L.P., and Orion Energy Credit Opportunities Fund II PV, L.P., as lenders, for a $200.0 million senior secured credit facility (the “Orion Facility”), structured as a delayed draw term loan, to be provided by the lenders, subject to certain lender approvals. In conjunction with the closing of the Orion Facility, on October 31, 2019, the Company drew down $14.5 million. On November 22, 2019, a second draw (the “Second Funding”) of $65.5 million, funded by Orion Energy Credit Opportunities Fund II, L.P., Orion Energy Credit Opportunities Fund II GPFA, L.P., Orion Energy Credit Opportunities Fund II PV, L.P., and Orion Energy Credit Opportunities FuelCell Co-Invest, L.P. (collectively, the “Lenders”), was made. In conjunction with the Second Funding, the Company, the Agent, and the other loan parties entered into the First Amendment to the Orion Credit Agreement, which required the Company to establish a $5.0 million debt reserve.

In addition, on January 20, 2020, in order to obtain the Lenders’ consent to the January 20, 2020 letter agreement among the Company, FCE FuelCell Energy Ltd. (“FCE Ltd.”) and Enbridge Inc., pursuant to which such parties agreed to amend the articles of FCE Ltd. (the “Articles”) relating to and setting forth the terms of the Class A Cumulative Redeemable Exchangeable Preferred Shares issued by FCE Ltd. (the “Series 1 Preferred Shares”) to: (i) remove the provisions of the Articles permitting or requiring the issuance of shares of the Company’s common stock in exchange for the Series 1 Preferred Shares or as payment of amounts due to the holders of the Series 1 Preferred Shares, (ii) remove certain provisions of the Articles relating to the redemption of the Series 1 Preferred Shares, (iii) increase the annual dividend rate, commencing on January 1, 2020, to 15%, (iv) extend the final payment date for all accrued and unpaid dividends and all return of capital payments (i.e., payments of the principal redemption price) from December 31, 2020 to December 31, 2021, (v) clarify when divided and return of capital payments are to be made in the future and extend the quarterly dividend and return of capital payments through December 31, 2021 (which were previously to be paid each quarter through December 31, 2020), and (vi) remove certain terms and provisions of the Articles that are no longer applicable, the Company, the Agent, the Lenders, and the other loan parties entered into the Second Amendment to the Orion Credit Agreement (the “Second Orion Amendment”), which adds a new affirmative covenant to the Orion Credit Agreement that obligates the Company to, and to cause FCE Ltd. to, on or prior to November 1, 2021, either (i) pay and satisfy in full all of their respective obligations in respect of, and fully redeem and cancel, all of the Series 1 Preferred Shares of FCE Ltd., or (ii) deposit in a newly created account of FCE Ltd. or the Company cash in an amount sufficient to pay and satisfy in full all of their respective obligations in respect of, and to effect a redemption and cancellation in full of, all of the Series 1 Preferred Shares of FCE Ltd. The Second Orion Amendment also provides that the Articles setting forth the modified terms of the Series 1 Preferred Shares will be considered a “Material Agreement” under the Orion Credit Agreement. Under the Second Orion Amendment, a failure to satisfy this new affirmative covenant or to otherwise comply with the terms of the Series 1 Preferred Shares will constitute an event of default under the Orion Credit Agreement, which could result in the acceleration of any amounts outstanding under the Orion Credit Agreement.

In order to obtain the Lenders’ consent to the Crestmark sale-leaseback transaction described above and to the use of certain proceeds from the Crestmark sale-leaseback transaction (the “Crestmark Proceeds”) as described below, the Company, the Agent, the Lenders and the other loan parties entered into the Third Amendment to the Orion Credit Agreement (the “Third Orion Amendment”) dated February 11, 2020, and a Consent and Waiver dated February 11, 2020 (the “Consent and Waiver”). Pursuant to the Third Orion Amendment, TRS Fuel Cell, LLC was added as an Additional Covered Project Company (as defined in the Orion Credit Agreement), requiring the Company to pledge all of the assets of TRS Fuel Cell, LLC under the Orion Credit Agreement. In addition, pursuant to the Orion Credit Agreement (as modified by the Third Orion Amendment), all of the proceeds received by the Company from the Crestmark sale-leaseback transaction described above, after the payment of transaction costs, were deposited in the Company’s Project Proceeds Account, which account is restricted, with withdrawals permitted only with consent of the Agent for use to (i) prepay the loans under the Orion Credit Agreement or (ii) fund (x) construction costs, inventory or other capital expenditures for an Additional Covered Project (as defined in the Orion Credit Agreement) whose contracted cash flows (as determined in the Lenders’ sole discretion) meet or exceed a coverage ratio acceptable to the Lenders, and (y) inventory, working capital and other costs required in connection with the performance of purchase orders, service agreements and other binding customer agreements (as determined in the Lenders’ sole discretion); provided, however, that, pursuant to the Third Orion Amendment, certain portions of the funds deposited in the Project Proceeds Account are permitted to and will be used as follows: (a) $1.1 million of the Crestmark Proceeds to be transferred to the Module Reserve Account (as defined in the Orion Credit Agreement) to fund module replacement costs for Covered Projects (as defined in the Orion Credit Agreement); (b) $75,000 of the Crestmark Proceeds to be transferred to the Debt Reserve Account; (c) $1.7 million of the Crestmark Proceeds to be used to fund the quarterly cash interest due to the Lenders under the Orion Credit

Agreement; and (d) $1.1 million of the Crestmark Proceeds to be used to fund the aggregate amount of the dividends on the Company’s 5% Series B Cumulative Convertible Perpetual Preferred Stock and the Series 1 Preferred Shares of FCE Ltd. required to be paid in the second quarter of fiscal 2020. The remaining approximately $6.5 million of Crestmark Proceeds will remain as restricted cash in the Project Proceeds Account and the Company expects to request the Lenders’ consent to draw down all or a portion of such amount for future projects as permitted under the Orion Credit Agreement. Pursuant to the Consent and Wavier, subject to the terms and conditions described above in the Third Orion Amendment, the Lenders consented to the release of liens on those assets that were the subject of the Crestmark sale-leaseback transaction and to the Company’s entering into the Guaranty.

The foregoing summary of the terms of the Third Orion Amendment and the Consent and Waiver is qualified in its entirety by reference to the full text of the Third Orion Amendment, a copy of which is attached as Exhibit 10.7 to this Current Report on Form 8-K and incorporated herein by reference, and the full text of the Consent and Waiver, a copy of which is attached as Exhibit 10.8 to this Current Report on Form 8-K and incorporated herein by reference.

Item 2.03.Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

The information in Item 1.01 of this Current Report on Form 8-K regarding the Crestmark transaction is incorporated by reference into this Item 2.03.

Item 7.01.Regulation FD Disclosure.

On February 13, 2020, the Company issued a press release announcing the Crestmark sale-leaseback transaction. A copy of the press release is furnished herewith as Exhibit 99.1 to this Current Report on Form 8-K.

The information furnished in this Item 7.01, including Exhibit 99.1, is not deemed to be “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liability of that section. This information will not be deemed to be incorporated by reference into any filing under the Securities Act of 1933, as amended, or the Exchange Act, except to the extent that the Company specifically incorporates it by reference.

Item 9.01.Financial Statements and Exhibits.

(d) Exhibits. The following exhibits are being filed or furnished (as applicable) herewith:

Exhibit No.		Description

10.1		Purchase and Sale Agreement, dated February 11, 2020, by and between Central CA Fuel Cell 2, LLC and Crestmark Equipment Finance.

10.2		Equipment Lease Agreement, dated February 11, 2020, by and between Central CA Fuel Cell 2, LLC and Crestmark Equipment Finance.

10.3		Assignment Agreement, dated February 11, 2020, by a Central CA Fuel Cell 2, LLC in favor of Crestmark Equipment Finance.

10.4		Pledge Agreement, dated February 11, 2020, by and between FuelCell Energy Finance, LLC and Crestmark Equipment Finance.

10.5		Guaranty Agreement, dated February 11, 2020, by FuelCell Energy, Inc. in favor of Crestmark Equipment Finance.

10.6		Technology License and Access Agreement for Tulare Biomat Fuel Cell Power Plant, dated February 11, 2020, by and among Crestmark Equipment Finance, Central CA Fuel Cell 2, LLC and FuelCell Energy, Inc.

10.7		Third Amendment to Credit Agreement, dated as of February 11, 2020, by and among FuelCell Energy, Inc., each of the Guarantors party to the Credit Agreement, each of the lenders party to the Credit Agreement and Orion Energy Partners Investment Agent, LLC.

10.8		Consent and Waiver, dated as of February 11, 2020, by and among FuelCell Energy, Inc., each of the Guarantors party to the Credit Agreement, each of the lenders party to the Credit Agreement and Orion Energy Partners Investment Agent, LLC.

99.1

Press Release issued by FuelCell Energy, Inc. on February 13, 2020.

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

	FUELCELL ENERGY, INC.

Date: February 13, 2020	By:	/s/ Michael S. Bishop
		Michael S. Bishop
		Executive Vice President, Chief Financial Officer and Treasurer

EXHIBIT 10.1

PURCHASE AND SALE AGREEMENT

This Purchase and Sale Agreement ("Agreement"), dated and effective as of February 11, 2020 is entered into between Central CA Fuel Cell 2, LLC, c/o FuelCell Energy, Inc., 3 Great Pasture Road, Danbury, CT 06810 ("Seller") and Crestmark Equipment Finance, a division of MetaBank, 5480 Corporate Drive, Suite 350, Troy, MI 48098 ("Crestmark").

WHEREAS, Crestmark desires to purchase from Seller certain fuel cell equipment (the "Equipment") described in Schedule A pursuant to the bill of sale attached hereto as Exhibit #1 ("Bill of Sale"), and Seller desires to sell the Equipment to Crestmark, and subsequently lease the Equipment from Crestmark in accordance with the terms and conditions of that certain Lease Agreement to be entered into by the parties hereto simultaneously with the execution and delivery of this Agreement (the "Lease Agreement") and the rental schedule thereunder.

NOW THEREFORE, in consideration of the mutual promises herein and other good and valuable consideration, receipt and sufficiency of which are hereby acknowledged, Seller and Crestmark agree as follows:

1.Purchase and Sale. Subject to the terms and conditions of this Agreement, the sale of Equipment shall be evidenced by the Bill of Sale. Seller agrees to sell to Crestmark, and Crestmark agrees to purchase from Seller, the Equipment on the terms and conditions set forth herein and in the Bill of Sale. Effective upon its purchase of the Equipment from Seller, Crestmark agrees to lease the Equipment to Seller pursuant to the terms and conditions contained in the Lease Agreement (and the rental schedule attached thereto). The purchase date and the date on which title to the Equipment shall pass from Seller to Crestmark shall be the Lease Commencement Date as shown in the rental schedule to the Lease Agreement (the "Commencement Date").

2.Purchase Price. On the Commencement Date, Crestmark shall pay to Seller the purchase price specified on the Bill of Sale (the "Purchase Price"). For purposes of Section 1060 of the Internal Revenue Code (the "Code"), the Purchase Price, and other relevant items, will be allocated among the Equipment in accordance with the fair market value of the assets and liabilities transferred as described in Schedule B to the Bill of Sale. Seller and Crestmark will: (a) be bound by such allocation for purposes of determining any taxes, (b) prepare and file their tax returns on a basis consistent with such allocation, and (c) take no position inconsistent with such allocation on any tax return or in any proceeding before any taxing authority. The obligations of Seller and Crestmark under this Section 2 will survive the closing of the transactions contemplated hereby.

3.Title. On the Commencement Date, Seller and Crestmark shall execute and deliver to each other the Bill of Sale.

4.Sale, Purchase and Performance. Seller and Crestmark hereby agree that the obligations of each party hereunder to enter into the Bill of Sale with respect to the Equipment are expressly conditioned on (a) both parties executing and delivering to the other party the Lease Agreement, and (b) the execution and delivery of such other documents, certificates and items as are set forth in Exhibit #2, each in form and substance satisfactory to both parties hereto, in their reasonable discretion and each as may be amended, amended and restated, modified or supplemented from time to time, and including any replacement or supplementary agreements thereof or thereto (collectively, the "Lease Documents").

5.Seller's Representations and Warranties. Seller represents and warrants to Crestmark as of the date hereof and the Commencement Date as follows:

(a)the execution, delivery and performance of this Agreement, the Bill of Sale and the Lease Documents to which Seller is a party are duly authorized on the part of Seller, and upon due execution thereof by the parties thereto, each of such documents shall constitute valid obligations binding upon and enforceable against Seller in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency and other similar laws affecting the rights and remedies of creditors generally and by general principles of equity;

(b)neither the execution by Seller of this Agreement, the Bill of Sale or any of the Lease Documents to which Seller is a party, nor the due performance thereof by Seller, will result in any breach of, or constitute a default under, or violation of, Seller's certificate of formation, limited liability company agreement, or any material agreement to which Seller is a party or by which Seller is bound and that relates to the Equipment, nor will any of the same violate any material law, regulation or order by which Seller is bound and that relates to the Equipment;

(c)Seller is duly formed, validly existing and in good standing in its state of formation and is duly qualified as a foreign limited liability company in each other jurisdiction where the Equipment is located;

(d)Seller has and is transferring to Crestmark good, valid and marketable title to the Equipment free and clear of all liens, encumbrances and claims of any kind or description other than Permitted Liens (for purposes of this Section 5, “Permitted Liens” means (i) any liens, encumbrances or claims for taxes not yet due or which are being contested in good faith by appropriate proceedings and with respect to which adequate reserves or other appropriate provisions are being maintained; (ii) any liens created by the Lease Documents (other than the Project Documents (as defined below)); (iii) any liens, encumbrances or claims arising in the ordinary course of business by operation of law (including mechanics’ and materialmen’s liens) with respect to a liability that is not yet due or which are being contested in good faith by appropriate proceedings and with respect to which adequate reserves or other appropriate provisions are being maintained; and (iv) zoning, planning and other similar encumbrances affecting the Equipment which do not in any case materially detract from the value of the Equipment;

(e)the agreements listed on Exhibit #3 constitute a true, accurate and complete list of all material contracts with respect to the Equipment (as supplemented from time to time in connection with the Lease Agreement, and as may be amended, amended and restated, modified or supplemented from time to time, and including any replacement or supplementary agreements thereof or thereto, the “Project Documents”);

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(f)each Project Document to which Seller is a party is in full force and effect, creates a legal, valid and binding obligation of each party thereto, and has not been amended or modified except as noted on Exhibit #3, and with respect to each such agreement, Seller is not, and to Seller’s knowledge, no other party thereto is, in default thereunder;

(g)each Project Document to which Seller is not a party is in full force and effect, creates a legal, valid and binding obligation of each party thereto, has not been amended or modified and, to the knowledge of Seller, no party to any of such agreements is in default thereunder;

(h)Seller has provided to Crestmark true, correct and complete copies of each Project Document and has received all third party consents and approvals necessary to permit the collateral assignment to Crestmark contemplated by the Lease Documents, as well as the potential direct assignment to Crestmark upon the election of the Return Option or following the occurrence and during the continuance of a Default (each as defined in the Lease Agreement) at the end of the Lease Term;

(i)there are no warranties or indemnities applicable to the Equipment that were provided by any manufacturer, supplier or installer of any of the Equipment other than those included in the Project Documents and those separate warranties listed on Exhibit #4 hereto (all such warranties and indemnities, the “Warranties”);

(j)the installation and operation of the Equipment and development, construction and operation of the system comprising the Equipment is and has been in material compliance with all Applicable Laws, including environmental laws, and all material franchise, license, permit, approval, notification, certification, registration, authorization and qualification required by any governmental authority (“Governmental Approvals”) required as of the effective date of the Lease Agreement to develop, construct and operate the system comprising the Equipment have been duly obtained, are in full force and effect, are final and all periods to administratively or judicially appeal such Governmental Approvals have expired;

(k)Lessee is either not subject to or is exempt from regulation (i) as a "public utility" or a "holding company" under the Federal Power Act ("FPA") and the Public Utility Holding Company Act ("PUHCA") and FERC's regulations thereunder, and (ii) as a "public utility," "electric utility," "electric corporation," or a "holding company" or similar terms under applicable laws or regulations of each state where the Equipment is located, and, solely as the result of the execution and delivery of the Lease Documents or the consummation or performance of the transactions contemplated thereby, Lessor will not become subject to regulation under any of the foregoing laws or regulations. Lessee is not subject to regulation under the Investment Company Act of 1940; and

(l)(A) Seller has timely filed or caused to be filed all tax returns and reports required to have been filed by it and has paid or caused to be paid all taxes, assessments and governmental charges assessed or imposed that are required to have been paid by it, and (B) Seller has not applied to the Internal Revenue Service for a private letter ruling with respect to the Equipment, the Project Documents or the transactions contemplated by this Agreement and the Lease Agreement.

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6.Crestmark’s Representations and Warranties. Crestmark represents and warrants to Seller as of the Commencement Date as follows: (a) the execution, delivery and performance of this Agreement, the Bill of Sale and the Lease Documents to which Crestmark is a party are duly authorized on the part of Crestmark, and that upon due execution thereof by the parties thereto, each of such documents shall constitute valid obligations binding upon and enforceable against Crestmark in accordance with its terms, except as the enforceability thereof may be limited by applicable bankruptcy, insolvency and other similar laws affecting the rights and remedies of creditors generally and by general principles of equity; (b) neither the execution of this Agreement, the Bill of Sale or the Lease Documents to which Crestmark is a party, nor the due performance thereof by Crestmark, will result in any breach of, or constitute a default under, or violation of, Crestmark’s organizational documents, or any material agreement to which Crestmark is a party or by which Crestmark is bound, nor will any of the same violate any material law, regulation or order by which Crestmark is bound; and (c) Crestmark is duly organized, validly existing and in good standing in its state of formation.

7.Manufacturer's Warranties. Seller hereby assigns to Crestmark all of Seller's rights, title and interest in and to all Warranties, each as further described in the agreements listed on Exhibit #4 hereto, to the extent the same exist as of the Commencement Date and to the extent assignable. Seller shall take such further actions as may reasonably be necessary to assign such Warranties to Crestmark. In the event that any Warranty is not assignable to Crestmark, Seller hereby appoints Crestmark as Seller’s agent and attorney-in-fact, which appointment is coupled with an interest, to assert and enforce, from time to time, in the name of and for the account of Seller and Crestmark, as their interests may appear, but in all cases at the sole cost and expense of Seller, any such Warranty.

8.Updated Project Documents and Warranties. Upon the Commencement Date, Exhibit #3 (Project Documents) and Exhibit #4 (Warranties) shall be updated to reflect additional Project Documents and Warranties related to the Equipment subject to the Bill of Sale executed on the Commencement Date. For avoidance of doubt, each representation, warranty, covenant or other agreement made by Seller hereunder applicable to Project Documents and Warranties shall be deemed to apply to such additional Project Documents and Warranties as of the Commencement Date.

9.Assignment. Crestmark and Seller agree that this Agreement shall inure to the benefit of and shall be binding upon each of Seller and Crestmark and their respective successors and assigns. Seller may not assign its interest in this Agreement without Crestmark’s prior written consent, which shall not be unreasonably withheld. Any attempted assignment without such consent shall be null and void. Crestmark may assign its interests in this Agreement, in whole or in part, with notice to but without the consent of Seller. If any such Crestmark assignment is a partial assignment of this Agreement by Crestmark, (i) so long as no Default (as defined in the Lease Agreement) shall have occurred, Crestmark shall maintain its administrative role under this Agreement with Seller and shall act as an intermediary between Seller and any Crestmark partial assignee, and (ii) unless Seller receives notice from Crestmark or Crestmark's assignee to the contrary, Seller's satisfaction of its obligations under this Agreement to Crestmark shall be deemed to satisfy such obligations to all assignees.

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10.Survival of Covenants. Crestmark and Seller agree that the warranties, covenants and agreements of the parties contained in this Agreement shall survive the passing of title. For the avoidance of doubt, any representations or warranties made in this Agreement by either party are deemed to have been made as of the date hereof and the Commencement Date, or as of such other date specified in this Agreement, and neither party shall be deemed to have made such representation or warranty as of any other date.

11.Limitations. Neither party shall be liable for any indirect, special or consequential damages, in connection with or arising by reason of this Agreement, nor shall either party be liable under this Agreement for any event beyond its control.

12.Miscellaneous. Section titles are not intended to, and shall not, limit or otherwise affect the interpretation of this Agreement. This Agreement shall not be binding upon either party until executed by such party’s authorized representative. If any provision of this Agreement shall be held to be invalid or unenforceable, the validity and enforceability of the remaining provisions hereof shall not be affected or impaired in any way. Any modifications to this Agreement shall be in writing and shall be signed by both parties or their permitted assigns, if any. Any capitalized terms used but not defined herein shall have the definitions set forth in the Lease Agreement, which definitions are incorporated herein by reference.

13.Governing Law. This Agreement 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 other than Section 5-1401 of the New York General Obligations Law. 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. SELLER AND CRESTMARK EXPRESSLY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO WHICH SELLER AND/OR CRESTMARK MAY BE PARTIES ARISING OUT OF OR IN ANY WAY PERTAINING TO THIS AGREEMENT.

14.Entire Agreement. SELLER AND CRESTMARK AGREE THAT THIS AGREEMENT, THE BILL OF SALE AND THE LEASE DOCUMENTS CONSTITUTE THE ENTIRE AGREEMENT OF THE PARTIES WITH RESPECT TO THE EQUIPMENT AND SUPERSEDE ALL PROPOSALS, ORAL OR WRITTEN, ALL PRIOR NEGOTIATIONS AND AGREEMENTS, AND ALL OTHER COMMUNICATIONS BETWEEN THEM WITH RESPECT TO THE EQUIPMENT.

[Signature page follows.]

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

CRESTMARK EQUIPMENT FINANCE,
a division of MetaBank


By:		/s/ Thomas R. Rutherford
Name:		Thomas R. Rutherford
Title:		President

CENTRAL CA FUEL CELL 2, LLC

By:		FuelCell Energy Finance II,
		LLC Its: Sole Member

By:		FuelCell Energy, Inc.
		Its: Sole Member

By:		/s/ Michael S. Bishop
Name:		Michael S. Bishop
Title:		Executive Vice President, Chief Financial
		Officer and Treasurer

PURCHASE AND SALE AGREEMENT EXHIBIT #1

BILL OF SALE

CENTRAL CA FUEL CELL 2, LLC ("Seller"), in consideration of the sum of fourteen million three hundred and seventy-two thousand dollars ($14,372,000) (the "Purchase Price") and other good and valuable consideration paid by CRESTMARK EQUIPMENT FINANCE, a division of MetaBank ("Crestmark") does hereby sell, and convey to Crestmark all of its right, title and interest in and to the Equipment described more fully on Schedule A attached hereto.

This Bill of Sale is entered into in connection with that certain Purchase and Sale Agreement, dated as of February 11, 2020 (the "Purchase Agreement") between Seller and Crestmark. Unless otherwise indicated, capitalized terms used herein shall have the meaning set forth in the Purchase Agreement.

Seller warrants that it is transferring title to the Equipment free and clear of all liens and encumbrances other than Permitted Liens. EXCEPT AS SPECIFICALLY SET FORTH IN THE PURCHASE AGREEMENT, CRESTMARK ACKNOWLEDGES AND AGREES THAT SELLER HAS MADE AND MAKES NO REPRESENTATIONS OR WARRANTIES OF WHATSOEVER NATURE, DIRECTLY OR INDIRECTLY, EXPRESSED OR IMPLIED, WITH RESPECT TO THE EQUIPMENT OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO SUITABILITY, DURABILITY, FITNESS FOR USE AND MERCHANTABILITY OF ANY OF THE EQUIPMENT, AND THAT THE EQUIPMENT IS BEING SOLD, TRANSFERRED AND DELIVERED TO CRESTMARK “AS-IS,” “WHERE-IS” AND “WITH ALL FAULTS.”

The Purchase Price, and other relevant items, will be allocated among the Equipment in accordance with the fair market value of the assets and liabilities transferred as described in Schedule B attached hereto.

In the event of any conflict between the terms of the Purchase Agreement and the terms of this Bill of Sale, the terms of the Purchase Agreement shall prevail.

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Schedule A to Bill of Sale

Description of Equipment

Equipment includes all equipment and components of the FCE SureSource 3000 fuel cell system, including but not limited to items detailed below.


Equipment	Model Number	Serial Number	Warranty Info
SureSource 3000 Module	C1420	C1420-134 C1420-135	Long Term Service Agreement (LTSA)
SureSource 3000 MBOP	SureSource 3000	MM27	12 mos.
SureSource 3000 EBOP	Rockwell - Power Conditioning Unit (PCU), Allen -Bradley Power Flex 1.764MVA	Leader 46249256 Follower 43204413	18 mos. from ship or 12 from start
Chiller for EBOP PCU	Pfannenberg Model EB 350 SP 460/3/60 Part No. 42533505321	S15530808168 S15530808172	12 mos.
SureSource 3000 Exhaust Heat Recovery - Water Loop Heater	Cain Heat Recovery Unit HRU-360F26SSS DFC3000	S/N 8678	18 mos. from ship or 12 from start
SureSource 3000 Transformer	Rockwell / Hammond	AA00706273 AA00706274	12 mos.
SureSource 3000 Transformer	1800kVA Transformer 370V/370V/12.0kV	AA00706273 AA00706274	12 mos.
BOP Transformer	Cooper / Eaton – XFMR, 300KVA, 12kV-480Y, FR3	CP1850008662	18 mos. from ship or 12 from start
SureSource 3000 Switchgear F60/CCB	Powergrid Solutions – 15KV, 1200A, NEMA 3R, SMCG	SO5644901-001	18 mos. from ship or 12 from start
Neutral Grounding Reactor	Gilbert Electrical Systems 13.8kV, 62 ohms, 150A/10 sec	79710-79743-0818	18 mos. from ship or 12 from start

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Schedule B

to Bill of Sale

Purchase Price Allocation

1. Tulare Fuel Cell Project: $14,185,000

Total Purchase Price: $14,372,000

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PURCHASE AND SALE AGREEMENT

Exhibit #2

Lease Documents

1.	This Agreement;

2.	Lease Agreement;

3.	Rental Schedule (incorporated into Lease Agreement);

4.	Certificate of Acceptance for the Equipment, substantially in the form of Attachment #1 to Exhibit A to the Lease Agreement;

5.	Bill of Sale for the Equipment;

6.	Assignment Agreement, dated as of the date hereof, from Seller and FuelCell Energy, Inc. to Crestmark;

7.	Guaranty Agreement, dated as of the date hereof from FuelCell Energy, Inc. (“Guarantor”) to Crestmark;

8.	Pledge Agreement, dated as of the date hereof, from FuelCell Energy Finance, LLC (“Parent”) in favor of Crestmark, together with a membership interest certificate and transfer power;

9.	A third party consent agreement, dated as of the Commencement Date, from each counterparty to the Power Purchase Agreement;

10.	A third party consent agreement, dated as of the Commencement Date, from each counterparty to the Digester Gas Purchase Agreement;

11.	A third party consent agreement, dated as of the Commencement Date, from each counterparty to the EPC Contract;

12.	The Warranties with respect to the Equipment, in respect of the EPC Contract, the Service Agreement and any other applicable items of Equipment;

13.	The Project Documents;

14.	The Technology License and Access Agreement, dated as of the date hereof, between Crestmark, Seller and Guarantor;

15.

Secretary's Certificate of the sole member of Seller, attaching (i) true and complete copies of Seller’s constitutive documents in effect as of the date thereof, (ii) a true and complete copy of resolutions duly adopted by the authorized governing body of the sole member of Seller, authorizing the execution, delivery and performance by Seller of each of the Lease Documents and Project Documents to which it is a party, (iii) an incumbency certificate, and (iv) a certificate of good standing, issued by the Secretary of State of the state of Seller's

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formation, dated not more than ten (10) business days before closing;

16.

Secretary's Certificate of Guarantor, attaching (i) true and complete copies of Guarantor’s constitutive documents in effect as of the date thereof, (ii) a true and complete copy of resolutions duly adopted by the authorized governing body of Guarantor, authorizing the execution, delivery and performance by it of each of the Lease Documents and Project Documents to which it is a party, (iii) an incumbency certificate, and (iv) a certificate of good standing, issued by the Secretary of State of the state of Guarantor’s formation, dated not more than ten (10) business days before closing;

17.

Secretary's Certificate of the sole member of Parent, attaching (i) true and complete copies of Parent’s constitutive documents in effect as of the date thereof, (ii) a true and complete copy of resolutions duly adopted by the authorized governing body of the sole member of Parent, authorizing the execution, delivery and performance by Parent of each of the Lease Documents and Project Documents to which it is a party, (iii) an incumbency certificate, and (iv) a certificate of good standing, issued by the Secretary of State of the state of Parent’s incorporation, dated not more than ten (10) business days before closing;

18.	UCC-1 financing statements with respect to the Assignment Agreement, naming Seller as debtor and Crestmark as secured party, properly filed, registered or recorded in each jurisdiction in which Crestmark shall reasonably request;

19.	UCC-1 financing statements with respect to the Pledge Agreement, naming Parent as debtor and Crestmark as secured party, properly filed, registered or recorded in each jurisdiction in which Crestmark shall reasonably request;

20.	UCC-1 financing statements with respect to the SureSource 3000 Units naming Seller as debtor and Crestmark as secured party, properly filed, registered or recorded in each jurisdiction in which Crestmark shall reasonably request;

21.	Bailee Letter with respect to the SureSource 3000 Units;

22.	Precautionary UCC-1 financing statements, naming Seller as debtor and Crestmark as secured party, properly filed, registered or recorded in each jurisdiction in which Crestmark shall reasonably request;

23.	Precautionary fixture filing UCC-1 financing statements, naming Seller as debtor and Crestmark as secured party, properly filed, registered or recorded in each jurisdiction in which Crestmark shall reasonably request,

24.	UCC lien search reports, satisfactory to Crestmark, dated not more than ten (10) business days before closing, made in respect of Seller and Parent in each jurisdiction in which Seller and Parent are located or in which the Equipment is located;

25.	UCC-3 financing statements, terminating the interests of any secured party that is not Crestmark, properly filed, registered or recorded in each jurisdiction in which Crestmark shall reasonably request;

26.	A lien release, between any construction lender and Seller;

27.	A copy of the deed or other evidence satisfactory to Crestmark confirming ownership of the Site where the Equipment is located and any lienholders on such Site;

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28.	Copies of certificates of insurance naming Crestmark as loss payee and/or additional insured that conform to all requirements set forth in Section 13 of the Lease Agreement;

29.	Final engineering design documents for the system comprised of the Equipment, stamped by a licensed professional engineer;

30.	A report and certificate from a licensed professional engineer satisfactory to Crestmark;

31.

An appraisal report prepared solely for Lessor and its counsel by DAI Management Consultants, Inc. or another appraiser chosen by Lessor (the "Appraiser") as of the Lease Commencement Date that addresses certain valuation and other issues related to the Equipment and that is satisfactory in form and substance to Lessor.

32.	A legal opinion from counsel to the Digester Gas Purchase Agreement counterparty dated as of the Commencement Date;

33.	A pay proceeds letter addressed to Crestmark, executed by Seller;

34.	Lien Waivers with respect to the Equipment;

35.	All material Governmental Approvals with respect to the Equipment;

36.	Permission to operate or other interconnection approval from the local utility; and

37.

Appraisal

38.	Such other documentation as Crestmark shall reasonably require.

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PURCHASE AND SALE AGREEMENT

Exhibit #3

List of Project Documents

As of Commencement Date: February 11, 2020

Bioenergy Market Adjusting Tariff Power Purchase Agreement, between Southern California Edison Company and Central CA Fuel Cell 2, LLC, dated as of April 20, 2018, as amended by that Amendment No. 1 to the Bioenergy Market Adjusting Tariff Power Purchase Agreement, dated as of August 15, 2019 (the “PPA Agreement”).

Interconnection Agreement, between Central CA Fuel Cell 2, LLC and Southern California Edison Company, dated as of April 17, 2018 (the “Interconnection Agreement”).

Digester Gas Purchase Agreement, between Central CA Fuel Cell 2, LLC and the City of Tulare, dated as of June 20, 2017, as amended by that Amendment to Digester Gas Purchase Agreement dated June 20, 2017, that Second Amendment to the Digester Gas Purchase Agreement dated December 6, 2018 and that Third Amendment to the Digester Gas Purchase Agreement, dated September 19, 2019 (the “DGPA”)

Fixed Price Engineering, Procurement, and Construction Agreement, between Central CA Fuel Cell 2, LLC and FuelCell Energy, Inc., dated as of March 1, 2018, as amended by that Amendment No. 1 to the Fixed Price Engineering, Procurement, and Construction Agreement, dates as of February 11, 2020 (the “EPC Agreement”).

Service Agreement for SureSource 3000 Power Plant, between Central CA Fuel Cell 2, LLC and FuelCell Energy, Inc., dated as of February 11, 2020

The SureSource 3000

Biogas Sale and Purchase Agreement, between BioFuels Point Loma, LLC and Central CA Fuel Cell 2, LLC, dated September 23, 2019

Governmental Approvals

All Warranties

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PURCHASE AND SALE AGREEMENT

Exhibit #4

List of Warranties

As of Commencement Date: February 11, 2020


Equipment	Model Number	Serial Number	Warranty Info
SureSource 3000 Module	C1420	C1420-134 C1420-135	Long Term Service Agreement (LTSA)
SureSource 3000 MBOP	SureSource 3000	MM27	12 mos.
SureSource 3000 EBOP	Rockwell - Power Conditioning Unit (PCU), Allen -Bradley Power Flex 1.764MVA	Leader 46249256 Follower 43204413	18 mos. from ship or 12 from start
Chiller for EBOP PCU	Pfannenberg Model EB 350 SP 460/3/60 Part No. 42533505321	S15530808168 S15530808172	12 mos.
SureSource 3000 Exhaust Heat Recovery - Water Loop Heater	Cain Heat Recovery Unit HRU-360F26SSS DFC3000	S/N 8678	18 mos. from ship or 12 from start
SureSource 3000 Transformer	Rockwell / Hammond	AA00706273 AA00706274	12 mos.
SureSource 3000 Transformer	1800kVA Transformer 370V/370V/12.0kV	AA00706273 AA00706274	12 mos.
BOP Transformer	Cooper / Eaton – XFMR, 300KVA, 12kV-480Y, FR3	CP1850008662	18 mos. from ship or 12 from start
SureSource 3000 Switchgear F60/CCB	Powergrid Solutions – 15KV, 1200A, NEMA 3R, SMCG	SO5644901-001	18 mos. from ship or 12 from start
Neutral Grounding Reactor	Gilbert Electrical Systems 13.8kV, 62 ohms, 150A/10 sec	79710-79743-0818	18 mos. from ship or 12 from start

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EXHIBIT 10.2

EQUIPMENT LEASE AGREEMENT

This Equipment Lease Agreement (this “Agreement” or “Lease”), dated as of February 11, 2020, is made between Crestmark Equipment Finance, a division of MetaBank, (the “Lessor”) and Central CA Fuel Cell 2, LLC, a Delaware limited liability company (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 Purchase Agreement (as defined below).

RECITALS

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

WHEREAS, FuelCell Energy, Inc., a Delaware corporation (“Guarantor”) has delivered to Lessor that certain Guaranty Agreement, dated as of the date hereof (the “Guaranty”), to guarantee Lessee’s payment obligations to Lessor; and

WHEREAS, Lessee desires to lease from Lessor, and Lessor desires to lease to Lessee, the fuel cell power generation equipment described in the Bill of Sale entered into pursuant to the 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 power generation equipment (the “Equipment”) as further described in Exhibit A. The Equipment shall be installed at the location described in Exhibit A (the “Site”).

2.TERM AND RENT. The initial term (“Initial Term”) for this Lease shall be for the period specified in Exhibit A, and Lessee shall pay Lessor the Rent specified in Exhibit A throughout the Initial Term for the use of the Equipment. The Initial Term and Rent with respect to the Equipment shall commence on, and Lessee will be obligated to pay Rent from, the Rental Commencement Date (as defined in Exhibit A). 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), unless earlier terminated in accordance with the terms of this Agreement.

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 impose and collect and Lessee agrees to pay a late charge on, and in addition to, such unpaid Rent or other amount due hereunder for each month or part thereof that such Rent or other amount due hereunder remains unpaid, an amount equal to 1.5% per month of such unpaid Rent or other amount due hereunder until paid.

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 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 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. In the event that any warranty is not assignable to Lessee, Lessor hereby appoints Lessee as Lessor’s agent and attorney-in-fact with 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.

USE, OPERATION AND MAINTENANCE.

(a)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. 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 this Agreement). Lessee, at Lessee’s own cost and expense, shall install a fuel cell energy production monitoring system to monitor the energy production of the Equipment, and such monitoring system shall be acceptable to the Lessor and provide Lessor with real-time access to such monitoring system’s data. Any

such monitoring systems installed by Lessee shall be deemed part of the Equipment and shall become property of Lessor. 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 therefor 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. All replacement parts, repairs, alterations, modifications and additions to the Equipment at any time made to or placed upon the Equipment shall become the property of Lessor. Lessee may, with Lessor’s prior written consent, 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, cause the loss of any warranty thereon or any certification necessary for the maintenance thereof. 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. Lessee shall, at Lessee’s own cost and expense, provide and maintain a security system to adequately secure and limit access to the Equipment. In connection with any such alteration, modification or additions to the Equipment, if Lessee permanently removes any parts, equipment and/or other materials from the Equipment in connection with installing a permanent replacement, title to and risk of loss of and liability for such replaced parts, equipment and/or other materials shall pass to Lessee at the time of removal from the Equipment.

(b)Lessee shall take all necessary actions so that Lessee is either not subject to or is exempt from regulation (i) as a "public utility" or a "holding company" under the FPA and PUHCA and FERC's regulations thereunder, and (ii) as a "public utility," "electric utility," "electric corporation," or a "holding company" or similar terms under applicable laws or regulations of the state where the Equipment is located.

(c)Lessee shall at all times maintain, or cause to be maintained, in full force and effect the Interconnection Agreement and/or such other interconnection agreement with the applicable local utility that permits interconnection and operation of the Equipment in parallel with such utility’s distribution system.

7.NET LEASE. This Agreement is a “net lease” and Lessee’s obligation to pay all Rent and other amounts due and owing hereunder 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) termination or loss of the Site or any portion thereof, or of any other lease, sublease, right-of-way, easement or other interest in personal or real property upon or to which any portion of the Equipment is located, attached or appurtenant or in connection with which any portion of the Equipment is used or otherwise affects or may affect the Equipment or any right thereto, (i) any termination of a Project Document or the failure of any Project Document to be in full force and effect, or (j) any defect in the title to, or the existence of any lien with respect to, the Equipment (unless such defect or lien results from or is caused by any act or omission of Lessor, in which case Lessee may withhold Rent if and to the extent such defect or lien reasonably interferes with Lessee’s use of 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, except as specifically provided herein, Lessee nonetheless agrees, to the extent permitted by Applicable Law and without limiting any other rights or remedies Lessor has under this Agreement or any other Lease Document, 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 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 this 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 no Default has occurred and is continuing, 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 and except as otherwise provided in the last sentence of Section 6 (a). If 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 this Agreement is intended to be a “true lease,” and the Lessor will be treated as owner and lessor of the Equipment and Lessee will be treated as lessee of the Equipment for commercial law purposes as well as federal, state and local income tax purposes and, accordingly, the Parties agree that the Lessor is intended to be the party entitled to claim any

and all benefits available to an owner of the Equipment, including all Tax Benefits (as defined in Section 19). Lessor acknowledges that all rights and interests in and to any renewable energy credits, utility rebates (including performance based incentives), and any other environmental attributes associated with the electricity or thermal output from the Equipment (all such attributes, specifically excluding any Tax Benefits, the “Environmental Attributes”) are required to be transferred to Southern California Edison Company in connection with the delivery of energy pursuant to the PPA and Lessor has no rights to the foregoing. In the event that this Agreement or this 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. (a) 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, lease, possession, use or location of the Equipment or otherwise in connection with the transactions contemplated by this Agreement, including 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 or thermal energy to, or the use of the Equipment by, the offtaker under the Power Purchase Agreement, executed on April 20, 2018, and entered into by Lessee, and Southern California Edison Company (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 Stipulated Loss Value and (v) upon any exercise of the Purchase Option, but excluding any and all taxes, charges and fees (including any interest, additions to tax and penalties) (A) on or measured by net or gross income, net or gross receipts, alternative minimum taxable income, items of tax preference, branch profits, franchise, capital, conduct of business, stock value or net worth (in each case other than taxes that are (or are in the nature of) sales, use, value added, transfer, excise and personal property taxes), (B) resulting from Lessor’s negligence, willful misconduct, or the breach by Lessor of any of its representations, warranties, covenants or obligations under any Lease Document, (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, (D) attributable to a transfer or disposition (directly or indirectly) of any interest in the Equipment, this Agreement or any part of the foregoing or any interest in the Lessor (including a deemed transfer for tax purposes) other than (I) a transfer to Lessee pursuant to the exercise of any purchase option granted to Lessee under this Agreement, or (II) a transfer pursuant to Lessor’s exercise of remedies in Section 19 as a result of a Default, (E) resulting from the leasing, ownership, use or operation of any Equipment after the expiration or earlier termination of this Agreement with respect to such Equipment, (F) imposed on Lessor (including by way of withholding) as a result of the failure by Lessor (or any member of Lessor) to be a “United States person” (within the meaning of section 7701(a)(30) of the Internal Revenue Code (the “Code”), (G) imposed on Lessor by any jurisdiction to the extent such taxes would not have been imposed on Lessor had Lessor not engaged in activities in such jurisdiction unrelated to the transactions contemplated by the Lease Documents,

and (H) imposed on any transferee, assignee or successor in interest of the Lessor to the extent such taxes are in excess of the taxes that would have been imposed on the original Lessor had such transfer or assignment not occurred. 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 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 provide proof of said filing or payment to Lessor.

(b) Lessee shall be entitled to contest the imposition of taxes, charges and fees (including penalties) subject to this Section 10 at Lessee’s sole cost and expense; provided that Lessee has confirmed in writing its liability for the amounts should it lose the contest, the contest does not create risk of forfeiture of the Equipment, and Lessee keeps Lessor informed about the progress of the contest and provides Lessor copies of any filings or correspondence with the tax authorities about the case. Lessor shall provide to Lessee such information as Lessee may reasonably request in order to contest and shall otherwise cooperate with Lessee to the extent necessary to permit Lessee to conduct such contest. Lessor agrees not to settle any claim that Lessee is contesting in accordance with this Section 10(b) without the prior consent of Lessee, such consent not to be unreasonably withheld. If Lessor shall obtain a refund or tax credit or other tax benefit attributable to an amount paid by Lessee pursuant to this Section 10, Lessor shall promptly pay or credit to Lessee the amount of such refund, credit or tax benefit.

11.ACCOUNTS. (a) Lessee agrees to deposit all revenues received by Lessee with respect to the Equipment into a demand deposit account (the “Control Account”) to be established by Lessee. In addition, on the Lease Commencement Date, Lessee shall establish a separate interest bearing account (the “Minimum Monthly Reserve Account”). The Minimum Monthly Reserve Account and the Control Account are together referred to as the “Accounts”. Any and all interest accruing on invested amounts held in any of the Accounts shall be for the benefit of and shall be deemed the property of Lessee. Each of the Accounts may be at a financial institution that is an affiliate of Lessor. The cost of establishing and maintaining the Accounts shall be borne by Lessee. Lessee shall instruct each counterparty to each Project Document to make all payments to which Lessee or any of Lessee’s affiliates is entitled under each such Project Document to the Control Account and to provide evidence of such instruction to Lessor, and Lessee agrees to enforce its right, or to cause its affiliates to enforce their rights, to designate the Control Account as the place to which such payments should be made in the event that for any reason any such counterparty fails to make payment to such account. Lessee shall, on the Lease Commencement Date, fund the Minimum Monthly Reserve Account with an amount equal to the “Minimum Monthly Reserve Fund” amount set forth in Exhibit A (the “Minimum Balance Requirement”), and Lessee shall thereafter maintain a minimum amount in the Minimum Monthly Reserve Account equal to the amount set forth in Exhibit A. Lessor shall have sole signatory authority over the Accounts. As collateral security for the prompt payment and performance of all obligations under this Agreement, Lessee hereby grants to Lessor a first priority security interest in, lien upon and pledge of the Control Account and the Minimum Monthly Reserve Account. Lessee shall take all such action as may be reasonably requested by Lessor to maintain Lessor’s first priority security interest in each such account.

(b)If the amount in the Minimum Monthly Reserve Account falls below eighty percent (80%) of the Minimum Balance Requirement at any time, Lessee shall promptly replenish the Minimum Monthly Reserve Account such that the Minimum Balance Requirement is met and in addition shall provide to Lessor information regarding the cause of the shortfalls in the Control Account and/or Minimum Monthly Reserve Account, the steps being taken to remedy the situation giving rise to such shortfalls, and such other information as Lessor shall reasonably request (which information shall not include technical proprietary information).

(c)On the date that is ten (10) business days prior to each date on which a payment of Rent is due (each, a “Rent Payment Date”), Lessor shall determine the amounts on deposit in the Control Account, and if there are insufficient funds to make the transfers contemplated in clauses first and second of Section 11(d) in full on the next occurring Rent Payment Date, Lessor shall withdraw from the Minimum Monthly Reserve Account an amount equal to such deficiency and deposit such amount into the Control Account.

(d)On each Rent Payment Date under this Lease, Lessor shall transfer funds from the Control Account in the following order of priority, in each case, to the extent funds are available in the Control Account:

First, if any amount (other than Rent due and payable on such Rent Payment Date) is due and owing on such Rent Payment Date to Lessor hereunder (including, for the avoidance of doubt, any delinquent Rent due and owing at such time) or under any other Lease Document, Lessor shall transfer such amount to Lessor.

Second, Lessor shall transfer the amount of all Rent due and owing on such Rent Payment Date to Lessor.

Third, if the Minimum Balance Requirement is not met as of such Rent Payment Date, Lessor shall transfer to the Minimum Monthly Reserve Account the amount necessary to meet the Minimum Balance Requirement.

Fourth, any obligation in the nature of operating expenses of the Project at the instruction of Lessee and as approved by Lessor.

Fifth, provided that no Default has occurred and is continuing, Lessor shall transfer to Lessee any amounts remaining in the Control Account as instructed by Lessee.

(e)[Intentionally omitted]

(f)At the end of the Lease Term, and after all amounts payable to Lessor under the Lease Documents have indefeasibly been paid in full, all amounts remaining in the Accounts shall be paid to Lessee other than amounts necessary to repair any damage to the Equipment for which Lessee is liable hereunder or to the Site as a result of Lessee’s activity on the Site for which Lessor is liable, which amounts (or reasonably estimated amounts if the specific amounts are not then known to Lessor) may be retained by Lessor. In the event the estimated amount retained by Lessor is greater than the actual amount necessary for such repairs, Lessor shall so notify Lessee promptly following such determination and shall deliver to Lessee an amount equal

to such excess. Notwithstanding the foregoing, at the end of the Lease Term, Lessee shall have no obligation to repair or replace (or reimburse Lessor for any repair or replacement expenses related to) ordinary wear and tear, any module performing in line with the age and expected degradation curve of the Equipment, or any part performing with the performance, reliability and safety in line with the age of the Equipment and of a type, grade, quality and condition comporting with Prudent Industry Practices.

(g)Lessor may cause a collateral agent to take any or all actions Lessor is permitted to take under this Agreement or any other Lease Document.

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) place the same in good repair, condition and working order, (b) at Lessee’s expense, dispose of any Equipment in compliance with Applicable Law, substitute such Equipment (or any item thereof) with equipment of equivalent or superior manufacture, make, model and features, in good repair, condition and working order and transfer clear title to such replacement property to Lessor whereupon such property shall be subject to this Agreement 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 “Stipulated Loss Value” of the Equipment as set forth in Exhibit A (the “Stipulated Loss Value”), whereupon this 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 Stipulated Loss 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 greater of the Stipulated Loss Value and the replacement 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 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, upon prior written notice to Lessee, 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 one hundred eighty (180) days prior to the expiration of the Initial Term or any Renewal Term (as defined below)] of this 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 (the “Renewal Option”), (b) purchase the Equipment in accordance with Section 16 (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 and Lessee may only exercise the Return Option if all conditions contained in each Project Document to assign each such Project Document to Lessor have been met. If Lessee does not provide this notice at the end of the Initial Term, Lessee shall be deemed to have elected the Renewal Option, subject to the conditions in Section 15. If Lessee does not provide this notice at the end of any Renewal Term, Lessee shall be deemed to have elected either the Renewal Option or the Return Option, to be selected in Lessor’s sole discretion, subject to the conditions in Section 15. If Lessee elects the Return Option, Lessee acknowledges that by means of that certain Assignment Agreement dated as of the date hereof and executed by Lessee in favor of Lessor (the “Assignment Agreement”), Lessee shall have assigned to Lessor all of Lessee’s right, title and interest in, to and under each Project Document and each Governmental Approval, effective as of the end of the Lease 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, Lessee shall promptly reimburse Lessor for all reasonable costs

incurred to restore the Equipment to such condition but subject to the limitations set forth in the last sentence of Section 11 (f). In such case, Lessor shall consider having FuelCell Energy, Inc. continue to remain as the operator of the Equipment for the duration of the Power Purchase Agreement. If, at the end of the Lease Term, Lessee has elected the Return Option and the Power Purchase Agreement 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 (subject to the limitations set forth in the last sentence of Section 11 (f))and (ii) remove all of the Equipment from the Site, repair any damage to the Site caused by such removal so the Site is restored to the condition required by the associated land rights agreement or site license, pack the Equipment into appropriate shipping containers or wrap and secure the equipment for shipping in accordance with the original equipment manufacturer’s standard practice, 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.

15.REMARKETING. If Lessee does not elect the Renewal Option or Purchase Option for this Lease, then Lessee shall use commercially reasonable efforts on a non-discriminatory, non-priority “as is” basis, to assist Lessor in remarketing the Equipment for one-hundred eighty (180) days following the expiration of the Initial Term or any Renewal Term of this Lease (the “Remarketing Period”). In connection with the foregoing remarketing obligations, Lessor may elect, by written notice to Lessee (“Service Notice”), that Lessee arrange one or more remarketing services specified by Lessor from time to time in writing, such remarketing services, if obtained, to be at Lessor’s sole cost as a remarketing expense (including both third party costs incurred by Lessee and a reasonable estimate of in house expenses incurred by Lessee; provided, however, that items with a cost over $5,000 shall require Lessor’s consent), which may include (i) arranging for removal of the Equipment; (ii) Equipment inspections and inventory; (iii) Equipment de-installation and installation, as necessary; (iv) refurbishment of the Equipment; (v) appraisal of the Equipment; (vi) Equipment maintenance services; (vii) arranging for Equipment maintenance certification; and/or (viii) providing and/or securing necessary Equipment license(s) and maintenance for a new purchaser or lessee. If, following the receipt of the Service Notice, Lessee shall in good faith determine that it is not feasible to perform any or all of the foregoing services or that such performance could expose Lessee to unreasonable liability, then Lessee shall promptly notify Lessor in writing, whereupon Lessee shall have no further obligation to arrange for the performance of such services.

In connection with any services performed by Lessee pursuant to this Section 15, Lessee shall (i) hold any Equipment that Lessee takes possession of, or control over, as bailee, and not as consignee, and (ii) be responsible for, and hereby indemnifies and holds Lessor harmless from and against, any and all damage to or loss of the Equipment to the extent such damage or loss is related to the gross negligence or willful misconduct of Lessee. Lessee shall be, and shall at all times remain, an independent contractor with regard to its obligations hereunder.

In performing its remarketing obligations, Lessee may not pledge the credit of, or to enter into any contract or financing arrangement for, Lessor; it being agreed that Lessee has not been granted any property interest in any intellectual property (including, without limitation, the corporate name, trademarks or trade names) of Lessor. In this regard, Lessee has no power or

authority, express or implied, to bind or otherwise obligate Lessor in any manner with respect to a sale, lease or other disposition of the Equipment. Any proposal or offer submitted by Lessee with respect thereto to any third-party shall state that it is conditioned upon the written approval of Lessor. In this regard, Lessor expressly reserves the right to approve or reject any offer or proposal, or portion thereof, made by Lessee or any third party, which approval or rejection shall not be unreasonably withheld or delayed. If any offer is approved by Lessor, in its sole and absolute discretion, the transaction(s) contemplated in such offer or proposal shall be consummated solely and directly between Lessor, in Lessor’s (or its nominee’s or designee’s) name, and the applicable purchaser or lessee. Any offer or proposal rejection shall not relieve Lessee of its obligations to continue to remarket the Equipment.

In the event that Lessee is unable to sell or otherwise dispose of the Equipment during the Remarketing Period under terms and conditions reasonably acceptable to Lessor, then Lessor may remarket the Equipment within its sole and absolute discretion. In this event, Lessee shall deliver and/or make storage arrangements, as a remarketing expense, for any applicable Equipment as directed by Lessor in writing but shall otherwise have no further obligation hereunder.

16.LEASE RENEWAL. (a) If Lessee elects, or is deemed to elect, the Renewal Option for this Lease, then this Lease (with respect to all, but not less than all, of the Equipment under this Lease) shall be extended for a sixty (60) month term or such other term or terms as Lessor and Lessee may agree upon (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; provided that the aggregate Renewal Terms may not exceed the remaining term of the Power Purchase Agreement and the sum of the Renewal Terms and the Initial Term may not exceed eighty percent (80%) of the Equipment’s remaining economic useful life as determined by the Appraisal (as defined in Section 18(a)) without the prior written consent of Lessor. Rent payable during any Renewal Term shall be the Fair Market Rental Value for the Equipment as determined below.

(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 this Lease or its deemed election to renew this 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 this 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 Stipulated Loss Value shall be determined on the basis of the fair market sales value of the Equipment as of the commencement 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.

17.PURCHASE OPTION. (a) If Lessee elects the Purchase Option in accordance with Section 14, Lessee shall have the option to purchase all but not less than all of the Equipment in this Lease from Lessor for an amount equal to the greater of (i) 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”) and (ii) 31% of the Purchase Price. 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 on or before such date.

(c)Upon payment of all sums specified in this Section 16 this Lease shall terminate, all amounts in any Accounts shall be returned to Lessee 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.

18.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, the use or possession of the site where the Equipment is located, 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 receiving notice to notify the other shall not relieve Lessee of any obligation hereunder, except for obligations for any expenses or direct damages solely to the extent attributable to Lessor’s failure to so notify Lessee.

19.

TAX INDEMNITY.

(a)Lessee acknowledges that the Rent 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 Purchase Agreement, that it will remain the sole owner after entering into this 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 the portion of the Purchase Price that is allocated to 5-year property by the Appraisal, (ii) either claim cost recovery reductions of one hundred percent (100%) of Lessor's Depreciable Cost (as defined below), which, for Federal income tax purposes is claimed pursuant to section 168(k)(1) of the Code, or depreciate Lessor’s Depreciable Cost over a 5-year MACRS recovery period utilizing the half-year convention, in the taxable year that includes the Lease Commencement Date with respect thereto and assuming such Equipment's salvage value is zero, (iii) depreciate the portion of the Purchase Price that is allocated to interconnection property by the Appraisal (the “Interconnection Property”) on a straight-line basis over a 20-year recovery period and (iv) amortize transaction expenses incurred in connection with this Lease over the Lease Term. The foregoing investment tax credit, depreciation deductions and amortization deductions are referred to herein as the “Tax Benefits.” The “Appraisal” is the report prepared solely for Lessor and its counsel by DAI Management Consultants, Inc. or another appraiser chosen by Lessor (the "Appraiser") as of the Lease Commencement Date that addresses certain valuation and other issues related to the Equipment and that is satisfactory in form and substance to Lessor. "Lessor's Depreciable Cost" means (1) for state and local income tax purposes, that portion of the Purchase Price allocated to the Equipment by the Appraiser and (2) for federal income tax purposes, that portion of the Purchase Price allocated to the Equipment by the Appraiser, reduced by 50% of the investment tax credit in clause (i) above, in each case excluding that portion of the Purchase Price that is allocated to the Interconnection Property. Lessee acknowledges further that the Rent in this Lease has been calculated on the assumption that Lessor will have to report the Rent as income in the periods and amounts shown in Exhibit A.

(b)Lessee represents, warrants and covenants to Lessor the following: (i)(A) for purposes of the investment tax credit, the Equipment will be treated as "placed in service" for federal income tax purposes and the original use of the Equipment will be deemed to commence for federal income tax purposes on the Lease Commencement Date and (B) for purposes of the depreciation deductions, (1) the Equipment will be treated as "placed in service" on the Lease Commencement Date and (2) the acquisition requirements set forth in section 168(k)(2)(E)(ii) of the Code have been met; (ii) there was no binding contract in place for the Equipment as of September 27, 2017; (iii) the Equipment was mechanically complete in 2019 and placed in service for federal income tax purposes by the Lessee in 2019, (iv) all of the Equipment was originally placed in service by Lessee on a date that is no more than three (3) months before the closing on the purchase of the Equipment by Lessor and lease back of such Equipment under this Agreement to Lessee (the "Original Placed-in-Service Date"); (v) during the period beginning on the Original Placed-in-Service Date and

ending on the date of the purchase of the Equipment by Lessor and lease back of such Equipment under this Agreement to Lessee, no person or entity other than Lessee has had any ownership interest in the Equipment or any part thereof; (vi) all of the Equipment was new when it was originally placed in service by Lessee; (vii) reserved; (viii) the only portion of the Equipment that is not “qualified fuel cell property” is certain interconnection property and the portion of the Purchase Price that is allocable to such interconnection property is less than 2%, (ix)reserved; (x) all of the Equipment (other than the interconnection property) qualifies as "5-year property" within the meaning of Section 168(e)(3)(B)(vi)(I) of the Code and the interconnection property qualifies as “20-year property” within the meaning of Section 168(e)(3)(F) of the Code; (xi) Lessor will have a tax basis for purposes of calculating the 30% investment tax credit equal to that portion of the Purchase Price that is allocated to “qualified fuel cell property” by the Appraiser; (xii) Lessor will have a tax basis for (A) state and local income tax depreciation purposes equal to that portion of the Purchase Price that is allocated to the Equipment by the Appraiser and (B) for federal income tax depreciation purposes equal to that portion of the Purchase Price that is allocated to the Equipment by the Appraiser, reduced by 50% of the 30% investment tax credit amount (as determined in clause (xi) above); (xiii) during the Lease Term, the Equipment will not be considered "tax-exempt use property" within the meaning of section 168(h) of the Code or 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 (other than solely due to the fact that Lessor (or any member of Lessor) is or becomes a tax-exempt entity within the meaning of section 168(h)(2) of the Code); (xiv) as of the Lease Commencement Date, no portion of the Equipment is, and at no time during the Lease 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 Lessor or any member of Lessor or actions taken by Lessor; (xv) the Equipment will be used solely in the United States; (xvi) 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); (xvii) 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 or other federal tax credit, in each case with respect to the Equipment or any portion thereof; (xviii) on the Lease Commencement Date, 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 Lessee; (xix) 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 Lease Term or that is inconsistent with any of the tax assumptions set forth in this Section 19; (xx) at no time during the period beginning on the Lease Commencement Date and ending on the fifth anniversary of such date (the "Recapture Period") will the portion of the Equipment that is classified by the Appraisal as “qualified fuel cell property” 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 Lessor or any member of the Lessor or actions taken by Lessor; (xxi) all written information provided by or on behalf of Lessee to the Appraiser was accurate and complete in all material respects and remains accurate and complete on the Lease Commencement Date; and (xxii) 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.

(c)Lessee covenants that it has not, and will not at any time during 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 in Section 19(a), 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 attributable in Exhibit A or report any other amounts as income as a result of the transactions contemplated in this Agreement (an “Inclusion”). Lessee covenants that it will provide Lessor promptly upon request any information that Lessor reasonably 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, (i) 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 (ii) the Lessor is required to report 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. Notwithstanding the foregoing, Lessee shall not have any liability to Lessor for indemnification under this Section 19(d) for any Loss or Inclusion if and to the extent such Loss or Inclusion results from the failure of the Lease to be a “true lease” for federal, state and local income tax purposes or the failure of the Lease to have “economic substance” within the meaning of Code Section 7701(o) (in each case, other than due to an act, omission, breach of warranty, breach of covenant or misrepresentation by Lessee). 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 or state tax authorities that will lead to a Loss; provided, however, Lessee has first 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. 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.

20.DEFAULT AND REMEDIES. (a) Lessee shall be in default under this Agreement if: (i) Lessee fails to pay Rent or any other payment due and owing hereunder within five (5) business days of the due date thereof; (ii) Lessee fails to observe, keep or perform any other term or condition of this Agreement or any other Lease Document and such failure continues for thirty (30) days following receipt of written notice from Lessor; provided, that if such default is a non-monetary default capable of being cured but cannot be cured within such thirty-day period, and Lessee is diligently pursuing such cure, the cure period shall be extended for so long as is necessary to effect such cure (but in no event in excess of sixty (60) days beyond such thirty-day period); (iii) 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 in any material respect 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; (iv) a breach

of the covenant set forth in Section 26(c) shall have occurred; (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 material Governmental Approval has been terminated without the prior written approval of Lessor to the extent Lessor’s approval is required hereunder; or (B) any default has occurred and is continuing under any material provision of a Project Document or any material Governmental Approval and any cure period provided thereunder has terminated without such default having been cured; (vii) Lessee undergoes a change in ownership or control of any type without the prior written approval of Lessor; (viii) any “Default” (as such term is defined in the Guaranty) has occurred and is continuing under the Guaranty or the Guaranty fails to provide Lessor the rights intended to be created thereby, ceases to be in full force and effect or the validity thereof is disaffirmed by Lessee or the Guarantor; or (ix) Lessee is in default of any obligation in excess of $100,000 (after any applicable cure period)(each of (i) through (ix), a “Default”).

(b)If a Default shall have occurred and be continuing under this Lease, Lessor shall have the right to take any one or more of the following actions with respect to this Lease: (i) cancel or terminate this Lease, (ii) enter onto the premises and take possession of or otherwise repossess the Equipment and, at the option of Lessor, cause the Lessee to promptly assign to Lessor the Project Documents and Governmental Approvals as if the Equipment were being returned in connection with the Return Option; (iii) proceed by appropriate court action or actions at law or in equity to enforce performance by Lessee of the terms and conditions of this Agreement and/or recover damages for the breach thereof; (iv) cause all moneys on deposit in the Accounts for this Lease to be paid directly to the account of Lessor, but only to the extent of the amount actually owed by Lessee to Lessor hereunder; (v) accelerate all of the amounts due hereunder for this Lease by requiring Lessee to pay Lessor an amount equal to the sum of (A) all Rent and any other unpaid amounts accrued to the date of such payment, plus (B) the Stipulated Loss Value; (vi) exercise its rights set forth in Section 11(b); (vii) take any other action as provided for in the Assignment Agreement; and/or (viii) exercise any other right or remedy available at law or in equity.

(c)Upon Lessee’s payment in full to Lessor of the amounts set forth in Section 19(b)(v), this Lease shall terminate (except as set forth in Section 22) and, at the request of the Lessee, Lessor shall transfer its ownership and rights in the Equipment to Lessee or Lessee’s designee on an “as is,” “where is” basis.

21.REPORTS.(a) As long as Guarantor is a publicly traded company filing reports with the SEC, within fifteen (15) days of Guarantor’s filing of any Form 8 K, 10 Q or 10 K, Lessee shall provide Lessor with copies of all such filings, it being understood that this Section 21(a) shall be deemed satisfied if such annual financial statements are timely filed by Guarantor with the Securities and Exchanges Commission in compliance with applicable.

(b)If, at any time during this Lease, Guarantor ceases to be a publicly traded company and, as a result, the foregoing information is no longer filed with the SEC, then, from and after such time, Lessee shall: (i) within sixty (60) days after the end of each quarterly period during the Lease Term, deliver to Lessor unaudited quarterly financial statements for the Lessee and the Guarantor as of the end of such quarterly period, prepared in accordance with generally accepted accounting principles in the United States (“GAAP”); and (ii) within one hundred twenty

(120) days after the end of each calendar year during the Lease Term, deliver to Lessor audited annual financial statements for the Lessee and the Guarantor 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 and the Guarantor 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 the Lessee or Guarantor as prepared in accordance with GAAP, it being understood that this Section 19(a) 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 material notice sent or received in connection with a Project Document or a Governmental Approval.

(d)Promptly upon, but no later than fifteen (15) business days after, Lessor’s written 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 (which information shall not include technical proprietary information).

22.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 and the Equipment, (b) that a copy of this Agreement 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 other Lease Document.

23.SURVIVAL. Lessee’s covenants, representations, warranties and indemnities contained in Sections 8, 10, 14, 17, 18, 19 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. Further, at the end of the Lease Term, to the extent a Default shall have occurred and be continuing (or would have occurred and be continuing but for the end of the Lease Term) pursuant to Section 19(a)(viii), any amounts on deposit in the Accounts shall be held by Lessor until such Default has been cured, and such amounts shall be available to Lessor to offset any amounts owed to Lessor in respect of such Default.

24.INSPECTION. During the Lease Term, Lessor may, during normal business hours, on reasonable prior written notice to Lessee and in accordance with any notice requirement set forth in any applicable Project Document, 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 and site owner’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.

25.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, this Lease shall be noncancelable for the Initial Term unless otherwise provided in this Lease.

26.ASSIGNMENT. (a) Lessee may not assign any interest in this Agreement or the other Lease Documents without the prior written consent of Lessor, which consent shall not be unreasonably withheld. Lessor may assign its interests in this Agreement and the other Lease Documents, in whole or in part, with notice to but without the consent of Lessee. If any such

Lessor assignment is a partial assignment of this Agreement by Crestmark Equipment Finance (for purposes of this Section 25, “Crestmark”), (i) so long as no Default shall have occurred, Crestmark shall maintain its administrative role under this Agreement with Lessee and shall act as an intermediary between Lessee and any Crestmark partial assignee, and (ii) unless Lessee receives notice from Crestmark or Crestmark's assignee to the contrary, Lessee's satisfaction of its obligations under the Lease Documents to Crestmark 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 this Lease to such assignee or mortgagee or as instructed by Lessor provided that Lessee may assert any defense that it may have pursuant to this Agreement. 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, Lessee shall not assign, sublet, hypothecate, sell, transfer or part with possession of the Equipment or any interest in this Agreement, and any attempt to do so shall be null and void and shall constitute a Default hereunder.

27.REPRESENTATIONS, WARRANTIES AND COVENANTS. (a) Lessee represents and warrants to Lessor that: (i) the execution and delivery by Lessee of this Agreement and the 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 or the Certificate of Acceptance, nor the due performance thereof by Lessee, including the commitment to pay (and payment of) Rent, will 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; (iii) Lessee is duly formed, validly existing and in good standing in its state of formation 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 or the 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)Without the prior consent of Lessor, Lessee shall not: (i) amend or supplement any Project Document or Governmental Approval in any manner that could be reasonably expected to affect materially or adversely Lessor’s interest in the Lease; or (ii) transfer or terminate any Project Document.

(d)Without the prior consent of Lessor, Lessee shall not (i) permit the offtaker under the Power Purchase Agreement to net or setoff any mutual debts or payment obligations between Lessee and offtaker owing under the Power Purchase Agreement, to the extent Lessee’s consent is required for such netting or setoff or (ii) consent to the offtaker.

under the Power Purchase Agreement assigning its obligations under the Power Purchase Agreement, to the extent Lessee’s consent is required for such assignment.

28.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:

Central CA Fuel Cell 2, LLC c/o FuelCell Energy, Inc.
3 Great Pasture Road Danbury, CT 06810

Attn: Chief Financial Officer

Telephone: 203-825-6049

Facsimile: 203-825-6069

With a copy to:

FuelCell Energy, Inc.

3 Great Pasture Road

Danbury, CT 06810

Attn: General Counsel

Telephone: 203-825-6070

Facsimile: 203-825-6069

If to Lessor:

Crestmark Equipment Finance
5480 Corporate Drive

Suite 350

Troy, MI 48098

Attn: Corporate Counsel
Telephone: (248) 641-5100

Facsimile: (248) 593-3901

29.DOCUMENTATION. Except for the payment of Rent, for which invoices are provided as an accommodation to Lessee and not as a condition precedent to payment, Lessor

shall use commercially reasonable 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.

30.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, and at all times until this Agreement and the 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 this 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 this 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 this 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 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.

31.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.

32.GOVERNING LAW. This Agreement is 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 other than Section 5-1401 and 5-1402 of the New York General Obligations law. Each Party consents to the non-exclusive jurisdiction of the courts of the State of New York, in and for the County of New York, or of the United States of America for the Southern District of New York over any action or proceeding brought in connection with this Agreement. Nothing herein shall affect the right to serve process in any other manner permitted by law or the right of Lessor to bring legal action or proceedings in any other competent jurisdiction. 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.

33.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 this Agreement 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.

34.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.

35.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 and the other Lease Documents contain 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.

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

LESSEE:

CENTRAL CA FUEL CELL 2, LLC

By: FuelCell Energy Finance II, LLC

Its: Sole Member

By: FuelCell Energy, Inc.

Its: Sole Member

By: /s/ Michael S. Bishop_______

Name: Michael S. Bishop

Title: Executive Vice President, Chief

Financial Officer and Treasurer

LESSOR:

CRESTMARK EQUIPMENT FINANCE

By: /s/ Thomas R. Rutherford_______

Name: Thomas R. Rutherford

Title: President

EXHIBIT A
RENTAL SCHEDULE

This Rental Schedule dated and effective as February 11, 2020 is incorporated into and deemed part of the Equipment Lease Agreement dated as of February 11, 2020 (the “Agreement”) by and between Crestmark Equipment Finance (“Lessor”) and Central CA Fuel Cell 2, LLC (“Lessee”). This Rental Schedule 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 Agreement shall have the same meaning herein.

Description of Equipment and Site location: As set forth on Attachment #4.

Lease Terms:

Initial Term:120 months

Rental Commencement Date: February 11, 2020

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

Minimum Monthly Reserve Fund: $429,178.50

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 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 Lessor and the Lessee agree that each “Cash Rent Payment” shown on Attachment #2 is intended to constitute a specific allocation of fixed rent within the meaning of Treasury Regulation §1.467-1(c)(2)(ii)(A) to the applicable Rental Period and is the rent that the Lessor and Lessee will report for use of the Equipment for income tax purposes.

Stipulated Loss Values are as set out on Attachment #3 attached hereto and incorporated herein.

Attachment #1 TO EXHIBIT A

CERTIFICATE OF ACCEPTANCE

Rental Schedule

Dated February 11, 2020

In compliance with the terms, conditions and provisions of the Agreement dated February 11, 2020 (the "Lease") between the undersigned ("Lessee") and Crestmark Equipment Finance ("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:

CENTRAL CA FUEL CELL 2, LLC

By: FuelCell Energy Finance II, LLC

Its: Sole Member

By: FuelCell Energy, Inc.

Its: Sole Member

By: /s/ Michael S. Bishop______________

Name: Michael S. Bishop

Title: Executive Vice President, Chief Financial Officer and Treasurer

Attachment #2

TO EXHIBIT A

Rental Value

Rental Schedule

Rent shall be due and payable in accordance with the following schedule. 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. Day 1 of Month 1 shall be the Effective Date. Each Day 1 thereafter shall be each subsequent monthly anniversary date.


Payment Date	Rent Amount ($)
Down Payment	2,875,980
Day 1 of Month 1	71,530
Day 1 of Month 2	71,530
Day 1 of Month 3	71,530
Day 1 of Month 4	71,530
Day 1 of Month 5	71,530
Day 1 of Month 6	71,530
Day 1 of Month 7	71,530
Day 1 of Month 8	71,530
Day 1 of Month 9	71,530
Day 1 of Month 10	71,530
Day 1 of Month 11	71,530
Day 1 of Month 12	71,530
Day 1 of Month 13	71,530
Day 1 of Month 14	71,530
Day 1 of Month 15	71,530
Day 1 of Month 16	71,530
Day 1 of Month 17	71,530
Day 1 of Month 18	71,530
Day 1 of Month 19	71,530
Day 1 of Month 20	71,530
Day 1 of Month 21	71,530
Day 1 of Month 22	71,530
Day 1 of Month 23	71,530
Day 1 of Month 24	71,530
Day 1 of Month 25	71,530
Day 1 of Month 26	71,530
Day 1 of Month 27	71,530
Day 1 of Month 28	71,530
Day 1 of Month 29	71,530
Day 1 of Month 30	71,530
Day 1 of Month 31	71,530


Day 1 of Month 32	71,530
Day 1 of Month 33	71,530
Day 1 of Month 34	71,530
Day 1 of Month 35	71,530
Day 1 of Month 36	71,530
Day 1 of Month 37	71,530
Day 1 of Month 38	71,530
Day 1 of Month 39	71,530
Day 1 of Month 40	71,530
Day 1 of Month 41	71,530
Day 1 of Month 42	71,530
Day 1 of Month 43	71,530
Day 1 of Month 44	71,530
Day 1 of Month 45	71,530
Day 1 of Month 46	71,530
Day 1 of Month 47	71,530
Day 1 of Month 48	71,530
Day 1 of Month 49	71,530
Day 1 of Month 50	71,530
Day 1 of Month 51	71,530
Day 1 of Month 52	71,530
Day 1 of Month 53	71,530
Day 1 of Month 54	71,530
Day 1 of Month 55	71,530
Day 1 of Month 56	71,530
Day 1 of Month 57	71,530
Day 1 of Month 58	71,530
Day 1 of Month 59	71,530
Day 1 of Month 60	71,530
Day 1 of Month 61	71,530
Day 1 of Month 62	71,530
Day 1 of Month 63	71,530
Day 1 of Month 64	71,530
Day 1 of Month 65	71,530
Day 1 of Month 66	71,530
Day 1 of Month 67	71,530
Day 1 of Month 68	71,530
Day 1 of Month 69	71,530
Day 1 of Month 70	71,530
Day 1 of Month 71	71,530
Day 1 of Month 72	71,530
Day 1 of Month 73	71,530
Day 1 of Month 74	71,530
Day 1 of Month 75	71,530
Day 1 of Month 76	71,530
Day 1 of Month 77	71,530


Day 1 of Month 78	71,530
Day 1 of Month 79	71,530
Day 1 of Month 80	71,530
Day 1 of Month 81	71,530
Day 1 of Month 82	71,530
Day 1 of Month 83	71,530
Day 1 of Month 84	71,530
Day 1 of Month 85	71,530
Day 1 of Month 86	71,530
Day 1 of Month 87	71,530
Day 1 of Month 88	71,530
Day 1 of Month 89	71,530
Day 1 of Month 90	71,530
Day 1 of Month 91	71,530
Day 1 of Month 92	71,530
Day 1 of Month 93	71,530
Day 1 of Month 94	71,530
Day 1 of Month 95	71,530
Day 1 of Month 96	71,530
Day 1 of Month 97	71,530
Day 1 of Month 98	71,530
Day 1 of Month 99	71,530
Day 1 of Month 100	71,530
Day 1 of Month 101	71,530
Day 1 of Month 102	71,530
Day 1 of Month 103	71,530
Day 1 of Month 104	71,530
Day 1 of Month 105	71,530
Day 1 of Month 106	71,530
Day 1 of Month 107	71,530
Day 1 of Month 108	71,530
Day 1 of Month 109	71,530
Day 1 of Month 110	71,530
Day 1 of Month 111	71,530
Day 1 of Month 112	71,530
Day 1 of Month 113	71,530
Day 1 of Month 114	71,530
Day 1 of Month 115	71,530
Day 1 of Month 116	71,530
Day 1 of Month 117	71,530
Day 1 of Month 118	71,530
Day 1 of Month 119	71,530
Day 1 of Month 120	71,530

Attachment #3 TO EXHIBIT A

Stipulated Loss of Value Schedule Rental Schedule



Period	Stip Loss	Total Amount
Ending	%	Due after Monthly Payment

Month 1	110.00%	$ 15,817,890.00
Month 2	109.41%	$ 15,733,302.35
Month 3	108.82%	$ 15,648,714.71
Month 4	108.24%	$ 15,564,127.06
Month 5	107.65%	$ 15,479,539.41
Month 6	107.06%	$ 15,394,951.76
Month 7	106.47%	$ 15,310,364.12
Month 8	105.88%	$ 15,225,776.47
Month 9	105.29%	$ 15,141,188.82
Month 10	104.71%	$ 15,056,601.18
Month 11	104.12%	$ 14,972,013.53
Month 12	103.53%	$ 14,887,425.88
Month 13	102.94%	$ 14,802,838.24
Month 14	102.35%	$ 14,718,250.59
Month 15	101.76%	$ 14,633,662.94
Month 16	101.18%	$ 14,549,075.29
Month 17	100.59%	$ 14,464,487.65
Month 18	100.00%	$ 14,379,900.00
Month 19	99.41%	$ 14,295,312.35
Month 20	98.82%	$ 14,210,724.71
Month 21	98.24%	$ 14,126,137.06
Month 22	97.65%	$ 14,041,549.41
Month 23	97.06%	$ 13,956,961.76
Month 24	96.47%	$ 13,872,374.12
Month 25	95.88%	$ 13,787,786.47
Month 26	95.29%	$ 13,703,198.82
Month 27	94.71%	$ 13,618,611.18
Month 28	94.12%	$ 13,534,023.53
Month 29	93.53%	$ 13,449,435.88
Month 30	92.94%	$ 13,364,848.24
Month 31	92.35%	$ 13,280,260.59
Month 32	91.76%	$ 13,195,672.94
Month 33	91.18%	$ 13,111,085.29
Month 34	90.59%	$ 13,026,497.65


Month 35	90.00%	$ 12,941,910.00
Month 36	89.41%	$ 12,857,322.35
Month 37	88.82%	$ 12,772,734.71
Month 38	88.24%	$ 12,688,147.06
Month 39	87.65%	$ 12,603,559.41
Month 40	87.06%	$ 12,518,971.76
Month 41	86.47%	$ 12,434,384.12
Month 42	85.88%	$ 12,349,796.47
Month 43	85.29%	$ 12,265,208.82
Month 44	84.71%	$ 12,180,621.18
Month 45	84.12%	$ 12,096,033.53
Month 46	83.53%	$ 12,011,445.88
Month 47	82.94%	$ 11,926,858.24
Month 48	82.35%	$ 11,842,270.59
Month 49	81.76%	$ 11,757,682.94
Month 50	81.18%	$ 11,673,095.29
Month 51	80.59%	$ 11,588,507.65
Month 52	80.00%	$ 11,503,920.00
Month 53	79.41%	$ 11,419,332.35
Month 54	78.82%	$ 11,334,744.71
Month 55	78.24%	$ 11,250,157.06
Month 56	77.65%	$ 11,165,569.41
Month 57	77.06%	$ 11,080,981.76
Month 58	76.47%	$ 10,996,394.12
Month 59	75.88%	$ 10,911,806.47
Month 60	75.29%	$ 10,827,218.82
Month 61	74.71%	$ 10,742,631.18
Month 62	74.12%	$ 10,658,043.53
Month 63	73.53%	$ 10,573,455.88
Month 64	72.94%	$ 10,488,868.24
Month 65	72.35%	$ 10,404,280.59
Month 66	71.76%	$ 10,319,692.94
Month 67	71.18%	$ 10,235,105.29
Month 68	70.59%	$ 10,150,517.65
Month 69	70.00%	$ 10,065,930.00
Month 70	69.41%	$ 9,981,342.35
Month 71	68.82%	$ 9,896,754.71
Month 72	68.24%	$ 9,812,167.06
Month 73	67.65%	$ 9,727,579.41
Month 74	67.06%	$ 9,642,991.76
Month 75	66.47%	$ 9,558,404.12
Month 76	65.88%	$ 9,473,816.47
Month 77	65.29%	$ 9,389,228.82
Month 78	64.71%	$ 9,304,641.18


Month 79	64.12%	$ 9,220,053.53
Month 80	63.53%	$ 9,135,465.88
Month 81	62.94%	$ 9,050,878.24
Month 82	62.35%	$ 8,966,290.59
Month 83	61.76%	$ 8,881,702.94
Month 84	61.18%	$ 8,797,115.29
Month 85	60.59%	$ 8,712,527.65
Month 86	60.00%	$ 8,627,940.00
Month 87	59.41%	$ 8,543,352.35
Month 88	58.82%	$ 8,458,764.71
Month 89	58.24%	$ 8,374,177.06
Month 90	57.65%	$ 8,289,589.41
Month 91	57.06%	$ 8,205,001.76
Month 92	56.47%	$ 8,120,414.12
Month 93	55.88%	$ 8,035,826.47
Month 94	55.29%	$ 7,951,238.82
Month 95	54.71%	$ 7,866,651.18
Month 96	54.12%	$ 7,782,063.53
Month 97	53.53%	$ 7,697,475.88
Month 98	52.94%	$ 7,612,888.24
Month 99	52.35%	$ 7,528,300.59
Month 100	51.76%	$ 7,443,712.94
Month 101	51.18%	$ 7,359,125.29
Month 102	50.59%	$ 7,274,537.65
Month 103	50.00%	$ 7,189,950.00
Month 104	49.41%	$ 7,105,362.35
Month 105	48.82%	$ 7,020,774.71
Month 106	48.24%	$ 6,936,187.06
Month 107	47.65%	$ 6,851,599.41
Month 108	47.06%	$ 6,767,011.76
Month 109	46.47%	$ 6,682,424.12
Month 110	45.88%	$ 6,597,836.47
Month 111	45.29%	$ 6,513,248.82
Month 112	44.71%	$ 6,428,661.18
Month 113	44.12%	$ 6,344,073.53
Month 114	43.53%	$ 6,259,485.88
Month 115	42.94%	$ 6,174,898.24
Month 116	42.35%	$ 6,090,310.59
Month 117	41.76%	$ 6,005,722.94
Month 118	41.18%	$ 5,921,135.29
Month 119	40.59%	$ 5,836,547.65
Month 120	40.00%	$ 5,751,960.00

Attachment #4
TO EXHIBIT A

Description of Equipment

Equipment includes all equipment and components of the FCE SureSource 3000 fuel cell system, including but not limited to items detailed below.


Equipment	Model Number	Serial Number	Warranty Info
SureSource 3000 Module	C1420	C1420-134 C1420-135	Long Term Service Agreement (LTSA)
SureSource 3000 MBOP	SureSource 3000	MM27	12 mos.
SureSource 3000 EBOP	Rockwell - Power Conditioning Unit (PCU), Allen -Bradley Power Flex 1.764MVA	Leader 46249256 Follower 43204413	18 mos. from ship or 12 from start
Chiller for EBOP PCU	Pfannenberg Model EB 350 SP 460/3/60 Part No. 42533505321	S15530808168 S15530808172	12 mos.
SureSource 3000 Exhaust Heat Recovery - Water Loop Heater	Cain Heat Recovery Unit HRU-360F26SSS DFC3000	S/N 8678	18 mos. from ship or 12 from start
SureSource 3000 Transformer	Rockwell / Hammond	AA00706273 AA00706274	12 mos.
SureSource 3000 Transformer	1800kVA Transformer 370V/370V/12.0kV	AA00706273 AA00706274	12 mos.
BOP Transformer	Cooper / Eaton – XFMR, 300KVA, 12kV-480Y, FR3	CP1850008662	18 mos. from ship or 12 from start
SureSource 3000 Switchgear F60/CCB	Powergrid Solutions – 15KV, 1200A, NEMA 3R, SMCG	SO5644901-001	18 mos. from ship or 12 from start
Neutral Grounding Reactor	Gilbert Electrical Systems 13.8kV, 62 ohms, 150A/10 sec	79710-79743-0818	18 mos. from ship or 12 from start

EXHIBIT 10.3

ASSIGNMENT AGREEMENT

THIS ASSIGNMENT AGREEMENT (this “Assignment”) is made as of February 11, 2020 by CENTRAL CA FUEL CELL 2, LLC (the “Assignor”) in favor of CRESTMARK EQUIPMENT FINANCE, a division of MetaBank (the “Assignee”), in connection with (a) that certain Lease Agreement (including the rental schedule attached thereto) dated as of February 11, 2020 (as the same may be amended, amended and restated, supplemented or otherwise modified from time to time, the “Lease Agreement”), between the Assignee and Assignor, pursuant to which the Assignee agreed to lease to Assignor and Assignor agreed to lease from Assignee certain fuel cell equipment (the “Equipment”) as set forth in the Lease Agreement and (b) that certain Purchase and Sale Agreement dated as of February 11, 2020 (as the same may be amended, amended and restated, supplemented or otherwise modified from time to time, the “Purchase Agreement”), between the Assignee and Assignor, pursuant to which the Assignee agreed to purchase the Equipment from Assignor.

RECITALS

WHEREAS, Assignor has entered into certain agreements with respect to the Equipment, each as further described on Schedule I hereto (such agreements, as the same may be amended, amended and restated, supplemented or otherwise modified from time to time, the “Assigned Agreements”);

WHEREAS, pursuant to the Lease Agreement, Assignor has agreed to deposit all revenues it receives with respect to the Equipment into a control account designated by the Assignee and as further described on Schedule II hereto (the “Control Account”);

WHEREAS, pursuant to the Lease Agreement, Assignor has agreed to maintain a certain reserve account designated by the Assignee and as further described on Schedule III hereto (the “Reserve Account”);

WHEREAS, Assignor owns certain equipment as further described on Schedule IV hereto, and from time to time will acquire Spare Modules (as defined in the Service Agreement listed as item 5 in Schedule I hereto (the “Service Agreement”). For purposes of this Agreement, such Spare Modules together with the equipment described in Schedule IV, as such schedule may be updated from time to time including to reflect any Spare Module acquired by the Assignor as contemplated by Section 2.9 of the Service Agreement, are referred to as the “Assigned Equipment”; and

WHEREAS, Assignor desires to simultaneously herewith grant a security interest in all of its right, title and interest in, to and under the Assigned Agreements, the Reserve Account, the Assigned Equipment and the Control Account (collectively, the “Assigned Rights”) as security for Assignor's obligations under the Lease Agreement and the Purchase Agreement (all such obligations, the "Obligations").

NOW, THEREFORE, in consideration of the premises and of other valuable consideration, the Assignor covenants and agrees as follows:

1.	Assignment.

(a)Assignor hereby collaterally assigns and grants to the Assignee, as additional security for the payment and performance in full, when due (whether at stated maturity or payment date, by acceleration or otherwise) of the Obligations, a security interest in the amounts on deposit in the Reserve Account, the Assigned Equipment and the Control Account and all of the Assigned Rights, including any proceeds (in the form of cash, property or otherwise) therefrom or relating thereto (collectively, the “Collateral”).

(b)Assignee agrees that, unless a Default shall have occurred and be continuing, Assignor shall have possession of and may exercise all rights with respect to the Collateral subject to the provisions of the Lease Agreement, provided that Assignor may not withdraw funds from the Reserve Account without Assignee’s consent.

Proceeds.

(a)The Assignors hereby agree that, until the Obligations shall have been paid in full, all proceeds due and to become due to the Assignors under or by reason of the Assigned Rights shall be paid directly into the Control Account.

(b)The Assignors hereby agree that, if the Assignors shall receive any proceeds of any Collateral, whether or not by reason of any assertion by either the Assignors or the Assignee of its rights under the Assigned Agreements, said proceeds shall be received in trust by the Assignors for the Assignee, and immediately be paid directly into the Control Account for application to the Obligations in accordance with the terms of the Lease Agreement.

End of Lease Term. Unless Assignee is exercising its rights pursuant to Section 14 of the Lease Agreement or Section 4 of this Assignment (in which event, the provisions of those sections shall apply), upon the end of the Lease Term (as defined in the Lease Agreement), Assignee and Assignors agree that: (i) if Assignor has exercised the “Purchase Option” (as defined in the Lease Agreement) and has paid and performed all of its obligations under the Lease Documents to effectuate such Purchase Option, Assignee’s security interest in the Assigned Rights shall terminate and Assignors shall have full and exclusive ownership and control of such Assigned Rights and (ii) if Assignor has exercised the “Return Option” (as defined in the Lease Agreement), Assignee may take possession of and succeed to all of the Assigned Rights. Assignors hereby represent, warrant and covenant to Assignee that Assignors have obtained all necessary consents and approvals required to assign each Assigned Agreement to Assignor at the end of the Lease Term (or upon earlier termination of the Lease, pursuant to the Lease Agreement) to the extent required under this Section 3.

4.	Remedies upon Default. The Assignors hereby agree that, at any time after the occurrence and during the continuance of a default pursuant to Section19 of the Lease Agreement or a default under the Purchase Agreement (any such default, a "Default"), Assignee may, but shall not be obligated to:

(a)take possession of, and exercise all of each Assignor’s rights under or in connection with, and/or succeed to all of each Assignor's right, title and interest in, to and under all or any portion of, the Collateral;

(b)without taking possession of and succeeding to Assignors’ interest in the Collateral, (i) either directly or on behalf of any Assignor, assert any claims and demands and enforce any rights and remedies that such Assignor may have, from time to time, against the counterparties to the Assigned Agreements, (ii) foreclose on all funds on deposit in the Reserve Account and/or the Control Account and apply all such amounts on account of the Obligations in accordance with the Lease Agreement, and (iii) receive and collect any and all proceeds or amounts due to such Assignor under the Assigned Agreements (including without limitation any amounts due to such Assignor in respect of any indemnification claims under the Assigned Agreements), and apply all such amounts on account of the Obligations in accordance with the Lease Agreement (the "Enforcement Activities");

(c)assign all or a portion of the Collateral, and the assignee thereof shall be entitled to all of the Assigned Rights and the remedies of the Assignee under the Assigned Agreements;

(d)cause all moneys on deposit in the Control Account and/or the Reserve Account to be paid directly to the account of Assignee; and

(e)(i) take any other action which Assignee deems necessary or desirable to protect or realize upon its security interest in the Collateral or any part thereof, and (ii) exercise any other or additional rights or remedies granted to Assignee under any other provision of this Assignment, the Lease Agreement or the Purchase Agreement, or exercisable by a secured party under the UCC and such additional rights and remedies to which a secured party is entitled under the laws in effect in any jurisdiction where any rights and remedies hereunder may be asserted.

The Assignor hereby irrevocably makes, constitutes and appoints Assignee (and all officers, employees or Assignees designated by the Assignee) as the Assignor’s true and lawful attorney (and attorney-in-fact) for the purpose of enabling the Assignee or its assignee to assert, at any time after the occurrence and during the continuance of a Default, any claims and demands or enforce any rights and remedies and collect such proceeds, awards and amounts owing to Assignor under any Assigned Agreement, and to apply such monies to the Obligations in accordance with the terms of the Lease Agreement, and said appointment shall create in Assignee a power coupled with an interest which shall be irrevocable.

Representations and Warranties; Covenants. The Assignor represents, warrants and covenants that as of the date hereof: (a) this Assignment creates a valid first priority security interest in the Assigned Agreements and the other Collateral in favor of the Assignee, (b) each Assigned Agreement is in full force and effect and constitutes a valid and legally enforceable obligation of the respective Assignor(s) party thereto, and to Assignor’s knowledge, each of the parties thereto, except as affected by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, (c) it has the full power and authority to pledge, convey, transfer and assign its interest in the Assigned Agreements and the other Collateral,

and no consent or authorization of, filing with or other act by or in respect of any governmental authority or any other person (including any counterparty to an Assigned Agreement) is required in connection with the execution, delivery, performance, validity or enforceability of this Assignment or the security interest granted pursuant hereto, and (d) it will defend its title to the Assigned Agreements and other Collateral and the security interest created by this Assignment against all material claims of all persons (other than the Assignee and persons claiming through the Assignee) and will maintain and preserve the Collateral and such security interest.

Notices under Assigned Agreements. Assignor agrees to: (a) promptly notify the Assignee of each and every material dispute with, and material claim against, any person or entity for which such Assignor has a claim under the Assigned Agreements, (b) diligently enforce each such claim to the extent that the failure to do so could reasonably be expected to materially and adversely affect Assignee’s interest in the Collateral, and (c) promptly provide the Assignee with copies of all notices, demands, requests and other communications sent or received by Assignor pursuant to the Assigned Agreements, as well as prior written notice of Assignor’s intention to exercise any power, right or remedy pursuant to the Assigned Agreements.

Continuing Liability under Assigned Agreements. Assignor hereby agrees and acknowledges that the Assignee shall not be deemed to have assumed any of the obligations or liabilities of the Assignor under the Assigned Agreements or any other document by reason of this Assignment or otherwise, and further agrees to indemnify, protect, defend and hold the Assignee harmless from and with respect to any claims or demands by any of the parties thereto.

No Set-Off. In the event a counterparty under any of the Assigned Agreements sets off any amounts owed by the Assignor to such counterparty against amounts owed by the counterparty to Assignor, Assignor shall indemnify and hold the Assignee harmless with respect to any amounts that are set off. Notwithstanding the foregoing, Assignor shall not be required to indemnify and hold Assignee harmless if such set-off relates to a failure of Assignee to perform its obligations under the Assigned Agreements following Assignee's assumption of such obligations upon exercise of its remedies under this Assignment.

Further Assurances. From time to time, the Assignor shall execute and deliver to the Assignee such additional documents and will provide such additional information and perform such additional acts as the Assignee may reasonably require to carry out the terms of this Assignment. The Assignor hereby authorizes the Assignee to prepare and file, from time to time, one or more UCC-1 or UCC-3 financing statements (in each case which may describe the collateral as “all assets”), as applicable, in Assignor’s jurisdiction of organization, and such other instruments as may be required to perfect the security interest created hereby, including any continuations or amendments of such financing statements. Assignor agrees to pay the cost of filing or recording the same in the public records specified by the Assignee.

10.

Termination. Subject to Section 3 hereof, this Assignment shall continue in effect until all of the Obligations have been indefeasibly paid in full and the Lease Agreement and Purchase Agreement have been terminated, at which time, subject to Section 22 of the Lease Agreement and except as otherwise provided in Section 3 above, the Assignee shall promptly release its interest in the Collateral and the other rights assigned hereby and, in connection with the foregoing shall execute such documents and instruments as Assignor shall reasonably request to affect and evidence the release of such interest in the Collateral.

11.	Notices. Any notice to be delivered in accordance with the provisions of this Assignment shall be delivered in accordance with the notice provisions of the Lease Agreement.

12.

Expenses. Assignor agrees to pay promptly upon demand to Assignee all costs and expenses reasonably incurred by Assignee (including the reasonable fees and disbursements of counsel) incident to its enforcement, exercise, protection or preservation of any of its rights, remedies or claims under this Assignment.

13.

Successors and Assigns. This Assignment and all of the obligations arising hereunder shall be binding upon the Assignor and its permitted successors and assigns and shall, together with the rights and remedies created hereby, inure to the benefit of the Assignee and its respective successors and assigns. Assignor shall not assign any interest in this Assignment without the prior written consent of Assignee, which shall not be unreasonably withheld. Any attempted assignment without such consent shall be null and void. The Assignee may assign its interests in this Assignment, in whole or in part, with notice to but without the consent of Assignor. If any such Assignee assignment is a partial assignment of this Assignment by Crestmark Equipment Finance (for purposes of this Section 13, “Crestmark”), (i) so long as no Default shall have occurred, Crestmark shall maintain its administrative role under this Assignment with Assignor and shall act as an intermediary between Assignors and any Crestmark partial assignee, and (ii) unless Assignor receives notice from Crestmark or Crestmark's assignee to the contrary, the Assignor’s satisfaction of its obligations under this Assignment to Crestmark shall be deemed to satisfy such obligations to all Assignees.

14.	Governing Law. THIS ASSIGNMENT SHALL BE GOVERNED BY AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES OTHER THAN SECTION 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW.

15.

Equipment. The Parties acknowledge the Collateral includes each Spare Module (as defined in the Service Agreement) and agree that upon replacement of any equipment listed in Schedule IV hereto with Spare Modules in accordance with Section 2.9 of the Service Agreement, the Assignor shall be permitted to remove the replaced equipment from the Collateral subject to delivery of a bailee letter, in form and substance reasonably satisfactory to Assignee, in respect of the Spare Modules and delivery of an updated Schedule IV to this agreement to include the serial number of each such Spare Module.

[Signature page follows]

IN WITNESS WHEREOF, each of the undersigned has duly executed this Assignment as of the date first above written.

	CENTRAL CA FUEL CELL 2, LLC,

	By: FuelCell Energy Finance II, LLC
	Its Sole Member

	By: FuelCell Energy, Inc.
	Its Sole Member


	By:	/s/ Michael S. Bishop
	Name: Michael S. Bishop
	Title: Executive Vice President, Chief Financial
	Officer and Treasurer

Accepted:

CRESTMARK EQUIPMENT FINANCE,
a division of MetaBank


By:	/s/ Thomas R. Rutherford
Name:	Thomas R. Rutherford
Title:	President

SCHEDULE I

Assigned Agreements

Each as may be amended, amended and restated, modified or supplemented from time to time, and including any replacement or supplementary agreements thereof or thereto:

Digester Gas Purchase Agreement, between Central CA Fuel Cell 2, LLC and the City of Tulare, dated as of June 20, 2017, as amended by that Amendment to Digester Gas Purchase Agreement dated September 19, 2017, that Second Amendment to the Digester Gas Purchase Agreement dated December 6, 2018 and that Third Amendment to the Digester Gas Purchase Agreement, dated September 19, 2019 (the “DGPA”).

Fixed Price Engineering, Procurement, and Construction Agreement, between Central CA Fuel Cell 2, LLC and FuelCell Energy, Inc., dated as of March 1, 2018 (the “EPC Agreement”).

Interconnection Agreement, between Central CA Fuel Cell 2, LLC and Southern California Edison Company, dated as of April 17, 2018 (the “Interconnection Agreement”).

Service Agreement for SureSource 3000 Power Plant, between Central CA Fuel Cell 2, LLC and FuelCell Energy, Inc., dated as of December 27, 2019.

Biogas Sale and Purchase Agreement, between BioFuels Point Loma, LLC and Central CA Fuel Cell 2, LLC, dated September 23, 2019.

All Warranties (as defined in the Purchase Agreement).

All Governmental Approvals (as defined in the Purchase Agreement).

Confidential Settlement Agreement and Release, between the City of Tulare acting through the Tulare Board of Public Utilities and Central CA Fuel Cell 2, LLC, a wholly-owned subsidiary of FuelCell Energy, Inc., dated as of January 21, 2020 (the “Settlement Agreement”).

SCHEDULE II

Control Account Information

Bank:

MetaBank

Account Name:Assignor CA Fuel Cell 2, LLC Control Account

Account #:XXXXXXXXXX

ABA #:XXXXXXXXX

SCHEDULE III

Reserve Account Information

1.Minimum Debt Service Reserve Account

Bank:

MetaBank

Account Name:Assignor CA Fuel Cell 2, LLC Debt Service Reserve Account

Account #:XXXXXXXXXX

ABA #:XXXXXXXXX

SCHEDULE IV

Assigned Equipment

•	FuelCell Energy SureSource 3000 module with serial number C1420-136;

•	FuelCell Energy SureSource 3000 module with serial number C1420-137.

EXHIBIT 10.4

PLEDGE AGREEMENT

This Pledge Agreement, dated as of February 11, 2020 (this "Agreement"), between FUELCELL ENERGY FINANCE, LLC, a Connecticut limited liability company (the "Pledgor"), and CRESTMARK EQUIPMENT FINANCE, a division of MetaBank, as pledgee (the "Pledgee").

WITNESSETH:

WHEREAS, reference is made to that certain Guaranty Agreement, dated as of February 11, 2020 (as amended, supplemented, restated or otherwise modified and in effect from time to time, the "Guaranty") by FuelCell Energy Inc. ("Guarantor"), in favor of the Pledgee;

WHEREAS, pursuant to the Guaranty, the Guarantor guarantees the payment and performance of the Obligations (as defined in the Guaranty), of Central CA Fuel Cell 2, LLC, a Delaware limited liability company (the "Project Developer"), under the Sale Leaseback Agreements (as defined in the Guaranty);

WHEREAS, reference is made to the Limited Liability Company Operating Agreement of the Project Developer, dated as of June 8, 2017 (the “Limited Liability Company Agreement”);

WHEREAS, the Pledgor owns 100% of the outstanding equity interests in the Project Developer; WHEREAS, the Pledgor expects to receive substantial financial benefit from the transactions contemplated by the Lease Agreement; and

WHEREAS, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Pledgor has agreed to grant a security interest in the Pledged Collateral (as hereinafter defined) to the Pledgee as security for the Secured Obligations (as hereinafter defined).

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

SECTION 1.DEFINITIONS AND RULES OF CONSTRUCTION.

Section 1.1 Certain Uniform Commercial Code Terms. As used herein, the terms "Accounts", "Investment Property", and "Proceeds" shall have the respective meanings set forth for them in Article 9 of the UCC.

Section 1.2 Additional Definitions. The following terms when used in this Agreement shall have the following meanings:

"Liens" shall mean all liens, encumbrances and claims of any kind or description other than Permitted Liens.

"Obligations" shall have the meaning set forth in the Guaranty.

"Pledged Collateral" shall have the meaning set forth in Section 2(a) hereof.

"Secured Obligations" shall have the meaning set forth in Section 2(b) hereof.

"UCC" shall mean the Uniform Commercial Code as in effect from time to time in the State of New York.

Section 1.3 Other Capitalized Terms. The capitalized terms used in this Agreement (including the preamble and recitals hereto) and not otherwise defined herein shall have the respective meanings specified in the Lease Agreement, and the rules of construction in the Lease Agreement shall apply hereto.

SECTION 2.PLEDGED COLLATERAL.

(a)The Pledgor hereby grants to the Pledgee a security interest (which the parties intend to be a first priority security interest) in and continuing Lien on and pledges and collaterally assigns to the Pledgee, all of the Pledgor’s right, title and interest in, to and under the following property, in each case whether tangible or intangible, wherever located, and whether now owned by the Pledgor or hereafter acquired and whether now existing or hereafter coming into existence (all of the property described in this Section 2(a) being collectively referred to herein as "Pledged Collateral"):

(i)All membership interests and other equity interests in the Project Developer (whether denominated as an interest in capital, profits, voting or other attributes, including rights to receive distributions, and all certificates representing such equity and/or membership interests), whether now owned or hereinafter acquired by the Pledgor;

(ii)all indebtedness of the Project Developer owed to the Pledgor;

(iii)all other rights and privileges of the Pledgor with respect to the membership interests and other equity interests in the Project Developer;

(iv)all rights of the Pledgor to terminate, amend, supplement, modify, or cancel, the governing documents of the Project Developer, including the Limited Liability Company Agreement, to take all actions thereunder and to compel performance and otherwise exercise all remedies thereunder; and

(v)all proceeds of and from any and all of the foregoing, including all dividends, distributions, profits, income allocations returns on or of capital, instruments and other property from time to time received, receivable, or otherwise distributed in respect of or in exchange for any or all of the foregoing (whether in cash or in kind);

provided that it is understood and agreed that the Pledged Collateral does not include (1) distributions by the Project Developer to the Pledgor from the proceeds of the payment of the purchase price for the Equipment purchased by the Lessor from the Project Developer pursuant to the Purchase Agreement and any Bill of Sale, or (2) distributions or other payments on account of the Pledgor’s interests in the Project Developer made in compliance

with Section 12(f) of the Lease Agreement.

(b)The security interest and Lien granted pursuant to Section 2(a) hereof secures, and the Pledged Collateral is collateral security for, the prompt and complete payment and performance in full when due (whether at stated maturity, by acceleration or otherwise (including the payment of amounts that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. § 362(a) (and any successor provision thereof)) of all payment and performance obligations of the Pledgor to the Pledgee hereunder, all Obligations of the Guarantor under the Guaranty, together with, in each case, interest thereon and expenses related thereto, and all obligations of the Project Developer under the Sale Leaseback Agreements, including any interest or expenses accruing or arising after the commencement of any case with respect to the Pledgor or the Project Developer under the Bankruptcy Code or any other bankruptcy or insolvency law (whether or not such interest or expenses are allowed or allowable as a claim in whole or in part in such case) (collectively, the "Secured Obligations").

SECTION 3.REPRESENTATIONS AND WARRANTIES. The Pledgor represents and warrants to the Pledgee as follows:

Section 3.1 Organizational Matters; Enforceability, Etc.

(a)The Pledgor is a limited liability company duly formed, validly existing and in good standing under the laws of Connecticut, has all requisite power and authority to carry on its business as now conducted and, except where the failure to do so could not reasonably be expected to result in a material adverse effect, is qualified to do business in, and is in good standing in, every jurisdiction where that qualification is required. The execution, delivery and performance of this Agreement by the Pledgor and the grant of the security interests pursuant hereto (i) are within its powers and have been duly authorized by all necessary limited liability company or other action, (ii) do not require any governmental approval except those that have been obtained or made and are in full force and effect or are not required on or prior to the execution of the Lease Agreement, (iii) will not violate any Applicable Laws or its organizational documents, (iv) will not violate or result in a default under any indenture, agreement or other instrument binding upon it or any of its assets or give rise to a right under any such indenture, agreement or other instrument to require any payment to be made by it, and (v) except for the lien conveyed to the Pledgee hereunder, will not result in the creation or imposition of any Lien on any of its assets.

(b)This Agreement has been duly executed and delivered by the Pledgor and constitutes a legal, valid and binding agreement, enforceable against the Pledgor in accordance with its terms, except to the extent that the enforcement of remedies herein provided may be limited under applicable bankruptcy and insolvency and similar laws, public policy and equitable principles (regardless of whether enforcement is considered in a proceeding in equity or at law).

Section 3.2 Owner; No Liens. The Pledgor is the sole beneficial owner of the Pledged Collateral and no Lien exists upon the Pledged Collateral (and no right or option to acquire the same exists in favor of any other person) other than the security interest created or provided for herein.

Section 3.3 Security Interests. The security interests granted to the Pledgee pursuant to this Agreement in the Pledged Collateral (a) upon filing of financing statements listed on Annex 1 hereto naming Pledgor as "debtor" and Pledgee as "secured party", constitute as to personal property included in the Pledged Collateral and, with respect to subsequently acquired personal property included in the Pledged Collateral, subject to the terms of this Agreement, will constitute, a perfected security interest under the UCC to the extent a security interest can be perfected by filing such financing statements, and (b) are, and, with respect to such subsequently acquired personal property, subject to the terms of this Agreement, will be, as to the Pledged Collateral perfected under the UCC as aforesaid, superior and prior to the rights of all third persons now existing or hereafter arising under the UCC. Except to the extent possession of portions of such Pledged Collateral is required for perfection, all such action as is necessary has been or will be taken to establish and perfect the Pledgee’s rights in and to such Pledged Collateral, in accordance with the terms of this Agreement, to the extent the Pledgee’s security interest can be perfected by filing, including any recording, filing, registration, giving of notice or other similar action. No filing, recordation, re-filing or re-recording other than those listed on Annex 1 hereto (as the same may be supplemented from time to time) is necessary to perfect and maintain the perfection of the Liens created by this Agreement on the Pledged Collateral, to the extent the Pledgee’s security interest can be perfected by filing (except to the extent that such filings or recordings are, by their nature, filings or recordings to be made at a later date). The Pledgor will properly deliver or cause to be delivered on the date hereof to the Pledgee, in accordance with the terms of this Agreement, certificates representing 100% of the membership interests in the Project Developer duly endorsed to the Pledgee or in blank.

Section 3.4 No Litigation. There are no actions, suits or proceedings by or before any arbitrator or Governmental Authority pending against or, to its knowledge, threatened against or affecting the Pledgor or the Pledged Collateral which individually or in the aggregate would, if determined adversely to the Pledgor, have a material adverse effect.

Section 3.5 No Other Assignment. Other than assignments that have been terminated or completed, the Pledgor has not previously assigned any of its rights in, to or under all or any portion of the Pledged Collateral.

Section 3.6 No Other Operative Documents. Neither the Pledgor nor, to the Pledgor’s knowledge, any other person has executed any financing statement, security agreement or other similar instrument in effect covering all or any part of the Pledged Collateral on file in any recording office, except such as may have been filed pursuant to this Agreement.

Section 3.7 Taxes. The Pledgor has timely filed all material federal, state and local tax returns that it is required to file, has paid all material taxes it is required to pay to the extent due (other than those taxes that it is contesting or intends to contest in good faith and by appropriate proceedings, with adequate reserves established for such taxes) and, to the extent such taxes are not due, has established reserves that are adequate for the payment thereof to the extent required by GAAP. The Pledgor knows of no proposed tax assessment against it which could reasonably be expected to have a material adverse effect (other than as is being contested by the Pledgor in good faith and by appropriate proceedings and for which reserves or other appropriate provisions, if any, as shall be required in conformity with GAAP have been made or provided therefor).

Section 3.8 No Other Membership Interests. As of the date hereof, no membership interests in the Project Developer or certificates representing the same are in effect except for the Pledged Collateral referenced in Section 2(a)(i) hereof. Any certificates representing membership interests in the Project Developer that are not part of the Pledged Collateral have been cancelled and copies of such cancelled certificates have been delivered to the Pledgee.

SECTION 4.FURTHER ASSURANCES; REMEDIES. In furtherance of the grant of the security interest pursuant to Section 2 hereof, the Pledgor hereby agrees with the Pledgee as follows:

Section 4.1 Delivery and Other Perfection. The Pledgor shall promptly from time to time give, execute, deliver, file, record, authorize or obtain all such financing statements, continuation statements, notices, instruments, documents, agreements or consents or other papers as may be necessary in the reasonable judgment of the Pledgee to create, preserve, perfect, maintain the perfection of or validate the security interest granted pursuant hereto or to enable the Pledgee to exercise and enforce its rights hereunder with respect to such security interest, and without limiting the foregoing, shall:

(a)on or prior to the execution of the Lease Agreement, and with respect to any membership interest constituting Pledged Collateral acquired by the Pledgor after the date hereof, promptly (i) deliver to the Pledgee the certificates or instruments representing or evidencing the same, duly endorsed in blank or accompanied by such instruments of assignment and transfer in such form and substance as the Pledgee may reasonably request, all of which thereafter shall be held by the Pledgee, pursuant to the terms of this Agreement, as part of the Pledged Collateral and (ii) take such other action as the Pledgee may reasonably deem necessary or appropriate to duly record or otherwise perfect the security interest created hereunder in such Pledged Collateral;

(b)keep full and accurate books and records relating to the Pledged Collateral; and

(c)permit representatives of the Pledgee, upon reasonable notice, at any time during normal business hours to inspect and make abstracts from its books and records pertaining to the Pledged Collateral, and permit representatives of the Pledgee, upon reasonable notice, at reasonable times during the Pledgor’s usual business hours, to audit, examine and make copies of the books of account and other records of the Pledgor and to discuss the financial condition and business of the Pledgor with the Pledgor’s authorized representatives, in each case, solely with respect to the Pledged Collateral.

Section 4.2 Other Financing Statements or Control. The Pledgor shall not (a) file or suffer to be on file, or authorize or permit to be filed or to be on file, in any jurisdiction, any financing statement or like instrument with respect to any of the Pledged Collateral in which the Pledgee is not named as the sole secured party, or (b) cause or permit any person other than the Pledgee to have "control" (as defined in Section 9-106 of the UCC) of any Investment Property constituting part of the Pledged Collateral.

Section 4.3 Preservation of Rights. The Pledgee shall not be required to take steps necessary to preserve any rights against prior parties to any of the Pledged Collateral.

Section 4.4 Special Provisions Relating to Pledged Collateral.

(a)Percentage Pledged. The Pledgor will cause its equity interest in the Project Developer to constitute at all times 100% of the total number of membership and other ownership interests of the Project Developer then outstanding.

(b)Certain Rights of the Pledgor. So long as no Default under Section 19 of the Lease Agreement shall have occurred and be continuing, (i) the Pledgor shall have the right to exercise all voting, control, management, consensual and other powers of ownership pertaining to the Pledged Collateral for all purposes not in breach of and consistent with the terms of this Agreement, the Lease Agreement and each other Lease Document; provided that the Pledgor agrees that it will not vote the Pledged Collateral in any manner that is in breach of the terms of this Agreement or any such document, and (ii) subject to the limitations set forth in the Lease Agreement and each other Lease Document, the Pledgor shall be entitled to receive and retain any and all distributions paid to it attributable to the Pledged Collateral. The Pledgee shall execute and deliver to the Pledgor or cause to be executed and delivered to the Pledgor all such proxies, powers of attorney, dividend and other orders, and all such instruments, without recourse, as the Pledgor may reasonably request for the purpose of enabling the Pledgor to exercise the rights and powers that it is entitled to exercise pursuant to this Section 4.4.

(c)Liens, Etc. The Pledgor (i) does and will at all times hold the Pledged Collateral free and clear of all Liens other than Permitted Liens and (ii) will defend its title or interest in and to the Pledged Collateral against any and all Liens, however arising, of all persons whomsoever, except the Pledgee’s Liens and other Permitted Liens.

(d)Transferability. Except for restrictions and limitations imposed by securities laws generally, the Limited Liability Company Agreement, the Lease Agreement and each other Lease Document, the Pledged Collateral pledged hereunder is and will be freely transferable and assignable.

(e)No Options, Etc. No portion of such Pledged Collateral is or will be subject to any option, right of first refusal, members’ or other equity interest holders’ agreement or contractual restriction of any nature which might prohibit, impair, delay or otherwise affect the pledge of such Pledged Collateral hereunder, the sale or disposition of the Pledged Collateral pursuant hereto after the occurrence of a Default under Section 19 of the Lease Agreement or the exercise by the Pledgee of its rights and remedies hereunder.

(f)No Changes to Limited Liability Company Agreement. Except for changes or modifications of a de minimis nature, the Pledgor will not approve nor allow any change or modification to the Limited Liability Company Agreement.

(g)Maintenance of Existence. Pledgor will, and will cause the Project Developer to, at all times, (i) preserve and keep in full force and effect, and not dissolve, its existence and all rights and governmental authorization, qualifications, franchises, licenses and permits material to its business and to conduct its business in each jurisdiction in which its business is conducted and (ii) continue to engage in business of the same general types as now conducted by them.

(h)No Transfer; Additional Shares. The Pledgor will maintain its ownership of all of the membership interests of the Project Developer and will not vote to permit, consent to, or authorize the Project Developer to (i) issue any other membership interest or other ownership or equity interest in the Project Developer, except to the extent part of the Pledged Collateral pursuant to Section 2 hereof or any warrants, options on or similar rights to acquire any other membership or other ownership or equity interest in the Project Developer, (ii) cancel any of the Pledged Collateral, (iii) issue any other class or series of membership or ownership or equity interest in the Project Developer or (iv) transfer, sell or otherwise dispose of or grant any option with respect to the Pledged Collateral or permit any holder of any Pledged Collateral (other than the Pledgor) to become a Member (as defined in the Limited Liability Company Agreement). Any attempt to take any action in violation of this Section 4.4 shall be null and void ab initio.

Section 4.5

Private Sale. The Pledgee shall incur no liability as a result of the sale of the Pledged Collateral, or any part thereof, at any private sale pursuant to Section 4.6 hereof conducted in a commercially reasonable manner. The Pledgor hereby waives any claims against the Pledgee arising by reason of the fact that the price at which the Pledged Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale or was less than the aggregate amount of the Secured Obligations, even if the Pledgee accepts the first reasonable offer received and does not offer the Pledged Collateral to more than one offeree.

Section 4.6 Remedies. (a) Rights and Remedies Generally upon Event of Default. Upon the occurrence and during the continuance of a Default under Section 19 of the Lease Agreement, (i) all rights of the Pledgor to exercise the voting and consensual rights and powers of the ownership pertaining to the Pledged Collateral and the right to receive the distributions and other amounts receivable which it is authorized to receive and retain pursuant to Section 4.4(b) hereof, shall cease and all such rights shall thereupon become vested in the Pledgee which shall have the sole and exclusive right and authority to exercise such voting and consensual rights and powers and (ii) upon notice to the Pledgor, the Pledgee may exercise all of the other rights and remedies with respect to the Pledged Collateral of a secured party under the UCC (whether or not the UCC is in effect in the jurisdiction where the rights and remedies are asserted) and such additional rights and remedies to which a secured party is entitled under the laws in effect in any jurisdiction where any rights and remedies hereunder may be asserted, including the right, to the fullest extent permitted by Applicable Laws, to exercise all voting, consensual and other powers of ownership pertaining to the Pledged Collateral as if the Pledgee were the sole and absolute owner thereof (and the Pledgor agrees to take all such action as may be appropriate to give effect to such right), and (iii) without limiting the foregoing:

(1)the Pledgee in its discretion may, in its name or in the name of the Pledgor or otherwise, demand, sue for, collect or receive any money or other property at any time payable or receivable on account of or in exchange for any of the Pledged Collateral, but shall be under no obligation to do so;

(2)the Pledgee may make any reasonable compromise or settlement it deems desirable with respect to any of the Pledged Collateral and may extend the time of payment, arrange for payment in installments, or otherwise modify the terms of, any of the Pledged Collateral;

(3)the Pledgee may require the Pledgor to assemble the Pledged Collateral at such place or places, reasonably convenient to the Pledgee and the Pledgor, as the Pledgee may direct;

(4)the Pledgee may sell, lease, assign or otherwise dispose of all or any part of the Pledged Collateral, at such place or places as the Pledgee deems best, and for cash or for credit or for future delivery (without thereby assuming any credit risk), at public or private sale, without demand of performance or notice of intention to effect any such disposition or of the time or place thereof (except for notice to the Pledgor of such disposition and the time and place thereof and for such notice as is required by applicable statute and cannot be waived), and the Pledgee or anyone else may be the purchaser, lessee, assignee or recipient of any or all of the Pledged Collateral so disposed of at any public sale (or, to the extent permitted by Applicable Laws, at any private sale) and thereafter hold the same absolutely, free from any claim or right of whatsoever kind, including any right or equity of redemption (statutory or otherwise), of the Pledgor, any such demand, notice and right or equity being hereby expressly waived and released to the extent permitted by Applicable Laws. The Pledgee may, by providing prior written notice to the Pledgor, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for the sale, and such sale may be made at any time or place to which the sale may be so adjourned;

(5)amend, terminate, supplement or modify the Limited Liability Company Agreement;

(6)perform any obligation of the Pledgor hereunder, make payments, purchase, contest or compromise any encumbrance, charge or lien, pay taxes and expenses and insure, process and preserve the Pledged Collateral without, however, any obligations to do so;

(7)incur expenses, including reasonable attorneys’ fees, reasonable consultants’ fees, and other costs appropriate to the exercise of any right or power under this Agreement;

(8)take any other action which the Pledgee deems necessary or desirable to protect or realize upon its security interest in the Pledged Collateral or any part thereof, and the Pledgor hereby irrevocably appoints the Pledgee as the Pledgor’s attorney-in-fact to take any such action, including the execution and delivery of any and all documents or instruments related to the Pledged Collateral or any part thereof in the Pledgor’s name, and said appointment shall create in the Pledgee a power coupled with an interest which shall be irrevocable; and

(9)appoint another person (who may be an employee, officer or other representative of the Pledgee) to do any of the foregoing, or take any other action permitted hereunder, on behalf of the Pledgee.

The Proceeds of each collection, sale or other disposition under this Section 4.6 shall be applied in accordance with Section 4.8 hereof.

(b)Certain Securities Act Limitations. The Pledgor recognizes that, by reason of certain prohibitions contained in the Securities Act of 1933, as amended, and applicable state securities laws, the Pledgee may be compelled, with respect to any sale of all or any part of the Pledged Collateral, to limit purchasers to those who will agree, among other things, to acquire the Pledged Collateral for their own account, for investment and not with a view to the distribution or resale thereof. The Pledgor acknowledges that any such private sales may be at prices and on terms less favorable to the Pledgee than those obtainable through a public sale without such restrictions, and, notwithstanding such circumstances, agrees that any such private sale shall be deemed to have been made in a commercially reasonable manner and that the Pledgee shall have no obligation to engage in public sales and no obligation to delay the sale of any Pledged Collateral for the period of time necessary to permit the issuer thereof to register it for public sale.

(c)Notice. The Pledgor agrees that to the extent the Pledgee is required by Applicable Laws or this Agreement to give reasonable prior notice of any sale or other disposition of any Pledged Collateral, ten (10) business days’ notice shall be deemed to constitute reasonable prior notice.

Section 4.7 Locations; Names, Etc. Without at least ten (10) business day's advance written notice to the Pledgee, the Pledgor shall not (a) change its location (as defined in Section 9-307 of the UCC) or (b) change its name, and shall, at its expense, execute and deliver such instruments and documents as may be required to maintain the security interest in the Pledged Collateral hereunder.

Section 4.8 Application of Proceeds. Except as otherwise herein expressly provided and except as provided below in this Section 4.8, the Proceeds of any collection, sale or other realization of all or any part of the Pledged Collateral pursuant hereto, and any other cash at the time held by the Pledgee under this Section 4, shall be applied by the Pledgee as follows:

First, to the payment of the reasonable, documented, out-of-pocket costs and expenses of such collection, sale or other realization, including reasonable, documented, out-of-pocket costs and out-of-pocket expenses of the Pledgee and the reasonable, documented, fees and out-of-pocket expenses of its agents and counsel, and all reasonable, documented, out-of-pocket expenses incurred and advances made by the Pledgee in connection therewith;

Second, to the payment and performance in full of the Secured Obligations in such order as the Pledgee shall in its sole discretion determine; and Third, to the Pledgor (or as the Pledgor may otherwise direct).

Section 4.9 Perfection as of the Execution of the Lease Agreement. The Pledgor authorizes the Pledgee to file UCC financing statements describing the Pledged Collateral, including statements in compliance with Section 9-504 of the UCC.

Section 4.10 Termination. (a) When all Secured Obligations shall have been paid and performed in full and the Lease Agreement shall have expired or terminated, this Agreement shall terminate, the Pledgee’s Lien and security interest in the Pledged Collateral shall terminate and, to the extent requested by the Pledgor, the Pledgee shall forthwith cause to be assigned, transferred and delivered, against receipt but without any recourse, warranty or representation whatsoever, any remaining Pledged Collateral and money received in respect thereof, to or on the order of the Pledgor and to be released. The Pledgee shall also, at the expense of the Pledgor, forthwith execute and deliver to the Pledgor upon such termination such Uniform Commercial Code termination statements and such other documentation as shall be reasonably requested and prepared by the Pledgor to effect the termination and release of the Liens on the Pledged Collateral as required by this Section 4.10(a).

(b)Notwithstanding Section 10(a), at such time as the Lease Agreement to which any Obligor is subject has terminated and provided that such Obligor has satisfied all of its obligations to Pledgee under the Sale Leaseback Agreements relating to such Lease Agreement and no Default has occurred and is continuing with respect thereto, then the security interest and Lien held by Pledgee in Pledgor’s equity interest in such Obligor, the organizational documents and governing documents of such Obligor and the proceeds thereof shall terminate such that the Pledged Collateral shall no longer consist of any of Pledgor’s interest of any kind in such Obligor. In connection with the foregoing, to the extent request by Pledgor, the Pledgee shall forthwith cause to be assigned, transferred and delivered, against receipt but without any recourse, warranty or representation whatsoever, the foregoing interests and rights and money received in respect thereof, to or on the order of the Pledgor and to be released. The Pledgee shall also, at Pledgee’s expense, forthwith execute and deliver to the Pledgor upon such termination such Uniform Commercial Code termination statements and such other documentation as shall be reasonably requested by the Pledgor to effect the termination and release of the Liens as required by this Section 4.10 (b).

Section 4.11 Further Assurances. The Pledgor agrees that, from time to time upon the written request of the Pledgee, it will execute and deliver such further documents and do such other acts and things as the Pledgee may reasonably request in order fully to effect the purposes of this Agreement.

Section 4.13 Pledge of Pledged Collateral upon Return Option. Notwithstanding any other term of this Agreement or of the Lease Agreement, if the Project Developer shall elect the Return Option in accordance with Section 14 of the Lease Agreement, then the Pledgee shall have the option to take assignment of the Pledged Collateral from the Pledgor effective upon the expiration of the applicable Initial Term or Renewal Term for the additional consideration of one dollar ($1.00).

SECTION 5.MISCELLANEOUS.

Section 5.1 Amendments and Waivers. No term, covenant, agreement or condition of this Agreement may be terminated, amended or compliance therewith waived (either generally or in a particular instance, retroactively or prospectively) except by an instrument or instruments in writing executed by each party hereto.

Section 5.2 Notices. Unless otherwise expressly specified or permitted by the terms hereof, all communications and notices provided for herein shall be in writing, e- mail or by facsimile, and any such notice shall become effective (i) upon personal delivery thereof, including, without limitation, by overnight mail or courier service, (ii) in the case of notice by United States mail, certified or registered, postage prepaid, return receipt requested, upon receipt thereof; or (iii) in the case of notice by facsimile or e- mail, upon confirmation of receipt thereof, in each case addressed to each party hereto at its address set forth below or, in the case of any such party hereto, at such other address as such party may from time to time designate by written notice to the other parties hereto:

If to Pledgor:

FuelCell Energy Finance, LLC c/o FuelCell Energy, Inc.

3 Great Pasture Road Danbury, CT 06810

Attn: Jennifer D. Arasimowicz, Esq. General Counsel Telephone: (203) 825-6070

Facsimile: (203) 825-6069 If to Pledgee:

Crestmark Equipment Finance

5480 Corporate Drive

Suite 350

Troy, MI 48098

Attn: Corporate Counsel Telephone: (513) 455-2300

Facsimile: (513) 763-1637

Section 5.3 No Waiver. No failure on the part of Pledgee to exercise, and no course of dealing with respect to, and no delay in exercising, any right, power or remedy hereunder shall operate as a waiver thereof; nor shall any single or partial exercise by the Pledgee of any right, power or remedy hereunder preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies herein are cumulative and are not exclusive of any remedies provided by Applicable Laws.

Section 5.4 Expenses. The Pledgor agrees to reimburse the Pledgee for all reasonable costs and expenses incurred by it (including the reasonable fees and expenses of legal counsel) in connection with (i) any Default under Section 19 of the Lease Agreement and any enforcement or collection proceeding resulting therefrom, including all manner of participation in or other involvement with (w) performance by the Pledgee of any obligations of the Pledgor in respect of the Pledged Collateral that the Pledgor has failed or refused to perform, (x) bankruptcy, insolvency, receivership, foreclosure, winding up or liquidation proceedings, or any actual or attempted sale, or any exchange, enforcement, collection, compromise or settlement in respect of any of the Pledged Collateral, and for the care of the Pledged Collateral and defending or asserting rights and claims of the Pledgee in respect thereof, by litigation or otherwise, including expenses of insurance, (y) judicial or regulatory

proceedings and (z) workout, restructuring or other negotiations or proceedings (whether or not the workout, restructuring or transaction contemplated thereby is consummated) and (ii) the enforcement of this Section 5.4, and all such costs and expenses shall be Secured Obligations entitled to the benefits of the collateral security provided pursuant to Section 2 hereof.

Section 5.5 Successors and Assigns; Continuing Security Interest. This Agreement shall be binding upon and shall inure to the benefit of, and shall be enforceable by, the parties hereto and their respective successors and assigns as permitted by and in accordance with the terms hereof and of the Lease Agreement. This Agreement shall create a continuing security interest in the Pledged Collateral and shall remain in full force and effect until the payment in full of all Secured Obligations, be binding upon the Pledgor, its successors and assigns, and inure, together with the rights and remedies of the Pledgee hereunder, to the benefit of the Pledgee and its successors, transferees and assigns.

Section 5.6 Governing Law; Jurisdiction. This Agreement 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 (other than Section 5-1401 of the General Obligations Law of the State of New York). Each Party consents to the non-exclusive jurisdiction of any state or federal court in the State of New York in New York County over any action or proceeding brought in connection with this Agreement.

Section 5.7 WAIVER OF JURY TRIAL. PLEDGOR AND PLEDGEE EXPRESSLY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO WHICH PLEDGOR AND/OR PLEDGEE MAY BE PARTIES ARISING OUT OF OR IN ANY WAY PERTAINING TO THIS AGREEMENT.

Section 5.8 Publicity. Except for statements made or press releases issued pursuant to the Securities Act of 1933 or the Securities Exchange Act of 1934 or as otherwise required by law, neither Party shall issue, or permit any of their respective affiliates to issue, any press release or otherwise make any public statements with respect to this Agreement or the transactions contemplated hereby without the prior written consent of the other Party.

Section 5.9 Agents and Attorneys-in-Fact. The Pledgee may employ agents and attorneys-in-fact in connection herewith and shall not be responsible for the negligence or misconduct of any such agents or attorneys-in-fact selected by it in good faith and with due care.

Section 5.10 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under Applicable Laws, but if any provision of this Agreement shall be prohibited by or invalid under Applicable Laws, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.

Section 5.11 Waivers of Rights by the Pledgor. Except as provided herein, in the Lease Agreement or in the other Lease Documents or under Applicable Laws, the Pledgor waives demand, notice, protest, notice of acceptance of this Agreement, notice of obligations made, Pledged Collateral received or delivered or other action taken in reliance hereon and all other demands and notices of any description. With respect to both the

Secured Obligations and the Pledged Collateral, the Pledgor assents to any extension or postponement of the time of payment or any other indulgence, to any substitution, exchange or release of or failure to perfect or delay in perfecting any security interest in any Pledged Collateral, to the addition or release of any party or person primarily or secondarily liable, to the acceptance of partial payment thereon and the settlement, compromising or adjusting of any thereof, all in such manner and at such time or times as the Pledgee may deem advisable.

Section 5.12 Duty of the Pledgee. The Pledgee’s sole duty with respect to the custody, safekeeping and physical preservation of the Pledged Collateral in its possession, under the UCC or otherwise, shall be to deal with it in the same manner as the Pledgee deals with similar property for its own account. The Pledgee shall be accountable only for amounts that it actually receives as a result of the exercise of such powers, and neither it nor any of its officers, directors, employees or agents shall be responsible to the Pledgor for any act or failure to act hereunder, except for their own gross negligence or willful misconduct. Except for reasonable care and preservation of any Pledged Collateral in its possession and the accounting for moneys actually received by it hereunder, the Pledgee shall have no duty as to the collection or protection of the Pledged Collateral or any income thereon, nor as to the preservation of rights against prior parties, nor as to the preservation of any rights pertaining thereto beyond the safe custody thereof.

Section 5.13 Counterparts. This Agreement may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute but one and the same instrument. Delivery of an executed counterpart of a signature page to this Agreement by facsimile or electronic transmission shall be effective as delivery of a manually executed counterpart of this Agreement.

Section 5.14 Headings and Table of Contents. The headings of the Sections of this Agreement and the table of contents are inserted for purposes of convenience only and shall not be construed to affect the meaning or construction of any of the provisions hereof.

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


CRESTMARK EQUIPMENT FINANCE, a division of MetaBank
as Pledgee

By:	/s/ Thomas R. Rutherford
Name:	Thomas R. Rutherford
Title:	President


FUELCELL ENERGY FINANCE, LLC,
as Pledgor

By:	FuelCell Energy, Inc.
Its:	Sole Member

By:	/s/ Michael S. Bishop
Name:	Michael S. Bishop
Title:	Executive Vice President, Chief Financial Officer and Treasurer

ANNEX 1

LIST OF PERFECTION ACTIONS

Filing of financing statement and continuation statements by the Pledgor in the office of the Secretary of State of the State of Connecticut and delivery of the membership certificate evidencing the membership interests pledged to the Pledgee together with executed transfer powers in connection therewith.

EXHIBIT 10.5

GUARANTY AGREEMENT

This Guaranty Agreement (this "Guaranty") is entered into as of February 11, 2020, by FuelCell Energy, Inc., a Delaware corporation (herein together with its successors and assigns, the "Guarantor"), in favor of Crestmark Equipment Finance, an unincorporated division of a federal bank, MetaBank (herein together with its successors and assigns, the "Guaranteed Party").

WHEREAS, Central CA Fuel Cell 2, LLC, a Delaware limited liability company (“Project Developer”) and an affiliate of Guarantor, is the developer and owner of that certain fuel cell power generation project located at the City of Tulare Wastewater Treatment Plant at 411 East Kern Avenue, Tulare, California 93274 (the “Project”);

WHEREAS, Guaranteed Party desires to provide financing to the Project in a transaction structured as a sale and leaseback of the Project pursuant to which: (i) Guaranteed Party will purchase the Project from Project Developer pursuant to terms and conditions set forth in a Purchase and Sale Agreement (the “Purchase and Sale Agreement”) and (ii) Guaranteed party, simultaneously therewith, will lease the Project back to Project Developer pursuant to the terms and conditions set forth in a Lease Agreement (the “Lease Agreement”);

WHEREAS, in connection with Guaranteed Party and Project Developer entering into the Purchase and Sale Agreement and Lease Agreement, such parties will also enter into certain agreements related thereto as set forth in Schedule I attached hereto (such agreements, together with the Purchase and Sale Agreement and Lease Agreement are collectively referred to as the “Sale Leaseback Agreements”); and

WHEREAS, in consideration for the benefits that Guarantor will receive as a result of Project Developer’s entering into the foregoing transaction with Guaranteed Party, Guarantor is willing to guaranty Project Developer’s payment and performance obligations under the Sale Leaseback Agreements in the event Project Developer does not fulfill any of such payment or performance obligations.

NOW, THEREFORE, in order to induce the Guaranteed Party to enter into the Sale Leaseback Agreements and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Guarantor hereby agrees as follows:

1.Guarantor unconditionally guaranties to the Guaranteed Party:

(a)the performance of all obligations owing by Project Developer to Guaranteed Party pursuant to the terms and conditions of the Sale Leaseback Agreements;

(b)the payment when due of all amounts payable by Project Developer to the Guaranteed Party pursuant to the terms and conditions of the Sale Leaseback Agreements; and

(c)the payment of all reasonable attorney's fees and other reasonable costs and expenses incurred by the Guaranteed Party in connection with commencing any action to enforce this Guaranty against Guarantor (collectively, the “Obligations”).

2.This Guaranty shall be a continuing guarantee of performance and payment and not of collection. It shall remain in full force and effect for so long as any Obligations remain outstanding pursuant to the Sale Leaseback Agreements (the "Guaranty Term"); provided, that this Guaranty shall survive beyond such date to the extent any claim is made hereunder prior to such date and is not resolved as of such date, in which case, as to such claims this Guaranty shall remain in full force and effect until all such claims are resolved. Upon the failure of Project Developer to pay any payment Obligation due to the Guaranteed Party under the Sale Leaseback Agreements (after expiration of all applicable grace or cure periods), the Guaranteed Party shall give written notice of such failure to Guarantor and Guarantor shall pay or cause to be paid the amount owed within ten (10) business days following receipt of such written notice from Guaranteed Party. Upon the failure of Project Developer to perform any nonpayment Obligation required under the Sale Leaseback Agreements (after expiration of all applicable grace or cure periods), the Guaranteed Party shall give written notice of such failure to Guarantor and Guarantor shall perform or cause to be performed any such Obligation within thirty (30) business days following receipt of such written notice from Guaranteed Party; provided that if such default is capable of being cured but cannot be cured within such thirty-day period, and Guarantor is diligently pursuing such cure, the cure period shall be extended for so long as is necessary to effect such cure (but in no event in excess of sixty (60) days beyond such thirty-day period).

3.Guarantor shall not be discharged or released from its obligations hereunder by any proceeding, voluntary or involuntary, involving the bankruptcy, insolvency, receivership, reorganization, liquidation or arrangement of Project Developer or by any defense which Project Developer may have by reason of the order, decree or decision of any court or administrative body resulting from any such proceeding.

4.This Guaranty shall remain in effect notwithstanding: (a) any change in the amount, time or manner of payment of any sums required to be paid pursuant to the Sale Leaseback Agreements; (b) any change in any of the terms, covenants, conditions or provisions of the Sale Leaseback Agreements; (c) any amendments or modifications to the Sale Leaseback Agreements; (d) any permitted assignment of the Sale Leaseback Agreements or of any sums payable under the Sale

Leaseback Agreements; (e) receipt of any security for the payment of the Sale Leaseback Agreements and any exchange, enforcement, waiver or release of any such security; (f) the application of any such security to the Sale Leaseback Agreements; and (g) any release in whole or in part of any of the Obligations or settlement or compromise of differences with respect thereto.

5.Guarantor waives any right to require the Guaranteed Party to: (a) proceed against the Project Developer or any other person or entity directly or contingently liable for the payment of any of the Sale Leaseback Agreements; (b) pursue any other remedy in the Guaranteed Party's power whatsoever; or (c) notify Guarantor of any default by Project Developer in the payment of any sums required to be paid pursuant to the Sale Leaseback Agreements or in the performance of any term, covenant or condition therein required to be kept, observed or performed by Project Developer except the notices specified in Section 2 and Section 10 of this Guaranty. Guarantor waives any defense arising by reason of the invalidity, illegality or lack of enforceability of any Sale Leaseback Agreement, the failure of the Guaranteed Party to perfect or maintain perfection of any interest in any collateral and unless reserved herein, any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge, release or defense of a guarantor or surety, or that might otherwise limit recourse against Guarantor.

6.Upon demand, Guarantor agrees to pay and perform, in accordance with Section 2 of this Guaranty, all Obligations set forth in any Sale Leaseback Agreements. This Guaranty and Guarantor's payment obligations hereunder shall continue to be effective or be reinstated, as the case may be, if at any time payment of any of the Obligations is rescinded or must otherwise be restored or returned by the Guaranteed Party, all as though such payment had not been made. Until the payment and performance in full of all of the Obligations, Guarantor waives and shall have no right of subrogation against Project Developer. Guarantor waives all presentments, demands for performance, notices of non-performance, protests, notices of dishonor, and notices of acceptance of this Guaranty except the notices specified in Section 2 and Section 10 of this Guaranty.

7.(a) During the Guaranty Term, as long as Guarantor is a publicly traded company filing reports with the United States Securities and Exchange Commission (“SEC”), within ten (10) business days of Guarantor’s filing of any Form 10 Q or 10 K, Guarantor shall provide Guaranteed Party with copies of all such filings.

(b) If, at any time during the Guaranty Term, Guarantor ceases to be a publicly traded company and, as a result, the foregoing information is no longer filed with the SEC, then, from and after such time, Guarantor shall: (i) within sixty (60) days after the end of each quarterly period during the Guaranty Term, deliver to Guaranteed Party unaudited quarterly financial statements for the Guarantor as of the end of such quarterly period, prepared in accordance with generally accepted accounting principles in the United States (“GAAP”); and (ii) within one hundred twenty (120) days

after the end of each calendar year , deliver to Guaranteed Party audited annual financial statements for the Guarantor, as of the end of such calendar year, prepared in accordance with GAAP; provided that if audited annual financial statements are not prepared for Guarantor in the ordinary course for any year then unaudited annual financial statements for the Guarantor for such year may be provided if they are certified by the chief financial officer of the Guarantor as prepared in accordance with GAAP.

8.As of the date hereof, Guarantor represents and warrants to the Guaranteed Party that:

(a)Guarantor is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware.

(b)The execution, delivery and performance of this Guaranty: (1) have been duly authorized by all necessary action required by Guarantor's organizational documents; (2) do not require any approval or consent of any stockholder, trustee or holder of any obligations of Guarantor except such as have been duly obtained; and (3) do not contravene any law, governmental rule, regulation or order now binding on Guarantor, or the organizational documents of Guarantor, or contravene the provisions of, or constitute a default under, or result in the creation of any lien or encumbrance upon the property of Guarantor under, any indenture, mortgage, contract or other agreement to which Guarantor is a party or by which it or its property is bound.

(c)This Guaranty constitutes the legal, valid and binding obligation of Guarantor, enforceable against Guarantor in accordance with the terms hereof, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors' rights generally, and by applicable laws (including any applicable common law and equity) and judicial decisions which may affect the remedies provided herein.

9.A default shall be deemed to have occurred hereunder ("Default") if: (a) Guarantor shall fail to perform or observe any covenant or obligation required to be performed by it hereunder; (b) a material inaccuracy exists in any representation or warranty made by Guarantor hereunder; or (c) Guarantor generally fails to pay its debts as they become due or its admission in writing of its inability to pay the same, or the commencement of any bankruptcy, insolvency, receivership or similar proceeding by or against Guarantor or any of its properties or business (unless, if involuntary, the proceeding is dismissed within ninety (90) days of the filing thereof) or the rejection of this Guaranty in any such proceeding;

10.Upon a Default hereunder, the Guaranteed Party may, at its option, declare this Guaranty to be in default by written notice to Guarantor (without election of remedies), and at any time thereafter, may do any one or more of the following, all of which are hereby authorized by Guarantor:

A.declare the Sale Leaseback Agreements to be in default and thereafter sue for and recover all damages and all other sums otherwise recoverable from Project Developer thereunder; and/or

B.pursue any and all legal remedies available to the Guaranteed Party under this Guaranty as a result of such Default.

No right or remedy referred to in this Section is intended to be exclusive, but each shall be cumulative, and shall be in addition to any other remedy referred to above or otherwise available at law or in equity, and may be exercised concurrently or separately from time to time.

The failure of the Guaranteed Party to exercise the rights granted hereunder upon any Default by Guarantor shall not constitute a waiver of any such right upon the continuation or reoccurrence of any such Default.

The obligations of Guarantor hereunder are independent of the obligations of Project Developer under the Sale Leaseback Agreements. A separate action or actions may be brought and prosecuted against Guarantor whether or not an action is brought against Project Developer or whether Project Developer be joined in any such action or actions.

11.GUARANTOR AGREES THAT THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF GUARANTOR HEREUNDER SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES OF SUCH STATE OTHER THAN SECTION 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW). Guarantor agrees that any action or proceeding arising out of or relating to this Guaranty may be commenced in any state or Federal court in the State of New York; and agrees that a summons and complaint commencing an action or proceeding in any such court shall be properly served and shall confer personal jurisdiction if served personally or by certified mail, return receipt requested, to it at its address hereinafter set forth, or as it may provide in writing from time to time, or as otherwise provided under the laws of the State of New York.

12.GUARANTOR AND, IN ACCEPTING THIS GUARANTY, GUARANTEED PARTY HEREBY WAIVE TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO WHICH GUARANTOR OR GUARANTEED PARTY MAY BE A PARTY ARISING OUT OF OR IN ANY WAY PERTAINING TO THIS GUARANTY OR THE SALE LEASEBACK AGREEMENTS.

13.The obligations of Guarantor under this Guaranty may not be assigned or delegated without the prior written consent of the Guaranteed Party. Guaranteed Party may assign (i) all or any of its rights and obligations under this Guaranty to any of its affiliates, and (y) all of its rights, but not its obligations, under this Guaranty to any other person in connection with any permitted assignment of its rights under the Sale Leaseback Agreements and shall, in each case, give prompt written notice to the Guarantor following any such assignment. This Guaranty shall inure to the benefit of the Guaranteed Party, its successors and permitted assigns, and shall be binding upon the successors and permitted assigns of Guarantor. In the event of a change of control with regard to Project Developer or an assignment of the Lease Agreement by Project Developer, to the extended permitted or otherwise approved by Guaranteed Party, then Guarantor may request the substitution of a replacement Guarantor for the Sale Leaseback Agreements which such substitution and the terms therefore may be approved or denied by Guaranteed Party in its reasonable discretion.

14.All notices hereunder shall be in writing, personally delivered, delivered by overnight courier service, sent by facsimile transmission (with confirmation of receipt), or sent by certified mail, return receipt requested, addressed as follows:


If to Guarantor:		FuelCell Energy, Inc.
		3 Great Pasture Road
		Danbury, Ct. 06810
		Attn: Legal Department
		Telephone: 203-825-6000
		Facsimile: 203-825-6069


If to the Guaranteed Party:		Crestmark Equipment Finance
		5480 Corporate Drive
		Suite 350
		Troy, MI 48098
		Attn: Corporate Counsel
		Telephone: (513) 455-2300
		Facsimile: (513) 763-1637

or to such other address as such party shall from time to time designate in writing to the other party; and shall be effective from the date of receipt.

15.This Guaranty constitutes the entire agreement between the parties with respect to the subject matter hereof and shall not be rescinded, amended or modified in any manner except by a document in writing executed by both parties. Any provision of this Guaranty which is prohibited or 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.

IN WITNESS WHEREOF, Guarantor, through a duly authorized officer, has duly executed this Guaranty Agreement as of the date first written above.


GUARANTOR:


FUELCELL ENERGY, INC.


By:		/s/ Michael S. Bishop
Name:		Michael S. Bishop
Title:		Executive Vice President, Chief
		Financial Officer and Treasurer

Accepted and agreed:

CRESTMARK EQUIPMENT FINANCE
By:	/s/ Thomas R. Rutherford
Name:	Thomas R. Rutherford
Title:	President

SCHEDULE I

Sale Leaseback Agreements

All agreements between the Project Developer and the Guaranteed Party related to the Sale Leaseback Transaction, including the Bill of Sale delivered pursuant to the Purchase and Sale Agreement dated February 11, 2020 and the Rental Schedule delivered pursuant to the Lease Agreement dated February 11, 2020.

EXHIBIT 10.6

CENTRAL CA FUEL CELL 2, LLC, FUELCELL ENERGY, INC.,

AND

CRESTMARK EQUIPMENT FINANCE

TECHNOLOGY LICENSE AND ACCESS AGREEMENT

FOR

TULARE BIOMAT FUEL CELL POWER PLANT

This Technology License and Access Agreement (“Agreement”) dated February 11, 2020 (“Effective Date”) is by and between Crestmark Equipment Finance, a division of Metabank (“Lessor”), Central CA Fuel Cell 2, LLC, a Delaware limited liability company (“Lessee”), and FuelCell Energy, Inc., a Delaware corporation (“Service Provider”) (Service Provider, Lessor and Lessee are each individually, a “Party”, and collectively, the “Parties”).

WHEREAS, Lessor has purchased one SureSource 3000 Power Plant with corresponding SureSource Modules and ancillary balance of plant components related thereto (collectively, the "SureSource Power Plant") from Lessee under the Purchase and Sale Agreement, dated the 11^th day of February, 2020 (the “Purchase Agreement”) attached hereto as Exhibit A and the Equipment Lease Agreement, dated the 11^th day of February, 2020 (the “Lease Agreement”) attached hereto as Exhibit B, as part of a sale leaseback transaction whereby Lessor is leasing to Lessee and Lessee has installed and will operate the SureSource Power Plant at the Tulare wastewater treatment plant, Tulare, California (the “Project”); and

WHEREAS, said SureSource Power Plant shall be operated and maintained by Service Provider for Lessee under a Service Agreement dated the 27^th day of December, 2019 between Service Provider and Lessee (the “Service Agreement”), as attached hereto as Exhibit C, and

WHEREAS, Service Provider is the ultimate parent of Lessee;

WHEREAS, in connection with the Lease Agreement, Lessee will grant to Lessor a security interest in, among other things, the Service Agreement; and

WHEREAS, the Parties wish to establish the provisions for operation and maintenance of the Project in the event of a Failure Event (as defined herein below).

NOW, THEREFORE, the Parties, in consideration of the mutual promises contained herein and other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, and agreeing to be legally bound, hereby agree to the following:

1.0

Definitions:

1.1

“Competitor” or “Competitors” shall be as defined in Section 1.2 of the Service Agreement.

1.2

“SureSource Operations Technology” means that portion of the SureSource Technology comprising trade secrets, know-how and other confidential information owned or otherwise controlled/licensed by Service Provider and/or Lessee which are necessary or useful for the operation and maintenance of the SureSource Power Plant used in the Project, including but not limited to processes, techniques, algorithms, software, content, data, databases, protocols, specifications, manuals, drawings, reports, designs, plans, work product and other information/materials.

1.3

“SureSource Fuel Cell Module” or “SureSource Module” shall be as defined in Section 1.19 of the Service Agreement.

1.4

“Failure Event” shall mean that one or more of the following events has occurred:

1.4.1 Service Provider is no longer capable of providing the Services or capable of delivering the SureSource Modules to Lessee for use at the Project in accordance with the planned maintenance schedule;

1.4.2 The filing of a petition under Chapter 11 of the United States Bankruptcy Code (the “Bankruptcy Code”) regarding Service Provider, and the earliest to occur of:

(a) The debtor’s rejection of this Agreement and Service Agreement, pursuant to the exercise of the debtor’s rights under 11 U.S.C. Section 365; or

(b) A sale under Section 363 under Chapter 11 of the Bankruptcy Code is unlikely to occur and Service Provider is not providing, or is no longer capable of providing the Services as required by this Agreement;

1.4.3 The filing of a petition under Chapter 7 of the Bankruptcy Code regarding Service Provider (or the conversion of a proceeding under Chapter 11 of the Bankruptcy Code to a proceeding under Chapter 7 of the Bankruptcy Code).

1.4.4. Service Provider is acquired by a third party, which fails to continue the business of Service Provider or adequately fulfill the requirements of the Service Agreement.

1.5

“Service” or “Services” includes and shall be limited to activities identified under Section 2.0 of the Service Agreement.

1.6

“Term” shall be as defined in Section 5.1 below.

2.0

Notice:

Lessee shall promptly notify Lessor in writing upon the occurrence of any Failure Event.

3.0

Service License:

Service Provider hereby grants to Lessor upon a Failure Event a license to use the SureSource Operations and Maintenance Manuals (the “Licensed Materials’), solely for the operation, servicing, monitoring and maintenance of the Project for the Term of this Agreement, including but not limited to the right to use the SureSource Power Plant communications system software and firmware, and the SureSource Power Plant monitoring software. The Operations and Maintenance Manuals shall be delivered to

Lessor or its designee prior to the commencement of the Lease Agreement. Without limiting the foregoing, the Parties acknowledge and agree that the license set forth herein is effective as of the Effective Date but is only exercisable by Lessor upon the occurrence of a Failure Event as defined in Section 1.4 above and otherwise in accordance with this Agreement. Lessor’s exercise of the license shall become automatic upon the occurrence of a Failure Event without any further action required on the part of any party. For the sake of clarity, Lessor’s exercise of the license shall include the right of Lessor to share the Licensed Materials with a third party, and the use by such third party of the Licensed Materials, as is reasonably necessary in Lessor’s reasonable discretion, to continue to maintain the SureSource Power Plant. Such license shall be sublicenseable and transferable by Lessor to (i) any party which Lessor engages for the purposes of maintaining the SureSource Power Plant or (ii) to any purchaser of the SureSource Power Plant from Lessor; provided, however, that any disclosure to a sublicensee (i) shall not be a Competitor (unless a Failure Event has occurred), (ii) shall be subject to the provisions of the Mutual Confidentiality Agreement of September 17, 2019 between FuelCell Energy, Inc. and Crestmark, and (iii) shall at all times be limited to the SureSource Power Plant for the Project. Notwithstanding the foregoing, Lessor may share the Licensed Materials at any time from the date hereof with DAI Management Consultants, Inc. (“DAI”) for the purposes of allowing DAI to develop a backup servicing support plan for Lessor and to fulfill DAI’s scope of work under the Owner’s Representative Agreement between DAI and Lessor. For all purposes under this Agreement, DAI Management Consultants, Inc., or any successor organization, shall conclusively be presumed to not be a Competitor.

4.0

Training, Employment of Personnel and Documentation

4.1

Training: Promptly upon written notice from Lessor at any time after execution of this Agreement, Service Provider shall provide Service Provider’s employee equivalent SureSource 3000 classroom training to no more than three (3) Lessor-designated personnel or Lessor designee. So long as there has been no Failure Event, then the Lessor designee shall not be a Competitor or an employee of a Competitor with respect to the SureSource Technology and the operation of the Project, trouble-shooting and preventative maintenance for the Project and the SureSource Power Plant, and replacement of SureSource Modules at the Project. This training shall include an understanding of the SureSource 3000 technology, including the fuel cell stacks, module assemblies and the electrical and mechanical balance of plant components and the biogas cleanup equipment. Further, trained personnel will be familiar with key operating protocols, service call procedures, and operating tests, including documenting and maintaining a formal change-out process when the fuel cell stacks reach the end of life. So long as there has been no Failure Event, then Service Provider may, in its sole discretion, require the execution of appropriate non-disclosure and non-compete agreements prior to the commencement of any training hereunder. Personnel trained pursuant to this Agreement will not be trained in or perform manufacturing or SureSource Module replacement, or regulatory compliance requirements, but are expected to have sufficient knowledge to take a conditioned SureSource 3000 Module and manage contractors performing delivery, installation and commissioning of the replacement Modules at the Project. Additional trainees will be at Lessor’s cost and expense.

4.2

Fees: Fees associated with initial and ongoing training of Lessor’s third-party designee shall be paid by Lessee pursuant to the fee schedule is attached hereto as Exhibit D. Any changes to the fee structure on Exhibit D shall be mutually agreed upon.

4.3

Usage Conditions: Lessor agrees that any personnel and/or designees trained pursuant to this Article 3 shall use such training solely for the purpose of operation and maintenance of the Project after a Failure Event and shall not use such training for any other purpose.

4.4

Contacts: Service Provider agrees to identify and document major contractors involved in the Service of the Project. Documentation of contractors will be as agreed by Service Provider and Lessor, and might include subcontractors for the electrical and mechanical balance of plant and major original equipment suppliers and manufacturers. Lessor will also have access to Service Provider’s Customer Service personnel in the normal course of operation of the Project. Lessor agrees not to contact any party outside the normal course of business prior to a Failure Event.

4.5

Employment of Personnel: In the event of Service Provider’s filing for or announcement of liquidation, Service Provider will not object or otherwise interfere in Lessor’s employment of former Service Provider personnel for the purpose of Service of the Project through the end of the Lease Agreement.

4.6

Performance Metrics: Lessor and its designee shall be kept abreast by Lessee and Service Provider of major developments with the Project through quarterly and annual customer reports in accordance with Service Provider’s standard customer format, the form of which is attached hereto as Exhibit E. All reports will be delivered to Lessor within 45 days of the last day of each reporting period.

4.7

Documentation: Promptly upon written notice from Lessor at any time after execution of this Agreement, Service Provider will provide Lessor or its designee with agreed upon documentation of policies, procedures and lists, as applicable, including Service Provider’s service organization, maintenance processes, spare parts and logistics plans so that such designee may provide annual reporting to the Lessor.

5.0

Term and Termination:

Term and Termination: This Agreement shall come into force as of the Effective Date and shall remain in full force and effect for so long as Lessor (or any purchaser of the SureSource Power Plant from Lessor) owns the SureSource Power Plant (“Term”).

6.0

Confidentiality: This Agreement is subject to the Mutual Confidentiality Agreement of September 17, 2019 between FuelCell Energy, Inc. and Crestmark. All information provided pursuant to this Agreement shall be treated as Confidential Information by Lessor.

7.0

Consent to Pledge. Service Provider consents to the pledge of, and security interest granted in, the Service Agreement by Lessee in favor of Lessor in connection with the Lease Agreement.

8.0

Representations and Warranties: Each Party hereto represents and warrants that (a) it has the power and authority to enter into this Agreement and perform its obligations hereunder; and(b) the execution and delivery of this Agreement does not conflict with or violate any provisions of or otherwise conflict with, violate or breach or constitute a default or require any consent under, any contractual obligation or court or administrative order by which such Party is bound.

9.0

Indemnity: Each Party shall indemnify, defend and hold harmless the other Party hereto and its affiliates, and each of their respective employees, officers, directors and agents, from and against any and all third party claims for its (i) material breach of any representations, warranties and covenants under this Agreement; (ii) infringement or misappropriation of the patent rights, trade secrets or other intellectual property rights of Service Provider or any third party; and (iii) injury to persons or damages to property which it causes as a result of its performance of its obligations hereunder, unless such injury or damages are directly caused by the other Party’s grossly negligent acts or willful misconduct.

10.0

Severability: Should any of the provisions of this Agreement be or become fully or partly invalid or unenforceable, the remainder of the Agreement shall be valid and enforceable. Such invalid or unenforceable provision shall be replaced by a provision which shall come as close as possible to the purpose of the invalid provision.

11.0

Waiver: The failure of either Party at any time or from time to time to exercise any of its rights or to enforce any of the terms, conditions or provisions under this Agreement shall not be deemed to be a waiver of any such rights nor shall it prevent such Party from subsequently asserting or exercising any such rights.

12.0

Governing Law: This Agreement shall be governed and construed in accordance with the laws of the State of New York except for that portion of its laws relating to any conflicts of laws principles.

13.0

Disputes: Any and all disputes resulting from, concerning the validity of or arising in connection with this Agreement that cannot be settled by the Parties shall be submitted to a court of competent jurisdiction within the State of New York.

14.0

Amendments and Modifications: This Agreement may only be amended by a written instrument, properly executed by duly authorized officers of the Parties hereto.

[Signature Page Follows]

IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed as of the Effective Date in their respective corporate names by their duly authorized representatives.

Service Provider:		Lessee:


FuelCell Energy, Inc.		Central CA Fuel Cell 2, LLC


/s/ Michael S. Bishop		/s/ Michael S. Bishop
Name: Michael S. Bishop		Name: Michael S. Bishop
Title: Executive Vice President,		Title: Executive Vice President,
Chief Financial Officer and Treasurer		Chief Financial Officer and Treasurer


Date: February 11, 2020		Date: February 11, 2020



Lessor:

Crestmark Equipment Finance


/s/ Thomas R. Rutherford
Name: Thomas R. Rutherford


Title: President


Date: February 11, 2020

Signature Page to Technology Access Agreement

Exhibit A

Purchase Agreement

Exhibit B

Lease Agreement

Exhibit C

Service Agreement

Exhibit D

Fee Schedule

The fixed price payable by Lessee pursuant to Section 4.2 for Lessor and/or its designee to complete all requirements pursuant to this Agreement including training and initial project documentation (Phase I) is $18,000. Lessee shall also pay Lessor or it’s designee a maximum of $7,500 per year for the term of the Lease Agreement, escalating at 3% each year, including annual documentation updates, training refreshers, monitoring, reporting or any other services requested by Lessor. Travel time and reasonable out-of-pocket expenses for Lessor’s designee shall be approved in advance by Lessee and shall be separately invoiced to and payable by Lessee. Fees shall be invoiced once annually upon delivery of the final documentation and/or report to Lessor.

Exhibit E

Form of Quarterly Report

[Seller to insert prior to execution]

EXHIBIT 10.7

THIRD AMENDMENT TO CREDIT AGREEMENT

This THIRD AMENDMENT TO CREDIT AGREEMENT (this “Amendment”), dated as of February 11, 2020, 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 has heretofore been, and 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 Third Amendment Effective Date (as defined below) and subject to the satisfaction of the conditions precedent set forth in Section 2:

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

(b)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:

“Additional Covered Project Company” means (x) from and after the Triangle Joinder Date, TRS Fuel Cell, LLC, and (y) any Restricted Project Company that owns, constructs or operates such Additional Covered Project to the extent such Restricted Project Company is designated as an Additional Covered Project Company in a written instrument executed by the Borrower and the Administrative Agent.

“Excluded Project” or “Excluded Projects” means, individually or collectively, as the context requires, each of (a) the Bridgeport Project, (b) the Pfizer Project, (c) the Riverside Regional Water Quality Control Plant Project, (d) the Santa Rita Project, (e) until the occurrence of the Triangle Joinder Date, the Triangle Street Project, (f) the UC Irvine Medical Center Project, (g) until the occurrence of the Second Funding Date, the CCSU Project, (h) until the occurrence of the Second Funding Date, the Groton Project, and (i) from time to time after the Closing Date, each Additional Excluded Project.

“Initial Excluded Project Company” means (a) with respect to the Bridgeport Project, Bridgeport Fuel Cell, LLC, (b) with respect to the Pfizer Project, Groton Fuel Cell 1, LLC, (c) with respect to the Riverside Regional Water Quality Control Plant Project, Riverside Fuel Cell, LLC, (d) with respect to the Santa Rita Project, SRJFC, LLC, (e) until the occurrence of the Triangle Joinder Date, with respect to the Triangle Street Project, TRS Fuel Cell, LLC, (f) with respect to the UC Irvine Medical Center Project, UCI Fuel Cell, LLC, (g) until the occurrence of the Second Funding Date, with respect to the CCSU Project, New Britain Renewable Energy, LLC and (h) until the occurrence of the Second Funding Date, with respect to the Groton Project, Groton Station Fuel Cell, LLC.

“Project Payoff Amount” means (a) with respect to the Bolthouse Project, $5,000,000, (b) with respect to the CCSU Project, $5,000,000, (c) with respect to the Groton Project, $30,000,000, (d) with respect to the Tulare Project, $5,000,000, (e) with respect to the Yaphank Project, $30,000,000, (f) with respect to the Triangle Street Project, $5,000,000, and (g) with respect to any Additional Covered Project, the amount agreed between the Borrower and the Administrative Agent as set forth in Section 2.13(a)(z).

“Restricted Project Company” means (i) Long Beach Trigen, LLC, (ii) San Bernardino Fuel Cell, LLC, (iii) Montville Fuel Cell Park, LLC, (iv) Eastern Connecticut Fuel Cell Properties, LLC, (v) CR Fuel Cell, LLC, (vi) BRT Fuel Cell, LLC, (vii) Derby Fuel Cell, LLC, (viii) Homestead Fuel Cell 1, LLC, (ix) Central CT Fuel Cell 1, LLC, (x) Farmingdale Fuel Cell, LLC, (xi) from and after the Triangle Joinder Date, TRS Fuel Cell, LLC, and (xii) any future Subsidiary of the Borrower formed, created or established for the purposes of developing a Project; provided, that, any Restricted Project Company shall cease to be a Restricted Project Company hereunder upon becoming an Additional Excluded Project Company hereunder.

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

“Third Amendment” means that certain Third Amendment to Credit Agreement, dated as of February 6, 2020, by and among the Borrower, each of the Guarantors party thereto, each of the Lenders party thereto, and the Administrative Agent.

“Third Amendment Effective Date” has the meaning ascribed to such term in the Third Amendment.

“Triangle Joinder Date” has the meaning specified in Section 5.26(b).

(d)Section 5.18(f) of the Credit Agreement is hereby amended to (i) delete the “.” at the end of clause (v) thereof and insert “; and” in replacement thereof and (ii) insert the following new clause (vi) in the appropriate numerical location therein to read in its entirety as follows:

(vi)notwithstanding the foregoing provisions of this Section 5.18(f), solely with respect to any Project Disposition/Refinancing Proceeds received in connection with any Project Disposition/Refinancing in respect of the Tulare Project (such Project Disposition/Refinancing Proceeds, the “Tulare Disposition/Refinancing Proceeds”), such Tulare Disposition/Refinancing Proceeds shall be applied as follows:

(A)the Borrower shall cause 100% of the Tulare Disposition/Refinancing Proceeds to be immediately deposited into the Project Proceeds Account in accordance with Section 5.18(f)(i) above;

(B)a portion of the Tulare Disposition/Refinancing Proceeds in an aggregate amount equal to $1,000,000 shall be transferred from the Project Proceeds Account to the Module Replacement Reserve Account in accordance with Section 5.18(f)(ii) above; and

(C)all remaining Tulare Disposition/Refinancing Proceeds (after giving effect to the transfer contemplated by clause (B) above) shall be retained in the Project Proceeds Account and shall only be applied in accordance with the foregoing provisions of this Section 5.18(f); provided, that, notwithstanding the foregoing provisions of this clause (C), so long as the Triangle Joinder Date shall have occurred, a portion of the remaining Tulare Disposition/Refinancing Proceeds held in the Project Proceeds Account shall be applied as follows:

(I)on the Triangle Joinder Date, a portion of the Tulare Disposition/Refinancing Proceeds in an aggregate amount equal to $75,000 shall be transferred from the Project Proceeds Account to the Debt Reserve Account and shall be held in the Debt Reserve Account in accordance with Section 5.18(j);

(II)on the first Quarterly Payment Date occurring after the Triangle Joinder Date, a portion of the Tulare Disposition/Refinancing Proceeds in an aggregate amount equal to $100,000 shall be transferred from the Project Proceeds Account to the Module Replacement Reserve Account and shall be held in the Module Replacement Reserve Account in accordance with Section 5.18(g) (it being acknowledged and agreed that, upon the transfer of the $100,000 to the Module Replacement Reserve Account under this clause (II) on such Quarterly Payment, the Module Replacement Reserve Payment Amount otherwise required to be deposited into the Module Replacement Reserve Account on such Quarterly Payment Date pursuant to Section 2.08(a) shall be reduced by $100,000);

(III)on the first Quarterly Payment Date occurring after the Triangle Joinder Date, a portion of the Tulare Disposition/Refinancing Proceeds in an aggregate amount equal to $1,700,000 shall be transferred from the Project Proceeds Account to the Borrower Waterfall Account solely for the purposes of funding the aggregate Mandatory Cash Interest Amount in respect of the Loans payable on such Quarterly Payment Date pursuant to Section 2.08(b);

(IV)on February 11, 2020, a portion of the Tulare Disposition/Refinancing Proceeds in an aggregate amount equal to $1,100,000 shall be released from the Project Proceeds Account and shall be applied by the Borrower solely to pay the aggregate amount of accrued and unpaid dividends in respect of the Series B Preferred Stock and Series 1 Preferred Stock required to be paid on such date; and

(V)all remaining Tulare Disposition/Refinancing Proceeds (after giving effect to any transfers and payments contemplated by the foregoing clauses (I) through (IV)) shall be retained in the Project Proceeds Account and shall only be applied in accordance with the foregoing provisions of this Section 5.18(f).

(e)Article V of the Credit Agreement is hereby amended to insert the following new Section 5.26 in the appropriate numerical location therein to read in its entirety as follows:

Section 5.26Triangle Joinder.

(a)Within ten days following the Third Amendment Effective Date, the Borrower shall cause TRS Fuel Cell, LLC to (i) become a Restricted Subsidiary, Guarantor and Loan Party hereunder by executing and delivering to the Administrative Agent a joinder to this Agreement, in form and substance acceptable to the Administrative Agent, (ii) execute and deliver to the Administrative Agent a joinder to the Security Agreement, in form and substance acceptable to the Administrative Agent, pursuant to which, by executing such joinder, there will be granted to the Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest and Lien in any Collateral owned by TRS Fuel Cell, LLC and (iii) deliver to the Administrative Agent all certificates representing the membership interests of TRS Fuel Cell, LLC.

(b)For the purposes hereof, the term “Triangle Joinder Date” shall mean the first date following the Third Amendment Effective Date on which the Borrower and TRS Fuel Cell, LLC shall have executed and delivered to the Administrative Agent each of the agreements and documents required by, and have otherwise satisfied all of the obligations under, Section 5.26(a) above, in each case, as determined by the Administrative Agent in its reasonable judgment.

(c)The Borrower shall take all actions necessary to cause the Triangle Joinder Date to occur on or prior to ten days following the Third Amendment Effective Date.

(d)As soon as reasonably practicable following the Triangle Joinder Date, the Borrower and TRS Fuel Cell, LLC shall deliver to the Administrative Agent (i) all such other agreements, documents and instruments reasonably requested by the Collateral Agent for the purposes of granting and perfecting a first priority security interest to the Collateral Agent, for the benefit of the Secured Parties, in all assets of TRS Fuel Cell, LLC, and (ii) all such other documents and instruments of a type similar to those delivered by the Loan Parties on the Closing Date and Initial Funding Date under Section 4.01 and 4.02 (including, without limitation, favorable opinions of counsel to TRS Fuel Cell, LLC (which shall cover, among other things, the legality, validity, binding nature and enforceability of the documentation referred to in clause (a) above and this clause (d))), all in form, content and scope satisfactory to the Administrative Agent

(e)Within thirty days following the Third Amendment Effective Date, the Borrower shall cause TRS Fuel Cell, LLC to establish a Covered Project Account with respect to the Triangle Street Project and enter into a Springing Account Control Agreement with respect to such Covered Project Account, in each case, in accordance with Section 5.18(e).

(f)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, 5.25, 5.26 or Article VI; or

SECTION 2. Conditions Precedent. This Amendment shall only become effective upon the date (the “Third Amendment Effective Date”) on which the Administrative Agent shall have received counterparts of this Amendment, duly authorized, executed and delivered by the Borrower, the Guarantors and the Required Lenders.

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 Third Amendment Effective Date (or any earlier date with respect to which any such representation or warranty relates).

(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 Third 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.

(a)Governing Law. This Amendment shall be construed in accordance with and governed by the law of the State of New York.

(b)Submission to Jurisdiction. Any legal action or proceeding with respect to this Amendment shall, except as provided in clause (d) below, be brought in the courts of the State of New York, or of the United States District Court for the Southern District of New York, in each case, seated in the County of New York and, by execution and delivery of this Amendment, each party hereto hereby irrevocably accepts for itself and in respect of its property, generally and unconditionally, the exclusive jurisdiction of the aforesaid courts. Each party hereto agrees that a judgment, after exhaustion of all available appeals, in any such action or proceeding shall be conclusive and binding upon it, and may be enforced in any other jurisdiction, including by a suit upon such judgment, a certified copy of which shall be conclusive evidence of the judgment.

(c)Waiver of Venue. Each party hereto hereby irrevocably waives any objection that it may now have or hereafter have to the laying of the venue of any suit, action or proceeding arising out of or relating to this Amendment brought in the Supreme Court of the State of New York or in the United States District Court for the Southern District of New York, in each case, seated in the County of New York and hereby further irrevocably waives any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.

(d)Rights of the Secured Parties. Nothing in this Section 6 shall limit the right of the Secured Parties to refer any claim against a Loan Party to any court of competent jurisdiction anywhere else outside of the State of New York, nor shall the taking of proceedings by any Secured Party before the courts in one or more jurisdictions preclude the taking of proceedings in any other jurisdiction whether concurrently or not.

(e)WAIVER OF JURY TRIAL. EACH PARTY TO THIS AMENDMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER THIS AMENDMENT IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO THIS AMENDMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AMENDMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.

(f)Waiver of Immunity. To the extent that any Loan Party has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process (whether through service of notice, attachment prior to judgment, attachment in aid of execution, execution, sovereign immunity or otherwise) with respect to itself or its property, it hereby irrevocably waives such immunity, to the fullest extent permitted by law, in respect of its obligations under this Amendment.

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]

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

BORROWER:

FUELCELL ENERGY, INC.

By: /s/ Michael S. Bishop

Name: Michael S. Bishop

Title: EVP, Chief Financial Officer

GUARANTORS:

FUELCELL ENERGY FINANCE II, LLC

By:FuelCell Energy, Inc.

Its:Sole Member

By: /s/ Michael S. Bishop

Name: Michael S. Bishop

Title: EVP, Chief Financial Officer

BAKERSFIELD FUEL CELL 1, LLC

By:FuelCell Energy Finance II, LLC

Its:Sole Member

By:FuelCell Energy, Inc.

Its:Sole Member

By: /s/ Michael S. Bishop

Name: Michael S. Bishop

Title: EVP, Chief Financial Officer

[Third Amendment to Credit Agreement]

GUARANTORS:

CENTRAL CA FUEL CELL 2, LLC

By:FuelCell Energy Finance II, LLC

Its:Sole Member

By:FuelCell Energy, Inc.

Its:Sole Member

By: /s/ Michael S. Bishop

Name: Michael S. Bishop

Title: EVP, Chief Financial Officer

YAPHANK FUEL CELL PARK, LLC

By:FuelCell Energy Finance II, LLC

Its:Sole Member

By:FuelCell Energy, Inc.

Its:Sole Member

By: /s/ Michael S. Bishop

Name: Michael S. Bishop

Title: EVP, Chief Financial Officer

LONG BEACH TRIGEN, LLC

By:FuelCell Energy Finance II, LLC

Its:Sole Member

By:FuelCell Energy, Inc.

Its:Sole Member

By: /s/ Michael S. Bishop

Name: Michael S. Bishop

Title: EVP, Chief Financial Officer

[Third Amendment to Credit Agreement]

GUARANTORS:

SAN BERNARDINO FUEL CELL, LLC

By:FuelCell Energy Finance II, LLC

Its:Sole Member

By:FuelCell Energy, Inc.

Its:Sole Member

By: /s/ Michael S. Bishop

Name: Michael S. Bishop

Title: EVP, Chief Financial Officer

MONTVILLE FUEL CELL PARK, LLC

By:FuelCell Energy Finance II, LLC

Its:Sole Member

By:FuelCell Energy, Inc.

Its:Sole Member

By: /s/ Michael S. Bishop

Name: Michael S. Bishop

Title: EVP, Chief Financial Officer

EASTERN CONNECTICUT FUEL CELL PROPERTIES, LLC

By:FuelCell Energy Finance II, LLC

Its:Sole Member

By:FuelCell Energy, Inc.

Its:Sole Member

By: /s/ Michael S. Bishop

Name: Michael S. Bishop

Title: EVP, Chief Financial Officer

[Third Amendment to Credit Agreement]

GUARANTORS:

CR FUEL CELL, LLC

By:FuelCell Energy Finance II, LLC

Its:Sole Member

By:FuelCell Energy, Inc.

Its:Sole Member

By: /s/ Michael S. Bishop

Name: Michael S. Bishop

Title: EVP, Chief Financial Officer

BRT FUEL CELL, LLC

By:FuelCell Energy Finance II, LLC

Its:Sole Member

By:FuelCell Energy, Inc.

Its:Sole Member

By: /s/ Michael S. Bishop

Name: Michael S. Bishop

Title: EVP, Chief Financial Officer

DERBY FUEL CELL, LLC

By:FuelCell Energy Finance II, LLC

Its:Sole Member

By:FuelCell Energy, Inc.

Its:Sole Member

By: /s/ Michael S. Bishop

Name: Michael S. Bishop

Title: EVP, Chief Financial Officer

[Third Amendment to Credit Agreement]

GUARANTORS:

HOMESTEAD FUEL CELL 1, LLC

By:FuelCell Energy Finance II, LLC

Its:Sole Member

By:FuelCell Energy, Inc.

Its:Sole Member

By: /s/ Michael S. Bishop

Name: Michael S. Bishop

Title: EVP, Chief Financial Officer

CENTRAL CT FUEL CELL 1, LLC

By:FuelCell Energy Finance II, LLC

Its:Sole Member

By:FuelCell Energy, Inc.

Its:Sole Member

By: /s/ Michael S. Bishop

Name: Michael S. Bishop

Title: EVP, Chief Financial Officer

FARMINGDALE FUEL CELL, LLC

By:FuelCell Energy Finance II, LLC

Its:Sole Member

By:FuelCell Energy, Inc.

Its:Sole Member

By: /s/ Michael S. Bishop

Name: Michael S. Bishop

Title: EVP, Chief Financial Officer

[Third Amendment to Credit Agreement]

GUARANTORS:

NEW BRITAIN RENEWABLE ENERGY, LLC

By:FuelCell Energy Finance II, LLC

Its:Sole Member

By:FuelCell Energy, Inc.

Its:Sole Member

By: /s/ Michael S. Bishop

Name: Michael S. Bishop

Title: EVP, Chief Financial Officer

GROTON STATION FUEL CELL, LLC

By:FuelCell Energy Finance II, LLC

Its:Sole Member

By:FuelCell Energy, Inc.

Its:Sole Member

By: /s/ Michael S. Bishop

Name: Michael S. Bishop

Title: EVP, Chief Financial Officer

[Third Amendment to Credit Agreement]

ADMINISTRATIVE AGENT:

ORION ENERGY PARTNERS INVESTMENT AGENT, LLC

By: /s/ Gerrit J. Nicholas

Name:Gerrit J. Nicholas

Title:Managing Partner

COLLATERAL AGENT:

ORION ENERGY PARTNERS INVESTMENT AGENT, LLC

By: /s/ Gerrit J. Nicholas

Name:Gerrit J. Nicholas

Title:Managing Partner

[Third Amendment to Credit Agreement]

LENDERS:

ORION ENERGY CREDIT OPPORTUNITIES FUND II, L.P.

By:

Orion Energy Credit Opportunities Fund II GP, L.P.

Its:

General Partner

By:

Orion Energy Credit Opportunities Fund II Holdings, LLC

Its:

General Partner

By: /s/ Gerrit J. Nicholas

Name:Gerrit J. Nicholas

Title:Managing Partner

ORION ENERGY CREDIT OPPORTUNITIES FUND II PV, L.P.

By:

Orion Energy Credit Opportunities Fund II GP, L.P.

Its:

General Partner

By:

Orion Energy Credit Opportunities Fund II Holdings, LLC

Its:

General Partner

By: /s/ Gerrit J. Nicholas

Name:Gerrit J. Nicholas

Title:Managing Partner

[Third Amendment to Credit Agreement]

LENDERS:

ORION ENERGY CREDIT OPPORTUNITIES FUND II GPFA, L.P.

By:

Orion Energy Credit Opportunities Fund II GP, L.P.

Its:

General Partner

By:

Orion Energy Credit Opportunities Fund II Holdings, LLC

Its:

General Partner

By: /s/ Gerrit J. Nicholas

Name:Gerrit J. Nicholas

Title:Managing Partner

ORION ENERGY CREDIT OPPORTUNITIES FUELCELL CO-INVEST, L.P.

By:

Orion Energy Credit Opportunities Fund II GP, L.P.

Its:

General Partner

By:

Orion Energy Credit Opportunities Fund II Holdings, LLC

Its:

General Partner

By: /s/ Gerrit J. Nicholas

Name:Gerrit J. Nicholas

Title:Managing Partner

[Third Amendment to Credit Agreement]

ANNEX I

Restated Schedule 1.01(b) to the Credit Agreement

[See Attached]

EXHIBIT 10.8

CONSENT AND WAIVER

This Consent and Waiver (this “Waiver”) is executed as of February 11, 2020 by and among FuelCell Energy, Inc., a Delaware corporation (“Borrower”), each of the Guarantors (the “Guarantors”) party to the Credit Agreement referred to below, 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).

WITNESSETH:

WHEREAS, the Borrower and Guarantors have entered into financing arrangements pursuant to which Lenders have provided loans and other financial accommodations and may in the future make additional loans and financial accommodations, all as set forth in that certain Credit Agreement dated October 31, 2019 (as amended by that certain First Amendment to Credit Agreement dated November 22, 2019, that certain Consent and Waiver dated December 19, 2019, that certain Second Amendment to Credit Agreement dated January 20, 2020, that certain Consent and Waiver dated January 20, 2020 and that certain Third Amendment to Credit Agreement dated February 6, 2020) by and among the Borrower, the Guarantors, the Lenders and the Administrative Agent (in the aggregate and as may hereafter be amended, modified, supplemented, extended, renewed, restated, amended and restated or replaced, the “Credit Agreement”);

WHEREAS, the Borrower and the Guarantors have requested that the Lenders provide certain consents, waivers and agreements relating to the Credit Agreement in order for the Borrower and its Subsidiary, Central CA Fuel Cell 2, LLC (“Project Developer”) to consummate the Sale Leaseback Transactions (as defined herein);

WHEREAS, pursuant to Section 10.02(b) of the Credit Agreement, in order to effect the consents, waivers and agreements contemplated by this Waiver, this Waiver 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. Definitions. As used in this Waiver, the following terms shall have the following meanings:

(a) “Guaranty Agreement” shall mean the Guaranty Agreement attached hereto as Exhibit A to be entered into by Borrower in favor of Guaranteed Party;

(b) “Guaranteed Party” shall mean Crestmark Equipment Finance, an unincorporated division of a federal bank, MetaBank;

(c) The terms “Project,” “Purchase and Sale Agreement,” and “Lease Agreement” shall have the meaning set forth in the Guaranty Agreement;

(d) “Sale Leaseback Transactions” means the series of transactions being entered by and among Project Developer, Borrower and Guaranteed Party pursuant to which (i) Guaranteed Party will purchase the Tulare Project from Project Developer pursuant to the terms and conditions set forth in the Purchase and Sale Agreement; (ii) Guaranteed Party, simultaneously therewith, will lease the Tulare Project back to Project Developer pursuant to the terms of the Lease Agreement; and (iii) Borrower, simultaneously therewith, will execute the Guaranty Agreement.

SECTION 2. Certification of Permitted Project Disposition/Refinancing. The Borrower hereby represents, warrants and certifies to the Administrative Agent and the Lenders that the Sale Leaseback Transactions will constitute a Permitted Project Disposition/Refinancing under the Credit Agreement.

SECTION 3. Certain Consents and Agreements. Solely to the extent that (x) the Sale Leaseback Transactions are consummated, and (y) the Sale Leaseback Transactions constitute a Permitted Project Disposition/Refinancing in respect of the Tulare Project and the Loan Parties comply with all of their respective obligations under the Credit Agreement to deposit and retain the Project Disposition/Refinancing Proceeds in respect of such Permitted Project Disposition/Refinancing in the Project Proceeds Account in accordance with Section 5.18(f)(vi) of the Credit Agreement, the Required Lenders and Administrative Agent hereby:

(a)Consent to Borrower’s entering into the Guaranty Agreement.

(b)Consent to (i) Borrower’s transferring to Project Developer, substantially contemporaneously with the consummation of the Sale Leaseback Transactions, all of Borrower’s ownership interest in two certain fuel cell modules identified by the serial numbers set forth and more particularly described in Exhibit B attached hereto (the “Fuel Cell Modules”) and (ii) thereafter, Project Developer’s either transferring such Fuel Cell Modules to Guaranteed Party or granting a security interest in such Fuel Cell Modules to Guaranteed Party; and

(c)Acknowledge that, upon Project Developer’s consummation of the Sale Leaseback Transactions, Project Developer shall be deemed an Excluded Project Company and the Tulare Project shall be an Excluded Project.

SECTION 4. Release of Liens. Solely to the extent that (x) the Sale Leaseback Transactions are consummated, and (y) the Project Disposition/Refinancing Proceeds in respect of the Sale Leaseback Transactions are deposited in the Project Proceeds Account in accordance with Section 5.18(f)(vi) of the Credit Agreement:

(a)The Required Lenders and the Administrative Agent acknowledge that, upon the consummation of the Sale Leaseback Transactions and Borrower’s execution of the Guaranty Agreement, the liens for the benefit of Lenders and Administrative Agent created under the Security Agreement with respect to: (i) the Fuel Cell Modules; (ii) all assets of Project Developer;

and (iii) all of Borrower’s equity interest in Project Developer shall, in each case, be terminated and released. Administrative Agent will execute such other documents and instruments that Borrower or Guaranteed Party may reasonably request to evidence the release of the foregoing liens and security interests. Such release of liens and security interests shall be deemed to occur at closing on the Sale Leaseback Transactions simultaneously with Guaranteed Party’s payment of the purchase price to Project Developer pursuant to the terms and conditions of the Purchase and Sale Agreement and the deposit thereof into the Project Proceeds Account in accordance with Section 5.18(f)(vi) of the Credit Agreement.

(b)In connection with the foregoing release of liens, the Required Lenders and Administrative Agent agree as follows: (i) Immediately prior to (but subject to) the closing on the Sale Leaseback Transactions, Borrower is authorized to transfer all of its equity interest in Project Developer to FuelCell Energy Finance, LLC, a Subsidiary of Borrower; (ii) Administrative Agent hereby authorizes Borrower, concurrently with or after closing of the Sale Leaseback Transactions, to file UCC-3 Financing Statements, in forms acceptable to the Administrative Agent, evidencing termination of the liens being released pursuant to Section 4(a) and (iii) promptly following the consummation of the Sale Leaseback Transactions, Administrative Agent shall deliver to Borrower the certificates of membership in Project Developer that are currently being held by Administrative Agent (or its counsel) to perfect its security interest.

SECTION 5. Use of Proceeds.

The Borrower hereby covenants and agrees that, in connection with Project Developer’s closing on the Sale Leaseback Transactions and Borrower’s execution of the Guaranty Agreement, the Borrower will comply with the provisions of Section 5.18(f)(vi) and all other provisions of the Credit Agreement with respect to such Permitted Project Disposition/Refinancing and the application of the Project Disposition/Refinancing Proceeds in respect thereof.

SECTION 6. Certain Cash Reserve Release Date Requirements and Other Requirements. Solely to the extent that (x) the Sale Leaseback Transactions are consummated, and (y) the Sale Leaseback Transactions constitute a Permitted Project Disposition/Refinancing in respect of the Tulare Project and the Loan Parties comply with all of their respective obligations under the Credit Agreement to deposit and retain the Project Disposition/Refinancing Proceeds in respect of such Permitted Project Disposition/Refinancing in the Project Proceeds Account in accordance with Section 5.18(f)(vi) of the Credit Agreement, the Required Lenders and Administrative Agent hereby, the Required Lenders and the Administrative Agent acknowledge that upon closing of the Sale Leaseback Transactions, the conditions set forth in clause (a) of the definition of “Cash Reserve Release Date” of the Credit Agreement shall be deemed satisfied.

SECTION 7. Conditions Precedent. This Waiver shall become effective upon the date (the “Waiver Effective Date”) on which the Administrative Agent shall have received counterparts of this Waiver, duly authorized, executed and delivered by the Borrower, the Guarantors and the Required Lenders.

SECTION 8. 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 Waiver and has taken all necessary corporate, limited liability company or other organizational action to authorize the execution, delivery and performance by it of this Waiver.

(b)This Waiver 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 Waiver 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.

SECTION 9. Effect of this Waiver; 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 the Credit Agreement, the Security Agreement and each other Financing Document is hereby specifically ratified and confirmed by all parties hereto as of the Waiver Effective Date. Except as expressly set forth herein, this Waiver 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 or the other Financing Documents. This Waiver 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 Waiver shall be deemed to be a Financing Document.

(b)The execution, delivery and effectiveness of this Waiver shall not, except as expressly provided herein, 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 10.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 Waiver 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 11. Governing Law; Jurisdiction; Etc.

(a)Governing Law. This Waiver shall be construed in accordance with and governed by the law of the State of New York.

(b)Submission to Jurisdiction. Any legal action or proceeding with respect to this Waiver shall, except as provided in clause (d) below, be brought in the courts of the State of New York, or of the United States District Court for the Southern District of New York, in each case, seated in the County of New York and, by execution and delivery of this Waiver, each party hereto hereby irrevocably accepts for itself and in respect of its property, generally and unconditionally, the exclusive jurisdiction of the aforesaid courts. Each party hereto agrees that a judgment, after exhaustion of all available appeals, in any such action or proceeding shall be conclusive and binding upon it, and may be enforced in any other jurisdiction, including by a suit upon such judgment, a certified copy of which shall be conclusive evidence of the judgment.

(c)Waiver of Venue. Each party hereto hereby irrevocably waives any objection that it may now have or hereafter have to the laying of the venue of any suit, action or proceeding arising out of or relating to this Waiver brought in the Supreme Court of the State of New York or in the United States District Court for the Southern District of New York, in each case, seated in the County of New York and hereby further irrevocably waives any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.

(d)Rights of the Secured Parties. Nothing in this Section 9 shall limit the right of the Secured Parties to refer any claim against a Loan Party to any court of competent jurisdiction anywhere else outside of the State of New York, nor shall the taking of proceedings by any Secured Party before the courts in one or more jurisdictions preclude the taking of proceedings in any other jurisdiction whether concurrently or not.

(e)WAIVER OF JURY TRIAL. EACH PARTY TO THIS WAIVER HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER THIS WAIVER IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO THIS WAIVER, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS WAIVER MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.

SECTION 12.Binding Effect. This Waiver shall be binding upon and inure to the benefit of each of the parties hereto and their respective successors and permitted assigns.

SECTION 13.Captions. The captions in this Waiver are intended for convenience only and do not constitute and shall not be interpreted as part of this Waiver.

SECTION 14. 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 Waiver 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 15.Counterparts. This Waiver 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.

SECTION 16. No Other. Except as expressly set forth herein, there are no other consents, waivers, modifications or amendments to the Credit Agreement and all other provisions of the Credit Agreement remain in full force and effect.

IN WITNESS WHEREOF, the parties to this Consent and Waiver have caused their authorized representatives to execute such Consent and Waiver as of the day and year first written above.

BORROWER:

FUELCELL ENERGY, INC.

By: /s/ Michael S. Bishop

Name: Michael S. Bishop

Title: EVP, Chief Financial Officer

GUARANTORS:

FUELCELL ENERGY FINANCE II, LLC

By:FuelCell Energy, Inc.

Its:Sole Member

By: /s/ Michael S. Bishop

Name: Michael S. Bishop

Title: EVP, Chief Financial Officer

BAKERSFIELD FUEL CELL 1, LLC

By:FuelCell Energy Finance II, LLC

Its:Sole Member

By:FuelCell Energy, Inc.

Its:Sole Member

By: /s/ Michael S. Bishop

Name: Michael S. Bishop

Title: EVP, Chief Financial Officer

GUARANTORS:

CENTRAL CA FUEL CELL 2, LLC

By:FuelCell Energy Finance II, LLC

Its:Sole Member

By:FuelCell Energy, Inc.

Its:Sole Member

By: /s/ Michael S. Bishop

Name: Michael S. Bishop

Title: EVP, Chief Financial Officer

YAPHANK FUEL CELL PARK, LLC

By:FuelCell Energy Finance II, LLC

Its:Sole Member

By:FuelCell Energy, Inc.

Its:Sole Member

By: /s/ Michael S. Bishop

Name: Michael S. Bishop

Title: EVP, Chief Financial Officer

LONG BEACH TRIGEN, LLC

By:FuelCell Energy Finance II, LLC

Its:Sole Member

By:FuelCell Energy, Inc.

Its:Sole Member

By: /s/ Michael S. Bishop

Name: Michael S. Bishop

Title: EVP, Chief Financial Officer

GUARANTORS:

SAN BERNARDINO FUEL CELL, LLC

By:FuelCell Energy Finance II, LLC

Its:Sole Member

By:FuelCell Energy, Inc.

Its:Sole Member

By: /s/ Michael S. Bishop

Name: Michael S. Bishop

Title: EVP, Chief Financial Officer

MONTVILLE FUEL CELL PARK, LLC

By:FuelCell Energy Finance II, LLC

Its:Sole Member

By:FuelCell Energy, Inc.

Its:Sole Member

By: /s/ Michael S. Bishop

Name: Michael S. Bishop

Title: EVP, Chief Financial Officer

EASTERN CONNECTICUT FUEL CELL PROPERTIES, LLC

By:FuelCell Energy Finance II, LLC

Its:Sole Member

By:FuelCell Energy, Inc.

Its:Sole Member

By: /s/ Michael S. Bishop

Name: Michael S. Bishop

Title: EVP, Chief Financial Officer

GUARANTORS:

CR FUEL CELL, LLC

By:FuelCell Energy Finance II, LLC

Its:Sole Member

By:FuelCell Energy, Inc.

Its:Sole Member

By: /s/ Michael S. Bishop

Name: Michael S. Bishop

Title: EVP, Chief Financial Officer

BRT FUEL CELL, LLC

By:FuelCell Energy Finance II, LLC

Its:Sole Member

By:FuelCell Energy, Inc.

Its:Sole Member

By: /s/ Michael S. Bishop

Name: Michael S. Bishop

Title: EVP, Chief Financial Officer

DERBY FUEL CELL, LLC

By:FuelCell Energy Finance II, LLC

Its:Sole Member

By:FuelCell Energy, Inc.

Its:Sole Member

By: /s/ Michael S. Bishop

Name: Michael S. Bishop

Title: EVP, Chief Financial Officer

GUARANTORS:

HOMESTEAD FUEL CELL 1, LLC

By:FuelCell Energy Finance II, LLC

Its:Sole Member

By:FuelCell Energy, Inc.

Its:Sole Member

By: /s/ Michael S. Bishop

Name: Michael S. Bishop

Title: EVP, Chief Financial Officer

CENTRAL CT FUEL CELL 1, LLC

By:FuelCell Energy Finance II, LLC

Its:Sole Member

By:FuelCell Energy, Inc.

Its:Sole Member

By: /s/ Michael S. Bishop

Name: Michael S. Bishop

Title: EVP, Chief Financial Officer

FARMINGDALE FUEL CELL, LLC

By:FuelCell Energy Finance II, LLC

Its:Sole Member

By:FuelCell Energy, Inc.

Its:Sole Member

By: /s/ Michael S. Bishop

Name: Michael S. Bishop

Title: EVP, Chief Financial Officer

GUARANTORS:

NEW BRITAIN RENEWABLE ENERGY, LLC

By:FuelCell Energy Finance II, LLC

Its:Sole Member

By:FuelCell Energy, Inc.

Its:Sole Member

By: /s/ Michael S. Bishop

Name: Michael S. Bishop

Title: EVP, Chief Financial Officer

GROTON STATION FUEL CELL, LLC

By:FuelCell Energy Finance II, LLC

Its:Sole Member

By:FuelCell Energy, Inc.

Its:Sole Member

By: /s/ Michael S. Bishop

Name: Michael S. Bishop

Title: EVP, Chief Financial Officer

ADMINISTRATIVE AGENT:

ORION ENERGY PARTNERS INVESTMENT AGENT, LLC

By: /s/ Gerrit J. Nicholas

Name:Gerrit J. Nicholas

Title:Managing Partner

COLLATERAL AGENT:

ORION ENERGY PARTNERS INVESTMENT AGENT, LLC

By: /s/ Gerrit J. Nicholas

Name:Gerrit J. Nicholas

Title:Managing Partner

LENDERS:

ORION ENERGY CREDIT OPPORTUNITIES FUND II, L.P.

By:

Orion Energy Credit Opportunities Fund II GP, L.P.

Its:

General Partner

By:

Orion Energy Credit Opportunities Fund II Holdings, LLC

Its:

General Partner

By: /s/ Gerrit J. Nicholas

Name:Gerrit J. Nicholas

Title:Managing Partner

ORION ENERGY CREDIT OPPORTUNITIES FUND II PV, L.P.

By:

Orion Energy Credit Opportunities Fund II GP, L.P.

Its:

General Partner

By:

Orion Energy Credit Opportunities Fund II Holdings, LLC

Its:

General Partner

By: /s/ Gerrit J. Nicholas

Name:Gerrit J. Nicholas

Title:Managing Partner

LENDERS:

ORION ENERGY CREDIT OPPORTUNITIES FUND II GPFA, L.P.

By:

Orion Energy Credit Opportunities Fund II GP, L.P.

Its:

General Partner

By:

Orion Energy Credit Opportunities Fund II Holdings, LLC

Its:

General Partner

By: /s/ Gerrit J. Nicholas

Name:Gerrit J. Nicholas

Title:Managing Partner

ORION ENERGY CREDIT OPPORTUNITIES FUELCELL CO-INVEST, L.P.

By:

Orion Energy Credit Opportunities Fund II GP, L.P.

Its:

General Partner

By:

Orion Energy Credit Opportunities Fund II Holdings, LLC

Its:

General Partner

By: /s/ Gerrit J. Nicholas

Name:Gerrit J. Nicholas

Title:Managing Partner

EXHIBIT A

GUARANTY AGREEMENT

EXHIBIT B

DESCRIPTION OF FUEL CELL MODULES


Module	Serial Numbers
2 Sure Source Modules	C1420-136 and C1420-137

	EXHIBIT 99.1

FuelCell Energy Closes Tax Equity Sale-Leaseback Financing for the

2.8 MW Tulare BioMAT Fuel Cell Project with Crestmark

DANBURY, CT – February 13, 2020 -- FuelCell Energy, Inc. (Nasdaq: FCEL), the global leader in molten carbonate fuel cell technology with its purpose being to utilize its proprietary, state-of-the-art fuel cell platforms to enable a world empowered by clean energy, announced today that the Company closed on a tax equity sale-leaseback financing transaction for the 2.8 MW Tulare BioMAT Project in Tulare, California with Crestmark Equipment Finance (“Crestmark”), a division of Metabank^®. Crestmark’s commitment totals $14.4 million through a ten-year sale-leaseback structure and further demonstrates the market’s interest in FuelCell Energy and our sustainable energy platforms.

“We are thrilled to team up with Crestmark to add this important financing solution to our commercial deployment platform,” said Michael Bishop, Executive Vice President and Chief Financial Officer of FuelCell Energy. “Financing from Crestmark broadens FuelCell Energy’s financing relationships. Crestmark has a deep understanding of the quality solutions delivered by our products, including carbon neutral projects directly leveraging on-site biofuels. This efficient sale-leaseback financing structure enables FuelCell Energy to retain the Tulare BioMAT project in our generation portfolio, enhancing the Company’s recurring cash flows and margin.”

Adding this operating asset to the Company’s generation portfolio is expected to yield recurring revenue in excess of $2.5 million per year and increases the Company’s operating assets to 28.9 MW. The Company has another 44.3 MW in backlog, in various stages of development and construction with commercial operation dates ranging from 2020 through 2022.

“Crestmark is excited to add FuelCell Energy to our growing list of clean tech and alternative energy clients,” said Jon Ellis, Renewable Energy Vice President of Crestmark. “Crestmark is committed to all forms of alternative energy, dedicating resources to build expertise and deliver customized financial solutions to the energy industry. As a leader in megawatt scale class deployments of clean, efficient baseload power plants, FuelCell Energy is an important alliance for us, and we look forward to developing this relationship further.”

Prior to FuelCell Energy’s SureSource^TM Combined Heat and Power (CHP) Power Plant being installed, the Tulare wastewater treatment plant’s methane rich biogas was flared (Video Link), which wasted energy and produced greenhouse gases. The fuel cell is now using that biogas to produce clean, renewable, carbon neutral power. The City of Tulare benefits by monetizing the sale of biogas to the project, improving air quality, and significantly lowering its emissions profile. The fuel cell uses a chemical reaction versus a combustion approach to generate energy, significantly reducing the NOx, SOx, particulate matter, and carbon emissions profile in the San Joaquin Valley. The electricity generated by the Tulare BioMAT Project is sold to Southern California Edison through the BioMAT tariff under a twenty-year power purchase agreement. The fuel cell power plant is expected to generate enough energy to meet the consumption of up to 3,000 California homes.

“The Tulare BioMAT project, which began operation in December 2019, is a milestone project for FuelCell Energy, demonstrating our strength as a leader in deploying fuel cell power generation plants that run directly on renewable biogas,” said Jason Few, President and Chief Executive Officer, FuelCell Energy. ”FuelCell Energy is committed to helping the world transition to a low carbon economy by offering innovative energy platform solutions such as this one. This is our seventh active energy platform leveraging biofuels; and we are in the process of initiating our eighth biofuels project at the San Bernardino Municipal Water Department (SBMWD) in San Bernardino California. FuelCell Energy will continue to focus on winning opportunities leveraging biofuels and is competitively advantaged by our proprietary gas clean-up skid and highly efficient, multi-featured carbonate fuel cell technology,” Few added.

The net proceeds to the Company from the financing, after deducting an initial down payment on the lease, taxes and transaction costs, totaled approximately $10.5 million. Under the terms of the Company’s senior secured credit facility with Orion Energy Partners Investment Agent, LLC and its affiliated lenders (“Orion”), the net proceeds of $10.5 million were deposited into a restricted cash account for future distribution at the discretion of Orion for use to construct another project, for working capital support or for repayment of principal under the Orion facility. Initial distributions will include $1 million to a module reserve account for the benefit of Orion under the terms of the credit agreement. In addition, approximately $3.0 million of proceeds will be released to fund interest due under the Orion credit facility as well as certain reserves, interest and accrued and unpaid dividends for on the Series B Preferred Stock issued by the Company and the Series 1 Class A Preferred Stock Shares issued by FCE FuelCell Energy Ltd. and guaranteed by the Company.

Cautionary Language

This news release contains forward-looking statements within the meaning of the safe harbor provisions of the Private Securities Litigation Reform Act of 1995, including, without limitation, statements with respect to the Company’s anticipated financial results and statements regarding the Company’s plans and expectations regarding the continuing development, commercialization and financing of its fuel cell technology and its business plans and strategies. All forward-looking statements are subject to risks and uncertainties that could cause actual results to differ materially from those projected. Factors that could cause such a difference include, without limitation, changes to projected deliveries and order flow, changes to production rate and product costs, general risks associated with product development, manufacturing, changes in the regulatory environment, customer strategies, ability to access certain markets, unanticipated manufacturing issues that impact power plant performance, changes in critical accounting policies, access to and ability to raise capital and attract financing, potential volatility of energy prices, rapid technological change, competition, the Company’s ability to successfully implement its new business strategies and achieve its goals, and the Company’s ability to achieve its sales plans and cost reduction targets, as well as other risks set forth in the Company’s filings with the Securities and Exchange Commission. The forward-looking statements contained herein speak only as of the date of this press release. The Company expressly disclaims any obligation or undertaking to release publicly any updates or revisions to any such statement to reflect any change in the Company’s expectations or any change in events, conditions or circumstances on which any such statement is based.

About Crestmark

Crestmark provides innovative financial solutions for businesses nationwide. Financing solutions include asset-based lending, accounts receivable financing, lines of credit, term loans, factoring, machinery/equipment financing and equipment leasing. Crestmark has extensive experience in helping many industries including transportation, manufacturing, staffing, petrochemical, renewable energy, medical receivables, government contractors, hospitality/hotels, insurance agencies, and technology hardware/software. Crestmark, a division of MetaBank^®, is headquartered in Michigan, with additional offices in California, Florida, Louisiana, Tennessee, and representatives nationwide; and a Canadian foreign representative office. www.crestmark.com

About FuelCell Energy

FuelCell Energy, Inc. (NASDAQ: FCEL) is a global leader in developing environmentally responsible distributed baseload power solutions through our proprietary molten-carbonate fuel cell technology. We develop turn-key distributed power generation solutions and operate and provide comprehensive services for the life of the power plant. We are working to expand the proprietary technologies that we have developed over the past five decades into new products, markets and geographies. Our mission and purpose remains to utilize our proprietary, state-of-the-art fuel cell power plants to reduce the global environmental footprint of baseload power generation by providing environmentally responsible solutions for reliable electrical power, hot water, steam, chilling, hydrogen, microgrid applications, and carbon capture and, in so doing, drive demand for our products and services, thus realizing positive stockholder returns. Our fuel cell solution is a clean, efficient

alternative to traditional combustion-based power generation and is complementary to an energy mix consisting of intermittent sources of energy, such as solar and wind turbines. Our systems answer the needs of diverse customers across several markets, including utility companies, municipalities, universities, hospitals, government entities and a variety of industrial and commercial enterprises. We provide solutions for various applications, including utility-scale distributed generation, on-site power generation and combined heat and power, with the differentiating ability to do so utilizing multiple sources of fuel including natural gas, Renewable Biogas (i.e., landfill gas, anaerobic digester gas), propane and various blends of such fuels. Our multi-fuel source capability is significantly enhanced by our proprietary gas-clean-up skid.

SureSource, SureSource 1500, SureSource 3000, SureSource 4000, SureSource Recovery, SureSource Capture, SureSource Hydrogen, SureSource Storage, SureSource Service, SureSource Capital, FuelCell Energy, and FuelCell Energy logo are all trademarks of FuelCell Energy, Inc.

Contact:

FuelCell Energy

203.205.2491

ir@fce.com

Source: FuelCell Energy

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