FUELCELL ENERGY INC (Form: 8-K, Received: 05/04/2020 08:01:07)

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): April 30, 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.

Fourth Amendment to Orion Credit Agreement

On October 31, 2019, FuelCell Energy, Inc. (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.

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”) 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 added 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.

On February 11, 2020, in order to obtain the Lenders’ consent to the sale-leaseback transaction with Crestmark Equipment Finance (“Crestmark”) with respect to the 2.8 MW fuel cell power plant located in Tulare, California and to the use of certain proceeds from the Crestmark sale-leaseback transaction as described therein, 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”). 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.

On April 30, 2020, the Company, the Agent, the Lenders and the other loan parties entered into the Fourth Amendment to the Orion Credit Agreement (the “Fourth Orion Amendment”). Pursuant to the Fourth Orion Amendment, the Agent and the Lenders have agreed to permit the release of $3.5 million from the Project Proceeds Account (as defined in the Orion Credit Agreement) subject to the following terms and conditions. Pursuant to the Fourth Orion Amendment, the Company’s 1.4 MW project at the wastewater treatment plant in San Bernardino, California has been added as an Additional Covered Project (as defined in the Orion Credit Agreement), and the Company subsidiary developing such project, San Bernardino Fuel Cell, LLC, has been added as an Additional Covered Project Company (as defined in the Orion Credit Agreement) such that those covenants, terms and conditions in the Orion Credit Agreement that apply to Covered Projects and Covered Project Companies will now be applicable to the foregoing project and project company, including that the “Project Payoff Amount” (i.e., the amount required pursuant to the Orion Credit Agreement to be realized upon a subsequent sale or refinancing of a project) for the San Bernardino project will be $5 million. Upon execution of the Fourth Orion Amendment, $2.3 million of the $3.5 million was released from the Project Proceeds Account, (which account is restricted subject to the control of Agent) and transferred to a General Business Unit Account (as defined in the Orion Credit Agreement), which account is unrestricted and available for general use by the Company. The remaining $1.2 million will be released from the Project Proceeds Account and transferred to a Covered Project Account (as defined in the Credit Agreement) being established for the San Bernardino project for use in connection with the construction of the San Bernardino project upon satisfaction of the following conditions: (a) approval of a self-generation incentive program grant for the San Bernardino project in an amount equal to no less than $1,000,000; (b) approval of an interconnection agreement; (c) provision of a fuel affidavit approval by Southern California Gas Company; (d) issuance of an air permit for the anaerobic digester gas cleanup system; (e) provision of an executed consent to collateral assignment by The City of San Bernardino Municipal Water District; (f) recordation in the land records of San Bernardino County of a memorandum of site license; (g) after giving effect to the release and transfer of $1.2 million to the Covered Project Account, sufficient cash in the Covered Project Account for the San Bernardino project to cover remaining expenditures and complete the project and (h) written approval of the Agent.

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

Item 7.01.Regulation FD Disclosure.

On May 4, 2020, the Company issued a press release announcing the commencement of construction of the San Bernardino project. 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		Fourth Amendment to Credit Agreement, dated as of April 30, 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 May 4, 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: May 4, 2020	By:	/s/ Michael S. Bishop
		Michael S. Bishop
		Executive Vice President, Chief Financial Officer and Treasurer

EXHIBIT 10.1

FOURTH AMENDMENT TO CREDIT AGREEMENT

This FOURTH AMENDMENT TO CREDIT AGREEMENT (this “Amendment”), dated as of April 30, 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 Fourth Amendment Effective Date (as defined below) and subject to the satisfaction of the conditions precedent set forth in Section 3:

(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) TRS Fuel Cell, LLC and San Bernardino 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.

“Permitted Project Disposition/Refinancing” means any Project Disposition/Refinancing so long as (i) the Project Disposition/Refinancing Proceeds in respect thereof are deposited in the Project Proceeds Account as required by, and to the extent required by, Section 5.18(f), (ii) in the event that such Project Disposition/Refinancing is in respect of a Covered Project Company, the aggregate amount of Project Disposition/Refinancing Proceeds received from such Project Disposition/Refinancing and deposited in the Project Proceeds Account shall be at least equal to the Project Payoff Amount in respect of the Covered Project Company subject to such Project Disposition/Refinancing, and (iii) neither the Borrower nor any other Loan Party shall Guarantee any of the Indebtedness or obligations of the applicable Project Company subject to such Project Disposition/Refinancing.

“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 San Bernardino Project, $5,000,000, (e) with respect to the Tulare Project, $5,000,000, (f) with respect to the Yaphank Project, $30,000,000, (g) with respect to the Triangle Street Project, $5,000,000, and (h) 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) Montville Fuel Cell Park, LLC, (iii) Eastern Connecticut Fuel Cell Properties, LLC, (iv) CR Fuel Cell, LLC, (v) BRT Fuel Cell, LLC, (vi) Derby Fuel Cell, LLC, (vii) Homestead Fuel Cell 1, LLC, (viii) Central CT Fuel Cell 1, LLC, (ix) Farmingdale Fuel Cell, LLC, (x) TRS Fuel Cell, LLC, and (xi) 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:

“Fourth Amendment” means that certain Fourth Amendment to Credit Agreement, dated as of April 29, 2020, by and among the Borrower, each of the Guarantors party thereto, each of the Lenders party thereto, and the Administrative Agent.

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

“San Bernardino Equipment” means the fuel cell module and other equipment set forth on the list previously provided by the Borrower to

Administrative Agent in writing and acknowledged by Administrative Agent as the equipment to be transferred to San Bernardino Fuel Cell, LLC.

“San Bernardino Project” means a 1.4 MW project located in San Bernardino, California.

(d)Section 5.18(f) of the Credit Agreement is hereby amended to insert the following new clause (vii) in the appropriate numerical location therein to read in its entirety as follows:

(vii)notwithstanding the foregoing provisions of this Section 5.18(f): (A) on the first date on or after the Fourth Amendment Effective Date on which the Borrower shall have contributed and transferred to San Bernardino Fuel Cell, LLC all right, title and interest in and to the San Bernardino Equipment, there shall be released from the Project Proceeds Account, and transferred to a General Business Unit Account designated by Borrower, an amount equal to $2,300,000 (and Administrative Agent shall instruct the Depositary Bank to release the foregoing amounts from the Project Proceeds Account); and (B) an additional $1,200,000 shall be released from the Project Proceeds Account and transferred to the Covered Project Account for the San Bernardino Project (and Administrative Agent shall instruct the Depositary Bank to release the foregoing amounts from the Project Proceeds Account) at such time as all of the following conditions have been satisfied:

(I)San Bernardino Fuel Cell, LLC shall have established the Covered Project Account for the San Bernardino Project in accordance with Section 5.18(e);

(II)There shall have been approved for the San Bernardino Project a California Self Generation Incentive Grant in an amount equal to no less than $1,000,000;

(III)Southern California Edison shall have approved entering into a generator interconnection agreement with San Bernardino Fuel Cell, LLC with respect to the San Bernardino Project;

(IV)Southern California Gas Company shall have provided a Fuel Affidavit approval to The City of San Bernardino with respect to the San Bernardino Project;

(V) San Bernardino Fuel Cell, LLC shall have procured the ADG Skid Air Permit with respect to the San Bernardino Project;

(VI) The City of San Bernardino Municipal Water District, in accordance with the terms and conditions of the power purchase agreement it has entered into with San Bernardino Fuel Cell, LLC, shall have executed a consent for collateral assignment of such power purchase agreement with Administrative Agent containing terms and conditions similar to those

agreed to in collateral assignments entered into between Administrative Agent and power purchasers of other Covered Projects;

(VII) San Bernardino Fuel Cell, LLC shall have recorded in the land records of San Bernardino County, California a memorandum evidencing its site license for the real property site of the San Bernardino Project; and

(VIII)As of, and after giving effect to, such release and transfer of $1,200,000 from the Project Proceeds Account to the Project Account for the San Bernardino Project, the amount of cash held in the Project Account for the San Bernardino Project shall be at least equal to the aggregate amount of remaining expenditures set forth in the Additional Covered Project Construction Budget in respect of the San Bernardino Project in order to complete the San Bernardino Project in accordance with the Additional Covered Project Construction Schedule for the San Bernardino Project.

(IX) The Administrative Agent shall have approved such release in writing.

SECTION 2. Acknowledgements and Agreements. Subject to the terms and conditions hereof, effective as of the Fourth Amendment Effective Date (as defined below) and subject to the satisfaction of the conditions precedent set forth in Section 3:

(a)For all purposes of the Credit Agreement and the Financing Documents, the parties acknowledge and agree that the San Bernardino Project shall constitute an Additional Covered Project.

(b)For all purposes of the Credit Agreement and the Financing Documents, the parties acknowledge and agree that the Additional Covered Project Construction Budget in respect of the San Bernardino Project shall be the construction budget as previously provided by the Borrower to Administrative Agent in writing and acknowledged by Administrative Agent as the Construction Budget for the San Bernardino Project .

(c)For all purposes of the Credit Agreement and the Financing Documents, the parties acknowledge and agree that the Additional Covered Project Construction Schedule in respect of the San Bernardino Project shall be the construction schedule as previously provided by the Borrower to Administrative Agent in writing and acknowledged by Administrative Agent as the Construction Schedule for the San Bernardino Project.

SECTION 3. Conditions Precedent. This Amendment shall only become effective upon the date (the “Fourth 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 4. 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 Fourth 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 5. 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 Fourth 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 6. 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 7. 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 7 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 8. 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 9. 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 10. 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 11. 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 & Treasurer

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 & Treasurer

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 & Treasurer

[Fourth Amendment to Credit Agreement]

GUARANTORS:

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 & Treasurer

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 & Treasurer

[Fourth 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 & Treasurer

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 & Treasurer

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 & Treasurer

[Fourth 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 & Treasurer

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 & Treasurer

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 & Treasurer

[Fourth 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 & Treasurer

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 & Treasurer

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 & Treasurer

[Fourth 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 & Treasurer

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 & Treasurer

[Fourth 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

[Fourth 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

[Fourth 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

[Fourth Amendment to Credit Agreement]

ANNEX I

Restated Schedule 1.01(b) to the Credit Agreement

[See Attached]

	EXHIBIT 99.1

FOR IMMEDIATE RELEASE

San Bernardino Renewable BioFuels Project Construction Begins;

FuelCell Energy to Assist San Bernardino with Reducing the Use of Its Flare

•

FuelCell Energy’s Power Platform Will Create a Cleaner Energy Profile for the City of San Bernardino

•

Renewable Power Produced by the Fuel Cell will Contribute to California’s Decarbonization Objectives

•

Proprietary FuelCell Technology Drives Reduction in Particulates, NOx and SOx

•

Following the Commercial Operation Date, FuelCell Energy Will Provide Low-Carbon Power Under a 20 Year Power Purchase Agreement To Supply San Bernardino Municipal Water Department

•

Construction Financing Provided By Existing Orion Energy Partners Credit Agreement

•

FuelCell Energy’s SureSource 1500 is the Only Fuel Cell Power Platform Certified by CARB for Operation on Biogas under the CARB 2013 Distributed Generation Emission Standards

DANBURY, CT – May 4, 2020 -- FuelCell Energy, Inc. (Nasdaq: FCEL) -- a global leader in fuel cell technology--with a purpose of utilizing its proprietary, state-of-the-art fuel cell platforms to enable a world empowered by clean energy--announced the commencement of site construction for its 1.4 megawatt SureSource 1500™ biofuels fuel cell project with the City of San Bernardino Municipal Water Department (SBMWD) in California. The project is expected to become commercially operational in December 2020.

Key highlights include:

•

The SureSource 1500™ power plant will operate on the City’s anaerobic digester gas (ADG), which will be treated by the proprietary SureSource Treatment^TM system, cleanly producing electricity and thermal energy to support the operation of the SBMWD water reclamation plant.

•

The SureSource Treatment^TM system is a proprietary clean up technology optimized by FuelCell Energy’s extensive experience with on-site biogas treatment. This system allows FuelCell Energy to clean up biofuel and use it on site without injection into the common carrier gas pipeline. Gas treatment requirements are reduced compared to pipeline injection because of the ability of SureSource fuel cell systems to utilize low-Btu biogas.

•

Following the commercial operation date, the SBMWD will purchase the clean electricity produced through a 20-year Power Purchase Agreement (PPA).

•

FuelCell Energy’s SureSource power platform will use methane–rich biogas that would otherwise be flared, wasting energy and producing emissions, to produce clean, renewable, carbon neutral power.

•

Servicing a population of approximately 200,000 residents, the SBMWD delivers more than 15.5 billion gallons of water per year, and provides wastewater collection and treatment at the water reclamation plant.

•

Pursuant to FuelCell Energy’s existing $200 million credit agreement with Orion Energy Partners, Orion Energy Partners has agreed that up to $3.5 million previously advanced by Orion Energy Partners and currently in a FuelCell Energy restricted account may be applied to reimburse the Company for construction costs for the project incurred to date and for future project construction costs.

“A few months ago, FuelCell Energy committed to executing on the build-out of our PPA backlog. That is exactly what we are doing. We are excited to enter the construction phase of our 1.4 megawatt project with the city of San Bernardino Municipal Water Department. The San Bernardino SureSource platform will utilize our utility-scale fuel cell power and heat platform, coupled with our proprietary engineered biogas treatment system," commented Jason Few, President and Chief Executive Officer, FuelCell Energy. “The continuous power profile of our platforms makes them an excellent fit with wastewater treatment plants. Specifically, our fuel cell can operate at peak efficiency utilizing the on-site anaerobic digester gas while providing important thermal heat that enhances the treatment process. Perhaps most importantly, our platform will enable the reduction in usage of another flare.”

Miguel Guerrero, General Manager of the San Bernardino Municipal Water Department commented, “The FuelCell Energy fuel cell plant will produce renewable energy for the Water Department by using the biogas generated at the Water Reclamation Plant. Especially important to our city is the reduction of the flaring of the waste water treatment biogas, which is also a key element in the Department’s compliance plans with the South Coast Air Quality Management District.”

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, disease outbreaks and pandemics such as the novel coronavirus (“COVID-19”), rapid technological change, competition, the Company’s ability to successfully implement its new business strategies and achieve its goals, the Company’s ability to achieve its sales plans and cost reduction targets, and the current implications of Covid-19, 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. Except as required by applicable law, 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 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. Visit us online at www.fuelcellenergy.com and follow us on Twitter @FuelCell_Energy.

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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