Fuelcell Energy Inc Sample Contracts

Fuelcell Energy Inc – EXCHANGE AGREEMENT (February 21st, 2019)

This Exchange Agreement (the “Agreement”) is entered into as of February 21, 2019, by and among FuelCell Energy, Inc., a Delaware corporation with offices located at 3 Great Pasture Road, Danbury, Connecticut 06810 (the “Company”), and the investor signatory hereto (the “Holder”), with reference to the following facts:

Fuelcell Energy Inc – FUELCELL ENERGY, INC. CONSENT AND WAIVER (February 21st, 2019)

THIS CONSENT AND WAIVER (this “Consent”) is made as of February 21, 2019 by and between FuelCell Energy, Inc., a Delaware corporation (the “Company”), and the investor named on the signature page attached hereto (the “Waiving Party”). All capitalized terms used but not defined herein shall have the meanings given to such terms in the Certificate of Designations, Preferences and Rights of the Series D Convertible Preferred Stock of the Company, dated August 29, 2018 (the “Series D Certificate of Designations”).

Fuelcell Energy Inc – FuelCell Energy 3 Great Pasture Road Danbury, CT 06810 (February 21st, 2019)
Fuelcell Energy Inc – SECOND AMENDMENT TO ASSISTANCE AGREEMENT (February 5th, 2019)

This SECOND AMENDMENT TO THE ASSISTANCE AGREEMENT (the “Amendment”) is made by and among FuelCell Energy, Inc., a Connecticut corporation, with a chief executive office located at 3 Great Pasture Road, Danbury, Connecticut 06810 (“Applicant”), and STATE OF CONNECTICUT, acting herein by Catherine H. Smith, its Commissioner of Economic and Community Development, (hereinafter the “Commissioner”), with its office located at 450 Columbus Boulevard, Suite 5, Hartford, Connecticut 06103 (the “State”). This agreement will become effective on the date it is signed by the last party to sign it (as indicated by the date stated under that party's signature).

Fuelcell Energy Inc – MEMBERSHIP INTEREST PURCHASE AGREEMENT BY AND BETWEEN DOMINION GENERATION, INC. (as “Seller”) AND FUELCELL ENERGY FINANCE, LLC (as “Buyer”) Dated as of October 31, 2018 (January 10th, 2019)

This MEMBERSHIP INTEREST PURCHASE AGREEMENT (together with all Exhibits and Schedules (including the Disclosure Schedules) appended hereto, this “Agreement”), dated as of October 31, 2018 (the “Effective Date”), is made by and between Dominion Generation, Inc. a Virginia corporation (“Seller”), and FUELCELL ENERGY FINANCE, LLC, a Delaware limited liability company (“Buyer”). Buyer and Seller each may be referred to herein as a “Party”, and collectively as the “Parties”.  Capitalized terms used, and not otherwise defined, herein shall have the meanings set forth in Article I.

Fuelcell Energy Inc – FIRST AMENDMENT TO LOAN AGREEMENT (January 10th, 2019)

This FIRST AMENDMENT TO LOAN AGREEMENT (this “Amendment”), dated as of April 18, 2016 (the “Effective Date”), is made by and among FUELCELL ENERGY FINANCE, LLC, a Connecticut limited liability company having its principal office located at 3 Great Pasture Road, Danbury, Connecticut 06810 (hereinafter referred to as the “Parent”), RIVERSIDE FUELCELL, LLC, a Delaware limited liability company having its principal office located at 3 Great Pasture Road, Danbury, Connecticut 06810 (“Riverside Co-Borrower”), and NRG ENERGY, INC., a Delaware corporation having an office address located at 211 Carnegie Center, Princeton, New Jersey 08540, its permitted successors and/or assigns (hereinafter referred to as the “Lender”).  Each capitalized term used and not otherwise defined herein shall have the meaning assigned thereto in Article I of the Loan Agreement (as defined below).

Fuelcell Energy Inc – FIFTH AMENDMENT TO LOAN AND SECURITY AGREEMENT (December 26th, 2018)

THIS FIFTH AMENDMENT TO LOAN AND SECURITY AGREEMENT (this “Amendment”), dated as of December 19, 2018 (the “Amendment Effective Date”), is entered into by and among FuelCell Energy, Inc., a Delaware corporation (“Parent”), Versa Power Systems, Inc., a Delaware corporation (“Versa Delaware”), Versa Power Systems Ltd. a corporation organized under the laws of Alberta, Canada (“Versa Canada”), and each of Parent’s Subsidiaries that delivers a Joinder Agreement pursuant to Section 7.13 of the Loan and Security Agreement (hereinafter collectively referred to as the “Borrowers” and each, a “Borrower”), the several banks and other financial institutions or entities from time to time parties thereto as Lender, constituting the Required Lenders, and HERCULES CAPITAL, INC., a Maryland corporation, in its capacity as administrative agent and collateral agent for itself and the Lender (in such capacity, together with its successors and assigns in such capacity, “Agent”).

Fuelcell Energy Inc – GUARANTY AGREEMENT (December 26th, 2018)

GUARANTY AGREEMENT (this “Guaranty”), dated as of December 21, 2018, is made by FUELCELL ENERGY, INC., a Delaware corporation (“Guarantor”), in favor of GENERATE LENDING, LLC, a Delaware limited liability company (“Lender”).

Fuelcell Energy Inc – CONSTRUCTION LOAN AGREEMENT dated as of December 21, 2018 by and among FUELCELL ENERGY FINANCE II, LLC, as the Borrower, Certain of its Subsidiaries, as the Project Company Guarantors, and GENERATE LENDING, LLC, as the Lender (December 26th, 2018)

THIS CONSTRUCTION LOAN AGREEMENT (together with all exhibits and schedules, as the same may be amended, restated, supplemented or otherwise modified at any time and from time to time, this “Agreement”) is made as of this 21st day of December, 2018, by and among FUELCELL ENERGY FINANCE II, LLC, a Connecticut limited liability company with its principal place of business located at 3 Great Pasture Road, Danbury, Connecticut 06810 (the “Borrower”), BAKERSFIELD FUEL CELL 1, LLC, a Delaware limited liability company (“Bakersfield”), BRT Fuel Cell, LLC, a New York limited liability company (“BRT”), CR FUEL CELL, LLC, a New York limited liability company (“CR”), Yaphank Fuel Cell Park, LLC, a New York limited liability company (“Yaphank”), Homestead Fuel Cell 1, LLC, a Connecticut limited liability company (“Homestead”), DERBY FUEL CELL, LLC, a Connecticut limited liability company (“Derby”, and collectively with Bakersfield, BRT, CR, Yaphank and Homestead, each, an “Initial Project Company G

Fuelcell Energy Inc – SECOND AMENDMENT TO LOAN AGREEMENT (December 20th, 2018)

This SECOND AMENDMENT TO LOAN AGREEMENT (this “Amendment”), dated as of December 13, 2018 (the “Effective Date”), is made by and among FUELCELL ENERGY FINANCE, LLC, a Connecticut limited liability company having its principal office located at 3 Great Pasture Road, Danbury, Connecticut 06810 (hereinafter referred to as the “Parent”), and NRG ENERGY, INC., a Delaware corporation having an office address located at 804 Carnegie Center Drive, Princeton, New Jersey 08540, its permitted successors and/or assigns (hereinafter referred to as the “Lender”). Each capitalized term used and not otherwise defined herein shall have the meaning assigned thereto in Article I of the Loan Agreement (as defined below).

Fuelcell Energy Inc – SECOND AMENDMENT TO LOAN AGREEMENT (December 19th, 2018)

This SECOND AMENDMENT TO LOAN AGREEMENT (this “Amendment”), dated as of December 13, 2018 (the “Effective Date”), is made by and among FUELCELL ENERGY FINANCE, LLC, a Connecticut limited liability company having its principal office located at 3 Great Pasture Road, Danbury, Connecticut 06810 (hereinafter referred to as the “Parent”), and NRG ENERGY, INC., a Delaware corporation having an office address located at 804 Carnegie Center Drive, Princeton, New Jersey 08540, its permitted successors and/or assigns (hereinafter referred to as the “Lender”). Each capitalized term used and not otherwise defined herein shall have the meaning assigned thereto in Article I of the Loan Agreement (as defined below).

Fuelcell Energy Inc – FuelCell Energy, Inc. 2018 OMNIBuS INCENTIVE PLAN Restricted Stock Unit Award (November 13th, 2018)

The Company has caused this Agreement to be executed by one of its authorized officers and is effective as of the Grant Date.

Fuelcell Energy Inc – CERTIFICATE OF DESIGNATIONS, PREFERENCES AND RIGHTS OF THE SERIES D CONVERTIBLE PREFERRED STOCK OF FUELCELL ENERGY, INC. (August 29th, 2018)

FuelCell Energy, Inc. (the “Company”), a corporation incorporated and existing under the General Corporation Law of the State of Delaware (the “DGCL”) does hereby certify:

Fuelcell Energy Inc – 30,680 Shares of Series D Convertible Preferred Stock par value $0.01 FUELCELL ENERGY, INC. UNDERWRITING AGREEMENT (August 29th, 2018)
Fuelcell Energy Inc – FOURTH AMENDMENT TO LOAN AND SECURITY AGREEMENT (August 29th, 2018)

THIS FOURTH AMENDMENT TO LOAN AND SECURITY AGREEMENT (this “Amendment”), dated as of August 29, 2018 (the “Amendment Effective Date”), is entered into by and among FuelCell Energy, Inc., a Delaware corporation (“Parent”), Versa Power Systems, Inc., a Delaware corporation (“Versa Delaware”), Versa Power Systems Ltd. a corporation organized under the laws of Alberta, Canada (“Versa Canada”), and each of Parent’s Subsidiaries that delivers a Joinder Agreement pursuant to Section 7.13 of the Loan and Security Agreement (hereinafter collectively referred to as the “Borrowers” and each, a “Borrower”), the several banks and other financial institutions or entities from time to time parties thereto as Lender, constituting the Required Lenders, and HERCULES CAPITAL, INC., a Maryland corporation, in its capacity as administrative agent and collateral agent for itself and the Lender (in such capacity, together with its successors and assigns in such capacity, “Agent”).

Fuelcell Energy Inc – August 29, 2018 (August 29th, 2018)
Fuelcell Energy Inc – FORM OF INDENTURE By and Between fuelcell energy, inc., as Issuer and as Trustee Dated as of [_______] Debt Securities FUELCELL ENERGY, INC. Reconciliation and tie between Trust Indenture Act of 1939 and Indenture, dated as of [_______] (August 10th, 2018)

INDENTURE (the “Indenture”) dated as of [_______], between FUELCELL ENERGY, INC., a Delaware corporation (hereinafter called the “Company”), and [_______], a [_______] (hereinafter called the “Trustee”).

Fuelcell Energy Inc – FORM OF INDENTURE By and Between fuelcell energy, inc., as Issuer and as Trustee Dated as of [_______] Subordinated Debt Securities FUELCELL ENERGY, INC. Reconciliation and tie between Trust Indenture Act of 1939 and Indenture, dated as of [_______] (August 10th, 2018)

INDENTURE (the “Indenture”) dated as of [_______], between FUELCELL ENERGY, INC., a Delaware corporation (hereinafter called the “Company”), and [_______], a [_______] (hereinafter called the “Trustee”).

Fuelcell Energy Inc – FUELCELL ENERGY, INC. Common Stock (par value $0.0001 per share) At Market Issuance Sales Agreement (June 13th, 2018)
Fuelcell Energy Inc – FuelCell Energy, Inc. 2018 OMNIBuS INCENTIVE PLAN Restricted Stock Award (April 6th, 2018)

You have been granted an award (an “Award”) of restricted shares of common stock of FuelCell Energy, Inc., a Delaware corporation (the “Company”), which are subject to the terms of the FuelCell Energy, Inc. 2018 Omnibus Incentive Plan (the “Plan”) and this Restricted Stock Award Agreement (this “Agreement”).  Capitalized terms used but not defined in this Agreement shall have the meanings set forth in the Plan.

Fuelcell Energy Inc – FuelCell Energy, Inc. 2018 OMNIBuS INCENTIVE PLAN Restricted Stock Unit Award (April 6th, 2018)

The Company has caused this Agreement to be executed by one of its authorized officers and is effective as of the Grant Date.

Fuelcell Energy Inc – FuelCell Energy, Inc. 2018 OMNIBuS INCENTIVE PLAN Nonqualified Stock Option Award (April 6th, 2018)

You have been granted an option (an “Option”) to purchase shares of common stock of FuelCell Energy, Inc., a Delaware corporation (the “Company”), which is subject to the terms of the FuelCell Energy, Inc. 2018 Omnibus Incentive Plan (the “Plan”) and this Nonqualified Stock Option Award Agreement (this “Agreement”).  Capitalized terms used but not defined in this Agreement shall have the meanings set forth in the Plan.

Fuelcell Energy Inc – THIRD AMENDMENT TO LOAN AND SECURITY AGREEMENT (April 2nd, 2018)

THIS THIRD AMENDMENT TO LOAN AND SECURITY AGREEMENT (this “Amendment”), dated as of March 28, 2018 (the “Third Amendment Effective Date”), is entered into by and among FuelCell Energy, Inc., a Delaware corporation (“Parent”), Versa Power Systems, Inc., a Delaware corporation (“Versa Delaware”), Versa Power Systems Ltd. a corporation organized under the laws of Alberta, Canada (“Versa Canada”), and each of Parent’s Subsidiaries that delivers a Joinder Agreement pursuant to Section 7.13 of the Loan and Security Agreement (hereinafter collectively referred to as the “Borrowers” and each, a “Borrower”), the several banks and other financial institutions or entities from time to time parties thereto as Lender, constituting the Required Lenders, and HERCULES CAPITAL, INC., a Maryland corporation, in its capacity as administrative agent and collateral agent for itself and the Lender (in such capacity, together with its successors and assigns in such capacity, “Agent”).

Fuelcell Energy Inc – CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPoRATION OF FUELCELL ENERGY, INC. (December 15th, 2017)
Fuelcell Energy Inc – SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT (November 1st, 2017)

THIS SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT (this “Amendment”), dated as of October 27, 2017 (the “Amendment Effective Date”), is entered into by and among FuelCell Energy, Inc., a Delaware corporation (“Parent”), Versa Power Systems, Inc., a Delaware corporation (“Versa Delaware”), Versa Power Systems Ltd. a corporation organized under the laws of Alberta, Canada (“Versa Canada”), and each of Parent’s Subsidiaries that delivers a Joinder Agreement pursuant to Section 7.13 of the Loan and Security Agreement (hereinafter collectively referred to as the “Borrowers” and each, a “Borrower”), the several banks and other financial institutions or entities from time to time parties thereto as Lender, constituting the Required Lenders, and HERCULES CAPITAL, INC., a Maryland corporation, in its capacity as administrative agent and collateral agent for itself and the Lender (in such capacity, together with its successors and assigns in such capacity, “Agent”).

Fuelcell Energy Inc – 33,500 Shares of Series C Convertible Preferred Stock par value $0.01 FUELCELL ENERGY, INC. UNDERWRITING AGREEMENT (September 8th, 2017)
Fuelcell Energy Inc – CERTIFICATE OF DESIGNATIONS, PREFERENCES AND RIGHTS OF THE SERIES C CONVERTIBLE PREFERRED STOCK OF FUELCELL ENERGY, INC. (September 8th, 2017)

FuelCell Energy, Inc. (the “Company”), a corporation incorporated and existing under the General Corporation Law of the State of Delaware (the “DGCL”) does hereby certify:

Fuelcell Energy Inc – FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT (September 8th, 2017)

THIS FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT (this “Amendment”), dated as of September 5, 2017 (the “Amendment Effective Date”), is entered into by and among FuelCell Energy, Inc., a Delaware corporation (“Parent”), Versa Power Systems, Inc., a Delaware corporation (“Versa Delaware”), Versa Power Systems Ltd. a corporation organized under the laws of Alberta, Canada (“Versa Canada”), and each of Parent’s Subsidiaries that delivers a Joinder Agreement pursuant to Section 7.13 of the Loan and Security Agreement (hereinafter collectively referred to as the “Borrowers” and each, a “Borrower”), the several banks and other financial institutions or entities from time to time parties thereto as Lender, constituting the Required Lenders, and HERCULES CAPITAL, INC., a Maryland corporation, in its capacity as administrative agent and collateral agent for itself and the Lender (in such capacity, together with its successors and assigns in such capacity, “Agent”).

Fuelcell Energy Inc – April 7, 2017 Jennifer D. Arasimowicz (June 8th, 2017)
Fuelcell Energy Inc – FuelCell Energy, Inc. Series D Warrant To Purchase Common Stock (April 28th, 2017)

FuelCell Energy, Inc., a Delaware corporation (the “Company”), hereby certifies that, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, [_____________________], the registered holder hereof or its permitted assigns (the “Holder”), is entitled, subject to the terms set forth below, to purchase from the Company, at the Exercise Price (as defined below) then in effect, upon exercise of this Series D Warrant to Purchase Common Stock (including any Series D Warrants to Purchase Common Stock issued in exchange, transfer or replacement hereof, the “Warrant”), at any time on or after the Issuance Date, but not after 11:59 p.m., New York time, on the Expiration Date (as defined below), [_________________ ([________])] (subject to adjustment as provided herein) fully paid and non-assessable shares of Common Stock (as defined below) (the “Warrant Shares”, and such number of Warrant Shares, the “Warrant Number”). Except as otherwise defined herein,

Fuelcell Energy Inc – FuelCell Energy, Inc. Series C Warrant To Purchase Common Stock (April 28th, 2017)

FuelCell Energy, Inc., a Delaware corporation (the “Company”), hereby certifies that, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, [_____________________], the registered holder hereof or its permitted assigns (the “Holder”), is entitled, subject to the terms set forth below, to purchase from the Company, at the Exercise Price (as defined below) then in effect, upon exercise of this Series C Warrant to Purchase Common Stock (including any Series C Warrants to Purchase Common Stock issued in exchange, transfer or replacement hereof, the “Warrant”), at any time on or after the Issuance Date, but not after 11:59 p.m., New York time, on the Expiration Date (as defined below), [_________________ ([________])] (subject to adjustment as provided herein) fully paid and non-assessable shares of Common Stock (as defined below) (the “Warrant Shares”, and such number of Warrant Shares, the “Warrant Number”). Except as otherwise defined herein,

Fuelcell Energy Inc – par value $0.0001 and Series C Warrants to Purchase 12,000,000 Shares of Common Stock Series D Warrants to Purchase 12,000,000 Shares of Common Stock FUELCELL ENERGY, INC. UNDERWRITING AGREEMENT (April 28th, 2017)
Fuelcell Energy Inc – FIRST AMENDMENT TO ASSISTANCE AGREEMENT (April 21st, 2017)

This FIRST AMENDMENT TO THE ASSISTANCE AGREEMENT (the “Amendment”) is made and shall be effective as of the third day April, 2017 by and among FuelCell Energy, Inc., a Connecticut corporation, with a chief executive office located at 3 Great Pasture Road, Danbury, Connecticut 06810 (“Applicant”), and STATE OF CONNECTICUT, acting herein by Catherine H. Smith, its Commissioner of Economic and Community Development, (hereinafter the “Commissioner”), with its office located at 505 Hudson Street, Hartford, Connecticut 06106 (the “State”).

Fuelcell Energy Inc – FuelCell Energy and Korean-based POSCO Energy Announce Strategic Agreement to Globalize the Stationary Fuel Cell Market (March 21st, 2017)

FuelCell Energy to commence market activities for Asian market development offering entire portfolio of SureSource™ solutions

Fuelcell Energy Inc – MEMORANDUM OF UNDERSTANDING (March 21st, 2017)

This MEMORANDUM OF UNDERSTANDING (the "MOU") is made and entered into as of the 17th day of March, 2017 (the "Effective Date") by and between POSCO Energy Co., Ltd., a corporation duly organized and existing under the laws of the Republic of Korea ("Korea"), having its principal place of business at POSCO Center, 440 Teheranr-ro, Gangnam-Gu, Seoul, 135-777, Korea ("POSCO Energy") and Fuel Cell Energy, Inc., a corporation duly organized and existing under the laws of the state of Delaware having a place of business at 3 Great Pasture Rd., Danbury, CT 06810 ("FCE"). POSCO Energy and FCE are sometimes referred to herein individually as a "Party" and collectively as the "Parties".