FCEL FuelCell Energy Inc

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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

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FORM 8-K

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CURRENT REPORT

Pursuant to Section 13 or 15(d) of

The Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): August 18, 2023

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FUELCELL ENERGY, INC.

(Exact Name of Registrant as Specified in its Charter)

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

Not Applicable

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

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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))

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

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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. ☐

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Item 1.01.Entry into a Material Definitive Agreement.

Senior and Subordinated Back Leverage Credit Agreements

On August 18, 2023, FuelCell Energy Finance Holdco, LLC (“Borrower”), a wholly owned subsidiary of FuelCell Energy Finance, LLC (“FCEF”), which, in turn, is a wholly owned subsidiary of FuelCell Energy, Inc. (the “Company”), entered into: (i) a Credit Agreement (the “Senior Back Leverage Credit Agreement”) with, by and among Liberty Bank, in its capacities as a lender (“Liberty Lender”), administrative agent (the “Senior Administrative Agent”), and lead arranger, and Amalgamated Bank, in its capacity as a lender (“Amalgamated Lender” and, collectively with Liberty Lender, the “Senior Back Leverage Lenders”), for a term loan facility in an amount not to exceed an aggregate of $12.0 million to be provided 50% by Liberty Lender and 50% by Amalgamated Lender (such facility, the “Senior Back Leverage Loan Facility,” each such term loan, a “Senior Back Leverage Loan” and such term loans together, the “Senior Back Leverage Loans”); and (ii) a Credit Agreement (the “Subordinated Back Leverage Credit Agreement”) with Connecticut Green Bank, as administrative agent (the “Subordinated Administrative Agent”) and lender (“Subordinated Back Leverage Lender”), for a term loan facility in an amount not to exceed $8.0 million (such facility, the “Subordinated Back Leverage Loan Facility” and such term loan, the “Subordinated Back Leverage Loan”). The Senior Back Leverage Lenders and the Subordinated Back Leverage Lender are referred to collectively as the “Lenders.”

Borrower’s obligations under the Senior Back Leverage Credit Agreement and the Subordinated Back Leverage Credit Agreement are secured by a lien on all of Borrower’s assets, consisting principally of its Class B Member Interests (the “Class B Interests”) in Groton Station Fuel Cell Holdco, LLC (the “Groton Tax Equity Holdco”). Class A Membership Interests (the “Class A Interests”) in the Groton Tax Equity Holdco are held by East West Bank (“EWB”). Borrower is also the Managing Member of the Groton Tax Equity Holdco.  The Groton Tax Equity Holdco’s primary asset is ownership of all of the outstanding equity interests in Groton Station Fuel Cell, LLC (the “Groton Project Company”). The Groton Project Company, in turn, is the owner of the fuel cell power plant at the U.S. Navy Submarine Base New London located in Groton, Connecticut (the “Groton Project”). As additional context concerning the relationship among the parties with respect to the Senior Back Leverage Loan Facility and the Subordinated Back Leverage Loan Facility more fully described below, on December 16, 2022, the Groton Project Company and the Company entered into an Amended and Restated Power Purchase Agreement (the “PPA”) with Connecticut Municipal Electric Energy Cooperative (“CMEEC”), pursuant to which the Groton Project Company agreed to sell to CMEEC, and CMEEC agreed to purchase from the Groton Project Company, all of the electricity output produced by the Groton Project pursuant to the terms and conditions of the PPA.

At the closing (the “Closing”) of each of the Senior Back Leverage Loan Facility and the Subordinated Back Leverage Loan Facility, which occurred simultaneously on August 18, 2023 (the “Closing Date”), the entire amount of each of the Senior Back Leverage Loan Facility and the Subordinated Back Leverage Loan Facility was drawn down in the aggregate amount of $20.0 million. After payment of fees and transaction costs (including fees to the Lenders and legal costs) of approximately $0.4 million in the aggregate, the remaining proceeds of approximately $19.6 million were used as follows: (i) approximately $1.7 million was used to fund debt service reserve accounts (“DSCR Reserve Accounts”) for the Senior Back Leverage Lenders in equal amounts of approximately $0.83 million for Liberty Lender and approximately $0.83 million for Amalgamated Lender; (ii) approximately $6.5 million was used to fund operations and maintenance and module replacement reserve accounts (“O&M Reserve Accounts”) for the Senior Back Leverage Lenders in equal amounts of approximately $3.25 million for Liberty Lender and approximately $3.25 million for Amalgamated Lender; (iii) approximately $0.3 million was used to fund a DSCR Reserve Account for the Subordinated Back Leverage Lender; and (iv) the remaining amount of approximately $11.1 million was released to the Company from the Lenders. As discussed in additional detail below, simultaneous with the Closing, a portion of the proceeds were used to: (a) make Output Shortfall Payments (as defined below) totaling approximately $1.3 million, which were deposited into a payment reserve account, and (b) pay approximately $3.0 million to Connecticut Green Bank, which represented payment, in full, of all outstanding obligations under the Company’s loan agreement with Connecticut Green Bank (which is discussed in additional detail in Item 1.02 of this Current Report on Form 8-K). After taking into account such Output Shortfall Payments and such payment to Connecticut Green Bank, approximately $6.8 million will be classified as unrestricted cash on the Company’s Consolidated Balance Sheet.  

The portion of the Senior Back Leverage Loan provided by Liberty Lender will accrue interest on the unpaid principal amount calculated from the date of such Senior Back Leverage Loan until the maturity date at a rate per annum equal to 6.75%. The portion of the Senior Back Leverage Loan provided by Amalgamated Lender will accrue interest on the unpaid principal amount calculated from the date of such Senior Back Leverage Loan until the maturity date thereof at 6.07% during all times at which a “Carbon Offset Event” is not continuing and 7.32% at all times at which a “Carbon

Offset Event” has occurred and is continuing.  A “Carbon Offset Event” is deemed to occur if Borrower, the Company or any direct or indirect subsidiary thereof does not purchase carbon offsets from an Acceptable Carbon Offset Provider (as defined below) each fiscal year in an amount equal to the lesser of (i) the Annual Carbon Offset Requirement (as defined below) for such fiscal year and (ii) the Annual Carbon Offset Cap (as defined below) for such fiscal year. An “Acceptable Carbon Offset Provider” is either Climate Vault or any other seller of carbon offsets acceptable to Amalgamated Lender. Within 120 days after the end of each fiscal year of Borrower, a report must be delivered to the Senior Administrative Agent detailing the amount of carbon dioxide emitted by the Groton Project during such fiscal year (the “Annual Carbon Emissions”). The “Annual Carbon Offset Requirement” for any fiscal year is derived based on a formula equal to the outstanding balance of the Senior Back Leverage Loan provided by Amalgamated Lender multiplied by the Groton Project’s Annual Carbon Emissions for such year and divided by the total project costs of the Groton Project.  The “Annual Carbon Offset Cap” for each year is $12.66 multiplied by the Annual Carbon Offset Requirement and divided by the Carbon Offset Price for such fiscal year. The “Carbon Offset Price” means the price, per metric ton of carbon dioxide, of the carbon offsets available for purchase from an Acceptable Carbon Offset Provider.

Quarterly principal amortization and interest payments are required to be made by Borrower on the Senior Back Leverage Loans based on a ten-year amortization period. The Senior Back Leverage Loans have a seven-year term, maturing on August 18, 2030, at which time all outstanding principal is due.

The Subordinated Back Leverage Loan will accrue interest at a rate per annum equal to 8% for the period of time prior to the “Step Down Date” and, after the “Step Down Date,” at the lesser of 8% or the interest rate on a 10-year U.S. Treasury Note plus 275 basis points (subject to a minimum floor of 5% per annum).  The “Step Down Date” is the date on which both of the following events have occurred: Borrower has purchased EWB’s Class A Interests in the Groton Tax Equity Holdco and the Senior Back Leverage Loans have been repaid in full.  Interest is payable each quarter based on an agreed upon schedule.

Pursuant to the Subordinated Back Leverage Loan Facility, during the “Interest Only Period” (as defined below), Borrower is required to make quarterly payments of principal in amounts equal to 50% of excess cash flow available to Borrower. For purposes of the foregoing, excess cash flow is all excess cash flow of Borrower after the payment of required principal and interest on the Senior Back Leverage Loans, required deposits in the various reserve accounts, the payment of interest on the Subordinated Back Leverage Loan and payment of Borrower’s operating expenses.  Following the end of the “Interest Only Period,” principal and interest payments are required to be made quarterly in quarterly level payments (“mortgage style”) of principal and interest until the maturity date, which is the first to occur of 20 years following the Groton Project’s commercial operations date and termination of the PPA. The maturity date of the Subordinated Back Leverage Loan Facility is currently contemplated to be September 30, 2038. The “Interest Only Period” is the period beginning on the Closing Date and ending the first to occur of (i) eighty-four months after the Closing Date; or (ii) the date the Senior Back Leverage Loan Facility has been fully repaid.

Pursuant to the terms and conditions of the Senior Back Leverage Credit Agreement, Borrower is required to maintain O&M Reserve Accounts as a reserve to pay for expected module replacements. Equal O&M Reserve Accounts are required to be maintained for each of Liberty Lender and Amalgamated Lender. Such O&M Reserve Accounts are maintained in the name of the Groton Project Company rather than being accounts of Borrower. At the Closing, approximately $3.25 million was deposited into each such O&M Reserve Account, and Borrower is required to make quarterly deposits in an amount of approximately $0.1 million into each such O&M Reserve Account until the balance in each such O&M Reserve Account is approximately $5.4 million. At such time as the Senior Back Leverage Loans have been fully repaid, any outstanding balance in the O&M Reserve Accounts shall be consolidated into a single O&M Reserve Account for the benefit of the Subordinated Back Leverage Lender. To the extent that Borrower has used any of the proceeds of the O&M Reserve Accounts to extinguish amounts owed under the Senior Back Leverage Loan Facility or to purchase the Class A Interests held by EWB, which Borrower is permitted to do, Borrower shall replenish the O&M Reserve Accounts with any such amounts used in connection with transitioning such O&M Reserve Accounts to the Subordinated Back Leverage Lender. From and after the time that the O&M Reserve Accounts have been consolidated into a single O&M Reserve Account for the benefit of the Subordinated Back Leverage Lender, Borrower shall be required to make additional deposits into such O&M Reserve Account on a quarterly basis pursuant to an agreed upon schedule until such time as the balance in such O&M Reserve Account is at least approximately $10.9 million.

Pursuant to the terms and conditions of the Senior Back Leverage Credit Agreement, Borrower is required to maintain a DSCR Reserve Account in an amount of approximately $0.8 million (i.e., one year of debt service) for each of Liberty Lender and Amalgamated Lender. At such time as the Groton Project has achieved the Full Performance Date (as

defined below), the amount of funds required to be maintained in each such DSCR Reserve Account shall be reduced to the greater of (i) approximately $0.4 million or (ii) the amount sufficient to pay the aggregate principal and interest payments due in the next succeeding six months, and the excess amounts shall be released to Borrower’s operating account.  The “Full Performance Date” is the date on which the Groton Project has achieved, and maintained for six consecutive months, “Full Performance” pursuant to the PPA, meaning that the Groton Project is operating at a level required to produce and maintain electricity output sufficient to satisfy the specific annual output guarantees under the PPA. Pursuant to the PPA, in the event that the Groton Project produces electricity in any year less than the minimum required amount for such year (an “Output Shortfall”), the Groton Project Company is required to make certain cash payments (“Output Shortfall Payments”) to CMEEC.

Pursuant to the terms and conditions of the Subordinated Back Leverage Credit Agreement, Borrower is required to maintain a DSCR Reserve Account in an amount of approximately $0.3 million and to maintain a balance in such DSCR Reserve Account of the greater of approximately $0.3 million or the amount sufficient to pay 100% of the principal and interest payments due in connection with the Subordinated Back Leverage Loan for the next succeeding six months.

Pursuant to the terms and conditions of each of the Senior Back Leverage Credit Agreement and the Subordinated Back Leverage Credit Agreement, Borrower is required to enter into renewable energy credit (“REC”) hedge agreements to sell RECs through a recognized market or with another counterparty (acceptable to the Lenders) on a 29 month rolling basis (i) in an amount equal to 50% of the RECs produced by the Groton Project in the five month period from the Closing Date through December 31, 2023; (ii) in an amount equal to 37% of the RECs produced by the Groton Project for the period from January 1, 2024 through December 31, 2024 and (iii) in an amount equal to 25% of the RECs produced by the Groton Project for the period from January 1, 2025 through December 31, 2025.  Both the Senior Back Leverage Credit Agreement and the Subordinated Back Leverage Credit Agreement require the Company to make annual contributions to Borrower (in no event to exceed $0.5 million per year) to the extent that RECs produced by the Groton Project do not realize payments on average to Borrower of at least $14 per REC (the “Minimum REC Price”).  The annual payment to be made by the Company to Borrower is the product of the Minimum REC Price multiplied by the RECs produced by the Groton Project for such year, less the amount of revenue actually received by the Groton Project for such year.

Each of the Senior Back Leverage Credit Agreement and the Subordinated Back Leverage Credit Agreement contains certain reporting requirements and other affirmative and negative covenants which are customary for transactions of this type. Included in the covenants are covenants that: (i) Borrower maintain a “Senior” debt service coverage ratio (which is computed taking into account debt service obligations on the Senior Back Leverage Loans) of not less than 1.20:1.00 (based on the trailing 12 months and tested every quarter) and a “Total” debt service coverage ratio (which is computed taking into account debt service obligations on both the Senior Back Leverage Loans and the Subordinated Back Leverage Loan) of not less than 1.10:1.00 (based on the trailing 12 months and tested on a quarterly basis); (ii) Borrower may make distributions or dividends only if the foregoing debt to equity coverage ratios have been satisfied and Borrower is not in default under any provisions of either the Senior Back Leverage Credit Agreement or the Subordinated Back Leverage Credit Agreement, including having made all required deposits into reserve accounts; (iii) Borrower is required to exercise its right under the Groton Tax Equity Holdco limited liability company agreement to acquire the Class A Interests from EWB during the ninety day period beginning on the “Flip Point” (which, pursuant to the Groton Tax Equity Holdco limited liability company agreement, is the date on which the holder of Class A Interests has realized a certain return on investment and, accordingly, Borrower, as holder of the Class B Interests, has the right to purchase the Class A Interests); and (iv) the consent of the Senior Administrative Agent is required prior to Borrower’s taking certain material actions under the Groton Tax Equity Holdco limited liability company agreement. Each of the Senior Back Leverage Credit Agreement and the Subordinated Back Leverage Credit Agreement also contains customary representations and warranties and customary events of default that cause, or entitle the Lenders to cause, the outstanding loans to become immediately due and payable.  In addition to customary events of default for transactions of this kind, the events of default include if a Change of Control occurs (meaning the Company no longer directly or indirectly owns Borrower), a cross default (meaning that a default under the Senior Back Leverage Loan Facility shall be deemed a default under the Subordinated Back Leverage Loan Facility and vice versa) or if CMEEC should become insolvent, is in bankruptcy or commits a specified number of payment defaults with regard to its payment obligations to the Groton Project Company.

The Senior Back Leverage Loans may be prepaid at any time at the option of Borrower provided that (i) each prepayment on or prior to the second anniversary of the Closing Date shall require a prepayment fee of 3% of the principal amount being prepaid; (ii) each prepayment after the second anniversary of the Closing Date but on or prior to the fourth anniversary of the Closing Date shall require a prepayment fee of 2% of the principal amount being prepaid; and (iii) each prepayment after the fourth anniversary of the Closing Date but on or prior to the seventh anniversary of the Closing Date

shall require a prepayment fee of 1% of the principal amount being prepaid. The Subordinated Back Leverage Loan may be prepaid at any time without premium or penalty.

Simultaneously with Borrower entering into the Senior Back Leverage Credit Agreement, Borrower and the Senior Administrative Agent (on behalf of the Senior Back Leverage Lenders) entered into a Security Agreement and a Pledge and Security Agreement pursuant to which Borrower pledged as collateral for its obligations under the Senior Back Leverage Loan Facility all of Borrower’s assets, including, without limitation, its Class B Interests in the Groton Tax Equity Holdco and all distributions and proceeds therefrom. As long as no Event of Default exists under the Senior Back Leverage Loan Facility, Borrower is entitled to retain all voting and economic rights in connection with its Class B Interests in the Groton Tax Equity Holdco. In connection with the Senior Back Leverage Credit Agreement, on the Closing Date, Borrower, the Groton Project Company and the Senior Administrative Agent (on behalf of the Senior Back Leverage Lenders) also entered into a Deposit Account Security and Pledge Agreement pursuant to which: (i) Borrower pledged as collateral for its obligations under the Senior Back Leverage Loan Facility its interests in all of its bank accounts, including the DSCR Reserve Accounts, the Payment Reserve Account (into which Borrower deposits all revenues) and its operating account; and (ii) the Groton Project Company pledged as collateral for the obligations of Borrower under the Senior Back Leverage Loan Facility its interest in the O&M Reserve Accounts.  Subject to the provisions in the Senior Back Leverage Credit Agreement regarding the use of reserves and withdrawal of funds, as long as no Event of Default exists under the Senior Back Leverage Loan Facility, Borrower is entitled to utilize funds in the foregoing accounts, including for paying operating expenses of Borrower and, subject to compliance with the debt service ratio covenant requirements, withdrawing and distributing such funds.

Simultaneously with Borrower entering into the Subordinated Back Leverage Credit Agreement, Borrower and the Subordinated Administrative Agent (on behalf of the Subordinated Back Leverage Lender) entered into a Security Agreement and a Pledge and Security Agreement pursuant to which Borrower pledged as collateral for its obligations under the Subordinated Back Leverage Loan Facility all of Borrower’s assets, including, without limitation, its Class B Interests in the Groton Tax Equity Holdco and all distributions and proceeds therefrom. As long as no Event of Default exists under the Subordinated Back Leverage Loan Facility, Borrower is entitled to retain all voting and economic rights in connection with its Class B Interests in the Groton Tax Equity Holdco.  In connection with the Subordinated Back Leverage Credit Agreement, on the Closing Date, Borrower, the Groton Project Company and the Subordinated Administrative Agent (on behalf of the Subordinated Back Leverage Lender) also entered into a Deposit Account Security and Pledge Agreement pursuant to which: (i) Borrower pledged as collateral for its obligations under the Subordinated Back Leverage Loan Facility its interests in all of its bank accounts, including the DSCR Reserve Accounts, the Payment Reserve Accounts (into which Borrower deposits all revenues) and its operating account; and (ii) the Groton Project Company pledged as collateral for the obligations of Borrower under the Subordinated Back Leverage Loan Facility its interest in the O&M Reserve Accounts.  Subject to the provisions in the Subordinated Back Leverage Credit Agreement regarding the use of reserves and withdrawal of funds, as long as no Event of Default exists under the Subordinated Back Leverage Loan Facility, Borrower is entitled to utilize funds in the foregoing accounts, including for paying operating expenses of Borrower and, subject to compliance with the debt service ratio covenant requirements, withdrawing and distributing such funds.  

The Senior Administrative Agent, each of the Senior Back Leverage Lenders, the Subordinated Administrative Agent and the Subordinated Back Leverage Lender have entered into a Subordination Agreement pursuant to which all of the security interests and liens granted by Borrower in its assets and accounts and by the Groton Project Company in its O&M Reserve Accounts to the Subordinated Back Leverage Lender are expressly subordinated to all of the liens and security interests held by the Senior Back Leverage Lenders in the foregoing assets and bank accounts.

Simultaneously with the Closing, Borrower, EWB, each of the Senior Back Leverage Lenders and the Subordinated Back Leverage Lender entered into an Interparty Agreement containing customary agreements between EWB, as the tax equity investor, and the Lenders as the back leverage lenders, including (i) the Lenders having certain notice and cure rights in the event of a default by Borrower in its obligations under the Groton Tax Equity Holdco limited liability company agreement, (ii) EWB having certain notice and cure rights in the event of a default by Borrower under either of the Senior Back Leverage Credit Agreement or the Subordinated Back Leverage Credit Agreement; (iii) EWB’s giving consent to Lenders’ exercise of their rights in the event of a Borrower default with respect to Lenders’ security interests in the Class B Interests; and (iv) agreement on the use of the funds in the O&M Reserve Accounts, including the use of such funds for module replacements and the use of any remaining funds to purchase EWB's Class A Interests, provided that sufficient funds remain to repay amounts owed under the Senior Back Leverage Loan Facility.

In addition, on the Closing Date, the Company entered into: (i) a Limited Guaranty and Subordination Agreement with the Senior Administrative Agent for the benefit of the Senior Back Leverage Lenders pursuant to which the Company has guaranteed the repayment of all amounts due under the Senior Back Leverage Loan Facility; and (ii) a Limited Guaranty and Subordination Agreement with the Subordinated Back Leverage Lender pursuant to which the Company has guaranteed the repayment of all amounts due under the Subordinated Back Leverage Loan Facility. Pursuant to these agreements, the Company has also agreed to subordinate its right to receive operations and maintenance fees (“O&M Fees”) from the Groton Project Company (which the Company is entitled to be paid under the First Amended and Restated Services Agreement, dated August 4, 2021, between the Groton Project Company and the Company) during any period of time and in the case where either (i) an Event of Default exists under either the Senior Back Leverage Credit Agreement or the Subordinated Back Leverage Credit Agreement; or (ii) an Output Shortfall Payment under the PPA is required to be made and the payment of the O&M Fees would result in a reduction in cash distributions to Borrower by the Groton Tax Equity Holdco such that Borrower would not have sufficient cash to make required payments under the Senior Back Leverage Loan Facility and the Subordinated Back Leverage Loan Facility.  In addition, pursuant to the Limited Guaranty and Subordination Agreements described above: (i) simultaneously with the Closing, the Company made a cash contribution to Borrower (to be deposited in Borrower’s Payment Reserve Account) in the amount of approximately $0.9 million, relating to a 10,122 megawatt hour shortfall of the electricity expected to be generated by the Groton Project during the first year of operations after the commercial operation date for the Groton Project; (ii) simultaneously with the Closing, the Company made a payment of $0.5 million to Borrower (to be deposited into the Payment Reserve Account), relating to delays in RECs generation and sales for such first year of operations after the commercial operation date for the Groton Project; and (iii) the Company agreed to make capital contributions to Borrower in any future year in which obligations exist to make Output Shortfall Payments to CMEEC under the PPA.

The foregoing description of (i) the Senior Back Leverage Credit Agreement, (ii) the Subordinated Back Leverage Credit Agreement, (iii) the Security Agreement between Borrower and the Senior Administrative Agent, (iv) the Pledge and Security Agreement between Borrower and the Senior Administrative Agent, (v) the Deposit Account Security and Pledge Agreement among Borrower, the Groton Project Company and the Senior Administrative Agent, (vi) the Security Agreement between Borrower and the Subordinated Administrative Agent, (vii) the Pledge and Security Agreement between Borrower and the Subordinated Administrative Agent, (viii) the Deposit Account Security and Pledge Agreement among Borrower, the Groton Project Company and the Subordinated Administrative Agent, (ix) the Subordination Agreement, (x) the Interparty Agreement, (xi) the Limited Guaranty and Subordination Agreement between the Company and the Senior Administrative Agent, and (xii) the Limited Guaranty and Subordination Agreement between the Company and the Subordinated Back Leverage Lender is qualified in its entirety by reference to the full text of such agreements, copies of which are attached as Exhibits 10.1, 10.2, 10.3, 10.4, 10.5, 10.6, 10.7, 10.8, 10.9, 10.10, 10.11, and 10.12, respectively, to this Current Report on Form 8-K and incorporated by reference herein.

Other Material Relationships Among the Parties

On May 19, 2023, FuelCell Energy Opco Finance 1, LLC, an affiliate of Borrower, FCEF and the Company, entered into a Financing Agreement (as amended from time to time, the “Financing Agreement”) with, by and among Investec Bank plc (in its capacities as a lender, administrative agent, and collateral agent), Investec, Inc. (as coordinating lead arranger and sole bookrunner), Bank of Montreal (Chicago Branch) (in its capacity as a lender and as mandated lead arranger), and each of Liberty Bank, Amalgamated Bank and Connecticut Green Bank (as lenders) for a term loan facility in an amount not to exceed $80.5 million and a letter of credit facility in an amount not to exceed $6.5 million. This Financing Agreement was amended to make certain clarifications relating to the timing and calculations regarding the debt service coverage ratio and such amendment was effective as of August 14, 2023. The Financing Agreement is, and the related relationships among these parties are, described in greater detail in the Current Report on Form 8-K filed by the Company on May 25, 2023.  The amendment to the Financing Agreement is described in greater detail in the Current Report on Form 8-K filed by the Company on August 17, 2023.

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Item 1.02.Termination of a Material Definitive Agreement.

Termination of Certain Agreements with Connecticut Green Bank

To the extent required by Item 1.02 of Form 8-K, the information in Item 1.01 of this Current Report on Form 8-K is hereby incorporated by reference into this Item 1.02.

The Company had a long-term loan agreement with Connecticut Green Bank, which provided the Company with a loan of $1.8 million (as amended from time to time, the “Green Bank Loan Agreement”). On and effective as of December 19, 2019, the Company and Connecticut Green Bank entered into an amendment to the Green Bank Loan Agreement (the “Green Bank Amendment”). Upon the execution of the Green Bank Amendment on December 19, 2019, Connecticut Green Bank made an additional loan to the Company in the aggregate principal amount of $3.0 million, which was to be used (i) first, to pay closing fees related to the May 9, 2019 acquisition of the Bridgeport Fuel Cell Project and the related subordinated credit agreement (which has since been terminated), other fees and interest, and (ii) thereafter, for general corporate purposes. In May 2023, $1.8 million of the then-outstanding balance under the Green Bank Loan Agreement was paid by the Company.

In connection with the Closing of the Senior Back Leverage Loan Facility and the Subordinated Back Leverage Loan Facility described in Item 1.01 above and using a portion of the proceeds from such facilities, on the Closing Date, the Company paid approximately $3.0 million to Connecticut Green Bank as payment, in full, of all outstanding obligations under the Green Bank Loan Agreement. No early termination penalties were incurred in connection with this payment. Upon payment of such amount by the Company to Connecticut Green Bank on the Closing Date, (i) all of the Company’s obligations under the Green Bank Loan Agreement, the related note, and any other related loan agreements were satisfied, terminated and released (except for any such provisions that expressly survive such termination), (ii) all collateral and liens under the related security agreements were released, and (iii) the Green Bank Loan Agreement, the related note, the related security agreements, and any other related loan agreements were terminated.

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

Item 7.01.Regulation FD Disclosure.

On August 24, 2023, the Company issued a press release announcing the Senior Back Leverage Credit Agreement and the Subordinated Back Leverage Credit Agreement. 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.

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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.

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Exhibit 10.1

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Execution Version

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CREDIT AGREEMENT

Dated as of August 18, 2023

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among

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FUELCELL ENERGY FINANCE HOLDCO, LLC

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as Borrower,

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LIBERTY BANK,

as Administrative Agent and Lead Arranger

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and

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THE LENDERS PARTY HERETO

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TABLE OF CONTENTS

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i

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ii

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iii

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SCHEDULES

2.01Commitments and Applicable Percentages

2.03Amortization Schedules

4.01(b)Responsible Officers*

5.13Subsidiaries*

10.02Administrative Agent’s Office; Certain Addresses for Notices*

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EXHIBITS

Form of

ANote

BCompliance Certificate*

CAssignment and Assumption*

DAdministrative Questionnaire*

ECollateral Documents*

FEnvironmental Indemnity*

GLimited Guaranty*

HCGB Subordination Agreement*

IPerfection Certificate*

JRestricted Payment Certificate*

KWithdrawal Certificate*

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* Omitted pursuant to Item 601(a)(5) of Regulation S-K.

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iv

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CREDIT AGREEMENT

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This CREDIT AGREEMENT is entered into as of August 18, 2023, among FUELCELL ENERGY FINANCE HOLDCO, LLC, a Delaware limited liability company (the “Borrower”), each lender from time to time party hereto (collectively, the “Lenders” and individually, a “Lender”), and LIBERTY BANK, a mutual savings bank, as Administrative Agent and Lead Arranger.

PRELIMINARY STATEMENT

Borrower has requested that (a) Lenders provide a term loan in an aggregate principal amount of $12,000,000.00, and (b) Lenders are willing to do so on the terms and conditions set forth herein.

In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:

ARTICLE I.DEFINITIONS AND ACCOUNTING TERMS

1.01Defined Terms.  As used in this Agreement, the following terms shall have the meanings set forth below:

“Acceptable Carbon Offset Provider” means Climate Vault or any other seller of carbon offsets acceptable to Amalgamated Bank in its sole discretion.

“Act” has the meaning specified in Section 10.18.

“Administrative Agent” means Liberty Bank in its capacity as administrative agent and collateral agent under any of the Loan Documents, or any successor administrative agent and collateral agent.

“Administrative Agent’s Office” means the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 10.02, or such other address or account as the Administrative Agent may from time to time notify in writing to the Borrower and Lenders.

“Administrative Questionnaire” means an administrative questionnaire in a form approved by the Administrative Agent in the form of Exhibit D.

“Affiliate” means, with respect to any Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.

“Aggregate Commitments” means the aggregate Commitments of all Lenders.  The initial amount of the Aggregate Commitments in effect on the Closing Date is Twelve Million Dollars ($12,000,000.00).

“Agreement” means this Credit Agreement, as amended, restated, amended and restated, supplemented or otherwise modified from time to time.

“Amalgamated Bank” means Amalgamated Bank, a New York banking corporation.

“Amalgamated DSCR Reserve Account” means an account to be opened by Borrower at Amalgamated Bank for purposes of Section 6.20(b), and more specifically identified in the Reserve Accounts Supplement, and which will be subject to a deposit account control agreement in favor of Administrative Agent.

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“Amalgamated DSCR Reserve Funds” means all cash and other sums now or hereafter deposited or contained in the Amalgamated DSCR Reserve Account, together with interest thereon, and together with all renewals, replacements, substitutions thereof, and together with all proceeds of all of the foregoing.

“Amalgamated O&M Reserve Account” means an account to be opened by Project Company at Amalgamated Bank for purposes of Section 6.21(b), and more specifically identified in the Reserve Accounts Supplement, and which will be subject to a deposit account control agreement in favor of Administrative Agent.

“Amalgamated O&M Reserve Funds” means all cash and other sums now or hereafter deposited or contained in the Amalgamated O&M Reserve Account, together with interest thereon, and together with all renewals, replacements, substitutions thereof, and together with all proceeds of all of the foregoing.

“Annual Carbon Emissions” has the meaning specified in Section 6.02(d).

“Annual Carbon Offset Cap” means, with respect to any fiscal year of the Borrower, the value calculated according to the following equation:

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“Annual Carbon Offset Requirement” means, with respect to any fiscal year of the Borrower, the value calculated according to the following equation:

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“Applicable Percentage” means with respect to any Lender at any time, the percentage (carried out to the ninth decimal place) of the Aggregate Commitments represented by such Lender’s Commitment at such time, subject to adjustment as provided in Section 2.11.  The initial Applicable Percentage of each Lender is set forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable.

“Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

“Assignee Group” means two or more Eligible Assignees that are Affiliates of one another or two or more Approved Funds managed by the same investment advisor.

“Assignment and Assumption” means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 10.06(b)), and accepted by the Administrative Agent, in substantially the form of Exhibit C or any other form (including electronic documentation generated by an electronic platform) approved by the Administrative Agent.

“Attributable Indebtedness” means, on any date, (a) in respect of any Capitalized Lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP, and (b) in respect of any Synthetic Lease Obligation, the capitalized amount of the remaining lease payments under the relevant lease that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease were accounted for as a Capitalized Lease.

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“Borrower” has the meaning specified in the introductory paragraph hereto.

“Borrower Materials” has the meaning specified in Section 6.02.

“Borrower’s Operating Account” means Borrower’s operating account at Liberty Bank, and more specifically identified in the Reserve Accounts Supplement.

“Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state where the Administrative Agent’s Office is located.

“Capital Expenditures” means, with respect to any Person for any period, any expenditure in respect of the purchase or other acquisition of any fixed or capital asset (excluding normal replacements and maintenance which are properly charged to current operations).

“Capitalized Lease” means all leases that have been or should be, in accordance with GAAP, recorded as capitalized leases.

“Carbon Offset Event” has the meaning specified in Section 6.23.

“Carbon Offset Price” means the price, per metric ton of carbon dioxide, of the carbon offsets available for purchase from an Acceptable Carbon Offset Provider.

“CGB Credit Agreement” means that certain that certain Credit Agreement dated as of even date herewith, among Borrower, Connecticut Green Bank, as administrative and collateral agent, and the lenders party thereto from time to time, as amended, restated, amended and restated, supplemented or otherwise modified from time to time in accordance with the terms of the CGB Subordination Agreement.

“CGB Debt Obligations” means (a) all advances to, and debts, Indebtedness, liabilities, obligations, covenants and duties of, any Loan Party arising under any CGB Subordinated Loan Document or otherwise with respect to the CGB Subordinated Debt, and (b) all costs and expenses incurred in connection with enforcement and collection of the foregoing, including the fees, charges and disbursements of counsel, in each case whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest, expenses and fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof pursuant to any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest, expenses and fees are allowed claims in such proceeding; provided that CGB Debt Obligations of a Loan Party shall exclude any Excluded Swap Obligations with respect to such Loan Party.

“CGB DSCR Reserve Account” means an account to be opened by Borrower at Liberty Bank or such other financial institution as CGB may direct for purposes of Section 6.20(c) of the CGB Credit Agreement, and more specifically identified in the Reserve Accounts Supplement, and which will be subject to a deposit account control agreement in favor of CGB in its capacity of “Administrative Agent” under the CGB Subordinated Loan Documents.

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“CGB DSCR Reserve Funds” means all cash and other sums now or hereafter deposited or contained in the CGB DSCR Reserve Account, together with interest thereon, and together with all renewals, replacements, substitutions thereof, and together with all proceeds of all of the foregoing.

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“CGB Subordinated Loan Documents” means individually or collectively, as the context requires, the CGB Credit Agreement, the promissory note made in favor of CGB, and all other documents,

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agreements, instruments and certificates contemplated by or executed in connection with the CGB Subordinated Debt, in each case, as amended, restated, amended and restated, supplemented or otherwise modified from time to time in accordance with the terms of the CGB Subordination Agreement.

“CGB Subordinated Debt” means the Indebtedness evidenced by the CGB Credit Agreement and the other CGB Subordinated Loan Documents.

“CGB Subordination Agreement” means that certain Subordination Agreement dated as of the Closing Date, among Connecticut Green Bank, as administrative agent and collateral agent, the subordinated lenders party thereto, Administrative Agent, and Lenders, as amended, restated, amended and restated, supplemented or otherwise modified from time to time.

“Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any Law, rule, regulation or treaty, (b) any change in any Law, rule, regulation or treaty or in the administration, interpretation or application thereof by any Governmental Authority or (c) the making or issuance of any request, guideline or directive (whether or not having the force of law) by any Governmental Authority.

“Change of Control” means any reorganization, recapitalization, consolidation or merger (or similar transaction or series of related transactions) involving Borrower, or any sale or exchange of outstanding Equity Interests of Borrower in which, for the consummation of any of the foregoing, FCEF ceases to hold directly and/or FCE ceases to hold indirectly, all of the outstanding Equity Interests of Borrower.

“CIP Regulations” has the meaning specified in Section 9.11.

“Closing Date” means the date on which all conditions precedent in Section 4.01 of this Agreement have been met and the Lenders fund the Loan.

“CMEEC” means Connecticut Municipal Electric Energy Cooperative, a Connecticut cooperative public corporation.

“CMEEC-Navy Lease” means that certain Lease dated May 23, 2013, between the United States of America, acting by and through the Department of the Navy, and CMEEC, having U.S. Navy Identification Number N40085-12-RP-00109, as the same has been and hereafter may be amended, restated, amended and restated, supplemented or otherwise modified from time to time.

“Code” means the Internal Revenue Code of 1986, as amended.

“Collateral” means all of the “Collateral”, “Pledged Interests”, “Pledged Securities” and “Accounts” referred to in the Collateral Documents and all of the other property that is or is intended under the terms of this Agreement, the Collateral Documents or the other Loan Documents to be subject to Liens in favor of the Administrative Agent for the benefit of the Secured Parties; provided that there shall be excluded from the Collateral (a) any account, instrument, chattel paper or other obligation or property of any kind due from, owed by, or belonging to a Sanctioned Person and (b) any lease in which the lessee is a Sanctioned Person, such exclusion to apply in each case only for so long as such Person is a Sanctioned Person.

“Collateral Documents” means, collectively, the Security Agreement, the Pledge Agreement, the Deposit Account Security Agreement, the Deposit Account Control Agreement and each of the other agreements, pledges, instruments or documents that creates or purports to create a Lien in favor of the

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Administrative Agent for the benefit of the Secured Parties, and all UCC or other financing statements, instruments of perfection and other filings, recordings and registrations required to be filed or made in respect of any of the foregoing, in each case as the same may be amended, restated, amended and restated, supplemented or otherwise modified form time to time.

“Commitment” means, as to each Lender, its obligation to make the Loan on the Closing Date to Borrower, in an aggregate principal amount not to exceed the amount set forth opposite such Lender’s name on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement.

“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.

“Compliance Certificate” means a certificate substantially in the form of Exhibit B.

“Connecticut Green Bank” or “CGB” means Connecticut Green Bank, a quasi-public agency of the State of Connecticut.

“Contractual Obligation” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.

“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise.  “Controlling” and “Controlled” have meanings correlative thereto.

“CT PURA” means the Connecticut Public Utilities Regulatory Authority.

“DAI” means DAI Management Consultants of Carnegie, Pennsylvania.

“Debt Service Coverage Ratio” means, with respect to the specified period of reference, the ratio of (i) the gross cash flow of Borrower for the most recently completed Measurement Period less the sum of all expenses and required reserve deposits for such Measurement Period to (ii) the principal and interest payments made in connection with the Obligations for the most recently completed Measurement Period.

“Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.

“Default” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.

“Default Rate” means an interest rate equal to (i) the interest rate otherwise applicable hereunder plus (ii) five percent (5.0%) per annum.

“Defaulting Lender” means, subject to Section 2.11(b), any Lender that (a) has failed to (i) perform any of its funding obligations hereunder, unless such Lender notifies the Administrative Agent and Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent or any

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other Lender any other amount required to be paid by it hereunder within two (2) Business Days of the date when due, (b) has notified Borrower or the Administrative Agent in writing that it does not intend to comply with its funding obligations or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three (3) Business Days after request by the Administrative Agent or Borrower, to confirm in writing to the Administrative Agent or Borrower that it will comply with its funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and Borrower), or (d) unless the Administrative Agent determines in its sole discretion that a Lender should not be a Defaulting Lender by virtue of the facts and circumstances described in this clause (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, or (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender.  Any determination by the Administrative Agent that a Lender is a Defaulting Lender under clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender upon delivery of written notice of such determination to Borrower and each Lender.

“Deposit Account Control Agreement” means, collectively (i) that certain Deposit Account Control Agreement to be dated as of the Closing Date, among Borrower, Project Company, Administrative Agent and Amalgamated Bank, as amended, restated, amended and restated, supplemented or otherwise modified from time to time and (ii) that certain Deposit Account Control Agreement to be dated as of the Closing Date, among Borrower, Project Company, Administrative Agent and Liberty Bank, as amended, restated, amended and restated, supplemented or otherwise modified from time to time..

“Deposit Account Security Agreement” means that certain Deposit Account Security and Pledge Agreement to be dated as of the Closing Date, made by Borrower in favor of Administrative Agent, as amended, restated, amended and restated, supplemented or otherwise modified from time to time.

“Designated Jurisdiction” means any country or territory to the extent that such country or territory is the subject of any Sanction.

“Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (including any sale and leaseback transaction) of any property by any Person, including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith.

“Dollar” and “$” mean lawful money of the United States.

“DSCR Reserve” means, collectively, the DSCR Reserve Accounts and all DSCR Reserve Funds.

“DSCR Reserve Accounts” means, collectively, the Liberty DSCR Reserve Account and the Amalgamated DSCR Reserve Account.

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“DSCR Reserve Funds” means, collectively, the Liberty DSCR Reserve Funds and the Amalgamated DSCR Reserve Funds.

“Eligible Assignee” means any Person that meets the requirements to be an assignee under Section 10.06(b)(iii), and (v) (subject to such consents, if any, as may be required under Section 10.06(b)(iii)).

“Environmental Laws” means any and all Federal, state, local, and foreign statutes, Laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or governmental restrictions relating to pollution and the protection of the environment or the release of any materials into the environment, including those related to Hazardous Materials, hazardous substances or wastes, air emissions and discharges to waste or public systems.

“Environmental Liability” means any liability or obligation, contingent or otherwise (including any liability or obligation for damages, costs of environmental remediation, fines, penalties or indemnities), of Borrower directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

“Equity Interests” means, with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination.

“ERISA” means the Employee Retirement Income Security Act of 1974.

“ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with Borrower within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).

“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) the withdrawal of Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which such entity was a “substantial employer” as defined in Section 4001(a)(2) of ERISA or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by Borrower or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate, the treatment of a Pension Plan amendment as a termination under Section 4041 or 4041A of ERISA; (e) the institution by the PBGC of proceedings to terminate a Pension Plan; (f) any event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; (g) the determination that any Pension Plan is considered an at-risk plan or a plan in endangered or critical status within the meaning of Sections 430, 431 and 432 of the Code or Sections 303, 304 and 305 of ERISA; or (h) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon Borrower or any ERISA Affiliate.

“Erroneous Payment” has the meaning specified in Section 9.15 (a).

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“Erroneous Payment Notice” has the meaning specified in Section 9.15 (b).

“Event of Default” has the meaning specified in Section 8.01.

“EWB” means East West Bank.

“Excess Cash Flow” means all excess cash flow of the Borrower after the payment of required principal and interest on the Obligations, required deposits into the O&M Reserves, required deposits into the DSCR Reserves and the CGB DSCR Reserve, the payment of required principal and interest on the CGB Debt Obligations, the payment of approved operating expenses, and payments to Borrower’s affiliates for operating and maintenance services pursuant to the O&M Agreement.

“Excluded Swap Obligation” means, with respect to any Loan Party, any Swap Obligation if, and to the extent that, all or a portion of the Guaranty of such Loan Party of, or the grant by such Loan Party of a Lien to secure, such Swap Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation thereof) by virtue of such Loan Party’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act (determined after giving effect to any “keepwell”, support or other agreement for the benefit of such Loan Party and any and all Guarantees of such Loan Party’s Swap Obligations by other Loan Parties) at the time the Guaranty of such Loan Party, or grant by such Loan Party of a Lien, becomes effective with respect to such Swap Obligation.  If a Swap Obligation arises under a Master Agreement governing more than one Swap Contract, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to Swap Contracts for which such Guaranty or Lien is or becomes excluded in accordance with the first sentence of this definition.

“Excluded Taxes” means, with respect to the Administrative Agent, any Lender, or any other recipient of any payment to be made by or on account of any obligation of Borrower hereunder, (a) taxes imposed on or measured by its overall net income (however denominated), and franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction (or any political subdivision thereof) under the Laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable Lending Office is located, (b) any branch profits taxes imposed by the United States or any similar tax imposed by any other jurisdiction in which Borrower is located, (c) any backup withholding tax that is required by the Code to be withheld from amounts payable to a Lender that has failed to comply with clause (A) of Section 3.01(e)(ii), and (d) in the case of a Foreign Lender (other than an assignee pursuant to a request by Borrower under Section 10.13), any United States withholding tax that (i) is required to be imposed on amounts payable to such Foreign Lender pursuant to the Laws in force at the time such Foreign Lender becomes a party hereto (or designates a new Lending Office) or (ii) is attributable to such Foreign Lender’s failure or inability (other than as a result of a Change in Law) to comply with clause (B) of Section 3.01(e)(ii), except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a new Lending Office (or assignment), to receive additional amounts from Borrower with respect to such withholding tax pursuant to Section 3.01(a)(ii) or (c).

“Extraordinary Receipt” means any cash received by or paid to or for the account of any Person not in the ordinary course of business, including tax refunds, pension plan reversions, indemnity payments, liquidated damages and any purchase price adjustments; provided, however, that an Extraordinary Receipt shall not include cash receipts from indemnity payments to the extent that such proceeds, awards or payments are received by any Person in respect of any third party claim against such Person and applied to pay (or to reimburse such Person for its prior payment of) such claim and the costs and expenses of such Person with respect thereto.

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“Facility” means the fuel cell power plant located at the U.S. Navy Submarine Base, Wahoo Avenue, Groton, Connecticut, that consists of two (2) SureSource 4000™ fuel cell power plants and associated ancillary systems and equipment, which achieved commercial operation on December 16, 2022.

“Facility Documents” means, collectively, (i) the Power Purchase Agreement, (ii) the Sublease, (iii) the Interconnection Agreement, (iv) the O&M Agreement, and (v) REC Hedge agreements.

“FASB ASC” means the Accounting Standards Codification of the Financial Accounting Standards Board.

“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code.

“FCE” means FuelCell Energy, Inc., a Delaware corporation.

“FCEF” means FuelCell Energy Finance, LLC, a Connecticut limited liability company.

“FCM” has the meaning specified in Section 6.17.

“FERC” means the Federal Energy Regulatory Commission.

“Foreign Lender” means any Lender that is organized under the Laws of a jurisdiction other than that in which Borrower is resident for tax purposes.  For purposes of this definition, the United States, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.

“FRB” means the Board of Governors of the Federal Reserve System of the United States.

“Full Performance” means that the Facility is operating at a level required to produce and maintain an “Electricity Output” (as defined in the Power Purchase Agreement) sufficient to satisfy the “Output Guarantee” (as defined in the Power Purchase Agreement), as determined by Administrative Agent based upon reports provided by DAI.

“Full Performance Date” means the date on which the Facility has achieved and continuously maintained Full Performance for a period of six (6) consecutive months, as determined by Administrative Agent based upon reports provided by DAI.

“Fund” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities.

“GAAP” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or such other principles as may be approved by a significant segment of the accounting profession in the United States, that are applicable to the circumstances as of the date of determination, consistently applied.

“Governmental Authority” means the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing,

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regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).

“Guarantee” means, as to any Person, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien).  The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith.  The term “Guarantee” as a verb has a corresponding meaning.

“Guarantor” means, collectively, all Persons that are or may from time to time become a guarantor of all or any portion of the Obligations, including, without limitation, FCE.

“Guaranty” means each guaranty made by a Guarantor in favor of the Administrative Agent and/or the Lenders, including, without limitation, the Limited Guaranty, in each case as amended, restated, amended and restated, supplemented or otherwise modified from time to time.

“Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.

“Indebtedness” means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:

(a)all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;

(b)all direct or contingent obligations of such Person arising under letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar instruments;

(c)net obligations of such Person under any Swap Contract;

(d)all obligations of such Person to pay the deferred purchase price of property or services (other than trade accounts payable in the ordinary course of business and, in each case, not past due for more than 60 days after the date on which such trade account payable was created);

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(e)indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse;

(f)Capitalized Leases and Synthetic Lease Obligations;

(g)all obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment in respect of any Equity Interest in such Person or any other Person, valued, in the case of a redeemable preferred interest, at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends; and

(h)all Guarantees of such Person in respect of any of the foregoing.

For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer, unless such Indebtedness is expressly made non-recourse to such Person.  The amount of any net obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such date.  The amount of any Capitalized Lease or Synthetic Lease Obligation as of any date shall be deemed to be the amount of Attributable Indebtedness in respect thereof as of such date.

“Indemnified Taxes” means Taxes other than Excluded Taxes.

“Indemnitee” has the meaning specified in Section 10.04(b).

“Information” has the meaning specified in Section 10.07.

“Interconnection Agreement” means, collectively, all interconnection agreements entered into by or among Borrower and any other Person(s) relating to the Facility, as each may be amended, restated, amended and restated, supplemented or otherwise modified from time to time in accordance with the terms hereof.

“Interparty Agreement” means, that certain Interparty Agreement, dated as of the date hereof, by and among, EWB, Administrative Agent, Liberty Bank, Amalgamated Bank, CGB and Borrower, as amended, restated, amended and restated, supplemented or otherwise modified from time to time.

“Investment” means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition of capital stock or other securities of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, including any partnership or joint venture interest in such other Person and any arrangement pursuant to which the investor Guarantees Indebtedness of such other Person, or (c) the purchase or other acquisition (in one transaction or a series of transactions) of assets of another Person that constitute a business unit.  For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment.

“IP Rights” has the meaning specified in Section 5.19.

“IRS” means the United States Internal Revenue Service.

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“ISO-NE” means ISO New England Inc.

“Laws” means, collectively, all international, foreign, Federal, state and local laws, statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.

“Lead Arranger” means Liberty Bank, in its capacity as lead arranger.

“Lender” has the meaning specified in the introductory paragraph hereto.

“Lending Office” means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify Borrower and the Administrative Agent.

“Liberty Bank” means Liberty Bank, a mutual savings bank.

“Liberty DSCR Reserve Account” means an account to be opened by Borrower at Liberty Bank for purposes of Section 6.20(a), and more specifically identified in the Reserve Accounts Supplement.

“Liberty DSCR Reserve Funds” means all cash and other sums now or hereafter deposited or contained in the Liberty DSCR Reserve Account, together with interest thereon, and together with all renewals, replacements, substitutions thereof, and together with all proceeds of all of the foregoing.

“Liberty O&M Reserve Account” means an account to be opened by Project Company at Liberty Bank for purposes of Section 6.21(a), and more specifically identified in the Reserve Accounts Supplement.

“Liberty O&M Reserve Funds” means all cash and other sums now or hereafter deposited or contained in the Liberty O&M Reserve Account, together with interest thereon, and together with all renewals, replacements, substitutions thereof, and together with all proceeds of all of the foregoing.

“Limited Guaranty” means that certain Limited Guaranty Agreement to be dated as of the Closing Date, made by FCE in favor of Administrative Agent, for the ratable benefit of the Lenders, as amended, restated, amended and restated, supplemented or otherwise modified from time to time.

“Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any financing lease having substantially the same economic effect as any of the foregoing).

“Lien Waiver” means an agreement, in form and substance satisfactory to Administrative Agent, by which (a) for any Collateral located on leased premises, the lessor waives or subordinates any Lien it may have on the Collateral, and agrees to permit Administrative Agent to enter upon the premises and remove the Collateral or to use the premises to store or dispose of the Collateral; (b) for any Collateral held by a warehouseman, processor, shipper, customs broker or freight forwarder, such Person waives or subordinates any Lien it may have on the Collateral, agrees to hold any documents in its possession relating to the Collateral as agent for Administrative Agent, and agrees to deliver the Collateral to Administrative

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Agent upon request; (c) for any Collateral held by a repairman, mechanic or bailee, such Person acknowledges Administrative Agent’s Lien, waives or subordinates any Lien it may have on the Collateral, and agrees to deliver the Collateral to Administrative Agent upon request; (d) for any Collateral subject to a licensor’s intellectual property rights, the licensor grants to Administrative Agent the right, vis-à-vis such licensor, to enforce Administrative Agent’s Liens with respect to the Collateral, including the right to dispose of it with the benefit of the intellectual property, whether or not a default exists under any applicable license; and (e) for any contractor, subcontractor, materialman, laborer or other Person that performed work on or supplied goods to the Facility, a full and complete waiver of all Liens and other claims such Person has on or with respect to the Facility or the Leasehold Mortgage Premises.

“Loan” means the extension of credit by Lenders to Borrower under Article II.

“Loan Documents” means this Agreement, each Note, the Collateral Documents,  each Guaranty, the CGB Subordination Agreement, the Interparty Agreement, the Undertaking Letter, each deposit account control agreement and all other documents, agreements, certificates and instruments now or hereafter entered into in connection with the Loan or any modification, extension or renewal thereof, as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time.

“Loan Parties” means, collectively, Borrower and Guarantor.

“Maintenance Schedule” has the meaning set forth in Section 4.01(a)(x) hereof.

“Material Adverse Effect” means (a) a material adverse change in, or a material adverse effect upon, the operations, business, properties, liabilities (actual or contingent), prospects or condition (financial or otherwise) of Borrower; (b) a material impairment of the ability of any Loan Party to perform its obligations under any Loan Document to which it is a party; or (c) a material adverse effect upon the legality, validity, binding effect or enforceability against any Loan Party of any Loan Document to which it is a party.

“Maturity Date” means the seventh (7^th) anniversary of the Closing Date.

“Measurement Period” means, at any date of determination, the most recently completed four (4) fiscal quarters of Borrower.

“Minimum REC Price” has the meaning set forth in Section 6.25 hereof.

“Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which Borrower or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions.

“Multiple Employer Plan” means a Plan which has two or more contributing sponsors (including Borrower or any ERISA Affiliate) at least two of whom are not under common control, as such a plan is described in Section 4064 of ERISA.

“Navy” means the United States Navy.

“NEPOOL GIS” means the New England Power Pool, the power pool created by and operating pursuant to the provisions of the RNA, or any successor to the New England Power Pool.

“Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such time.

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“Note” means each promissory note made by Borrower in favor of a Lender evidencing the Loan made by such Lender, substantially in the form of Exhibit A.

“Obligations” means (a) all advances to, and debts, Indebtedness, liabilities, obligations, covenants and duties of, any Loan Party arising under any Loan Document or otherwise with respect to the Loan, (b) all Swap Obligations (including Rate Management Obligations), and (c) all costs and expenses incurred in connection with enforcement and collection of the foregoing, including the fees, charges and disbursements of counsel, in each case whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest, expenses and fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof pursuant to any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest, expenses and fees are allowed claims in such proceeding; provided that Obligations of a Loan Party shall exclude any Excluded Swap Obligations with respect to such Loan Party.

“OFAC” means the U.S. Department of Treasury’s Office of Foreign Asset Control.

“Organization Documents” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any U.S. or non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity; and (d) with respect to any quasi-public agency, the enabling statute (or other Laws enabling such quasi-public agency) and any bylaws or comparable constitutive or governing documents of such quasi-public agency.

“Other Taxes” means all present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies arising from any payment made hereunder or under any other Loan Document or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any other Loan Document.

“O&M Agreement” means, that certain First Amended and Restated Services Agreement for SureSource 4000 Power Plant, dated August 4, 2021, by and between Project Company and FCE, as the same may be as amended, restated, amended and restated, supplemented or otherwise modified from time to time.

“O&M Reserve” means, collectively, the O&M Reserve Accounts and all O&M Reserve Funds.

“O&M Reserve Accounts” means, collectively, the Liberty O&M Reserve Account and the Amalgamated O&M Reserve Account.

“O&M Reserve Funds” means, collectively, the Liberty O&M Reserve Funds or the Amalgamated O&M Reserve Funds.

“Participant” has the meaning specified in Section 10.06(d).

“Payment Date” means the last Business Day of each fiscal quarter of Borrower.

“Payment Recipient” has the meaning specified in Section 9.15 (a).

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“Payment Reserve Account” means an account to be opened by Borrower at Liberty Bank for purposes of Section 6.19, and more specifically identified in the Reserve Accounts Supplement.

“Payment Reserve Account Funds” means all cash and other sums now or hereafter deposited or contained in the Payment Reserve Account, together with interest thereon, and together with all renewals, replacements, substitutions thereof, and together with all proceeds of all of the foregoing.

“Payment Reserve Account Reserve” means, collectively, the Payment Reserve Account and all Payment Reserve Account Funds.

“PBGC” means the Pension Benefit Guaranty Corporation.

“Pension Act” means the Pension Protection Act of 2006.

“Pension Funding Rules” means the rules of the Code and ERISA regarding minimum required contributions (including any installment payment thereof) to Pension Plans and set forth in, with respect to plan years ending prior to the effective date of the Pension Act, Section 412 of the Code and Section 302 of ERISA, each as in effect prior to the Pension Act and, thereafter, Section 412, 430, 431, 432 and 436 of the Code and Sections 302, 303, 304 and 305 of ERISA.

“Pension Plan” means any employee pension benefit plan (including a Multiple Employer Plan or a Multiemployer Plan) that is maintained or is contributed to by Borrower and any ERISA Affiliate and is either covered by Title IV of ERISA or is subject to the minimum funding standards under Section 412 of the Code.

“Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority, quasi-public agency or other entity.

“Plan” means any employee benefit plan within the meaning of Section 3(3) of ERISA (including a Pension Plan), maintained for employees of Borrower or any ERISA Affiliate or any such Plan to which Borrower or any ERISA Affiliate is required to contribute on behalf of any of its employees.

“Platform” has the meaning specified in Section 6.02.

“Pledge Agreement” means that certain Pledge and Security Agreement to be dated as of the Closing Date, made by Borrower in favor of Administrative Agent, as amended, restated, amended and restated, supplemented or otherwise modified from time to time, pursuant to which Borrower pledges its Class B Membership interests in Tax Equity Holdco in favor of Administrative Agent as collateral security for the Loan.

“Power Purchase Agreement” means that certain Amended and Restated Power Purchase Agreement dated as of December 16, 2022, between Project Company and CMEEC, as amended, restated, amended and restated, supplemented or otherwise modified from time to time in accordance with the terms hereof.

“Project Company” means Groton Station Fuel Cell, LLC, a Connecticut limited liability company, which is a wholly-owned Subsidiary of Tax Equity Holdco.

“Public Lender” has the meaning specified in Section 6.02.

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“Recipient” means the Administrative Agent, any Lender or any other recipient of any payment to be made by or on account of any obligation of any Loan Party hereunder.

“REC Contribution” has the meaning specified in Section 6.25.

“REC Hedge” means any purchase, sale, swap, hedge, or similar arrangement relating to Renewable Energy Credits.

“Register” has the meaning specified in Section 10.06(c).

“Removal Effective Date” has the meaning specified in Section 9.07(b).

“Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees and advisors of such Person and of such Person’s Affiliates.

“Renewable Energy Credits” or “RECs” means energy credits for the environmental attributes associated with electric generation from a Class I or Class II renewable energy source under the renewable energy credits program established by Connecticut General Statutes Section 16-245a or any similar or successor program, in each case which are attributable to the Facility.

“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the 30 day notice period has been waived.

“Required Amalgamated DSCR Reserve Balance” means that term as defined in Section 6.20 (b).

“Required Lenders” means, (a) if, at any time, there are two (2) or fewer Lenders, all Lenders, or (b) if, at any time, there are more than two (2) Lenders, Lenders collectively having Total Credit Exposures representing at least 66-2/3% of the Total Credit Exposures of all Lenders.  The Total Credit Exposure of any Defaulting Lender shall be disregarded in determining Required Lenders at any time.

“Required Liberty DSCR Reserve Balance” means that term as defined in Section 6.20 (a).

“Reserve Accounts” means, collectively, the Payment Reserve Account, the DSCR Reserve Accounts, and the O&M Reserve Accounts.

“Reserve Accounts Supplement” means a writing executed by Borrower, Project Company, Liberty Bank and Amalgamated Bank, specifying the account numbers for the Borrower’s Operating Account, the Payment Reserve Account, the Liberty DSCR Reserve Account, the Amalgamated DSCR Reserve Account, the Liberty O&M Reserve Account and the Amalgamated O&M Reserve Account.

“Reserve Funds” means, collectively, the Payment Reserve Account Funds, the DSCR Reserve Funds, and the O&M Reserve Funds.

“Reserves” means, collectively, the Payment Reserve Account Reserve, the DSCR Reserve and, the O&M Reserve.

“Resignation Effective Date” has the meaning specified in Section 9.07(a).

“Responsible Officer” means the chief executive officer, president, chief financial officer or vice president of finance and administration of a Loan Party and solely for purposes of the delivery of incumbency certificates pursuant to Section 4.01, the secretary or any assistant secretary of a Loan Party. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be

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conclusively presumed to have been authorized by all necessary corporate, limited liability company, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.

“Restricted Payment” means any dividend or other distribution (whether in cash, securities or other property) with respect to any capital stock or other Equity Interest of Borrower, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such capital stock or other Equity Interest, or on account of any return of capital to Borrower’s stockholders, partners or members (or the equivalent Person thereof).

“RNA” means the Second Restated NEPOOL Agreement dated as of September 1, 1971, as amended and restated from time to time, governing the relationship among the NEPOOL participants, and any successor agreement.

“Sale and Leaseback Transaction” means, with respect to Borrower, any arrangement, directly or indirectly, with any Person whereby Borrower shall sell or transfer any property used or useful in its business, whether now owned or hereafter acquired, and thereafter rent or lease such property or other property that it intends to use for substantially the same purpose or purposes as the property being sold or transferred.

“Sanction(s)” means any international economic sanction administered or enforced by the United States Government (including, without limitation, OFAC), the United Nations Security Council, the European Union, Her Majesty’s Treasury or other relevant sanctions authority.

“Sanctioned Country” means a country subject to a sanctions program identified on the list maintained by OFAC and published from time to time.

“Sanctioned Person” means (a) a Person named on the list of Specially Designated Nationals or Blocked Persons maintained by OFAC and published from time to time, or (b) (i) an agency of the government of a Sanctioned Country, (ii) an organization controlled by a Sanctioned Country, or (iii) a Person resident in a Sanctioned Country, to the extent subject to a sanctions program administered by OFAC.

“SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.

“Secured Parties” means, collectively, the Administrative Agent, Lenders, Interest Rate Hedge Counterparty, each co-agent or sub-agent appointed by the Administrative Agent from time to time pursuant to this Agreement, and the other Persons the Obligations owing to which are or are purported to be secured by the Collateral under the terms of the Collateral Documents.

“Security Agreement” means that certain Security Agreement to be dated as of the Closing Date, made by Borrower in favor of Administrative Agent, as amended, restated, amended and restated, supplemented or otherwise modified from time to time.

“Senior Debt Service Coverage Ratio” means, with respect to the specified period of reference, the ratio of (i) the gross cash flow of Borrower for the most recently completed Measurement Period less the sum of all expenses and required reserve deposits for such Measurement Period to (ii) the principal and interest payments made in connection with the Obligations for the most recently completed Measurement Period.

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“Sublease” means that certain Sublease Agreement dated as of January 5, 2018, between Project Company, as Tenant, and CMEEC, as Landlord, as amended, restated, amended and restated, supplemented or otherwise modified from time to time in accordance with the terms hereof, which is a sublease of the Navy CMEEC Lease.

“Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person.

“Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, (b) any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act, (c) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement, and (d) the Interest Rate Hedge Agreements.

“Synthetic Lease” means (a) a so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or possession of property (including Sale and Leaseback Transactions).

“Synthetic Lease Obligation” means the monetary obligation of a Person under Synthetic Lease creating obligations that do not appear on the balance sheet of such Person but which, upon the insolvency or bankruptcy of such Person, would be characterized as the indebtedness of such Person (without regard to accounting treatment).

“Target Reserve Amount” means the sum of the Required Liberty DSCR Reserve Balance and the Required Amalgamated DSCR Reserve Balance.

“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

“Tax Equity Holdco” means Groton Station Fuel Cell Holdco, LLC, a Delaware limited liability company.

“Tax Equity Holdco LLC Agreement” means that certain Second Amended and Restated Limited Liability Company Agreement of Tax Equity Holdco, dated as of July 7, 2022, as amended by that certain First Amendment letter agreement dated as of December 16, 2022, as the same may be amended, restated, amended and restated, replaced, supplemented or otherwise modified from time to time.

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“Threshold Amount” means $250,000.

“Total Credit Exposure” means, as to any Lender at any time, the aggregate principal amount of the portion of the Loan made by such Lender at such time.

“Total Debt Service Coverage Ratio” means, with respect to the specified period of reference, the ratio of (i) the gross cash flow of Borrower for the most recently completed Measurement Period less the sum of all expenses and required reserve deposits for such Measurement Period to (ii) the principal and interest payments made in connection with the Obligations and CGB Debt Obligations for the most recently completed Measurement Period.

“UCC” means the Uniform Commercial Code as in effect in the State of Connecticut; provided that, if perfection or the effect of perfection or non-perfection or the priority of any security interest in any Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of Connecticut, “UCC” means the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of the provisions hereof relating to such perfection, effect of perfection or non-perfection or priority.

“United States” and “U.S.” mean the United States of America.

“Utilities” means, collectively, CMEEC and any other utility which is a counterparty to a Facility Document.

“Year 1 REC Hedge Requirement” has the meaning specified in Section 6.25(b).

“Year 2 REC Hedge Requirement” has the meaning specified in Section 6.25(b).

“Year 3 REC Hedge Requirement” has the meaning specified in Section 6.25(b).

1.02Other Interpretive Provisions.  With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:

(a)The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined.  Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms.  The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.”  The word “will” shall be construed to have the same meaning and effect as the word “shall.”  Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument or other document (including any Organization Document) shall be construed as referring to such agreement, instrument or other document as from time to time amended, restated, amended and restated, supplemented or otherwise modified (subject to any restrictions on such amendments, restatements, amendments and restatements, supplements or modifications set forth herein or in any other Loan Document), (ii) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (iii) the words “hereto,” “herein,” “hereof” and “hereunder,” and words of similar import when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and not to any particular provision thereof, (iv) all references in a Loan Document to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, the Loan Document in which such references appear, (v) any reference to any law shall include all statutory and regulatory provisions consolidating, amending, replacing or interpreting such law and any reference to any law or regulation shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time, and (vi) the words “asset” and “property” shall

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be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.

(b)In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including;” the words “to” and “until” each mean “to but excluding;” and the word “through” means “to and including.”

(c)Section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Loan Document.

1.03Accounting Terms.(a) (a)  Generally.  All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time, except as otherwise specifically prescribed herein. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and either the Borrower or the Lenders shall so request, the Administrative Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of Lenders); provided, that, until so amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) Borrower shall provide to the Administrative Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP.

(b)Changes in GAAP.  If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and either Borrower or the Required Lenders shall so request, the Administrative Agent, Lenders and Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders); provided that, until so amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) Borrower shall provide to the Administrative Agent and Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP.

(c)Consolidation of Variable Interest Entities.  All references herein to consolidated financial statements of Borrower or to the determination of any amount for Borrower on a consolidated basis or any similar reference shall, in each case, be deemed to include each variable interest entity that Borrower is required to consolidate pursuant to FASB ASC 810 as if such variable interest entity were a Subsidiary as defined herein.

1.04Rounding.  Any financial ratios required to be maintained by Borrower pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).

1.05Times of Day.  Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable).

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ARTICLE II.THE COMMITMENTS AND THE LOAN

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2.01The Loan.  Subject to the terms and conditions set forth herein, each Lender severally and not jointly agrees to make the Loan to Borrower, in the amount of such Lender’s Commitment, in Dollars, on the Closing Date.

2.02Prepayments.

(a)Borrower may, upon notice to the Administrative Agent, at any time or from time to time voluntarily prepay the Loan in whole or in part; provided that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m. three (3) Business Days prior to any date of prepayment; (ii) any prepayment shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof, or, in each case, if less, the entire principal amount thereof then outstanding; and (iii) (1) each prepayment on or prior to the second anniversary of the Closing Date shall be accompanied by a prepayment fee of three percent (3%) of the principal amount prepaid, (2) each prepayment after the second anniversary of the Closing Date but on or prior to the fourth anniversary of the Closing Date shall be accompanied by a prepayment fee of two percent (2%) of the principal amount prepaid, and (3) each prepayment after the fourth anniversary of the Closing Date but on or prior to the seventh anniversary of the Closing Date shall be accompanied by a prepayment fee of one percent (1%) of the principal amount prepaid.  The Administrative Agent will promptly notify each Lender of its receipt of each such notice, and of the amount of such Lender’s Applicable Percentage of such prepayment.  If such notice is given by Borrower, Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.  Any prepayment shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 3.06.  Subject to Section 2.11, each such prepayment shall be distributed to Lenders in accordance with their respective Applicable Percentages.  Prepayment of the Loan under this Section 2.02(a) shall be applied to the remaining installments of principal due on the Loan in the inverse order of maturity.

(b)In addition to prepayments permitted by Section 2.02(a), after the Closing Date, the following payments shall be made by Borrower to the Administrative Agent and shall be distributed to Lenders in accordance with their respective Applicable Percentages:

(i)Any and all net cash proceeds of any additional Indebtedness incurred by Borrower;

(ii)In the event of any Disposition by Borrower outside the ordinary course of business or otherwise permitted under Section 7.05, an amount equal to the net proceeds of such Disposition;

(iii)In the event of any material recovery event with respect to any asset of Borrower, an amount equal to the net proceeds of such recovery event, except in the case of a material recovery event where, in accordance with the provisions of the Loan Documents, the proceeds are used by Borrower to repair or replace such asset of Borrower; and

(iv)Any and all Extraordinary Receipts.

2.03Repayment of Principal on the Loan.  Borrower shall repay the Loan to Lenders in quarterly installments of principal in an amount which is sufficient to fully amortize the Loan over ten (10) years.  Quarterly installments of principal shall be due on each Payment Date and shall be in the amounts set forth in Schedule 2.03.

2.04Interest.

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(a)Subject to the provisions of subsection (b) below, the Loan shall bear interest at a rate per annum equal to (i) 6.75% with respect to the portion of the Loan funded by Liberty Bank, and (ii) with respect to the portion of the Loan funded by Amalgamated Bank, 6.07% at all times at which a Climate Offset Event is not continuing, and 7.32% at all times at which a Carbon Offset Event has occurred and is continuing.

(b)(i)If any amount of principal of the Loan is not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, such amount shall thereafter bear interest at an interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.

(ii)If any amount (other than principal of the Loan) payable by Borrower under any Loan Document is not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, then upon the request of the Required Lenders (or automatically without any such request if an Event of Default under Section 8.01(f) has occurred and is continuing), such amount shall thereafter bear interest at an interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.

(iii)Upon the request of the Required Lenders (or automatically without any such request if an Event of Default under Section 8.01(f) has occurred and is continuing), while any Event of Default exists (other than as set forth in clause (b)(i) and (ii) above), Borrower shall pay interest on the principal amount of all outstanding Obligations hereunder at an interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.

(iv)Accrued and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon demand.

(c)Interest on the Loan shall be due and payable in arrears on each Payment Date applicable thereto in the amounts set forth in Schedule 2.03 and at such other times as may be specified herein.  Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Law.

2.05Repayment of the Loan at Maturity.  On the Maturity Date, Borrower shall repay all of the Obligations in full in cash.

2.06Fees and Charges.  In addition to the other fees described in this Agreement:

(a)Borrower shall pay a commitment fee of $90,000 to Lenders on the Closing Date (the “Commitment Fee”).  The Commitment Fee will be shared pro rata among the Lenders.

(b)Borrower shall pay to Administrative Agent for the ratable benefit of Lenders, a late charge equal to five percent (5.0%) of the amount of any quarterly installment of principal or interest which is not received by Administrative Agent within ten (10) days from and after the date such installment of principal or interest is due.

2.07Computation of Interest and Fees.  All calculations of interest shall be made on the basis of a year of 360 days, and actual days elapsed.  Interest shall accrue on the Loan for the day on which the Loan is made, and shall not accrue on the Loan, or any portion thereof, for the day on which the Loan or such portion is paid.  Each determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error.

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2.08Evidence of Debt.  The Loan shall be evidenced by one or more accounts or records maintained by each Lender and by the Administrative Agent in the ordinary course of business.  The accounts or records maintained by the Administrative Agent and each Lender shall be conclusive absent manifest error of the amount of the Loan made by Lenders to Borrower and the interest and payments thereon.  Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of Borrower hereunder to pay any amount owing with respect to the Obligations.  In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of the Administrative Agent in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error.  Upon the request of any Lender made through the Administrative Agent, Borrower shall execute and deliver to such Lender (through the Administrative Agent) a Note, which shall evidence such Lender’s Loan in addition to such accounts or records.  Each Lender may attach schedules to its Note and endorse thereon the date, amount and maturity of its Loan and payments with respect thereto.

2.09Payments Generally; Administrative Agent’s Clawback.

(a)General.  All payments to be made by Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff.  Except as otherwise expressly provided herein, all payments by Borrower hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the Administrative Agent’s Office in Dollars and in immediately available funds not later than 2:00 p.m. on the date specified herein.  The Administrative Agent will promptly distribute to each Lender its Applicable Percentage (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office.  All payments received by the Administrative Agent after 2:00 p.m. shall be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.  If any payment to be made by Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be.

(b)Payments by Borrower; Presumptions by Administrative Agent.  Unless the Administrative Agent shall have received notice from Borrower prior to the date on which any payment is due to the Administrative Agent for the account of Lenders that Borrower will not make such payment, the Administrative Agent may assume that Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to Lenders the amount due.  In such event, if Borrower has not in fact made such payment, then each of the Lenders severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender, in immediately available funds with interest thereon, for each day from and including the date on which the Administrative Agent notifies such Lender of such amount to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.  A notice of the Administrative Agent to any Lender or Borrower with respect to any amount owing under this subsection (b) shall be conclusive, absent manifest error.

(c)Obligations of Lenders Several.  The obligations of Lenders hereunder to make the Loan and to make payments pursuant to Section 10.04(c) are several and not joint.  The failure of any Lender to make the Loan, to fund any such participation or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make the Loan, to purchase its participation or to make its payment under Section 10.04(c).

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(d)Funding Source.  Nothing herein shall be deemed to obligate any Lender to obtain the funds for the Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for the Loan in any particular place or manner.

2.10Sharing of Payments by Lenders.  If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on the Loan made by it greater than its pro rata share thereof as provided herein, then Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Loan of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective portions of the Loan and other amounts owing them, provided that:

(i)if any such participations or subparticipations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations or subparticipations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and

(ii)the provisions of this Section shall not be construed to apply to (x) any payment made by or on behalf of Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender), or (y) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in it portion of the Loan to any assignee or participant, other than an assignment to Borrower or any Affiliate thereof (as to which the provisions of this Section shall apply).

Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable Law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of Borrower in the amount of such participation.

2.11Defaulting Lenders.  (a)  Adjustments.  Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as that Lender is no longer a Defaulting Lender, to the extent permitted by applicable Law:

(i)Waivers and Amendments.  That Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in Section 10.01.

(ii)Defaulting Lender Waterfall.  Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article 8 or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.08, shall be applied at such time or times as may be determined by the Administrative Agent as follows:

(A)first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder;

(B)second, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent;

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(C)third, if so determined by the Administrative Agent and (so long as no Default or Event of Default exists) Borrower, to be held in a deposit account and released pro rata in order to satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement;

(C)fourth, to the payment of any amounts owing to Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement;

(D)fifth, so long as no Default or Event of Default exists, to the payment of any amounts owing to Borrower as a result of any judgment of a court of competent jurisdiction obtained by Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and

(E)sixth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided, that, if (x) such payment is a payment of the principal amount of any Loans in respect to which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made at a time when the conditions set forth in Section 4.01 were satisfied or waived, such payment shall be applied solely to pay the Loans of all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans owed to such Defaulting Lender until such time as all Loans are held by the Lenders pro rata in accordance with the Commitments.

Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender pursuant to this Section 2.11(a) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.

(b)Defaulting Lender Cure. If Borrower and the Administrative Agent agree in writing in their sole discretion that a Defaulting Lender should no longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein, that Lender will, to the extent applicable, purchase that portion of the Loan of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Loan to be held on a pro rata basis by Lenders in accordance with their Applicable Percentages, whereupon that Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of Borrower while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.

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ARTICLE III.TAXES, YIELD PROTECTION AND ILLEGALITY

3.01Taxes.

(a)Payments Free of Taxes; Obligation to Withhold; Payments on Account of Taxes.  (i) Any and all payments by or on account of any obligation of any Loan Party hereunder or under any other Loan Document shall to the extent permitted by applicable Laws be made free and clear of and without reduction or withholding for any Taxes.  If, however, any applicable Laws (as determined in the good faith discretion of the Administrative Agent) require the deduction or withholding of any Tax from any such payment by the Administrative Agent or a Loan Party, then the Administrative Agent or such Loan Party, as the case may be, shall be entitled to make such withholding or deduction, upon the basis of information and documentation to be delivered pursuant to subsection (e) below.

(ii)If any Loan Party or the Administrative Agent shall be required by the Code to withhold or deduct any Taxes, including both United States Federal backup withholding and withholding taxes, from any payment, then (A) the Administrative Agent shall withhold or make such deductions as are determined by the Administrative Agent to be required based upon the information and documentation it has received pursuant to subsection (e) below, (B) the Administrative Agent shall timely pay the full amount withheld or deducted to the relevant Governmental Authority in accordance with the Code, and (C) to the extent that the withholding or deduction is made on account of Indemnified Taxes or Other Taxes, the sum payable by the applicable Loan Party shall be increased as necessary so that after any required withholding or the making of all required deductions (including deductions applicable to additional sums payable under this Section 3.01) the Administrative Agent or Lender, as the case may be, receives an amount equal to the sum it would have received had no such withholding or deduction been made.

(b)Payment of Other Taxes by Borrower.  Without limiting the provisions of subsection (a) above, each of the Loan Parties shall timely pay to the relevant Governmental Authority in accordance with applicable Law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes.

(c)Tax Indemnifications.  (i) Without limiting the provisions of subsection (a) or (b) above, the Borrower shall indemnify the Recipient, and shall make payment in respect thereof within ten (10) days after demand therefor, for the full amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section 3.01) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient, and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.  The Borrower shall also indemnify the Administrative Agent, and shall make payment in respect thereof within ten (10) days after demand therefor, for any amount which a Lender for any reason fails to pay indefeasibly to the Administrative Agent as required by Section 3.01(c)(ii) below.  A certificate as to the amount of any such payment or liability delivered to Borrower by a Lender or other Recipient (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender or other Recipient, shall be conclusive absent manifest error.

(ii)Without limiting the provisions of subsection (a) or (b) above, each Lender shall, and does hereby, severally indemnify and shall make payment in respect thereof within ten (10) days after demand therefor, (A) the Administrative Agent against any Indemnified Taxes attributable to such Lender (but only to the extent that the Borrower has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the

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Borrower to do so), and (B) the Borrower and the Administrative Agent, as applicable, against any Excluded Taxes attributable to such Lender, that are payable or paid by the Administrative Agent or the Borrower in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.  Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender, as the case may be, under this Agreement or any other Loan Document against any amount due to the Administrative Agent under this clause (ii).

(d)Evidence of Payments.  Upon request by Borrower or the Administrative Agent, as the case may be, after any payment of Taxes by Borrower or by the Administrative Agent to a Governmental Authority as provided in this Section 3.01, Borrower shall deliver to the Administrative Agent or the Administrative Agent shall deliver to Borrower, as the case may be, the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of any return required by Laws to report such payment or other evidence of such payment reasonably satisfactory to Borrower or the Administrative Agent, as the case may be.

(e)Status of Lenders; Tax Documentation.  (i)  Each Lender shall deliver to Borrower and to the Administrative Agent, at the time or times prescribed by applicable Laws or when reasonably requested by Borrower or the Administrative Agent, such properly completed and executed documentation prescribed by applicable Laws or by the taxing authorities of any jurisdiction and such other reasonably requested information as will permit Borrower or the Administrative Agent, as the case may be, to determine (A) whether or not payments made hereunder or under any other Loan Document are subject to Taxes, (B) if applicable, the required rate of withholding or deduction, and (C) such Lender’s entitlement to any available exemption from, or reduction of, applicable Taxes in respect of all payments to be made to such Lender by Borrower pursuant to this Agreement or otherwise to establish such Lender’s status for withholding tax purposes in the applicable jurisdiction.

(ii)Without limiting the generality of the foregoing, if Borrower is resident for tax purposes in the United States,

(A)any Lender that is a “United States person” within the meaning of Section 7701(a)(30) of the Code shall deliver to Borrower and the Administrative Agent executed originals of Internal Revenue Service Form W-9 or such other documentation or information prescribed by applicable Laws or reasonably requested by Borrower or the Administrative Agent as will enable Borrower or the Administrative Agent, as the case may be, to determine whether or not such Lender is subject to backup withholding or information reporting requirements; and

(B)each Foreign Lender that is entitled under the Code or any applicable treaty to an exemption from or reduction of withholding tax with respect to payments hereunder or under any other Loan Document shall deliver to Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the request of Borrower or the Administrative Agent, but only if such Foreign Lender is legally entitled to do so), whichever of the following is applicable:

(I)executed originals of Internal Revenue Service Form W-8BEN claiming eligibility for benefits of an income tax treaty to which the United States is a party,

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(II)executed originals of Internal Revenue Service Form W-8ECI,

(III)executed originals of Internal Revenue Service Form W-8ICI,

(IV)in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under section 881(c) of the Code, (x) a certificate to the effect that such Foreign Lender is not (A) a “bank” within the meaning of section 881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of Borrower within the meaning of section 881(c)(3)(B) of the Code, or (C) a “controlled foreign corporation” described in section 881(c)(3)(C) of the Code and (y) executed originals of Internal Revenue Service Form W-8BEN,

(V)executed originals of any other form prescribed by applicable Laws as a basis for claiming exemption from or a reduction in United States Federal withholding tax together with such supplementary documentation as may be prescribed by applicable Laws to permit Borrower or the Administrative Agent to determine the withholding or deduction required to be made, or

(VI) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by Law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment.  Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

(iii)Each Lender shall promptly (A) notify Borrower and the Administrative Agent of any change in circumstances which would modify or render invalid any claimed exemption or reduction, and (B) take such steps as shall not be materially disadvantageous to it, in the reasonable judgment of such Lender, and as may be reasonably necessary (including the re-designation of its Lending Office) to avoid any requirement of applicable Laws of any jurisdiction that Borrower or the Administrative Agent make any withholding or deduction for taxes from amounts payable to such Lender.

(f)Treatment of Certain Refunds.  Unless required by applicable Laws, at no time shall the Administrative Agent have any obligation to file for or otherwise pursue on behalf of a Lender, or have any obligation to pay to any Lender, any refund of Taxes withheld or deducted from funds paid for the account of such Lender.  If the Recipient determines, in its sole discretion, that it has received a refund of any Taxes or Other Taxes as to which it has been indemnified by Borrower or with respect to which Borrower has paid additional amounts pursuant to this Section 3.01, it shall pay to Borrower an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by Borrower under this Section with respect to the Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses incurred by the Recipient, as the case may be, and without interest (other than any interest paid

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by the relevant Governmental Authority with respect to such refund), provided that Borrower, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority.  Notwithstanding anything to the contrary in this subsection, in no event will the applicable Recipient be required to pay any amount to the Loan Party pursuant to this subsection the payment of which would place the Recipient in a less favorable net after-Tax position than such Recipient would have been in if the indemnification payments or additional amounts giving rise to such refund had never been paid.  This subsection shall not be construed to require the Administrative Agent or any Lender to make available its tax returns (or any other information relating to its taxes that it deems confidential) to Borrower or any other Person.

3.02Intentionally Omitted.

3.03Intentionally Omitted.

3.04Increased Costs.

(a)Increased Costs Generally.  If any Change in Law shall:

(i)impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender; or

(ii)subject any Lender to any tax of any kind whatsoever with respect to this Agreement, or change the basis of taxation of payments to such Lender in respect thereof (except for Indemnified Taxes or Other Taxes covered by Section 3.01 and the imposition of, or any change in the rate of, any Excluded Tax payable by such Lender);

and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any Loan, or to reduce the amount of any sum received or receivable by such Lender hereunder (whether of principal, interest or any other amount) then, upon request of such Lender, Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender, as the case may be, for such additional costs incurred or reduction suffered.

(b)Capital Requirements.  If any Lender determines that any Change in Law affecting such Lender or any Lending Office of such Lender or such Lender’s holding company, if any, regarding capital requirements has or would have the effect of reducing the rate of return on such Lender’s capital or on the capital of such Lender’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loan made by such Lender, to a level below that which such Lender or such Lender’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s policies and the policies of such Lender’s holding company with respect to capital adequacy), then from time to time upon request by delivery of a certificate pursuant to subsection (c) of this Section 3.04, Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender or such Lender’s holding company for any such reduction suffered.

(c)Certificates for Reimbursement.  A certificate of a Lender setting forth the amount or amounts necessary to compensate such Lender or its holding company, as the case may be, as specified in subsection (a) or (b) of this Section and delivered to Borrower shall be conclusive absent manifest error.  Borrower shall pay such Lender the amount shown as due on any such certificate within 10 days after receipt thereof.

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(d)Delay in Requests.  Failure or delay on the part of any Lender to demand compensation pursuant to the foregoing provisions of this Section shall not constitute a waiver of such Lender’s right to demand such compensation, provided that Borrower shall not be required to compensate a Lender pursuant to the foregoing provisions of this Section for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender notifies Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine-month period referred to above shall be extended to include the period of retroactive effect thereof)

3.05Intentionally Omitted.

3.06Intentionally Omitted.

3.07Mitigation Obligations; Replacement of Lenders.

(a)Designation of a Different Lending Office.  Each Lender may make any Loan to Borrower through any Lending Office; provided, that, the exercise of this option shall not affect the obligation of Borrower to repay the Loans in accordance with the terms of this Agreement.  If any Lender requests compensation under Section 3.04, or Borrower is required to pay any Indemnified Taxes or additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01, then such Lender shall (at the request of Borrower), as applicable, use reasonable efforts to designate a different Lending Office for funding or booking its Loan hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 3.01 or 3.04, as the case may be, in the future, and (ii) in each case, would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender.  Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.

(b)Replacement of Lenders.  If any Lender requests compensation under Section 3.04, or if Borrower is required to pay any Indemnified Taxes or additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01, and, in each case, such Lender has declined or is unable to designate a different Lending Office in accordance with Section 3.07(a), Borrower may replace such Lender in accordance with Section 10.13.

3.08Survival.  Each party’s obligations under this Article III shall survive termination of the Aggregate Commitments and repayment, any assignment of rights by, or the replacement of, a Lender, and repayment, satisfaction or discharge of all other Obligations hereunder, and resignation or replacement of the Administrative Agent.

ARTICLE IV.CONDITIONS PRECEDENT TO LOAN

4.01Conditions of Closing.  The obligation of Administrative Agent and each Lender to execute this Agreement and fund the Loans is subject to satisfaction of the following conditions precedent:

(a)The Administrative Agent’s receipt of the following, each of which (to the extent applicable) shall be (1) originals or telecopies (followed promptly by originals) unless otherwise specified, (2) duly executed by a Responsible Officer of the signing Loan Party, (3) dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and (4) in form and substance satisfactory to the Administrative Agent and each of the Lenders:

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(i)executed counterparts of this Agreement and all other Loan Documents to be executed on the Closing Date, sufficient in number for distribution to the Administrative Agent, each Lender and Borrower;

(ii)such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;

(iii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect, which documents shall include:

(1)original certified articles of incorporation or other charter documents, as applicable, certified to be true and correct and in force and effect by a Responsible Officer (“Officer Certification”) and the appropriate Governmental Authority (“Governmental Certification”; together with the Officer Certification, the “Certifications”),

(2)copies of resolutions duly adopted by the board of directors or comparable managing body approving the Loan Documents, the transactions and authorizing execution and delivery thereof on the Closing Date and the Closing Date, as applicable (with Officer Certification),

(3)a copy of the bylaws or comparable operating agreement of each Loan Party (with Officer Certification),

(4)certificates of good standing, existence or its equivalent certified as of a recent date by the appropriate Governmental Authorities of the state of incorporation or organization and each other state in which the failure to so qualify and be in good standing could reasonably be expected to have a Material Adverse Effect, and

(5)an incumbency certificate (with Officer Certification);

(iv)a favorable opinion of Foley & Lardner LLP, counsel to the Loan Parties, acceptable to Administrative Agent and Required Lenders and addressed to the Administrative Agent and each Lender and which may be relied upon by their respective successors and assigns, as to matters concerning the Loan Parties and the Loan Documents as the Required Lenders may request;

(v)a completed perfection certificate, in the form attached as Exhibit I hereto;

(vi)evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect, together with endorsements to such insurance policies naming Administrative Agent as additional insured, mortgagee, loss payee and/or lender’s loss payable, as applicable;

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(vii)Uniform Commercial Code, state and federal tax lien, judgment lien, litigation and bankruptcy searches for Borrower and each other Loan Party, in such locations as may be requested by the Administrative Agent;

(viii)copies of all of the CGB Subordinated Loan Documents to be executed on the Closing Date;

(ix)an authorization and consent in form and substance acceptable to Administrative Agent permitting certain third parties acceptable to Administrative Agent and Lenders (A) to use FCE’s proprietary technology and all other rights and permits of FCE and (B) to perform scheduled fuel cell restacking for the Facility if FCE cannot perform or provide such services or the scheduled fuel cell restacking during the term of this Loan, which authorization and consent may be in the O&M Agreement or the Limited Guaranty;

(x)a schedule in form and substance acceptable to Administrative Agent and Lenders detailing the preventative operating and maintenance related costs for the Facility, including restacking of the fuel cells (the “Maintenance Schedule”);

(xi)a reliance letter in favor of Administrative Agent and Lenders for that certain engineering report, dated December 16, 2022, prepared by DAI Management Consultants, Inc., with respect to the Facility, together with a copy of such Agreement;

(xii)a progress report satisfactory to Administrative Agent and Lenders indicating the steps required and milestones already achieved for the Facility to achieve Full Performance;

(xiii)such other assurances, certificates, documents, consents, reliance letters or opinions as the Administrative Agent or the Required Lenders may require.

(b)Responsible Officers.  Set forth on Schedule 4.01(b) are Responsible Officers that are permitted to sign Loan Documents on behalf of the Loan Parties, holding the offices indicated next to their respective names, as of the Closing Date.  Such Responsible Officers are the duly elected, qualified and acting officers of such Loan Party and are duly authorized to execute and deliver, on behalf of the respective Loan Party, this Agreement, the Notes and the other Loan Documents.

(c)Any fees required to be paid on or before the Closing Date shall have been paid.

(d)Unless waived by the Administrative Agent, Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent in writing) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between Borrower and the Administrative Agent.

(e)Borrower shall have requested in writing that Lenders make and fund their respective portions of the Loan.

(f)The representations and warranties of the Borrower and each other Loan Party contained herein and in the other Loan Documents shall be true and correct on and as of the Closing Date.

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(g)No Default or Event of Default shall exist, and no Default or Event of Default would result from the making or funding of the Loans or from the application of the proceeds thereof.

(h)No event has occurred or circumstance exists that has or could reasonably be expected to have a Material Adverse Effect.

(i)The construction of the Facility shall be complete, and the Facility shall be fully operational and built in accordance and in conformity with (i) the plans and specifications provided to, and approved by, Administrative Agent, CMEEC and the Navy, and (ii) all applicable Laws.

(j)(1) The “Commercial Operation Date” (as defined in the Power Purchase Agreement) shall have occurred, and Administrative Agent shall have received a copy of the “Notice of Commercial Operation” (as defined in the Power Purchase Agreement), and (2) “Final Acceptance” (as defined in the EPC Agreement) shall have occurred, and Borrower shall have provided Administrative Agent with a copy of the acknowledgement it delivered to FCE agreeing that “Final Acceptance” shall have occurred.¹

(k)The Administrative Agent’s receipt of the following, each of which (to the extent applicable) shall be (1) originals or telecopies (followed promptly by originals) unless otherwise specified, (2) duly executed by a Responsible Officer of the signing Loan Party, (3) dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and (4) in form and substance satisfactory to the Administrative Agent and each of the Lenders:

(i)executed counterparts of all Collateral Documents in the forms attached as Exhibit E hereto, the Environmental Indemnity in the form attached hereto as Exhibit F hereto, the Limited Guaranty (executed by FCE) in the form attached as Exhibit G hereto, the CGB Subordination Agreement in the form attached hereto as Exhibit H hereto, in each case sufficient in number for distribution to the Administrative Agent, each Lender and Borrower;

(ii)a Note executed by Borrower in favor of each Lender requesting a Note;

(iii)certificates of good standing, existence or its equivalent certified as of a recent date by the appropriate Governmental Authorities of the state of incorporation or organization and each other state in which the failure to so qualify and be in good standing could reasonably be expected to have an Material Adverse Effect;

(iv) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect, together with endorsements to such insurance policies naming Administrative Agent as additional insured, mortgagee, loss payee and/or lender’s loss payee, as applicable;

(v)in connection with the delivery of the Security Agreement:

(1)proper financing statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement;

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(2)completed requests for information, dated on or before the Closing Date, listing the financing statements referred to in clause (1) above and all other effective financing statements filed in the jurisdictions referred to in clause (1) above that name any Loan Party as debtor, together with copies of such other financing statements;

(3)evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created thereby;

(vi)Uniform Commercial Code, state and federal tax lien, judgment lien, litigation and bankruptcy searches for Borrower and each other Loan Party of a date not more than thirty (30) days prior than the Closing Date, in such locations as may be requested by the Administrative Agent;

(vii)releases and/or termination statements for all Liens on Borrower or the Collateral as of the Closing Date;

(viii)all original membership interest certificates evidencing the Equity Interests of the Borrower;

(ix)a schedule in form and substance acceptable to Administrative Agent detailing the preventative operating and maintenance costs for the Facility; and

(x)such other assurances, certificates, documents, consents, reliance letters or opinions as the Administrative Agent or the Required Lenders may require.

(l)Neither CMEEC, Tax Equity Holdco, the Project Company, nor FCE shall have instituted or consented to the institution of any proceeding under any Debtor Relief Law; or made an assignment for the benefit of creditors; or applied for or consented to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or for all or any material part of its property, and no receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer shall have been so appointed without the application or consent of such Person; no proceeding under any Debtor Relief Law relating to such Person or to all or any material part of its property shall have been instituted without the consent of such Person.

(m)Any fees required to be paid on or before the Closing Date shall have been paid.

(n)Each of the Reserves shall have been established and funded in accordance with this Agreement.

(o)A financial model that is a projection of operating results for the Facility, showing the Borrower's reasonable good faith estimates, as of the Closing Date, of revenue, operating expenses and sources and uses of revenues with respect to the Facility over the forecast period and containing assumptions reasonably satisfactory to the Administrative Agent and the Lenders (in consultation with DAI), which projection shall show that the ratio of (i) the annual gross cash flow paid to Borrower under the Power Purchase Agreement and from the sale of Renewable Energy Credits through contracts entered into prior to the date hereof less the total annual operating costs of the Facility, including the mandatory deposits into the Reserves, to (ii) the annual principal and interest payments made in connection with the Obligations is not less than 1.30:1.00.

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(p)Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent in writing) to the extent invoiced prior to or on the Closing Date.

(t)The Reserve Accounts Supplement executed by Borrower, Liberty Bank and Amalgamated Bank.

(u)an engineering report and certification in form and substance acceptable to Administrative Agent from DAI, that (A) the Facility is complete, fully operational and built in accordance and in conformity with (x) the plans and specifications provided to, and approved by, Administrative Agent, CMEEC and the Navy, and (y) all applicable Laws, (B) the Borrower has obtained all approvals, consents, licenses and permits necessary or required for the construction, installation, operation and maintenance of the Facility, (C) the Facility will produce the level of power for which it is rated and the restacking schedule provided by Borrower hereunder is adequate to accomplish such production of power, and (D) the O&M Reserve is adequate to fund all anticipated operations and maintenance costs, including the completion of a restacking of all fuel cells and fuel cell modules at the Facility at an estimated aggregate cost of $29,315,000 in 2030 and 2037.

(v)all of the Facility Documents, and all other agreements, contracts, permits, licenses, authorizations, consents and approvals necessary or required to own, construct, install, develop, operate, manage, use and maintain the Facility, including, without limitation, all approvals of the Navy (collectively, the “Permits and Contracts”) shall be have been entered into, obtained and/or received by Borrower, shall not have been terminated, shall be in full force and effect, and shall be in form and substance satisfactory to the Administrative Agent and the Lenders; and Administrative Agent shall have been provided copies of each of the Facility Documents.

For purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has funded its portion of the Loan shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.

ARTICLE V.REPRESENTATIONS AND WARRANTIES

Borrower represents and warrants to the Administrative Agent and Lenders that:

5.01Existence, Qualification and Power.  Each Loan Party and each of its Subsidiaries (a) is duly organized or formed, validly existing and, as applicable, in good standing under the Laws of the jurisdiction of its incorporation or organization, (b) has all requisite power and authority and all requisite governmental licenses, authorizations, consents and approvals to (i) own or lease its assets and carry on its business and (ii) execute, deliver and perform its obligations under the Loan Documents to which it is a party, and (c) is duly qualified and is licensed and, as applicable, in good standing under the Laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification or license; except in each case referred to in clause (b)(i) or (c), to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.  The copy of the Organization Documents of each Loan Party provided to the Administrative Agent pursuant to the terms of this Agreement is a true and correct copy of each such document, each of which is valid and in full force and effect.

5.02Authorization; No Contravention.  The execution, delivery and performance by each Loan Party of each Loan Document to which such Person is or is to be a party have been duly authorized

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by all necessary corporate or other organizational action, and do not and will not (a) contravene the terms of any of such Person’s Organization Documents; (b) conflict with or result in any breach or contravention of, or the creation of any Lien under, or require any payment to be made under (i) any Contractual Obligation to which such Person is a party or affecting such Person or the properties of such Person or any of its Subsidiaries, (ii) any of the Facility Documents, or (iii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject; or (c) violate any Law.

5.03Governmental Authorization; Other Consents.  No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with (a) the execution, delivery or performance by, or enforcement against, any Loan Party of this Agreement or any other Loan Document, (b) the grant by any Loan Party of the Liens granted by it pursuant to the Collateral Documents, (c) the perfection or maintenance of the Liens created under the Collateral Documents (including the first priority nature thereof), or (d) the exercise by the Administrative Agent or any Lender of its rights under the Loan Documents or the remedies in respect of the Collateral pursuant to the Collateral Documents, other than (i) authorizations, approvals, actions, notices and filings which have been duly obtained and (ii) filings to perfect the Liens created by the Collateral Documents.

5.04Binding Effect.  This Agreement has been, and each other Loan Document, when delivered hereunder, will have been, duly executed and delivered by each Loan Party that is party thereto.  This Agreement constitutes, and each other Loan Document when so delivered will constitute, a legal, valid and binding obligation of such Loan Party, enforceable against each Loan Party that is party thereto in accordance with its terms, except as limited by general principles of equity and Debtor Relief Laws.

5.05Financial Statements; No Material Adverse Effect.

(a)Since the date of the last financial statements delivered by Borrower to the Administrative Agent or any of the Lenders, there has been no event or circumstance, either individually or in the aggregate, that has had or could reasonably be expected to have a Material Adverse Effect.

(b)The consolidated forecasted statements of income and cash flows of Borrower delivered pursuant to Section 6.01(a) and (b) were prepared in good faith on the basis of the assumptions stated therein, which assumptions were fair in light of the conditions existing at the time of delivery of such forecasts, and represented, at the time of delivery, Borrower’s best estimate of its future financial condition and performance.

5.06Litigation.  There are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of Borrower after due and diligent investigation, threatened or contemplated, at law, in equity, in arbitration or before any Governmental Authority, by or against Borrower or against any of its properties or revenues that (a) relate to this Agreement or any other Loan Document, or the Facility, or any of the transactions contemplated hereby, and (b) either individually or in the aggregate, if determined adversely, could reasonably be expected to have a Material Adverse Effect.

5.07No Default.  Borrower is not in default under or with respect to any Contractual Obligation that could, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.  No Default or Event of Default has occurred and is continuing or would result from the consummation of the transactions contemplated by this Agreement or any other Loan Document.

5.08Ownership of Property; Liens.  Borrower has good record and marketable title in fee simple to, or valid leasehold interests in, all real property necessary or used in the ordinary conduct of its

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business, except for such defects in title as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.  The property of Borrower is subject to no Liens, other than Liens permitted by Section 7.01.

5.09Environmental Compliance.  Borrower conducts in the ordinary course of business a review of the effect of existing Environmental Laws and claims alleging potential liability or responsibility for violation of any Environmental Law on its businesses, operations and properties, and as a result thereof Borrower has reasonably concluded that such Environmental Laws and claims could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

5.10Insurance.  The Borrower and its properties are insured with financially sound and reputable insurance companies not Affiliates of Borrower, in such amounts with such deductibles and covering such risks as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where Borrower operates.

5.11Taxes.  Borrower has filed all Federal, state and other material tax returns and reports required to be filed, and has paid all Federal, state and other material taxes, assessments, fees and other governmental charges levied or imposed upon it or its properties, income or assets otherwise due and payable, except those which are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves have been provided in accordance with GAAP.  There is no proposed tax assessment against Borrower that would, if made, have a Material Adverse Effect.

5.12ERISA Compliance.

(a)Borrower has no Plans or Pension Plans.

(b)Each Plan of each ERISA Affiliate is in compliance in all material respects with the applicable provisions of ERISA, the Code and other Federal or state laws.  Each Pension Plan of each ERISA Affiliate that is intended to be a qualified plan under Section 401(a) of the Code has received a favorable determination letter from the Internal Revenue Service to the effect that the form of such Plan is qualified under Section 401(a) of the Code and the trust related thereto has been determined by the Internal Revenue Service to be exempt from federal income tax under Section 501(a) of the Code, or an application for such a letter is currently being processed by the Internal Revenue Service.  To the best knowledge of Borrower, nothing has occurred that would prevent or cause the loss of such tax-qualified status.

(c)There are no pending or, to the best knowledge of Borrower, threatened claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Plan of any ERISA Affiliate that could reasonably be expected to have a Material Adverse Effect.  There has been no prohibited transaction or violation of the fiduciary responsibility rules with respect to any Plan of any ERISA Affiliate that has resulted or could reasonably be expected to result in a Material Adverse Effect.

(d)(i) No ERISA Event has occurred, and neither Borrower nor any ERISA Affiliate is aware of any fact, event or circumstance that could reasonably be expected to constitute or result in an ERISA Event with respect to any Pension Plan of an ERISA Affiliate; (ii) each ERISA Affiliate has met all applicable requirements under the Pension Funding Rules in respect of each Pension Plan of each ERISA Affiliate, and no waiver of the minimum funding standards under the Pension Funding Rules has been applied for or obtained; (iii) as of the most recent valuation date for any Pension Plan of an ERISA Affiliate, the funding target attainment percentage (as defined in Section 430(d)(2) of the Code) is 60% or higher and neither Borrower nor any ERISA Affiliate knows of any facts or circumstances that could reasonably be expected to cause the funding target attainment percentage for any such plan to drop below 60% as of the most recent valuation date; (iv) no ERISA Affiliate has incurred any liability to the PBGC other than for

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the payment of premiums, and there are no premium payments which have become due that are unpaid; (v) neither Borrower nor any ERISA Affiliate has engaged in a transaction that could be subject to Section 4069 or Section 4212(c) of ERISA; and (vi) no Pension Plan of any ERISA Affiliate has been terminated by the plan administrator thereof nor by the PBGC, and no event or circumstance has occurred or exists that could reasonably be expected to cause the PBGC to institute proceedings under Title IV of ERISA to terminate any Pension Plan of an ERISA Affiliate.

(e)No ERISA Affiliate maintains or contributes to, or has any unsatisfied obligation to contribute to, or liability under, any active or terminated Pension Plan.

5.13Subsidiaries; Equity Interests.  Borrower has no Subsidiaries.  Borrower has no equity investments in any other corporation or entity other than the Tax Equity Holdco.  Set forth on Schedule 5.13 is a complete and accurate list of all Loan Parties, showing (as to each Loan Party) the jurisdiction of its incorporation and its chief executive office.  The copy of the charter of each Loan Party and each amendment thereto provided pursuant to Administrative Agent is a true and correct copy of each such document, each of which is valid and in full force and effect.

5.14Margin Regulations; Investment Company Act.

(a)Borrower is not engaged and will not engage, principally or as one of its important activities, in the business of purchasing or carrying margin stock (within the meaning of Regulation U, T or X of the FRB), or extending credit for the purpose of purchasing or carrying margin stock.

(b)None of Borrower or any Person Controlling Borrower is or is required to be registered as an “investment company” under the Investment Company Act of 1940.

5.15Disclosure. Borrower has disclosed to the Administrative Agent and Lenders all agreements, instruments and corporate or other restrictions to which it is subject, and all other matters known to it, that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect.  No report, financial statement, certificate or other information furnished (whether in writing or orally) by or on behalf of any Loan Party to the Administrative Agent or any Lender in connection with the transactions contemplated hereby and the negotiation of this Agreement or delivered hereunder or under any other Loan Document (in each case, as modified or supplemented by other information so furnished) contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that, with respect to projected financial information, Borrower represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time.

5.16Compliance with Laws.  Borrower is in compliance in all respects with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its properties, except in such instances in which (a) such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted or (b) the failure to comply therewith, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.

5.17Taxpayer Identification Number.  Borrower’s true and correct U.S. taxpayer identification number is set forth on Schedule 10.02.

5.18Collateral Documents.  The provisions of the Collateral Documents are effective to create in favor of the Administrative Agent for the benefit of the Secured Parties a legal, valid and enforceable first priority Lien (subject to Liens permitted by Section 7.01) on all right, title and interest of the respective Loan Parties in the Collateral described therein.  Upon the filing of UCC financing statements in accordance

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with Section 5.21 and upon the taking of possession or control by the Administrative Agent of the Collateral that is the subject of the Security Agreement, the Pledge Agreement, or the Deposit Account Security Agreement with respect to which a security interest may be perfected only by possession or control (which possession or control shall be given to the Administrative Agent to the extent possession or control by the Administrative Agent is required by the Security Agreement, the Pledge Agreement, and/or the Deposit Account Security Agreement), the Liens created by the Security Agreement, the Pledge Agreement, and the Deposit Account Security Agreement shall constitute first priority perfected Liens on, and security interests in, all right, title and interest of the grantors in the Collateral that is the subject of the Security Agreement, the Pledge Agreement, and the Deposit Account Security Agreement (other than such Collateral in which a security interest cannot be perfected under the UCC as in effect at the relevant time in the relevant jurisdiction by such filings, possession or control), in each case subject to no Liens other than Liens permitted by Section 7.01.  Except for filings completed prior to the Closing Date and as contemplated hereby and by the Collateral Documents, no filing or other action will be necessary to perfect or protect such Liens.

5.19Intellectual Property; Licenses, Etc.  Borrower owns, or possesses the right to use, all of the trademarks, service marks, trade names, copyrights, patents, patent rights, franchises, licenses and other intellectual property rights (collectively, “IP Rights”) that are necessary for the operation of its business, without conflict with the rights of any other Person.  To the best knowledge of Borrower, no slogan or other advertising device, product, process, method, substance, part or other material now employed, or now contemplated to be employed, by Borrower infringes upon any rights held by any other Person.  No claim or litigation regarding any of the foregoing is pending or, to the best knowledge of Borrower, threatened, which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.

5.20Solvency.  Each Loan Party is Solvent.  “Solvent” and “Solvency” mean, with respect to any Person on any date of determination, that on such date (a) the fair value of the property of such Person is greater than the total amount of liabilities, including contingent liabilities, of such Person, (b) the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay such debts and liabilities as they mature, (d) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s property would constitute an unreasonably small capital, and (e) such Person is able to pay its debts and liabilities, contingent obligations and other commitments as they mature in the ordinary course of business.  The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.

5.21Rights in Collateral; Priority of Liens.  Each Loan Party owns the property granted by it as Collateral under the Collateral Documents, free and clear of any and all Liens in favor of third parties other than Liens permitted by Section 7.01.  Upon the proper filing of UCC financing statements and the taking of the other actions required by the Required Lenders or the law, the Liens granted pursuant to the Collateral Documents will constitute valid and enforceable, first, prior and perfected Liens on the Collateral in favor of Administrative Agent, for the ratable benefit the Secured Parties.

5.22Sanctions Concerns.

(a)Sanctions Concerns. No Loan Party, nor any Subsidiary, nor, to the knowledge of the Loan Parties and their Subsidiaries, any director, officer, employee, agent, affiliate or representative thereof, is an individual or entity that is, or is owned or controlled by any individual or entity that is (i) currently the

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subject or target of any Sanctions, (ii) included on OFAC’s List of Specially Designated Nationals, HMT’s Consolidated List of Financial Sanctions Targets and the Investment Ban List, or any similar list enforced by any other relevant sanctions authority, or (iii) located, organized or resident in a Designated Jurisdiction.

(b)Anti-Corruption Laws.  The Loan Parties and their Subsidiaries have conducted their business in compliance with the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010 and other similar anti-corruption legislation in other jurisdictions, and have instituted and maintained policies and procedures designed to promote and achieve compliance with such laws.

(c)Patriot Act.  The Loan Parties, their Subsidiaries, and, to the knowledge of the Borrower, any director, officer, employee, agent, affiliate or representative thereof, are in compliance with the Act.

5.23The Facility.

(a)No authorization, approval, consent of, and no filing, notice, certification or registration with FERC or the CT PURA is required for Borrower’s or FCE’s execution and delivery of this Agreement or the other Loan Documents, the consummation of the transactions contemplated by this Agreement or the other Loan Documents, or the performance of its obligations under this Agreement or the other Loan Documents.

(b)Except as may result from the exercise of remedies under this Agreement, neither Administrative Agent, Lenders nor any “affiliate” (as that term is defined in Section 1262(1) of the Public Utility Company Holding Act) of Administrative Agent or Lenders will, solely as a result of the execution and delivery of this Agreement or the other Loan Documents, the consummation of the transactions contemplated by this Agreement and the other Loan Documents, or the performance of obligations under this Agreement or the other Loan Documents, including, without limitation, Borrower’s ownership, construction and operation of the Facility prior to the repayment of all Obligations, be subject to, or not exempt from, regulation by FERC or the CT PURA.

(c)On and as of the Closing Date, (i) the Commercial Operation Date (as defined in the Power Purchase Agreement) has occurred, and (ii) all conditions precedent for CMEEC’s obligation to purchase “Electricity Output” (as defined in and as more fully set forth in the Power Purchase Agreement) have been satisfied.

(d)To Borrower’s knowledge, Borrower is not in default under any of the Facility Documents.

ARTICLE VI.AFFIRMATIVE COVENANTS

On and after the Closing Date, and for so long as any Obligation hereunder shall remain unpaid or unsatisfied, Borrower agrees that, and Borrower shall:

6.01Financial Statements.  Deliver to the Administrative Agent, in form and detail satisfactory to the Administrative Agent and Required Lenders:

(a)as soon as available, but in any event within one hundred twenty (120) days after the end of each fiscal year of the Borrower (commencing with the fiscal year ending October 31, 2023), a balance sheet of Borrower as at the end of such fiscal year, and the related statements of income or operations, changes in shareholders’ equity and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail and prepared on an accrual basis in accordance with GAAP;

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(b)as soon as available, but in any event within one hundred twenty (120) days after the end of each fiscal year of FCE (commencing with the fiscal year ended October 31, 2023), a consolidated and consolidating balance sheet of FCE and its Subsidiaries as at the end of such fiscal year, and the related consolidated and consolidating statements of income or operations, consolidated changes in shareholders’ equity and consolidated cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail and prepared on an accrual basis in accordance with GAAP, such consolidated and consolidating statements to be audited and accompanied by a report and opinion of an independent certified public accountant of nationally recognized standing reasonably acceptable to the Required Lenders (it being acknowledged that KPMG is acceptable to the Required Lenders), which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit;

(c)as soon as available, but in any event within one hundred twenty (120) days after the end of each fiscal year of Tax Equity Holdco (commencing with the fiscal year ended December 31, 2023), a consolidated and consolidating balance sheet of Tax Equity Holdco and its Subsidiaries as at the end of such fiscal year, and the related consolidated and consolidating statements of income or operations, consolidated changes in shareholders’ equity and consolidated cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail and prepared on an accrual basis in accordance with GAAP, such consolidated and consolidating statements to be audited and accompanied by a report and opinion of an independent certified public accountant of nationally recognized standing reasonably acceptable to the Required Lenders (it being acknowledged that KPMG is acceptable to the Required Lenders), which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit;

(d)as soon as available, but in any event within sixty (60) days after the end of each of each fiscal quarter of each fiscal year of the Borrower (commencing with the fiscal quarter ended October 31, 2023), a balance sheet of the Borrower as at the end of such fiscal quarter, and the related statements of income or operations, changes in shareholders’ equity and cash flows for such fiscal quarter and for the portion of the Borrower’s fiscal year then ended, setting forth in each case in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, all in reasonable detail and prepared in accordance with GAAP, such statements to be certified by the chief executive officer, chief financial officer, treasurer or controller who is a Responsible Officer of the Borrower as fairly presenting the financial condition, results of operations, shareholders’ equity and cash flows of the Borrower, subject only to normal year-end audit adjustments and the absence of footnotes;

(e)as soon as available, but in any event within sixty (60) days after the end of each of each fiscal quarter of each fiscal year of FCE (commencing with the fiscal quarter ended October 31, 2023), a consolidated and consolidating balance sheet of FCE and its Subsidiaries as at the end of such fiscal quarter, and the related consolidated and consolidating statements of income or operations, changes in shareholders’ equity and cash flows for such fiscal quarter and for the portion of FCE’s fiscal year then ended, setting forth in each case in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, all in reasonable detail and prepared in accordance with GAAP, such statements to be certified by the chief executive officer, chief financial officer, treasurer or controller who is a Responsible Officer of FCE as fairly presenting the financial condition, results of operations, shareholders’ equity and cash flows of FCE and its Subsidiaries, subject only to normal year-end audit adjustments and the absence of footnotes;

(f)as soon as available, but in any event within sixty (60) days after the end of each of each fiscal quarter of each fiscal year of Tax Equity Holdco (commencing with the fiscal quarter ended

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September 30, 2023), a consolidated and consolidating balance sheet of Tax Equity Holdco and its Subsidiaries as at the end of such fiscal quarter, and the related consolidated and consolidating statements of income or operations, changes in shareholders’ equity and cash flows for such fiscal quarter and for the portion of Tax Equity Holdco’s fiscal year then ended, setting forth in each case in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, all in reasonable detail and prepared in accordance with GAAP, such statements to be certified by the chief executive officer, chief financial officer, treasurer or controller who is a Responsible Officer of Tax Equity Holdco as fairly presenting the financial condition, results of operations, shareholders’ equity and cash flows of Tax Equity Holdco and its Subsidiaries, subject only to normal year-end audit adjustments and the absence of footnotes; and

(g)as soon as available, but in any event within fifteen (15) days of filing, copies of the state and federal tax returns of Borrower.

6.02Certificates; Other Information.  Deliver to the Administrative Agent and each Lender, in form and detail satisfactory to the Administrative Agent and the Required Lenders:

(a)concurrently with the delivery of the financial statements referred to in Sections 6.01(a), (b), (c), (d), (e), and (f), a duly completed Compliance Certificate signed by the chief executive officer, president or chief financial officer of Borrower (which delivery may, unless the Administrative Agent or a Lender requests executed originals, be by electronic communication including fax or email and shall be deemed to be an original authentic counterpart thereof for all purposes);

(b)promptly after any request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted or prepared by Borrower’s independent accountants in connection with the accounts or books of Borrower, or any audit of Borrower;

(c)within one hundred twenty (120) days after the end of each fiscal year of Borrower, a schedule from FCE detailing the preventative operating and maintenance related costs for the Facility, including the restacking of the fuel cells at the Facility, which schedule shall be in form and content satisfactory to Administrative Agent;

(d)within one hundred twenty (120) days after the end of each fiscal year of Borrower, a report detailing the amount of carbon dioxide emitted by the Facility during such fiscal year (the “Annual Carbon Emissions”);

(e)within one hundred twenty (120) days after the end of each fiscal year of Borrower, an updated Maintenance Schedule;

(f)concurrently with the carbon emissions report referred to in Section 6.02(d), evidence of compliance with the requirements set forth in Section 6.23; and

(g)promptly, such additional information regarding the business, financial or corporate affairs of Borrower or any other Loan Party, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request.

Documents required to be delivered pursuant to Section 6.01(a) through (d) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which Borrower or FCE posts such documents, or provides a link thereto on Borrower’s or FCE’s website on the Internet at the website address listed on Schedule 10.02, if any; or (ii) on which such documents are posted on Borrower’s or FCE’s behalf on an Internet or intranet website, if any, to which each Lender and the

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Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its request to Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) Borrower shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Administrative Agent and each Lender by electronic mail electronic versions (i.e., soft copies) of such documents.  The Administrative Agent shall have no obligation to request the delivery of or to maintain paper copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by Borrower with any such request by a Lender for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.

Borrower hereby acknowledges that (a) the Administrative Agent will make available to Lenders materials and/or information provided by or on behalf of Borrower hereunder (collectively, “Borrower Materials”) by posting Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to Borrower or its securities, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities.  Borrower hereby agrees that (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” Borrower shall be deemed to have authorized the Administrative Agent and Lenders to treat such Borrower Materials as not containing any material non-public information with respect to Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 10.07); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information;” and (z) the Administrative Agent shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information.”

6.03Notices.  Promptly notify the Administrative Agent and each Lender:

(a)of the occurrence of any Default or Event of Default or a default or event of default under the CGB Subordinated Loan Documents;

(b)of the occurrence of any Default or Event of Default or a default or event of default or breach by any member under the Tax Equity Holdco LLC Agreement;

(c)of any matter that has resulted or could reasonably be expected to result in a Material Adverse Effect, including (i) breach or non-performance of, or any default under any Contractual Obligation of Borrower; (ii) any dispute, litigation, investigation, proceeding or suspension between Borrower and any Governmental Authority; or (iii) the commencement of, or any material development in, any litigation or proceeding affecting Borrower, including pursuant to any applicable Environmental Laws;

(d)of the occurrence of any ERISA Event;

(e)of any material change in accounting policies or financial reporting practices by Borrower;

(f)of any notices of which Borrower becomes aware of any default, termination or other dispute or claim given under a Facility Document (including, without limitation, any notice to any Person that a “Termination Payment” (as defined in the Power Purchase Agreement) is due);

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(g)of an event of “Force Majeure” (as defined in the Power Purchase Agreement) of which Borrower becomes aware that prevents or substantially impairs the delivery of “Electricity Output” (as defined in the Power Purchase Agreement) from the Facility in the quantities originally projected, which continues for a period of at least six (6) consecutive months;

(h)if the Facility goes offline, ceases operations or the generation of electricity, or is damaged or destroyed, or if a “System Loss” (as defined in the Power Purchase Agreement) occurs (together with a calculation of the percentage of the Facility which has been destroyed);

(i)of a proposed removal of the “Managing Member” (as defined in the Tax Equity Holdco LLC Agreement) of Tax Equity Holdco; and

(j)the execution of any amendment, modification or waiver of or supplement to any CGB Subordinated Loan Document, together with a copy thereof.

Each notice pursuant to this Section 6.03 shall be accompanied by a statement of a Responsible Officer of Borrower setting forth details of the occurrence referred to therein and stating, to Borrower’s knowledge, what action is being taken or proposed to be taken with respect thereto, and shall contain copies of all information, notices, and other documentation giving rise to such notice.  Each notice pursuant to Section 6.03(a) shall describe with particularity any and all provisions of this Agreement and any other Loan Document that have been breached.

6.04Payment of Obligations.  Pay and discharge as the same shall become due and payable, all its obligations and liabilities, including (a) all tax liabilities, assessments and governmental charges or levies upon it or its properties or assets, unless the same are being contested in good faith by appropriate proceedings diligently conducted and adequate reserves in accordance with GAAP are being maintained by Borrower; (b) all lawful claims which, if unpaid, would by law become a Lien upon its property; and (c) all Indebtedness, as and when due and payable, but subject to any subordination provisions contained in any instrument or agreement evidencing such Indebtedness.

6.05Preservation of Existence, Etc.  (a) Preserve, renew and maintain in full force and effect its legal existence and, if applicable, good standing under the Laws of the jurisdiction of its organization; and (b) preserve or renew all of its registered patents, trademarks, trade names and service marks, the non-preservation of which could reasonably be expected to have a Material Adverse Effect.

6.06Maintenance of Properties.  (a) Maintain, preserve and protect all licenses, patents, franchises, trademarks and trade names of Borrower; (a) maintain, preserve and protect all of its material properties and equipment necessary in the operation of its business in good working order and condition, ordinary wear and tear excepted; (b) make all necessary repairs thereto and renewals and replacements thereof except where the failure to do so could not reasonably be expected to have a Material Adverse Effect; and (c) use the standard of care typical in the industry in the operation and maintenance of its facilities.

6.07Maintenance of Insurance.  (a) Maintain with financially sound and reputable insurance companies which are not Affiliates of Borrower, insurance with respect to casualty events, business interruption, its properties and business against loss, damage or interruption of the kinds customarily insured against by Persons engaged in the same or similar business, of such types and in such amounts as are customarily carried under similar circumstances by such other Persons and providing for not less than 30 days’ prior notice to the Administrative Agent of termination, lapse or cancellation of such insurance; and (b) provide to Administrative Agent, upon request, evidence satisfactory to Administrative Agent that all insurance required under this Agreement and the other Loan Documents is in effect.  The Administrative

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Agent shall be listed as an additional insured on all of Borrower’s liability policies and as a loss payee, lender’s loss payee or mortgagee, as applicable and as requested by Administrative Agent, on all of Borrower’s property policies.

6.08Compliance with Laws.  Comply in all respects with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its business or property including without limitation the Act, OFAC and all Environmental Laws, except in such instances in which (a) such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted; or (b) the failure to comply therewith could not reasonably be expected to have a Material Adverse Effect.

6.09Books and Records.  (a)  Maintain proper books of record and account, in which full, true and correct entries in conformity with GAAP consistently applied shall be made of all financial transactions and matters involving the assets and business of Borrower; and (b) maintain such books of record and account in material conformity with all applicable requirements of any Governmental Authority having regulatory jurisdiction over Borrower.

6.10Inspection Rights.  Permit representatives and independent contractors of the Administrative Agent and each Lender to visit and inspect any of its properties (including leased properties) and the Collateral, to examine its corporate, financial and operating records, and make copies thereof or abstracts therefrom, and to discuss its affairs, finances and accounts with its directors, officers, and independent public accountants, all at the expense of Borrower and at such reasonable times during normal business hours and as often as may be reasonably desired, upon reasonable advance notice to Borrower; provided, however, that, so long as no Event of Default has occurred or is continuing, Administrative Agent and each Lender will not exercise their rights under this Section 6.10 more than once per calendar year; provided, further, that when an Event of Default exists the Administrative Agent or any Lender (or any of their respective representatives or independent contractors) may do any of the foregoing at the expense of Borrower at any time during normal business hours and without advance notice.

6.11Use of Proceeds.  Use the proceeds of the Loan to fund the reserve accounts set forth herein and thereafter, distributed by Borrower to Sponsor or other affiliates or otherwise utilized by Borrower in its discretion.

6.12Additional Guarantors.  Notify the Administrative Agent at the time that any Person becomes a Subsidiary of the Borrower in accordance with Section 7.20, and promptly thereafter (and in any event within 30 days), unless otherwise notified in writing by the Administrative Agent, cause such Person to (or, if prior to the Closing Date, obligate such Person to do the following on the Closing Date) (a) become a Guarantor by executing and delivering to the Administrative Agent a Guaranty or such other document as the Administrative Agent shall deem appropriate for such purpose, and (b) deliver to the Administrative Agent documents of the types referred to in clauses (i), (ii), and (iii) of Section 4.01(a), and favorable opinions of counsel to such Person (which shall cover, among other things, the legality, validity, binding effect and enforceability of the documentation referred to in clause (a)), all in form, content and scope reasonably satisfactory to the Administrative Agent.

6.13Collateral Records.  To execute and deliver promptly, upon written request, to Administrative Agent and each Lender, from time to time, solely for Administrative Agent’s convenience in maintaining a record of the Collateral, such written statements and schedules as Administrative Agent or such Lender may reasonably require designating, identifying or describing the Collateral.  The failure by Borrower or any other Loan Party, however, to promptly give Administrative Agent or any Lender such statements or schedules shall not affect, diminish, modify or otherwise limit the Administrative Agent’s security interest on the Collateral.

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6.14Further Assurances.

(a)Promptly upon request by the Administrative Agent, or any Lender through the Administrative Agent, (i) correct any material defect or error that may be discovered in any Loan Document or in the execution, acknowledgment, filing or recordation thereof, and (ii) on and after the Closing Date, do, execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register any and all such further acts, deeds, certificates, assurances and other instruments as the Administrative Agent, or any Lender through the Administrative Agent, may require from time to time in order to (A) the fullest extent permitted by applicable Law, subject any Loan Party’s properties, assets, rights or interests to the Liens now or hereafter intended to be covered by any of the Collateral Documents, and (B) perfect and maintain the validity, effectiveness and priority of any of the Collateral Documents and any of the Liens intended to be created thereunder.

(b)To, and to cause each other Loan Party to, (i) defend the Collateral against all claims and demands of all Persons at any time claiming the same or any interest therein, (ii) on and after the Closing Date, comply with the requirements of all applicable Laws in order to grant to the Administrative Agent valid and perfected first priority security interests in the Collateral, with perfection, in the case of any investment property, deposit account or letter of credit, being effected by giving the Administrative Agent control of such investment property or deposit account or letter of credit, rather than by the filing of a UCC financing statement with respect to such investment property, and (iii) do whatever the Administrative Agent may request, from time to time, to effect the purposes of this Agreement and the other Loan Documents, including filing notices of liens, UCC financing statements, fixture filings and amendments, renewals and continuations thereof on and after the Closing Date; cooperating with the Administrative Agent’s representatives; keeping stock records; and, paying claims which might, if unpaid, become a Lien on the Collateral.  The Administrative Agent is hereby authorized by Borrower to file any UCC financing statements covering the Collateral whether or not Borrower’s signatures appear thereon.

6.15Facility Documents.  Perform, observe, comply with and enforce all of the provisions of the Facility Documents, subject to any applicable cure rights.

6.16Intentionally Omitted.

6.17Operating Accounts.  Maintain its primary operating account at Liberty Bank at all times (the primary operating account of Borrower being Borrower’s Operating Account).

6.18The Reserve Accounts Generally.

(a)Liability for Obligations Unaffected.  The funding of the Reserve Accounts or the insufficiency of Reserve Funds in the Reserve Accounts (or any one of them) shall not relieve Borrower of its obligation to make all payments required under the Loan Documents as and when such payments are due.

(b)Liens, Etc.  The Reserve Accounts shall be under the sole control of Administrative Agent, and Administrative Agent shall have the sole right to make withdrawals from the Reserve Accounts.  Neither Borrower, nor any other Person (whether claiming on behalf of or through Borrower or otherwise) shall have any right or authority, whether express or implied, to make use of, or withdraw any funds, investments or other properties from, the Reserve Accounts, or to give any instructions with respect to the Reserve Accounts, except with respect to funds in the O&M Reserve Accounts in accordance with Section 6.21 hereof and except with respect to funds in the Payment Reserve Account in accordance with Section 6.19.  Borrower shall take all actions, and execute all additional documents and instruments (including, without limitation, deposit account control agreements), which are necessary to maintain in favor of

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Administrative Agent a perfected first priority security interest and Lien in and to the Reserve Accounts and the Reserve Funds.  The Reserve Accounts and the Reserve Funds are additional security for the Obligations.  Borrower shall not further pledge, assign, hypothecate or grant any security interest in or to the Reserve Accounts or the Reserve Funds, or permit any Lien to attach thereto, or any levy to be made thereon, or any UCC Financing Statements, except those naming Administrative Agent as the secured party, to be filed with respect thereto.

(c)Costs and Expenses.  All costs and expenses for establishing and maintaining the Reserve Accounts (or any successors thereto) shall be paid by Borrower.  All income and gains from the Reserve Accounts shall be retained in the applicable Reserve Account.

(d)Remedies.  Upon and during the continuance of an Event of Default, Administrative Agent may, with the consent of, or shall, at the request of, Required Lenders (such consent or request to be in Required Lenders’ sole and absolute discretion), without notice to or the consent of Borrower, apply all or any portion of the Reserve Funds toward the payment of the Obligations, regardless of whether the Obligations have been accelerated and/or such Obligations are then due and payable, in accordance with Section 8.03, and/or exercise all other rights and remedies available to Administrative Agent at law or in equity.

6.19Payment Reserve Account; Cash Management.

(a)Establishment of Payment Reserve Account.  On or prior to the Closing Date, Borrower shall open and thereafter at all times maintain the Payment Reserve Account at Liberty Bank, and shall at all times deposit, or cause to be deposited (via direct deposit or otherwise), all of its gross revenue and gross income into the Payment Reserve Account, including but not limited to the payments required to be made by FCE pursuant to the terms of the Limited Guaranty.  On and after the Closing Date, there shall be no other accounts maintained by Borrower or any other Person into which any revenues or income of Borrower shall be deposited, and neither Borrower nor any other Person shall open any other such account with respect to the deposit or direct deposit of any revenue or income of the Borrower.  On and after the Closing Date, until deposited into the Payment Reserve Account, all revenue and income held by or on behalf of Borrower shall be deemed to be held in trust by Borrower for the benefit of Administrative Agent on behalf of the Secured Parties and shall not be commingled with any other funds or property of Borrower or any other Person.

(b)Cash Management Provisions.

(i)On and after the Closing Date, provided no Event of Default has occurred or is continuing, funds then on deposit in the Payment Reserve Account shall be allocated and disbursed by Administrative Agent for priorities FIRST through THIRD and SIXTH on each Payment Date in the amounts determined by Administrative Agent and in the order of priority set forth below and Administrative Agent shall provide written notice to Borrower (no later than five (5) Business Days after each Payment Date) setting forth the amounts of each such disbursement and substantiation for such amounts.  For priorities FOURTH through TWELFTH except SIXTH, below, a Withdrawal Certificate in the form attached hereto as Exhibit K shall be submitted by the Borrower to the Administrative Agent instructing the Administrative Agent to withdraw and transfer from the Payment Reserve Account (or retain in the Payment Reserve Account) the amounts specified in such Withdrawal Certificate on the date specified in such Withdrawal Certificate (which shall be a Payment Date), to the payees and the accounts and in the amounts specified in such Withdrawal Certificate in accordance with the priorities below applicable to such Payment Date, and upon the Administrative Agent’s receipt of such Withdrawal Certificate, the Administrative Agent shall make such withdrawals and transfers (or retention of such funds) in accordance with the

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instructions set forth therein on the applicable Payment Date, in each case, to the extent adequate funds are available in the following amounts and in the following order of priority:

(A)FIRST, to Administrative Agent, in the amount sufficient to pay all payments of fees, expenses, and other charges then due in connection with the Obligations;

(B)SECOND, to the Administrative Agent, for the ratable benefit of the Lenders, in the amount sufficient to pay all accrued but unpaid interest on the Obligations;

(C)THIRD, to the Administrative Agent, for the ratable benefit of the Lenders, in the amount sufficient to pay all outstanding principal on the Obligations;

(D)FOURTH, to the Lenders, for deposit into the DSCR Reserve Accounts in an amount set forth on the Withdrawal Certificate sufficient to satisfy the Target Reserve Amount;

(E)FIFTH, to each of Liberty and Amalgamated, in the amount set forth on the Withdrawal Certificate sufficient to pay all required deposits, including the Quarterly Liberty O&M Reserve Account Payment and Quarterly Amalgamated O&M Reserve Account Payment, into the O&M Reserve Account in accordance with the terms and conditions of Section 6.21(a) and 6.21(b);

(F)SIXTH, to the Administrative Agent, for the ratable benefit of the Lenders, in an amount sufficient to satisfy any mandatory prepayments on the Obligations;

(G)SEVENTH, to Connecticut Green Bank, in its capacity as administrative and collateral agent, in the amount set forth on the Withdrawal Certificate sufficient to pay all payments of fees, expenses, and other charges then due in connection with the CGB Subordinated Debt, to the extent permitted by the CGB Subordination Agreement;

(H)EIGHTH, to Connecticut Green Bank, in its capacity as administrative and collateral agent, in the amount set forth on the Withdrawal Certificate sufficient to pay all payments of accrued but unpaid interest then due in connection with the CGB Subordinated Debt, to the extent permitted by the CGB Subordination Agreement;

(I)NINTH, to Connecticut Green Bank, in its capacity as administrative and collateral agent, in the amount set forth on the Withdrawal Certificate sufficient to pay scheduled payments of principal then due on the CGB Subordinated Debt, to the extent permitted by the CGB Subordination Agreement; and

(J)TENTH, for deposit into the CGB DSCR Reserve Account for the benefit of Connecticut Green Bank, in its capacity as administrative and collateral agent, in the amount set forth on the Withdrawal Certificate sufficient to satisfy the Required CGB DSCR Reserve Balance (as such term is defined in Section 6.20(c) of the CGB Credit Agreement);

(K)ELEVENTH, to Connecticut Green Bank, in its capacity as administrative and collateral agent, in the amount set forth on the Withdrawal Certificate sufficient to satisfy any mandatory prepayments on the CGB Subordinated Debt, including, without limitation, any “Cash Sweep Payments” (as such term is defined in the CGB Credit Agreement) to the extent permitted by the CGB Subordination Agreement; and

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(L)TWELFTH, provided that no Event of Default has occurred and is continuing, to Borrower’s Operating Account on the last day of each fiscal quarter of Borrower in an amount set forth on the Withdrawal Certificate.  For the avoidance of doubt, Borrower shall be permitted to withdraw funds from such account to make distributions in an amount set forth on the Restricted Payment Certificate, subject to the terms of the CGB Subordinated Loan Documents and Section 7.06 of this Agreement.

(ii)If an Event of Default shall have occurred and be continuing, then Administrative Agent may, with the consent of, or shall, at the request of, the Required Lenders (such consent or request to be in the Required Lenders’ sole and absolute discretion), without notice to or the consent of Borrower, apply all or any portion of the Payment Reserve Account Funds (A) in the amounts and in the order of priority set forth in Section 6.20(b)(i) or such other order of priority as the Required Lenders may direct, or (B) toward the payment of the Obligations, regardless of whether the Obligations have been accelerated and/or such Obligations are then due and payable, in accordance with Section 8.03.

6.20DSCR Reserve Accounts.

(a) Liberty DSCR Reserve Account.  On or prior to the Closing Date, Borrower shall open and thereafter at all times maintain the Liberty DSCR Reserve Account.  On the Closing Date, the Liberty DSCR Reserve Account shall have a cash balance of $830,000, and thereafter, the Liberty DSCR Reserve Account shall at all times have a cash balance (the “Required Liberty DSCR Reserve Balance”) equal to (i) for the period from the Closing Date through the Full Performance Date, $830,000 and (ii) on and after the Full Performance Date, the greater of (A) $415,000 less the amount of any Liberty DSCR Reserve Funds released by Administrative Agent from the Liberty DSCR Reserve Account with the consent, or at the request, of the Required Lenders, and (B) the amount sufficient to pay fifty percent (50%) of the aggregate principal and interest payments due in connection with the Obligations in the succeeding six (6) months. Within five (5) Business Days following the Full Performance Date, any funds in the Liberty DSCR Reserve Account in excess of the Required Liberty DSCR Reserve Balance will be released into Borrower’s Operating Account.  If the Liberty DSCR Reserve Account does not have the Required Liberty DSCR Reserve Balance (such insufficiency in balance, a “Liberty DSCR Reserve Account Deficiency”), then, (i) subject to Section 6.19(b)(ii), on the next succeeding Payment Date, an amount equal to the Liberty DSCR Reserve Account Deficiency shall be deposited by Administrative Agent into the Liberty DSCR Reserve Account in accordance with Section 6.19(b)(i), and (ii) if there are insufficient Payment Reserve Account Funds for Administrative Agent to make such deposit, Borrower shall, within three (3) Business Days after such next succeeding Payment Date, deposit into the Liberty DSCR Reserve Account an amount equal to the Liberty DSCR Reserve Account Deficiency.

(b)Amalgamated DSCR Reserve Account.  On or prior to the Closing Date, Borrower shall open and thereafter at all times maintain the Amalgamated DSCR Reserve Account.  On the Closing Date, the Amalgamated DSCR Reserve Account shall have a cash balance of $830,000, and thereafter, the Amalgamated DSCR Reserve Account shall at all times have a cash balance (the “Required Amalgamated DSCR Reserve Balance”) equal to (i) for the period from the Closing Date through the Full Performance Date, $830,000 and (ii) on and after the Full Performance Date, the greater of (A) $415,000 less the amount of any Amalgamated DSCR Reserve Funds released by Administrative Agent from the Amalgamated DSCR Reserve Account with the consent, or at the request, of the Required Lenders, and (B) the amount sufficient to pay fifty percent (50%) of the aggregate principal and interest payments due in connection with the Obligations in the succeeding six (6) months.  Within five (5) Business Days following the Full Performance Date, any funds in the Amalgamated DSCR Reserve Account in excess of the Required Amalgamated DSCR Reserve Balance will be released into Borrower’s Operating Account.  If the Amalgamated DSCR Reserve Account does not have the Required Amalgamated DSCR Reserve Balance (such insufficiency in balance, a “Amalgamated DSCR Reserve Account Deficiency”), then, (i) subject to

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Section 6.19(b)(ii), on the next succeeding Payment Date, an amount equal to the Amalgamated DSCR Reserve Account Deficiency shall be deposited by Administrative Agent into the Amalgamated DSCR Reserve Account in accordance with Section 6.19(b)(i), and (ii) if there are insufficient Payment Reserve Account Funds for Administrative Agent to make such deposit, Borrower shall, within three (3) Business Days after such next succeeding Payment Date, deposit into the Amalgamated DSCR Reserve Account an amount equal to the Amalgamated DSCR Reserve Account Deficiency.

(c)Release of DSCR Reserve Funds.  Funds in the DSCR Reserve Accounts will be disbursed with the consent of, or at the request of, the Required Lenders (such consent or request to be in the Required Lenders’ sole and absolute discretion).  All disbursements of DSCR Reserve Funds shall be made from the Liberty DSCR Reserve Account and the Amalgamated DSCR Reserve Account on a pro rata basis.

6.21O&M Reserves.

(a)Liberty O&M Reserve Account.  On or prior to the Closing Date, Borrower shall cause Project Company to open and thereafter at all times maintain the Liberty O&M Reserve Account.  On the Closing Date, the Liberty O&M Reserve Account shall have a cash balance of $3,250,000).  The Liberty O&M Reserve Account shall at all times have a cash balance (the “Required Liberty O&M Reserve Balance”) equal to (i) $3,250,000 (ii) plus, Quarterly Liberty O&M Reserve Account Payments less (iii) the amount of any Liberty O&M Reserve Funds released by Administrative Agent from the Liberty O&M Reserve Account with the consent, or at the request, of the Required Lenders, and, to the extent required by the Interparty Agreement, EWB.  Borrower shall make quarterly deposits, each in an amount equal to $101,100, into the Liberty O&M Reserve Account on each Payment Date after the Closing Date until the amount in the Liberty O&M Reserve Account equals at least $5,439,500 (the “Quarterly Liberty O&M Reserve Account Payment”). If the Liberty O&M Reserve Account does not have the Required Liberty O&M Reserve Balance (such insufficiency in balance, a “Liberty O&M Reserve Account Deficiency”), (i) subject to Section 6.19(b)(ii), on the next succeeding Payment Date, an amount equal to the Liberty O&M Reserve Account Deficiency shall be deposited by Administrative Agent into the Liberty O&M Reserve Account in accordance with Section 6.19(b)(i), and (ii) if there are insufficient Payment Reserve Account Funds for Administrative Agent to make such deposit, Borrower shall, within three (3) Business Days after such next succeeding Payment Date, deposit into the Liberty O&M Reserve Account an amount equal to the Liberty O&M Reserve Account Deficiency.

(b)Amalgamated O&M Reserve Account.  On or prior to the Closing Date, Borrower shall cause Project Company to open and thereafter at all times maintain the Amalgamated O&M Reserve Account.  On the Closing Date, the Amalgamated O&M Reserve Account shall have a cash balance of $3,250,000.  The Amalgamated O&M Reserve Account shall at all times have a cash balance (the “Required Amalgamated O&M Reserve Balance”) equal to (i) $3,250,000 plus Quarterly Amalgamated O&M Reserve Account Payments (ii) less (iii) the amount of any Amalgamated O&M Reserve Funds released by Administrative Agent from the Amalgamated O&M Reserve Account with the consent, or at the request, of the Required Lenders, and, to the extent required by the Interparty Agreement, EWB.  Borrower shall make quarterly deposits, each in an amount equal to $101,100, into the Amalgamated O&M Reserve Account on each Payment Date after the Closing Date until the amount in the Amalgamated O&M Reserve Account equals at least $5,439,500 (the “Quarterly Amalgamated O&M Reserve Account Payment”).  If the Amalgamated O&M Reserve Account does not have the Required Amalgamated O&M Reserve Balance (such insufficiency in balance, a “Amalgamated O&M Reserve Account Deficiency”), (i) subject to Section 6.19b)(ii), on the next succeeding Payment Date, an amount equal to the Amalgamated O&M Reserve Account Deficiency shall be deposited by Administrative Agent into the Amalgamated O&M Reserve Account in accordance with Section 6.19(b)(i), and (ii) if there are insufficient Payment Reserve Account Funds for Administrative Agent to make such deposit, Borrower shall, within three (3) Business

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Days after such next succeeding Payment Date, deposit into the Amalgamated O&M Reserve Account an amount equal to the Amalgamated O&M Reserve Account Deficiency.

(c)Reserved.

(d)Release of O&M Reserve Funds.  Funds in the O&M Reserve Accounts will be disbursed (i) as long as EWB holds an equity interest in Tax Equity Holdco, as set forth in the Interparty Agreement and (ii) at all other times (A) as needed by the Project Company to pay for fuel cell or module restacking or replacement, including, without limitation, to pay outstanding principal on the Obligations on the Maturity Date; provided, that in no event shall Administrative Agent release any O&M Reserve Funds in connection with a fuel cell or module restacking or replacement unless (1) DAI has inspected the fuel cell modules at the Facility and provided Administrative Agent with a written certification that a restacking or replacement of all fuel cells contained in each of such fuel cell modules has occurred and (2) the Required Lenders have reviewed and approved all invoices and draw requests and/or requisitions in connection with such replacement or restacking, (B) to pay outstanding principal on the Obligations on the Maturity Date, and (C) in all other cases, with the consent or at the request of the Required Lenders (such consent or request to be in the Required Lender’s sole and absolute discretion).  All disbursements of O&M Reserve Funds shall be made from the Liberty O&M Reserve Account and the Amalgamated O&M Reserve Account on a pro rata basis.

6.22CMEEC-Navy Lease.  Ensure that CMEEC has complied with all obligations, covenants and terms of the CMEEC-Navy Lease, subject to applicable cure rights.

6.23Carbon Offset Requirements.  Within one hundred twenty (120) days of each fiscal year end of the Borrower, FCE, or a direct or indirect subsidiary thereof, must purchase Carbon Offsets from an Acceptable Carbon Offset Provider in an amount equal to the lesser of (i) the Annual Carbon Offset Requirement for such fiscal year and (ii) the Annual Carbon Offset Cap for such fiscal year. Failure to comply with this requirement shall be defined as a “Carbon Offset Event”.

6.24Tax Equity Holdco. Borrower shall exercise its right to acquire the Class A Member’s Membership Interests pursuant to the terms and conditions of the Tax Equity Holdco LLC Agreement during the ninety (90) day period beginning on the Flip Point (under and as defined in the Tax Equity Holdco LLC Agreement).

6.25Renewable Energy Credits.

(a)REC Contribution.  On an annual basis, to the extent RECs produced by the Facility shall not realize payments on average to Borrower of at least $14 per Renewable Energy Credit (the “Minimum REC Price”), FCE will undertake an annual contribution to Borrower equivalent to any deficiency in Renewable Energy Credit revenues received by the Facility for the preceding annual period.  Such deficiency shall be determined as the product of Minimum REC Price multiplied by the Renewable Energy Credits produced for such year less the amount of revenue actually received by the Facility for such annual period, but, in no event shall this product be less than zero (the “REC Contribution”).  The REC Contribution shall not exceed $500,000 with respect to any annual determination.

(b)REC Hedging.  Borrower shall enter into REC Hedge Agreements to sell RECs through a recognized market or with another counterparty, in each case acceptable to Required Lenders in their sole discretion, on a twenty-nine (29) month rolling basis satisfying the following criteria: for the period from the Closing Date through December 31, 2023, fifty percent (50%) of RECs produced in five month period shall be subject to a REC Hedge Agreement (the “Year 1 REC Hedge Requirement”), which such RECs subject to the Year 1 REC Hedge Requirement comprised solely of 2023 vintage RECs, for the period from

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January 1, 2024 through December 31, 2024, thirty seven and one half percent (37.5%) of RECs produced in such year shall be subject to a REC Hedge Agreement (the “Year 2 REC Hedge Requirement”), which such RECs subject to the Year 2 Hedge Requirement comprised solely of 2024 vintage RECs; and for the period from January 1, 2025 through December 31, 2025, twenty five percent (25%) of RECs produced in such year shall be subject to a REC Hedge Agreement (the “Year 3 REC Hedge Requirement”), which such RECs subject to the Year 3 REC Hedge Requirement comprised solely of 2025 vintage RECs.  On January 1 of each year (the “Reset Date”), commencing on January 1, 2024, the REC Hedging requirements re-adjust such that Borrower shall be required to satisfy: (1) the Year 1 REC Hedge Requirement for the twelve (12) month period beginning on January 1of such year and continuing through December 31 of the following year; (2) the Year 2 REC Hedge Requirement for the twelve (12) month period beginning twelve (12) months after each Reset Date; and (3) the Year 3 REC Hedge Requirement for the twelve (12) month period beginning twenty four (24) months after each Reset Date.

ARTICLE VII.NEGATIVE COVENANTS

On and after the Closing Date, and for so long as any Obligation shall remain unpaid or unsatisfied, Borrower shall not, directly or indirectly:

7.01Liens.  Create, incur, assume or suffer to exist any Lien upon any of its property, assets or revenues, whether now owned or hereafter acquired, other than the following:

(a)Liens pursuant to any Loan Document;

(b)Liens for taxes not yet due or which are being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of Borrower in accordance with GAAP;

(c)carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens arising in the ordinary course of business which are not overdue for a period of more than 45 days or which are being contested in good faith and by appropriate proceedings diligently conducted; provided, that adequate reserves with respect thereto are maintained on the books of Borrower and the aggregate amount of such Liens is less than $100,000;

(d)pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation, other than any Lien imposed by ERISA, in an aggregate amount not to exceed $25,000;

(e)deposits to secure the performance of bids, trade contracts and leases (other than Indebtedness), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature, in each case incurred in the ordinary course of business;

(f)Liens securing Indebtedness permitted under Section 7.03(c); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Indebtedness and (ii) the Indebtedness secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition; and

(g)Liens securing the CGB Subordinated Debt, subject to the terms of the CGB Subordination Agreement.

7.02Investments.  Make any Investments, except:

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(a)Investments held by Borrower in the form of cash equivalents; and

(b)advances to officers, directors and employees of Borrower in an aggregate amount not to exceed $10,000 at any time outstanding, for travel, entertainment, relocation and analogous ordinary business purposes.

7.03Indebtedness.  Create, incur, assume or suffer to exist any Indebtedness, except:

(a)Indebtedness under the Loan Documents;

(b)Indebtedness under the CGB Subordinated Loan Documents, subject to the terms of the CGB Subordination Agreement; and

(c)Indebtedness in respect of Capitalized Leases, Synthetic Lease Obligations and purchase money obligations for fixed or capital assets; provided, however, that the aggregate amount of all such Indebtedness at any one time outstanding shall not exceed $100,000.

7.04Fundamental Changes.  Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person.

7.05Dispositions.  Make any Disposition or enter into any agreement to make any Disposition.

7.06Restricted Payments.  (a) Borrower will not declare or make, or agree to pay or make, any Restricted Payment, unless:

(i)no Event of Default or Default has occurred and is continuing and such Restricted Payment will not result in an Event of Default;

(ii)the Senior Debt Service Coverage Ratio calculated on a quarterly basis (A) until the first year anniversary of the Closing Date, since the Closing Date; and (B) after the first year anniversary of the Closing Date, for the twelve (12) month period immediately preceding such Distribution Date is equal to or greater than 1.20:1.00;

(b)the Borrower shall have delivered or made available to each Lender a Restricted Payment Certificate in the form of Exhibit J certifying to the effect that each of the applicable foregoing conditions shall have been satisfied and including the detailed calculations and assumptions for the applicable conditions.

7.07Change in Nature of Business.  Engage in any line of business substantially different from the line of business conducted by Borrower on the date hereof or any business substantially related or incidental thereto.

7.08Transactions with Affiliates.  Enter into any transaction of any kind with any Affiliate of Borrower, whether or not in the ordinary course of business, other than on fair and reasonable terms substantially as favorable to Borrower or such Affiliate as would be obtainable by Borrower or such Affiliate at the time in a comparable arm’s length transaction with a Person other than an Affiliate.

7.09Burdensome Agreements.  Enter into any Contractual Obligation (other than this Agreement or any other Loan Document) that: (a) limits the ability (i) of any Subsidiary to Guarantee the Indebtedness of Borrower or (ii) of the Borrower or any Subsidiary to create, incur, assume or suffer to

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exist Liens on property of such Person; or (b) requires the grant of a Lien to secure an obligation of such Person if a Lien is granted to secure another obligation of such Person.

7.10Use of Proceeds.  Use the proceeds of the Loan, whether directly or indirectly, and whether immediately, incidentally or ultimately, (i) to purchase or carry margin stock (within the meaning of Regulation U, T or X of the FRB) or to extend credit to others for the purpose of purchasing or carrying margin stock or to refund indebtedness originally incurred for such purpose or (ii) for any purpose other than those permitted by Section 6.11.

7.11Inconsistent Agreements; Charter Amendments.  Enter into, consent to, or vote in favor of the entering into of any agreement or arrangement which would restrict in any respect the ability of Borrower to fulfill its Obligations under the Loan Documents, or supplement, amend or otherwise modify, or consent to or vote in favor of the supplementing, amendment, or modification of the terms of Borrower’s Organizational Documents or the Organizational Documents of Tax Equity Holdco, in each case, in such a manner which would restrict in any respect the ability of Borrower to fulfill its Obligations under the Loan Documents.

7.12Accounting Changes.  Make any change in its (a) accounting policies or reporting practices, except as required by GAAP, or (b) fiscal year.

7.13 Debt Service Coverage Ratios.

(a)Senior Debt Service Coverage Ratio. Permit the Senior Debt Service Coverage Ratio to be less than 1.20:1.00, as of the end of each fiscal quarter of Borrower on a trailing twelve-month basis.

(b)Total Debt Service Coverage Ratio.  Permit the Total Debt Service Coverage Ratio to be less than 1.10:1.00, as of the end of each fiscal quarter of Borrower on a trailing twelve-month basis.

7.14Sanctions.  Directly or indirectly, use the Loan or the proceeds of the Loan, or lend, contribute or otherwise make available the Loan or the proceeds of the Loan to any Person, to fund any activities of or business with any Person, or in any Designated Jurisdiction, that, at the time of such funding, is the subject of Sanctions, or in any other manner that will result in a violation by any Person (including any Person participating in the transaction, whether as Lender, Administrative Agent, Lead Arranger or otherwise) of Sanctions.

7.15Sale and Leaseback Transaction.  Enter into any Sale and Leaseback Transaction.

7.16Prepayments, Etc. of Indebtedness.  Prepay, redeem, purchase, defease or otherwise satisfy any Indebtedness, or obligate itself to do so prior to the scheduled maturity thereof in any manner (including by the exercise of any right of setoff), or make any payment in violation of any subordination, standstill or collateral sharing terms of or governing any Indebtedness (including the terms of the CGB Subordination Agreement), except (a) the prepayment of the Loan in accordance with the terms of this Agreement, and (b) regularly scheduled or required payments of principal and interest on the CGB Subordinated Debt, to the extent permitted by the CGB Subordination Agreement.

7.17Amendments, Etc. of Indebtedness.

(a)Amend, modify or change in any manner any term or condition of any CGB Subordinated Loan Document or give any consent, waiver or approval thereunder, unless expressly permitted by the CGB Subordination Agreement; provided, that no such amendment, modification or change shall be more restrictive on the Loan Parties than the terms of such documents as in effect on the date hereof;

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(b)Take any other action in connection with any CGB Subordinated Loan Document that would impair the value of the interest or rights of Borrower or any Loan Party thereunder or that would impair the rights or interests of the Administrative Agent or any Lender; or

(c)Without, in each case, the prior written consent of the Administrative Agent and Required Lenders, amend, modify or change in any manner any term or condition of any Indebtedness (other than Indebtedness arising under the Loan Documents) if such amendment or modification would add or change any terms in a manner adverse to Borrower, increase the principal amount of such Indebtedness, or shorten the final maturity or average life to maturity or require any payment to be made sooner than originally scheduled or increase the interest rate applicable thereto.

7.18Capital Expenditures.  Except as permitted by Section 7.19, make or become legally obligated to make any Capital Expenditure, excluding Capital Expenditures made to restack the fuel cells at the Facility if such Capital Expenditures are funded from the O&M Reserve to the extent permitted by this Agreement and the Interparty Agreement.

7.19Capital Contributions.  Make any capital contribution to Tax Equity Holdco unless such capital contribution is funded immediately prior thereto by a capital contribution to Borrower in like amount by FCE.

7.20Subsidiaries.  Not create or permit to be created any direct or indirect Subsidiaries without the prior written approval of the Required Lenders.

7.21Absence of Regulation.  Without the prior written consent of Required Lenders, take any action, or fail to take any action, that would subject Borrower, the Facility, Administrative Agent or any Lender to regulation by FERC or CT PURA.

7.22Certain Approvals under the Tax Equity Holdco LLC Agreement. The Borrower shall not, (a) vote to take any of the actions described in Sections 3.03 (b)(i)(B), 6.04 (c), 6.07 (but only with respect to FCE’s resignation as a Managing Member of the Tax Equity Holdco) of the Tax Equity Holdco LLC Agreement or (b) amend, modify or supplement the Tax Equity Holdco LLC Agreement without the Administrative Agent’s consent; provided, however that no prior written consent under this Section 7.22 shall be required for proposed actions under the Tax Equity Holdco LLC Agreement or amendments or modifications of the Tax Equity Holdco LLC Agreement (including those initiated under Section 6.04(c)(ii) of the Tax Equity Holdco LLC Agreement) that are solely of a ministerial, technical or administrative nature or are otherwise not reasonably expected to have a material adverse effect on the Borrower’s ability to satisfy its obligations under this Agreement.  The Borrower shall cause Tax Equity Holdco to provide to Administrative Agent promptly, but in no event later than thirty (30) days after Borrower’s receipt thereof, copies of any amendments, supplements or other modifications to the Tax Equity Holdco LLC Agreement after the date of this Agreement.

ARTICLE VIII.EVENTS OF DEFAULT AND REMEDIES

8.01Events of Default.  Any of the following shall constitute an “Event of Default”:

(a)Non-Payment.  Borrower fails to pay when and as required to be paid herein, any amount of principal of the Loan, any interest on the Loan within three (3) Business Days after the due date thereof, any fee due hereunder or any other amount payable hereunder or under any other Loan Document within three (3) Business Days after the due date thereof; or

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(b)Specific Covenants.  Borrower fails to perform or observe any term, covenant or agreement contained in any of Section 6.01, 6.02, 6.03, 6.05, 6.10, 6.11, 6.12, 6.15, 6.17, 6.18, 6.19, 6.20, 6.21, 6.22 or 6.23 or Article VII or any Guarantor fails to perform or observe any term, covenant or agreement contained the Guaranty; or

(c)Other Defaults.  Any Loan Party fails to perform or observe any other covenant or agreement (not specified in subsection (a) or (b) above) contained in any Loan Document on its part to be performed or observed and such default shall continue unremedied for a period of thirty (30) days after the earlier of (i) the date on which Borrower became aware of such default or (ii) notice thereof having been given to Borrower by the Administrative Agent, provided, however, that if the breach or default (other than a default for the payment of amounts when due) cannot be remedied within such period despite the Borrower’s or such other party’s, as the case may be, reasonable commercial efforts to do so, the such cure period shall be extended for an additional sixty (60)-day period beyond the initial cure period, to cure such breach or default if the breach or default could not reasonably be expected to have a Material Adverse Effect if not cured within such sixty (60)-day period and if remedial action (A) could reasonably be expected to result in cure within such additional sixty (60)-day period, (B) is promptly instituted within the initial cure period, and (C) is thereafter diligently pursued until the breach or default is corrected within such additional reasonable cure period granted by the Administrative Agent; or