EX-10.5 6 tm2316597d1_ex10-5.htm EXHIBIT 10.5

Exhibit 10.5

EXECUTION VERSION

ISDA®

International Swaps and Derivatives Association, Inc.

SCHEDULE

to the

2002 Master Agreement

dated as of May 19, 2023

between

INVESTEC BANK PLC and		FUELCELL ENERGY OPCO FINANCE 1, LLC
(“Party A”)		(“Party B”)

Part 1. Termination Provisions

(a)

Specified Entity. “Specified Entity” means in relation to Party A for the purpose of:

Section 5(a)(v),		Not Applicable.
Section 5(a)(vi),		Not Applicable.
Section 5(a)(vii),		Not Applicable.
Section 5(b)(v),		Not Applicable.

and in relation to Party B for the purpose of:

Section 5(a)(v),		Not Applicable.
Section 5(a)(vi),		Not Applicable.
Section 5(a)(vii),		Not Applicable.
Section 5(b)(v),		Not Applicable.

(b)

“Specified Transaction” shall have the meaning specified in Section 14 of this Agreement.

(c)

The “Cross Default” provisions of Section 5(a)(vi) will apply to Party A and shall apply to Party B, provided that (i) in line 7 of Section 5(a)(vi) the words “, or becoming capable at such time of being declared,” are deleted. In addition, the following language shall be added to the end of Section 5(a)(vi): “Notwithstanding the foregoing, a default under subsection (2) hereof shall not constitute an Event of Default if (i) the default was caused solely by error or omission of an administrative or operational nature; (ii) funds were available to enable the party to make the payment when due; and (iii) the payment is made within two Local Business Days of such party’s receipt of written notice of its failure to pay.”

“Specified Indebtedness” will have the meaning specified in Section 14 of this Agreement, but it will not include (i) indebtedness in respect of deposits received in the ordinary course of a party’s banking business or (ii) any payment not made because of an intervening change in law making such payment illegal, a force majeure or an act of state, provided that the party had available sufficient funds to make such payment at the time of non-payment.

EXECUTION VERSION

“Threshold Amount” means (i) with respect to Party A, an amount equal to 3% (three per cent) of the total shareholders’ equity of Party A (as stated in the most recently published annual accounts of Party A), and (ii) with respect to Party B, $2,000,000.

(d)

The “Credit Event Upon Merger” provisions of Section 5(b)(v) will apply to both Party A and Party B. For the avoidance of doubt, no event or combination thereof permitted by the Financing Agreement shall constitute a Credit Event Upon Merger hereunder with respect to Party B.

(e)

The “Automatic Early Termination” provisions of Section 6(a) will not apply to Party A or Party B.

(f)

“Termination Currency” will be United States Dollars.

(g)

“Additional Termination Event” will apply. The following will each constitute an Additional Termination Event with regard to Party B:

(1) Party B's obligations to Party A arising under or in respect of this Agreement shall at any time cease to be secured and/or guaranteed equally and ratably on a pari passu basis with the principal and interest of the Loans in the manner described in the Financing Agreement as of the date of this Agreement or the date of a Qualifying Refinance;

(2) except as permitted under the Security Agreements, all or substantially all of the Collateral securing or purporting to secure Party B's obligations under this Agreement shall be released from the security interest or lien granted under the Security Agreements;

(3) if a Mandatory Prepayment occurs under the Financing Agreement, then an Additional Termination Event shall be deemed to have occurred hereunder with respect to a portion of each outstanding Transaction equal to the Reduction Amount. For purposes hereof, the term “Reduction Amount” shall mean, with respect to each Transaction hereunder, an amount equal to the product of (x) the Notional Amount of such Transaction, multiplied by (y) the Reduction Percentage. The term “Reduction Percentage” shall mean the quotient of (x) the amount of Term Loans being reduced as a result of the related Mandatory Prepayment under the Financing Agreement, divided by (y) the outstanding principal balance of the Term Loans immediately prior to such Mandatory Prepayment, expressed as a percentage;

(4) the Loans made pursuant to the Financing Agreement are cancelled, terminated, repaid or prepaid in full on or prior to their scheduled maturity date and the commitments thereunder are cancelled in accordance with its terms, other than (i) when such cancellation, termination, repayment or prepayment in full occurs as a consequence of any refinancing or replacement financing agreed between the parties thereto, and (ii) Party A or any Affiliate of Party A is a party to such refinancing or replacement financing (a refinancing or replacement that satisfies both such conditions, a “Qualifying Refinance”); or

(5) neither Party A nor an Affiliate thereof is a lender under the Financing Agreement

In each of the above Additional Termination Events, Party B shall be the Affected Party and each Transaction shall be an Affected Transaction; provided however that with respect to Part 1(g)(3) above, (A) Party A will, acting commercially reasonably, determine whether the Notional Amount of any Affected Transaction should be reset and in what manner, and to the extent that Party A determines the Notional Amount should be reset then, with effect from the Early Termination Date, the Notional Amount will be reset by Party A in the manner determined and Party A will notify Party B of the notional amount as reset in accordance with this provision (the “Reset Notional Amount”); (B) the Reset Notional Amount shall be used for the purposes of calculating any amount that becomes payable under Section 2(a)(i) under any subsequent Affected Transaction; and (C) for the purposes of Section 6(c)(ii) and Section 6(e), “Terminated Transaction” will mean, in respect of an Affected Transaction, a Transaction on the same terms as the Affected Transaction, save that the notional amount of that Transaction shall be an amount determined by Party A to reflect the difference between the Notional Amount prior to the operation of (A) above and the Reset Notional Amount.

EXECUTION VERSION

Part 2. Tax Representations

(a)

Payer Representations. For the purpose of Section 3(e) of this Agreement, Party A and Party B each makes the following representation:

It is not required by any applicable law, as modified by the practice of any relevant governmental revenue authority, of any Relevant Jurisdiction to make any deduction or withholding for or on account of any Tax from any payment (other than interest under Section 9(h) of this Agreement) to be made by it to the other party under this Agreement. In making this representation, it may rely on (i) the accuracy of any representations made by the other party pursuant to Section 3(f) or 3(g) of this Agreement, (ii) the satisfaction of the agreement contained in Section 4(a)(i) or 4(a)(iii) of this Agreement and the accuracy and effectiveness of any document provided by the other party pursuant to Section 4(a)(i) or 4(a)(iii) of this Agreement and (iii) the satisfaction of the agreement of the other party contained in Section 4(d) of this Agreement, except that it will not be a breach of this representation where reliance is placed on clause (ii) above and the other party does not deliver a form or document under Section 4(a)(iii) of this Agreement by reason of material prejudice to its legal or commercial position.

(b)

Payee Representations. For the purpose of Section 3 (f) of this Agreement, Party A and Party B make the following representations:

(1) Party A: Party A represents that:

(A) it is a public limited company duly organized and validly existing under the laws of England and Wales; and

(B) It is fully eligible for the benefits of the “Business Profits” or “Industrial and Commercial Profits” provision, as the case may be, the “interest” provision, or the “Other Income” provision (if any) of the Specified Treaty with respect to any payment described in such provisions and received or to be received by it in connection with this Agreement, and no such payment is attributable to a trade or business carried on by it through a permanent establishment in the United States.

“Specified Treaty” means the income tax treaty between the United Kingdom and the United States.

(2) Party B: Party B represents that:

(A) It has been duly incorporated, created or organized under the laws of the United States of America or of any State of the United States of America, and it is validly existing under those laws.

“Specified Treaty” means the income tax treaty between the United Kingdom and the United States.

EXECUTION VERSION

Part 3. Agreement to Deliver Documents

Each party agrees to deliver the following documents as applicable:

(a)

For the purposes of Section 4(a)(i), tax forms, documents or certificates to be delivered are:

Party required to deliver document

Form/Document/Certificate

Date by which to be delivered

Party A

A correct, complete and executed U.S. Internal Revenue Service Form W-SBEN-E, or any successor thereto, and appropriate attachments.

(i) Upon execution of this Agreement, (ii) promptly upon reasonable demand by the other party and (iii) promptly upon learning that any such form previously provided by the party has become obsolete or incorrect.

Party B

A correct, complete and executed U.S. Internal Revenue Service Form W-9, or any successor thereto, and appropriate attachments.

(b)

For the purposes of Section 4 (a)(ii), other documents to be delivered are:

Party required to deliver document	Form/Document/Certificate	Date by which to be delivered	Covered by 3(d) representation?
Party A and Party B	A certificate (or, if available, its current authorized signature book) specifying the names, title and specimen signatures of the persons authorized to execute this Agreement, each Confirmation with respect to any Transaction hereunder, and each Credit Support Document (as applicable) on its behalf or on behalf of its Credit Support Provider, as the case may be.	Upon execution and delivery of this Agreement, and upon demand.	Yes.
Party B	Certified copies of all corporate authorizations with respect to the execution, delivery and performance of this Agreement and each Credit Support Document.	Upon execution and delivery of this Agreement.	Yes.
Party B	A copy of the quarterly financial statements required to be delivered pursuant to the Financing Agreement.	At the time required to be delivered by the Financing Agreement (and, if the Financing Agreement is no longer in effect, pursuant to a Qualifying Refinance or otherwise when required to be delivered at the time such agreement was last in effect).	Yes.

EXECUTION VERSION

Party B

A copy of the annual financial statements required to be delivered by Party B pursuant to the Financing Agreement.

At the time required to be delivered by the Financing Agreement (and, if the Financing Agreement is no longer in effect, pursuant to a Qualifying Refinance or otherwise when required to be delivered at the time such agreement was last in effect).

Yes.

Party A

A copy of its most recently available annual reports containing audited financial statements for the most recently ended fiscal year certified by independent public accountants as fairly presenting its financial condition and results of operations for and as at the close of such fiscal year.

Upon request, if not available on www.investec.com.

Party B

A copy of each Credit Support Document (and any amendment or supplement thereto) duly executed by it or its Credit Support Provider (as applicable).

Upon execution and delivery of this Agreement.

Yes.

Section 3(d) of the Agreement is hereby amended by the addition of the following in the third line thereof after the word “respect” and before the period:

“or, in the case of audited or unaudited financial statements, is a fair presentation of the financial condition of the relevant party in accordance with generally accepted accounting principles as of the dates of such statements.”

EXECUTION VERSION

Part 4. Miscellaneous

(a)

Addresses for Notices. For the purpose of Section 12(a):

(i)

Address for notices or communications to Party A: (other than notices for the purposes of Section 5 or 6 of this Agreement) shall be sent to the address or facsimile number specified below:

Address:	Investec Bank plc
	30 Gresham Street
	London
	EC2V 7QP
Attention:	Investec Document Management
Telephone No.:	+44 (0)20 7597 4810
Facsimile No.:	+44 (0)20 7597 4975
Email:	InvestecDocumentManagement@investec.com

(For all purposes.)

Address for notices or communications to Party A under Section 5 or 6:

Address:	Investec Bank plc
	30 Gresham Street
	London
	EC2V 7QP
Attention:	Head of ICIB Legal
Email:	InvestecDocumentManagement@investec.com

(ii)

Address for notices or communications to Party B:

Address:	FuelCell Energy Opco Finance 1, LLC
	3 Great Pasture Rd
	Danbury, CT 06810
Attention:	Brian Domitz
Telephone No:	203-825-6069
Facsimile No.:	203-825-6069
Email:	*bdomitz@fce.com*

(For all purposes)

(b)

Process Agent. For the purpose of Section 13(c):

Party A appoints as its Process Agent: Not Applicable.

Party B appoints as its Process Agent: Not Applicable.

(c)

Offices. The provisions of Section 10(a) will apply to this Agreement.

(d)

Multibranch Party. For the purposes of Section 10(b) of this Agreement:

Party A is not a Multibranch Party.

Party B is not a Multibranch Party.

(e)

Calculation Agent. The Calculation Agent is Party A unless otherwise agreed in a Confirmation in relation to the relevant Transaction, unless an Event of Default has occurred and is continuing with respect to Party A, in which case Party B may appoint a Leading Dealer to act as Calculation Agent for so long as such Event of Default is continuing, and the costs of employing such Leading Dealer shall be borne solely by Party A, unless an Event of Default has also occurred and is continuing with respect to Party B, in which case such costs shall be borne equally by Party A and Party B. All calculations and determinations by the Calculation Agent shall be made in good faith and in a commercially reasonable manner.

EXECUTION VERSION

(f)

Credit Support Document.

Credit Support Document means in relation to Party A: Not Applicable.

Credit Support Document means in relation to Party B: Each Security Document.

(g)

Credit Support Provider.

Credit Support Provider means in relation to Party A: Not Applicable.

Credit Support Provider means in relation to Party B: Not Applicable.

(h)

Governing Law. This Agreement and each Transaction entered into hereunder will be governed by and construed in accordance with the law of the State of New York without reference to its choice of law doctrine.

(i)

Jurisdiction. Section 13(b) is hereby deleted in its entirety and replaced with the following:

(b) Jurisdiction. With respect to any suit, action or proceedings relating to any dispute arising out of or in connection with this Agreement (“Proceedings”), each party irrevocably:-

(i) submits to the exclusive jurisdiction of the courts of the State of New York and the United States District Court located in the Borough of Manhattan in New York City; and

(ii) waives any objection which it may have at any time to the laying of venue of any Proceedings brought in any such court, waives any claim that such Proceedings have been brought in an inconvenient forum and further waives the right to object, with respect to such Proceedings, that such court does not have any jurisdiction over such party.

(j)

Netting of Payments. Multiple Transaction Payment Netting will apply for the purpose of Section 2(c) of this Agreement to all Transactions, however, failure by any party to the Agreement to effect net settlement in this manner, shall not constitute a breach of this Agreement.

(k)

Affiliate. Affiliate will have the meaning specified in Section 14.

(l)

Absence of Litigation. For the purpose of Section 3(c):

Specified Entity means in relation to Party A: Not Applicable.

Specified Entity means in relation to Party B: Not Applicable.

(m)

No Agency. The provisions of Section 3(g) will apply to this Agreement.

(n)

Additional Representation will apply. For the purpose of Section 3 of this Agreement, the following will constitute an Additional Representation:

(i)

Relationship between Parties. Each party will be deemed to represent to the other party on the date on which it enters into a Transaction that (absent a written agreement between the parties that expressly imposes affirmative obligations to the contrary for that Transaction):

EXECUTION VERSION

(1)

Non-Reliance. It is acting for its own account, and it has made its own independent decisions to enter into that Transaction and as to whether that Transaction is appropriate or proper for it based upon its own judgement and upon advice from such advisers as it has deemed necessary. It is not relying on any recommendation to enter into that Transaction, it being understood that information and explanations related to the terms and conditions of a Transaction will not be considered investment advice or any recommendation to enter into that Transaction. No communication (written or oral) received from the other party will be deemed to be an assurance or guarantee as to the expected results of that Transaction.

(2)

Assessment and Understanding. It is capable of assessing the merits of and understanding (on its own behalf or through independent professional advice), and understands and accepts, the terms, conditions and risks of that Transaction. It is also capable of assuming, and assumes, the risks of that Transaction.

(3)

Status of Parties. The other party is not acting as a fiduciary for or an advisor to it in respect of that Transaction.

(ii)

Eligible Contract Participant. Each party shall be deemed to represent to the other party on the date on which it enters into a Transaction that it is, and its Credit Support Provider is, an “eligible contract participant” within the meaning of the Commodity Exchange Act and the rules, regulations and interpretations of the Commodity Futures Trading Commission.

(o)

Recording of Conversations. Each Party (i) consents to the recording of telephone conversations between the trading, marketing and other relevant personnel of the parties in connection with this Agreement or any potential Transaction, with or without the use of a warning tone, (ii) acknowledges its responsibility to obtain any necessary consent of, and give any necessary notice of such recording to, its relevant personnel and (iii) agrees, to the extent permitted by applicable law and subject to authentication, that recordings may be submitted in evidence in any proceedings involving a dispute under this Agreement.

(p)

Express Consent Notice. For the purposes of enabling Party A to accept and execute all orders that may from time-to-time be placed with Party A by Party B, Party B hereby: (i) agrees that Party A may execute orders outside of a regulated market, multilateral trading facility or organised trading facility; and (ii) consents to the provision of information by Party A to Party B via email or via Party A’s website at www.investec.com in place of Party A providing such information by way of a paper hard copy. For the avoidance of doubt, any provision of information by Party A to Party B via Party A's website as specified in paragraph (ii) above is limited to disclosures under the European Commission Directive 2014/65/EU, as applied in the UK (“UK MiFID II”) in accordance with Article 3(2) of UK MiFID II and not in relation to any notices or communications with respect to specific Transactions under this Agreement.

(q)

Withholding Tax Imposed on Payments to non-US Counterparties under the United States Foreign Account Tax Compliance Act. “Tax” as used in Part 2(a) of this Schedule (Payer Tax Representation) and “lndemnifiable Tax” as defined in Section 14 of this Agreement shall not include any U.S. federal withholding tax imposed or collected pursuant to Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 1471(b) of the Code, or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such Sections of the Code (a “FATCA Withholding Tax”). For the avoidance of doubt, a FATCA Withholding Tax is a Tax the deduction or withholding of which is required by applicable law for the purposes of Section 2(d) of this Agreement.

EXECUTION VERSION

Part 5. Other Provisions

(a)

Electronic Signatures or no Signatures. The parties agree that either party may execute and deliver a Confirmation by an exchange of electronic messages on an electronic messaging system and that each such Confirmation executed by a party by means of an electronically produced signature shall have the same legal effect as if such signature had been manually written on such Confirmation and that such Confirmation shall be deemed to have been signed by such party for the purposes of any statute or rule of law that requires such Confirmation to be signed.

(b)

Defined Terms. In this Agreement:

“Financing Agreement” means that certain Financing Agreement dated as of May 19, 2023 by and among FUELCELL ENERGY OPCO FINANCE 1, LLC, as Borrower, the Several Lenders from time to time party thereto, INVESTEC BANK PLC, as Administrative Agent, INVESTEC BANK PLC, as Collateral Agent, and the L/C Issuers from time to time party thereto, as the same may be and may have been amended and/or amended and restated.

“Security Agreements” has the meaning set forth in the Financing Agreement.

All other capitalized terms used herein but not defined in or pursuant to this Agreement shall have the meaning given to them in the Financing Agreement.

(c)

Timely Confirmations

With respect to each Transaction governed by this Agreement, Party A will, on or promptly after the relevant trade date, send Party B a Confirmation confirming the terms of such Transaction (which Confirmation may be sent by mail, facsimile, electronic messaging system, email or other electronic means (all of which are effective means of delivery by Party A irrespective of the form of delivery used by Party B to confirm the terms of such Transaction)). Upon receipt thereof, Party B shall examine the terms of the Confirmation and shall return to Party A a signed copy or request any corrections therein, in each case within two (2) Local Business Days after Party B’s receipt of the Confirmation. Party B’s failure to return to Party A the signed Confirmation or to request any corrections therein, in each case within two (2) Local Business Days after Party B’s receipt of the Confirmation, shall be deemed an affirmation and acceptance by Party B of the terms of such Confirmation absent demonstrable error and shall be sufficient for all purposes to evidence a binding supplement to this Agreement notwithstanding Section 9(e)(ii) of this Agreement.

(d)

2020 UK EMIR Portfolio Reconciliation, Dispute Resolution and Disclosure Protocol

The parties agree that the terms of the 2020 UK EMIR Portfolio Reconciliation, Dispute Resolution and Disclosure Protocol published by the International Swaps and Derivatives Association, Inc. (“Protocol”) apply to this Agreement as if the parties had adhered to the Protocol without amendment. For these purposes:

(i) Party A is a Portfolio Data Sending Entity and Party B is a Portfolio Data Receiving Entity;

(ii) Party A and Party B may use a Third Party Service Provider, and the other party (in each case) consents to such use including the communication of the relevant data in relation to that other party to such Third Party Service Provider for the purposes of the reconciliation services provided by such entity;

EXECUTION VERSION

(iii)

The Local Business Days for such purposes in relation to Party A is London, and in relation to Party B are [ ]

(iv)

The following are the applicable email addresses:

Portfolio Data: Party A: Collateral.Management@investec.co.uk

Party B: bdomitz@fce.com, FCElegal@fce.com, and mbishop@fce.com

Notice of discrepancy: Party A: Collateral.Management@investec.co.uk

Party B: bdomitz@fce.com, FCElegal@fce.com, and mbishop@fce.com

Dispute Notice: Party A: Collateral.Management@investec.co.uk

Party B: bdomitz@fce.com, FCElegal@fce.com, and mbishop@fce.com

(e)

ISDA UK EMIR Non-Financial Counterparty (NFC) Representation Protocol. Both parties agree that the amendments set out in the attachment to the ISDA 2013 EMIR NFC Representation Protocol published by ISDA on 8 March 2013 and available on the ISDA website (www.isda.org) (the “NFC Protocol”) are incorporated herein as if set out in full in this Agreement but with the following amendments:

(i)

The definition of “Adherence Letter” is deleted and references to a party adhering, a party’s adherence or a party having adhered to the Protocol as a “NFC+ Party”, a “party that does not make the NFC Representation” or a “party making the NFC Representation” will be construed as such party executing this Agreement while making the statement that it is a party which is a NFC+ Party, a party that does not make the NFC Representation or a party making the NFC Representation in accordance with sub-paragraph (ii) (Confirmation of status) below.

(ii)

Confirmation of status:

Party A confirms that it is a party that does not make the NFC Representation.

Party B confirms that it is a party established outside the European Union that, to the best of its knowledge and belief, having given due and proper consideration to its status, would constitute a non-financial counterparty (as such term is defined in EMIR) if it were established in the European Union.

(iii)

The definition of “effectively delivered” is amended by replacing the words “the Adherence Letter” with the words “this Agreement”.

(iv)

For the purposes of the definition of “effectively delivered”, Party A’s address details to which any Clearing Status Notice, Non-Clearing Status Notice, NFC+ Representation Notice, NFC Representation Notice or Non-representation Notice should be delivered are: Collateral.Management@investec.co.uk

(v)

For the purposes of the definition of “effectively delivered”, Party B’s address details to which any Clearing Status Notice, Non-Clearing Status Notice, NFC+ Representation Notice, NFC Representation Notice or Non-representation Notice should be delivered are: by email to bdomitz@fce.com, FCElegal@fce.com, and mbishop@fce.com.

(vi)

The definition of “Protocol” is deleted.

(f)

Severability. If any term, provision, covenant, or condition of this Agreement, or the application thereof to any party or circumstance shall be held to be invalid or unenforceable (in whole or in part) for any reason, the remaining terms, provisions, covenants, and conditions hereof shall continue in full force and effect as if this Agreement had been executed with the invalid or unenforceable portion eliminated, so long as this Agreement as so modified continues to express, without material change, the original intentions of the parties as to the subject matter of this Agreement and the deletion of such portion of this Agreement will not substantially impair the respective benefits or expectations of the parties to this Agreement; provided that this severability provision shall not be applicable if any provision of Section 1(c), 2, 5, 6, or 13 (or any definition or provision in Section 14 to the extent it relates to, or is used in or in connection with any such Section) is held to be invalid or unenforceable

EXECUTION VERSION

(g)

WAIVER OF JURY TRIAL. EACH PARTY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO HAVE A TRIAL BY JURY IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY CREDIT SUPPORT DOCUMENT. EACH PARTY (I) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE OTHER PARTY OR ANY CREDIT SUPPORT PROVIDER HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF SUCH A SUIT, ACTION OR PROCEEDING, SEEK TO ENFORCE THE FOREGOING WAIVER AND (II) ACKNOWLEDGES THAT IT AND THE OTHER PARTY HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND PROVIDE FOR ANY CREDIT SUPPORT DOCUMENT, AS APPLICABLE BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

(h)

LIMITATION OF LIABILITY. NO PARTY SHALL BE REQUIRED TO PAY OR BE LIABLE FOR SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES (WHETHER OR NOT ARISING FROM ITS NEGLIGENCE) TO ANY OTHER PARTY; PROVIDED, HOWEVER, THAT NOTHING IN THIS PROVISION SHALL AFFECT THE ENFORCEABILITY OF SECTION 6(e) OF THIS AGREEMENT OR THE OBLIGATION TO PAY ANY AMOUNT REQUIRED PURSUANT TO SECTION 6(e) OR ANY OTHER PROVISION OF THIS AGREEMENT.

(i)

Notices. The first paragraph of Section 12(a) of this Agreement shall be deleted in its entirety and replaced with the following:

“Effectiveness. Any notice or other communication in respect of this Agreement may be given in any manner described below to the address or number or in accordance with the electronic messaging system or e-mail details provided (either in the Schedule or as further provided by one party to the other party) and will be deemed effective as indicated:—”

(j)

Additional Modifications to the Agreement. This Agreement shall be modified as follows: (i) Section 1(b) shall be amended by inserting the words “fully executed and delivered or otherwise accepted” between the words “any” and “Confirmation” in line 3; and (ii) Section 2(d)(i)(4)(B) is amended by deleting “Section 3(f)” in the first line thereof and inserting “Sections 3(f) and/or 3(g)” in lieu thereof.

(k)

Conditions Precedent. For the avoidance of doubt, Section 2(a)(iii) of this Agreement applies to each obligation of each party under Section 2(a)(i) of this Agreement, after the application of Section 2(c) of this Agreement.

(l)

Conflict or Inconsistency with Financing Agreement. Insofar as any provisions of the Financing Agreement incorporated herein conflict with or are inconsistent with any terms, covenants or conditions in this Agreement, the provisions of this Agreement shall prevail with respect to the subject matter hereof to the extent of the conflict or inconsistency, provided that the non-inclusion of a provision in either document shall not constitute a conflict or inconsistency for the purposes of this provision.

(m)

Bankruptcy Code. The parties hereto intend that this Agreement shall be a “swap agreement” for purposes of 11 U.S.C. §101(53B), or any successor provisions.

EXECUTION VERSION

(n)

Escrow. If by reason of the time difference between the cities in which payments are to be made or otherwise, it is not possible for simultaneous payments to be made on any date on which both parties are required to make payments hereunder, either party may at its option and in its sole discretion notify the other party that payments on that date are to be made in escrow. In this case deposit of the payment due earlier on that date shall be made by 2:00 p.m. (local time at the place for the earlier payment) on that date with an escrow agent selected by the party giving the notice and reasonably acceptable to the other party, accompanied by irrevocable payment instructions (a) to release the deposited payment to the intended recipient upon receipt by the escrow agent of the required deposit of the corresponding payment from the other party on the same date accompanied by irrevocable payment instructions to the same effect or (b) if the required deposit of the corresponding payment is not made on that same date, to return the payment deposited to the party that paid it into escrow. The party that elects to have payments made in escrow shall pay the costs of the escrow arrangements and shall cause those arrangements to provide that the intended recipient of the payment due to be deposited first shall be entitled to interest on that deposited payment for each day in the period of its deposit at the rate offered by the escrow agent for that day for overnight deposits in the relevant currency in the office where it holds that deposited payment (at 11:00 a.m. local time on that day) if that payment is not released by 5:00 p.m. local time on the date it is deposited for any reason other than the intended recipient's failure to make the escrow deposit it is required to make hereunder in a timely fashion.

Part 6. Definitions

(a)

ISDA Definitions: This Agreement is subject to the 2006 ISDA Definitions (the "2006 Definitions") published by the International Swaps and Derivatives Association, Inc. ("ISDA"), as amended and supplemented from time to time. The 1998 FX and Currency Option Definitions (the "FX and Currency Option Definitions"), published by ISDA, et. al., as amended and supplemented from time to time, are hereby incorporated by reference with respect to any "FX Transactions" and "Currency Option Transactions," as defined by the FX and Currency Option Definitions. The 2005 ISDA Commodity Definitions (the "Commodity Definitions" and, together with the 2006 Definitions and the FX and Currency Option Definitions, the "Definitions"), as published by ISDA, as amended and supplemented from time to time, are hereby incorporated by reference with respect to each Transaction which is a commodity swap, commodity option, commodity swaption or commodity cap, collar or floor (each a "Commodity Transaction"). In the event of any inconsistency between the provisions of this Agreement and the Definitions, this Agreement will prevail. In the event of any inconsistency between the provisions of any Confirmation and this Agreement or the Definitions, such Confirmation will prevail for the purposes of the relevant Transaction.

IN WITNESS WHEREOF the parties have executed this document on the respective dates specified below with effect from the date specified on the first page of this document.

INVESTEC BANK PLC		FUEL CELL ENERGY OPCO FINANCE 1, LLC

By:	/s/ Thomas Ganly	By:	/s/ Michael S. Bishop
Name: Thomas Ganly		Name: Michael S. Bishop
Title: Authorised Signatory		Title: EVP & CFO, Fuel Cell Energy, Inc.
Date: 19-May-2023		Date: 5/19/2023

By:	/s/ Aaron Jones
Name: Aaron Jones
Title: Authorized Signatory
Date: 19-May-2023