Exhibit 10.70







	 	 	 	 	 



Exhibit 10.70




SECOND AMENDMENT TO EXPORT LOAN AGREEMENT





THIS SECOND AMENDMENT TO EXPORT LOAN AGREEMENT (“Second Amendment”) between
JPMorgan Chase Bank, N.A. (“Lender”) and FuelCell Energy, Inc., a corporation organized and
existing under the laws of Delaware (“Borrower”), is made and executed as of January 4,
2012.



RECITALS




WHEREAS, Borrower and Lender are parties to that certain Export Loan Agreement, dated as
of December 21, 2010, as amended by that certain First Amendment to Export Loan Agreement dated as
of July 13, 2011 (as amended, the “Loan Agreement”);



WHEREAS, Borrower has requested that Lender further modify the Loan Agreement and the Loan
Authorization Notice to extend the period during which Lender may make Credit Accommodations under
the Loan Agreement; and



WHEREAS, pursuant to the terms and conditions hereof, Lender has agreed to amend the Loan
Agreement, on the terms and conditions and as set forth herein.



NOW, THEREFORE, in consideration of the above premises, the mutual agreements set forth below,
and for other good and valuable consideration, the receipt and legal sufficiency of which are
hereby acknowledged, the Loan Agreement is hereby amended as hereinafter set forth.



ARTICLE 1

DEFINITIONS AND EFFECTIVENESS




1.1 Capitalized terms used in this Second Amendment to the extent not otherwise defined herein
shall have the meanings given them in the Loan Agreement.



1.2 The effectiveness of this Second Amendment is subject to the conditions precedent that (i)
the Lender shall have received an original counterpart of this Second Amendment duly executed by
the Borrower, (ii) Lender shall have received payment of the additional Ex-Im Bank guarantee fee in
the amount of Eighteen Thousand Seven Hundred Fifty and No/100 Dollars ($18,750.00) and (iii)
Lender shall be satisfied in Lender’s sole discretion that all notices and acknowledgements
requisite to maintaining the guaranty of the Eximbank shall have been obtained in form and
substance satisfactory to Lender.



ARTICLE 2

AMENDMENT




2.1 The Loan Authorization Notice is hereby amended by making the “Final Disbursement Date”,
as said term is defined and used therein, “April 2, 2012.” All references to the Loan
Authorization Notice in the Loan Agreement, including without limitation such references in the
definitions of the Maturity Date and the Stated Final Disbursement Date set forth in Section 1.1 of
the Loan Agreement and in the Borrower Agreement, as of the date hereof, shall be to the Loan
Authorization Notice as amended hereby.


 


 









 





ARTICLE 3

MISCELLANEOUS




3.1 Borrower represents and warrants to Lender that after giving effect to this Second
Amendment: (a) all representations and warranties set forth in the Loan Agreement are true and
correct on the date hereof as though made on and as of such date, (b) no Event of Default, or event
which with passage of time, the giving of notice or both would become an Event of Default, has
occurred and is continuing as of the date hereof, and (c) the execution and delivery of this Second
Amendment shall in no way release, diminish, impair, reduce or otherwise adversely affect the
obligations of Borrower under the Loan Agreement, as amended hereby, the Note, and the other
Financing Documents, as each of the foregoing documents and instruments may be further amended or
otherwise modified from time to time. Except as hereby modified, the Financing Documents shall be
and remain unaltered and in full force and effect. The parties hereby ratify the terms of the
Financing Documents not amended hereby and confirm that such documents shall remain in full force
and effect.



3.2 This Second Amendment shall be governed by, and construed in accordance with, the laws of
the State of Connecticut.



3.3 Borrower shall pay reasonable fees and disbursements of legal counsel employed by Lender
in connection with the preparation of this Second Amendment.



3.4 This Second Amendment may be executed in one or more counterparts, each of which shall be
deemed an original and all of which together shall constitute the same document.



3.5 This Second Amendment shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns.



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IN WITNESS WHEREOF, the parties have caused this Second Amendment to Export Loan Agreement to be
executed as of the date first above written.




BORROWER:




FUELCELL ENERGY, INC.




	 	 	 	 	 

	By: 

Name:

	 	/s/ Michael S. Bishop
 

Michael S. Bishop
	 	 
	Title:

	 	Sr. Vice President, Chief Financial Officer	 	 
	 
	 	 	 	 
	LENDER:	 	 
	 
	 	 	 	 
	JPMORGAN CHASE BANK, N.A.	 	 
	 
	 	 	 	 
	By: 

Name:

	 	/s/ James P. Murphy
 

James P. Murphy
	 	 
	Title:

	 	Authorized Officer	 	 
	 
	 	 	 	 
	JPMORGAN CHASE BANK, N.A. — GLOBAL TRADE SERVICES	 	 
	 
	 	 	 	 
	By: 

Name:

	 	/s/ Margaret B. Adams
 

Margaret B. Adams
	 	 
	Title:

	 	Vice President	 	 





 


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