Exhibit 10.3


 


SIXTH AMENDMENT TO LOAN AND SECURITY AGREEMENT


 


THIS SIXTH AMENDMENT
TO LOAN AND SECURITY AGREEMENT (this “Amendment”), dated as of February 28, 2019 (the “Sixth
Amendment Closing Date”) and effective as of February 22, 2019 (the “Sixth Amendment Effective Date”),
is entered into by and among FuelCell Energy, Inc., a Delaware corporation (“Parent”), Versa Power Systems,
Inc., a Delaware corporation (“Versa Delaware”), Versa Power Systems Ltd. a corporation organized under the
laws of Alberta, Canada (“Versa Canada”), and each of Parent’s Subsidiaries that delivers a Joinder Agreement
pursuant to Section 7.13 of the Loan and Security Agreement (hereinafter collectively referred to as the “Borrowers”
and each, a “Borrower”), the several banks and other financial institutions or entities from time to time parties
thereto as Lender, constituting the Required Lenders, and HERCULES CAPITAL, INC., a Maryland corporation, in its capacity as administrative
agent and collateral agent for itself and the Lender (in such capacity, together with its successors and assigns in such capacity,
“Agent”).


 


Borrowers, the Lender
and Agent are parties to a Loan and Security Agreement dated as of April 14, 2016 (as amended as of September 5, 2017, October
27, 2017, March 28, 2018, August 29, 2018 and December 19, 2018, and as may be further amended, restated or modified from time
to time, the “Loan and Security Agreement”). The Borrowers have requested that Agent and Lender agree to certain
amendments to the Loan and Security Agreement. Agent and Lender have agreed to such request, subject to the terms and conditions
hereof.


 


Accordingly, the parties
hereto agree as follows:


 


SECTION
1        Definitions; Interpretation.


 


(a)          Terms
Defined in Loan and Security Agreement. All capitalized terms used in this Amendment (including in the recitals hereof) and
not otherwise defined herein shall have the meanings assigned to them in the Loan and Security Agreement.


 


(b)          Interpretation.
The rules of interpretation set forth in Section 1.1 of the Loan and Security Agreement shall be applicable to this Amendment
and are incorporated herein by this reference.


 


SECTION
2        Amendments to the Loan and Security Agreement.


 


(a)          The
Loan and Security Agreement shall be amended as follows effective as of the Sixth Amendment Effective Date:


 


(i)          New
Definitions. The following definitions are added to Section 1.1 in their proper alphabetical order:


 


“Sixth
Amendment” means that certain Sixth Amendment to Loan and Security Agreement dated as of the Sixth Amendment Closing Date,
among Borrowers, Agent and Lender.


 


“Sixth
Amendment Closing Date” means February 28, 2019.


 


“Sixth
Amendment Effective Date” means February 22, 2019.


 


“Sixth
Amendment Fee” means a non-refundable fee of $250,000.


 


(ii)         Section
2.10. A new Section 2.10 is hereby added as follows:


 


2.10.     Additional
Fees. Borrower shall pay Lender the Sixth Amendment Fee on or prior to the Sixth Amendment Closing Date.


 


(iii)        Section
2.11. A new Section 2.11 is hereby added as follows:


 




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2.11       Treatment
of Prepayment Charge and End of Term Charge. Borrower agrees that any Prepayment Charge and any End of Term Charge payable
shall be presumed to be the liquidated damages sustained by each Lender as the result of the early termination, and Borrower agrees
that it is reasonable under the circumstances currently existing and existing as of the Closing Date. The Prepayment Charge and
the End of Term Charge shall also be payable in the event the Secured Obligations (and/or this Agreement) are satisfied or released
by foreclosure (whether by power of judicial proceeding), deed in lieu of foreclosure, or by any other means. Borrower expressly
waives (to the fullest extent it may lawfully do so) the provisions of any present or future statute or law that prohibits or may
prohibit the collection of the foregoing Prepayment Charge and End of Term Charge in connection with any such acceleration. Borrower
agrees (to the fullest extent that each may lawfully do so): (a) each of the Prepayment Charge and the End of Term Charge is reasonable
and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel; (b)
each of the Prepayment Charge and the End of Term Charge shall be payable notwithstanding the then prevailing market rates at the
time payment is made; (c) there has been a course of conduct between the Lenders and Borrower giving specific consideration in
this transaction for such agreement to pay the Prepayment Charge and the End of Term Charge as a charge (and not interest) in the
event of prepayment or acceleration; (d) Borrower shall be estopped from claiming differently than as agreed to in this paragraph.
Borrower expressly acknowledges that their agreement to pay each of the Prepayment Charge and the End of Term Charge to the Lenders
as herein described was on the Closing Date and continues to be a material inducement to the Lenders to provide the Term Loans.


 


(iv)        Section
2.5. Section 2.5 is hereby amended and restated in its entirety as follows:


 


2.5         Prepayment.
At its option upon at least seven (7) Business Days prior notice to Agent, Borrower may prepay all, but not less than all, of the
outstanding Advances by paying the entire principal balance, and all accrued and unpaid interest thereon, together with a prepayment
charge equal to the following percentage of the Advance amount being prepaid: if such Advance amounts are prepaid in any of the
first twelve (12) months following the Sixth Amendment Effective Date, 2.00%; and thereafter, 1.00% (each, a “Prepayment
Charge”). Borrower agrees that the Prepayment Charge is a reasonable calculation of Lender’s lost profits in view of
the difficulties and impracticality of determining actual damages resulting from an early repayment of the Advances. Borrower shall
prepay the outstanding amount of all principal and accrued interest through the prepayment date and the Prepayment Charge upon
the occurrence of a Change in Control. 


 


(v)         Section
8.2. Section 8.2 is hereby amended and restated in its entirety as follows:


 


8.2         Minimum
Unrestricted Cash Balance. At all times following the Sixth Amendment Effective Date through March 31, 2019, Borrower shall maintain
an unrestricted Cash balance of at least (a) 50% of the outstanding Loan balance plus (b) the amount of accounts payable (as defined
under GAAP) not paid within 90 days of the invoice date, in accounts subject to an Account Control Agreement in favor of Agent.
At all times after March 31, 2019, Borrower shall maintain an unrestricted Cash balance of at least (a) 75% of the outstanding
Loan balance plus (b) the amount of accounts payable (as defined under GAAP) not paid within 90 days of the invoice date, in accounts
subject to an Account Control Agreement in favor of Agent. 


 


(b)          References
within Loan and Security Agreement. Each reference in the Loan and Security Agreement to “this Agreement” and the
words “hereof,” “herein,” “hereunder,” or words of like import, shall mean and be a reference
to the Loan and Security Agreement as amended by this Amendment.


 


SECTION
3        Conditions of Effectiveness. The effectiveness of Section
2 of this Amendment shall be subject to the satisfaction of each of the following conditions precedent:


 


(a)          Fees
and Expenses. The Parent shall have paid all fees, costs and expenses due and payable as of the Sixth Amendment Closing Date
under the Loan and Security Agreement, including the Sixth Amendment Fee.


 




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(b)          This
Amendment. Agent shall have received this Amendment, executed by Agent, the Lender and the Borrowers.


 


(c)          Representations
and Warranties; No Default. On the Sixth Amendment Closing Date, after giving effect to the amendment of the Loan and Security
Agreement contemplated hereby:


 


(i)          The
representations and warranties contained in Section 4 shall be true and correct on and as of the Sixth Amendment Closing
Date as though made on and as of such date; and


 


(ii)         There
exist no Events of Default or events that with the passage of time would result in an Event of Default.


 


SECTION 4        Representations
and Warranties. To induce Agent and Lender to enter into this Amendment, each Borrower hereby confirms, as of the Sixth Amendment
Closing Date, (a) that the representations and warranties made by it in Section 5 of the Loan and Security Agreement and in the
other Loan Documents are true and correct in all material respects; provided, however, that such materiality qualifier
shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text
thereof; (b) that there has not been and there does not exist a Material Adverse Effect; and (c) that the information included
in the Perfection Certificate delivered to Agent on the Fifth Amendment Effective Date remains true and correct. For the purposes
of this Section 4, (i) each reference in Section 5 of the Loan and Security Agreement to “this Agreement,”
and the words “hereof,” “herein,” “hereunder,” or words of like import in such Section, shall
mean and be a reference to the Loan and Security Agreement as amended by this Amendment, and (ii) any representations and
warranties which relate solely to an earlier date shall not be deemed confirmed and restated as of the date hereof (provided that
such representations and warranties shall be true, correct and complete as of such earlier date).


 


SECTION 5        Miscellaneous.


 


(a)          Loan
Documents Otherwise Not Affected; Reaffirmation. Except as expressly amended pursuant hereto or referenced herein, the Loan
and Security Agreement, as amended, and the other Loan Documents shall remain unchanged and in full force and effect and are hereby
ratified and confirmed in all respects. The Lender’s and Agent’s execution and delivery of, or acceptance of, this
Amendment shall not be deemed to create a course of dealing or otherwise create any express or implied duty by any of them to provide
any other or further amendments, consents or waivers in the future. Each Borrower hereby reaffirms the grant of security under
Section 3.1 of the Loan and Security Agreement and hereby reaffirms that such grant of security in the Collateral secures all Secured
Obligations under the Loan and Security Agreement and the other Loan Documents.


 


(b)          Conditions.
For purposes of determining compliance with the conditions specified in Section 3, each Lender that has signed this Amendment
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 Agent shall have received notice from such Lender
prior to the Sixth Amendment Closing Date specifying its objection thereto.


 


(c)          Release.
In consideration of the agreements of Agent and each Lender contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, each Borrower, on behalf of itself and its successors, assigns, and other
legal representatives, hereby fully, absolutely, unconditionally and irrevocably releases, remises and forever discharges Agent
and each Lender, and its successors and assigns, and its present and former shareholders, affiliates, subsidiaries, divisions,
predecessors, directors, officers, attorneys, employees, agents and other representatives (Agent, Lenders and all such other persons
being hereinafter referred to collectively as the “Releasees” and individually as a “Releasee”),
of and from all demands, actions, causes of action, suits, covenants, contracts, controversies, agreements, promises, sums of money,
accounts, bills, reckonings, damages and any and all other claims, counterclaims, defenses, rights of set-off, demands and liabilities
whatsoever of every name and nature, known or unknown, suspected or unsuspected, both at law and in equity, which any Borrower,
or any of its successors, assigns, or other legal representatives may now or hereafter own, hold, have or claim to have against
the Releasees or any of them for, upon, or by reason of any circumstance, action, cause or thing whatsoever which arises at any
time on or prior to the Sixth Amendment Closing Date, including, without limitation, for or on account of, or in relation to, or
in any way in connection with the Loan Agreement, or any of the other Loan Documents or transactions thereunder or related thereto.
Each Borrower understands, acknowledges and agrees that the release set forth above may be pleaded as a full and complete defense
and may be used as a basis for an injunction against any action, suit or other proceeding which may be instituted, prosecuted or
attempted in breach of the provisions of such release. Each Borrower agrees that no fact, event, circumstance, evidence or transaction
which could now be asserted or which may hereafter be discovered shall affect in any manner the final, absolute and unconditional
nature of the release set forth above. Borrower waives the provisions of California Civil Code section 1542, which states:


 




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A GENERAL RELEASE
DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME
OF EXECUTING THE RELEASE, AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR
OR RELEASED PARTY.


 


(d)          No
Reliance. Each Borrower hereby acknowledges and confirms to Agent and the Lender that such Borrower is executing this Amendment
on the basis of its own investigation and for its own reasons without reliance upon any agreement, representation, understanding
or communication by or on behalf of any other Person.


 


(e)          Costs
and Expenses. Each Borrower agrees to pay to Agent on the Sixth Amendment Closing Date the out-of-pocket costs and expenses
of Agent and the Lenders party hereto, and the fees and disbursements of counsel to Agent and the Lenders party hereto (including
allocated costs of internal counsel), in connection with the negotiation, preparation, execution and delivery of this Amendment
and any other documents to be delivered in connection herewith on the Sixth Amendment Closing Date or after such date.


 


(f)          Binding
Effect. This Amendment binds and is for the benefit of the successors and permitted assigns of each party.


 


(g)         Governing
Law. This Agreement and the other Loan Documents shall be governed by, and construed and enforced in accordance with, the laws
of the State of California, excluding conflict of laws principles that would cause the application of laws of any other jurisdiction.


 


(h)         Complete
Agreement; Amendments. This Amendment and the Loan Documents represent the entire agreement about this subject matter and supersede
prior negotiations or agreements with respect to such subject matter. All prior agreements, understandings, representations, warranties,
and negotiations between the parties about the subject matter of this Amendment and the Loan Documents merge into this Amendment
and the Loan Documents.


 


(i)          Severability
of Provisions. Each provision of this Amendment is severable from every other provision in determining the enforceability of
any provision.


 


(j)          Counterparts.
This Amendment may be executed in any number of counterparts and by different parties on separate counterparts, each of which,
when executed and delivered, is an original, and all taken together, constitute one Amendment. Delivery of an executed counterpart
of a signature page of this Amendment by facsimile, portable document format (.pdf) or other electronic transmission will be as
effective as delivery of a manually executed counterpart hereof.


 


(k)         Loan
Documents. This Amendment shall constitute a Loan Document.


 


[Balance of Page Intentionally
Left Blank; Signature Pages Follow]


 




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IN WITNESS WHEREOF,
the parties hereto have duly executed this Amendment, as of the date first above written.


 


	 	BORROWERS:
	 	 
	 	FuelCell Energy, Inc.
	 	 	 
	 	Signature:	/s/ Michael S. Bishop
	 	 	 
	 	Print Name:	Michael S. Bishop
	 	 	 
	 	Title:	Sr. Vice President, Chief Financial Officer
	 	 	 
	 	Versa Power Systems, Inc.
	 	 	 
	 	Signature:	/s/ Michael S. Bishop
	 	 	 
	 	Print Name:	Michael S. Bishop 
	 	 	 
	 	Title:	Sr. Vice President, Chief Financial Officer
	 	 	 
	 	Versa Power Systems Ltd.
	 	 	 
	 	Signature:	/s/ Michael S. Bishop
	 	 	 
	 	Print Name:	Michael S. Bishop 
	 	 	 
	 	Title:	Sr. Vice President, Chief Financial Officer


 


[Signature Page to Sixth Amendment to
Loan and Security Agreement]


 






     


     


    

 


	 	AGENT:
	 	 
	 	HERCULES CAPITAL INC.
	 	 	 
	 	Signature:	/s/ Jennifer Choe
	 	 	 
	 	Print Name:	Jennifer Choe
	 	 	 
	 	Title:	Assistant General Counsel
	 	 	 
	 	LENDER:
	 	 
	 	HERCULES FUNDING II, LLC
	 	 	 
	 	Signature:	/s/ Jennifer Choe
	 	 	 
	 	Print Name:	Jennifer Choe
	 	 	 
	 	Title:	Assistant General Counsel


 


[Signature Page to Sixth Amendment to
Loan and Security Agreement]