Exhibit 10.1


 





EXECUTION VERSION




 





SIXTH AMENDMENT TO LOAN AND SECURITY
AGREEMENT


 


THIS SIXTH AMENDMENT
TO LOAN AND SECURITY AGREEMENT (this “Amendment”) is dated as of May 13, 2020, by and among PLUG POWER INC.,
a Delaware corporation (“Plug Power”), EMERGENT POWER INC., a Delaware corporation (“Emergent”),
EMERGING POWER INC., a Delaware corporation (“Emerging”, and individually or collectively with Plug Power
and Emergent as the context may require, “Borrower”), and GENERATE PPL SPV I, LLC, as assignee of Generate
Lending, LLC (the “Lender”).


 


WHEREAS, Borrower and
Lender are parties to a Loan and Security Agreement dated as of March 29, 2019 (as amended by the First Amendment to Loan and Security
Agreement, dated as of March 29, 2019, the Second Amendment to Loan and Security Agreement, dated as of August 6, 2019, the Third
Amendment to Loan and Security Agreement, dated as of September 6, 2019, the Fourth Amendment to Loan and Security Agreement, dated
as of November 27, 2019, the Fifth Amendment to Loan and Security Agreement, dated as of May 6, 2020, and as further amended, restated,
amended and restated, supplemented or otherwise modified from time to time, including by this Amendment, the “Loan Agreement”),
pursuant to which Lender has made a term loan facility available to Borrower; and


 


WHEREAS, Borrower intends
to issue the Sixth Amendment Convertible Notes as defined in Section 2 below (the “Note Issuance”) and has requested
that Lender agree to modify the Loan Agreement in order to permit the Note Issuance, and Lender has agreed to amend the Loan Agreement
accordingly.


 


WHEREAS, Borrower and
Lender have agreed to modify certain provisions of the Loan Agreement as more particularly set forth in this Amendment.


 


NOW, THEREFORE, in
consideration of the premises and of the mutual covenants herein contained, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:


 


1.       Capitalized
Terms; Effective Date. Capitalized terms used in this Amendment which are not otherwise defined herein shall have the meanings
assigned thereto in the Loan Agreement, as modified by this Amendment. Except as expressly provided to the contrary herein, all
modifications to the Loan Agreement set forth herein shall be effective as of the date of this Amendment.


 






    


     


    

 


2.             Amendment.
The Loan Agreement, including the Recitals thereto, is hereby amended as follows:


 


(a)               
Insert in Section 1.1 the following new defined terms in appropriate alphabetical order:


 


“‘Net
Cash Proceeds’ means, with respect to the Sixth Amendment Convertible Notes, the proceeds of the sale of the Sixth Amendment
Convertible Notes minus the sum of (i) all discounts and commissions of the initial purchasers of the Sixth Amendment Convertible
Notes (ii) all fees and out of pocket expenses paid in connection with the offering, issuance and sale of the Sixth Amendment Convertible
Notes and any purchases or redemptions of the Convertible Notes, (iii) all taxes paid or required to be paid on the proceeds of
the issuance of the Sixth Amendment Convertible Notes, and (iv) the aggregate amount of cash used to repurchase Convertible Notes.


 


“‘Sixth
Amendment Convertible Notes’ means the Convertible Senior Notes due 2025 issued by Plug Power that are convertible into
Common Stock, issued on or around the date hereof (or any replacement notes with respect to such notes) pursuant to the terms and
conditions of the Sixth Amendment Convertible Notes Documentation; including that (i) the Sixth Amendment Convertible Notes do
not require principal repayments or mandatory redemption prior to the stated maturity date of the Sixth Amendment Convertible Notes
(as in effect on the date initially issued) other than (a) the settlement or conversion of the Sixth Amendment Convertible Notes
with shares of Plug Power Common Stock, cash or a combination thereof at the election of Plug Power in accordance with the terms
of the Sixth Amendment Convertible Notes Documentation, (b) the required repayment of principal and interest upon any acceleration
of the Sixth Amendment Convertible Notes as a result of a Fundamental Change pursuant to the terms of the Sixth Amendment Convertible
Notes Documentation or (c) a mandatory offer to repurchase the Sixth Amendment Convertible Notes as a result of a Fundamental Change,
(ii) the Sixth Amendment Convertible Notes are unsecured, (iii) the Sixth Amendment Convertible Notes have a maturity date that
is no less than five (5) years from the date of issuance of the Sixth Amendment Convertible Notes, (iv) the interest rate applicable
to the Sixth Amendment Convertible Notes is less than or equal to 6% per annum, (v) the Net Cash Proceeds from the issuance and
sale of the Sixth Amendment Convertible Notes are not less than $50,000,000 and (vi) Convertible Notes representing an aggregate
principal amount of at least $62,500,000 are repurchased with the proceeds of the issuance and sale of the Sixth Amendment Convertible
Notes.”


 


“‘Sixth
Amendment Convertible Notes Documentation’ means the Sixth Amendment Convertible Notes, that certain Indenture, dated
on or around the date hereof, between Plug Power and Wilmington Trust, National Association, dated on or around the Sixth Amendment
Effective Date, and the other definitive documentation governing the Sixth Amendment Convertible Notes.”


 


“‘Sixth
Amendment Effective Date’ means May 13, 2020.”


 


(b)               
The definition of “Fundamental Change” appearing in Section 1.1 of the Loan Agreement is hereby
amended by deleting such definition in its entirety and substituting in lieu thereof the following new definition to read in its
entirety as follows:


 


‘“Fundamental
Change” (i) in the case of the Convertible Notes, has the meaning given to it in the Indenture and (ii) in the case of
the Sixth Amendment Convertible Notes, has the meaning given to it in the Sixth Amendment Convertible Notes Documentation.”


 


(c)               
The definition of “Permitted Equity Hedge Transactions” appearing in Section 1.1 of the Loan Agreement
is hereby amended by deleting such definition in its entirety and substituting in lieu thereof the following new definition to
read in its entirety as follows:


 


““Permitted
Equity Hedge Transactions” means the following transactions executed in connection with the issuance of the Convertible
Notes and the issuance of the Sixth Amendment Convertible Notes (in each case, including any exercise of any over-allotment or
other option granted to the investment banks acting as initial purchasers of the Convertibles Notes or Sixth Amendment Convertible
Notes), in each case, consummated on or around the Sixth Amendment Effective Date:


 






    


     


    

 


(a)       one
or more call options or capped call options (or substantively equivalent derivative transaction) relating to the Common Stock (or
other securities or property following any merger event, reclassification or other change of the Common Stock), entered into between
Plug Power, as purchaser of any such option, and one or more of Morgan Stanley & Co. LLC, Barclays Capital Inc., and/or their
respective affiliates, or other leading dealers in the relevant market and settled in Common Stock, cash or any combination of
such cash or Common Stock or an amendment or modification to Plug Power’s existing capped call transactions entered into
in connection with the Convertible Notes; and


 


(b)       one
or more forward purchase contracts (or substantively equivalent derivative transaction) relating to Common Stock entered into by
Plug Power, as purchaser, and one or more financial institutions and/or their affiliates or an amendment or modification to Plug
Power’s existing forward purchase contract entered into in connection with the Convertible Notes.


 


Any reference
to “Permitted Equity Hedge Transactions” is a reference to the confirmations, agreements and other definitive documentation
executed to document the terms and conditions of the Permitted Equity Hedge Transactions (or any of them).”


 


(d)         The definition of “Permitted Indebtedness” appearing in Section 1.1 of the Loan Agreement is hereby
amended by deleting clause (xix) appearing therein in its entirety and substituting in lieu thereof the following new clause (xix)
to read in its entirety as follows:


 


“(xix)
unsecured Indebtedness evidenced by (a) the Convertible Notes, provided that the principal amount thereof permitted under this
clause (xix)(a) shall be reduced by any principal amounts prepaid with the proceeds of Sixth Amendment Convertible Notes, (b) the
Additional Convertible Notes, and (c) the Sixth Amendment Convertible Notes;”


 


(e)         Section 7.5 of the Loan Agreement is hereby amended by deleting clauses (a) and (b) appearing therein in their entirety
and substituting in lieu thereof the following new clauses (a) and (b) to read in their entirety as follows:


 


“(a) the
conversion of Indebtedness into (i) Common Stock, cash or any combination thereof as and when required pursuant to the terms of
the Convertible Notes Documentation or the purchase or exchange of such Indebtedness for Common Stock, cash, or any combination
thereof provided that, to the extent the cash consideration per $1,000 principal amount of Convertible Notes in respect of such
purchase or exchange exceeds $1,000, Borrower shall only be permitted to use proceeds from the sale of the Sixth Amendment Convertible
Notes to finance such excess, (ii) Common Stock, cash or any combination thereof as and when required pursuant to the Sixth Amendment
Convertible Notes Documentation, and (iii) Common Stock, or, solely with respect to fractional shares, cash or a combination of
cash and Common Stock, in each case as and when required pursuant to the terms of the Additional Convertible Notes Documentation,
(b) (i) the required repayment of principal and interest upon any acceleration of the Convertible Notes pursuant to the terms of
the Convertible Notes Documentation, (ii) the required repayment of principal and interest upon any acceleration of the Sixth Amendment
Convertible Notes pursuant to the terms of the Sixth Amendment Convertible Notes Documentation, (iii) the repurchase of the Convertible
Notes in connection with a Fundamental Change or the redemption of the Convertible Notes as and when required pursuant to the Convertible
Notes Documentation, (iv) the repurchase of the Sixth Amendment Convertible Notes in connection with a Fundamental Change or the
redemption of the Sixth Amendment Convertible Notes as and when required pursuant to the Sixth Amendment Convertible Notes Documentation
as and when required pursuant to the Sixth Amendment Convertible Notes Documentation, so long as concurrently with an such required
repayment, repurchase or redemption described in this clause (b)(i) through (iv), all of the Secured Obligations hereunder are
indefeasibly paid in full in cash, and (v) the required payment of interest with respect to the Additional Convertible Notes, in
each case under this clause (b)(v), (x) as and when required pursuant
to the Additional Convertible Notes Documentation and (y) so long as no Event of Default has occurred and is continuing,”


 






    


     


    

 


(f)          Section 7.7 of the Loan Agreement is hereby amended by deleting such Section in its entirety and substituting in
lieu thereof the following new Section to read in its entirety as follows:


 


“7.7Investments.
Borrower shall not directly or indirectly acquire or own, or make any Investment in or to any Person, or permit any of its Subsidiaries
so to do, other than (i) Permitted Investments, (ii) to the extent the Convertible Notes constitute capital stock or equity interests
and their repurchase or redemption constitutes an Investment, the acquisition of Convertible Notes in accordance with the Convertible
Notes Documentation or with the proceeds of Sixth Amendment Convertible Notes, (iii) to the extent the Additional Convertible Notes
constitute capital stock or equity interests and their redemption constitutes an Investment, the redemption of Additional Convertible
Notes in accordance with the Additional Convertible Notes Documentation, and (iv) to the extent the Sixth Amendment Convertible
Notes constitute capital stock or equity interests and their repurchase or redemption constitutes an Investment, the acquisition
of Sixth Amendment Convertible Notes in accordance with the Sixth Amendment Convertible Notes Documentation”.


 


(g)         Section 7.8 of the Loan Agreement is hereby amended by deleting clause (a)(iv) appearing in therein in its entirety and
substituting in lieu thereof the following new clause (a)(iv) to read in its entirety as follows:


 


“(iv) (1)
to the extent the Convertible Notes constitute capital stock or equity interests, the payment or delivery of Common Stock, cash
or a combination of cash and Common Stock, in each case, in connection with the settlement or conversion of the Convertible Notes
and the repurchase or redemption of the Convertible Notes as and when required pursuant to the Convertible Notes Documentation
as in effect on the Closing Date or with the proceeds of Sixth Amendment Convertible Notes or (2) to the extent the Additional
Convertible Notes constitute capital stock or equity interests, the payment or delivery of Common Stock, or, solely with respect
to fractional shares, cash or a combination of cash and Common Stock, in each case, in connection with the settlement or conversion
of the Additional Convertible Notes and the redemption of the Additional Convertible Notes as and when required pursuant to the
Additional Convertible Notes Documentation as in effect on the Third Amendment Effective Date, or (3) to the extent the Sixth Amendment
Convertible Notes constitute capital stock or equity interests, the payment or delivery of Common Stock, cash or a combination
of cash and Common Stock, in each case, in connection with the settlement or conversion of the Sixth Amendment Convertible Notes
and the repurchase or redemption of the Sixth Amendment Convertible Notes as and when required pursuant to the Sixth Amendment
Convertible Notes Documentation as in effect on the Sixth Amendment Effective Date”


 






    


     


    

 


(h)         Section 7.8 of the Loan Agreement is hereby further amended by deleting clause (b)(ii) appearing in therein in its entirety
and substituting in lieu thereof the following new clause (b)(ii) to read in its entirety as follows:


 


“(ii) subject
to the terms and conditions set forth in Section 7.5(a), Borrower may make any cash payments required by (1) each of the Convertible
Notes Documentation and Sixth Amendment Notes Documentation, and (2) to the extent the conversion of fractional shares referenced
therein and permitted thereby could be deemed a cash distribution, the Additional Convertible Notes Documentation, and”


 


(i)Section
7.17 of the Loan Agreement is hereby amended by deleting the parenthetical appearing therein in its entirety and substituting
in lieu thereof the following new parenthetical to read in its entirety as follows:


 


“(including
for the avoidance of doubt, the Convertible Notes Documentation, the Additional Convertible Notes Documentation or the Sixth Amendment
Notes Documentation)”


 


3.             Conditions
to Effectiveness. This Amendment shall become effective upon the prior or concurrent satisfaction of each of the conditions
specified below:


 


(a)          Borrower
and Lender shall have each received one or more counterparts of this Amendment, duly executed, completed and delivered by Borrower
and Lender;


 


(b)          After
giving effect to this Amendment, the representations and warranties of Borrower set forth in this Amendment and the other Loan
Documents shall be true and correct in all material respects with the same effect as though made on and as of such date, except
to the extent such representations and warranties expressly relate to a specific earlier date, in which case such representations
and warranties shall be true and correct in all material respects as of such earlier date;


 


(c)          After
giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing or shall be caused by the
transactions contemplated by this Amendment.


 


4.             Additional
Convertible Notes Consent. Effective upon the Sixth Amendment Effective Date, the Lender consents to the amendment of the Additional
Convertible Notes Documentation (i) solely to the extent necessary to permit under the terms of the Additional Convertible Notes
Documentation the issuance of the Sixth Amendment Convertible Notes and the performance by Plug Power of its obligations under
the Sixth Amendment Convertible Notes Documentation and (ii) to amend the definition of “Conversion Rate”, as defined
in the Additional Convertible Notes Documentation.


 


5.             Post-Closing
Covenant. Borrower shall deliver to Lender within two Business Days of the Sixth Amendment Effective Date true, correct and
complete copies of all of the Sixth Amendment Convertible Notes Documentation and any related agreements, documents and instruments.
Borrower shall pay all promptly invoiced fees and expenses of Lender required to be paid pursuant to Section 11.10 of the Loan
Agreement and incurred in connection with the negotiation, preparation, execution and delivery of this Amendment and the Loan Document
(including, without limitation, the fees and expenses of counsel to Lender) within two (2) Business Days of receiving an invoice
with respect to such fees and expenses.


 






    


     


    

 


6.       No
Other Modifications; Reaffirmation by the Borrower. Except as expressly modified hereby, the terms of the Loan Agreement shall
remain in full force and effect in all respects, and Borrower hereby reaffirms its obligations under the Loan Agreement, as modified
by this Amendment, and under each of the other Loan Documents to which it is a party.


 


7.       References.
All references in the Loan Agreement to “this Agreement,” “herein,” “hereunder” or other words
of similar import, and all references to the Loan Agreement in the other Loan Documents, or any other document or instrument that
refers to the Loan Agreement, shall be deemed to be references to the Loan Agreement as amended by this Amendment.


 


8.       Applicable
Law. THIS AMENDMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICTS OF LAW PROVISIONS.


 


9.       Counterparts;
Electronic Delivery. This Amendment may be executed in one or more counterparts (all counterparts together reflecting the signature
of all parties) each of which shall be deemed an original, and all of which together shall constitute one and the same instrument.
Delivery by any party to this Amendment of its signatures hereon through facsimile or other electronic image file (including .pdf)
(i) may be relied upon as if this Amendment were physically delivered with an original hand-written signature of such party,
and (ii) shall be binding on such party for all purposes.


 


10.     Successors.
This Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.


 


11.     Final
Agreements. This Amendment represents the final agreement of Borrower and Lender with respect to the subject matter hereof,
and may not be contradicted, modified or supplemented in any way by evidence of any prior or contemporaneous written or oral agreements
of Borrower and Lender.


 


[Remainder of page intentionally blank;
signature pages follow.]


 



    


     


    




 


IN WITNESS WHEREOF,
Borrower and Lender have caused this Amendment to be duly executed by their duly authorized officers, under seal, all as of the
date first above written.


 


	 	BORROWER:
	 	 
	 	PLUG
    POWER INC.
	 	 
	 	 
	 	By:	/s/ Paul B. Middleton
	 	Name:	 Paul B. Middleton
	 	Title:	 Chief Financial Officer
	 	 
	 	EMERGING
    POWER INC.
	 	 
	 	 
	 	By: 	/s/ Paul B. Middleton
	 	Name:	 Paul B. Middleton
	 	Title:	 Treasurer
	 	 
	 	EMERGENT
    POWER INC.
	 	 
	 	 
	 	By:	 /s/ Paul B. Middleton
	 	Name:	 Paul B. Middleton
	 	Title: 	Treasurer




 


[Signatures continue on following page.]


 





SIXTH AMENDMENT TO LOAN AND SECURITY AGREEMENT


SIGNATURE PAGE


 






    


     


    

 


	 	LENDER:
	 	 
	 	GENERATE
    PPL SPV I, LLC,
	 	a
    Delaware limited liability company
	 	 
	 	 
	 	By: 	/s/ Jigar Shah
	 	Name:	Jigar Shah
	 	Title:	Manager




 





SIXTH AMENDMENT TO LOAN AND SECURITY AGREEMENT


SIGNATURE PAGE