PURSUANT TO STOCK REPURCHASE AGREEMENTS SO LONG AS AN
EVENT OF DEFAULT DOES NOT EXIST AT THE TIME OF ANY SUCH REPURCHASE AND WOULD NOT
EXIST AFTER GIVING EFFECT TO ANY SUCH REPURCHASE, PROVIDED SUCH REPURCHASES DO
NOT EXCEED ONE HUNDRED THOUSAND DOLLARS ($100,000.00) IN THE AGGREGATE PER
FISCAL YEAR AND (III) MAKE DISTRIBUTIONS TO PLUG POWER CANADA INC. TO PAY ANY
AMOUNTS OWING AS A RESULT OF THE LITIGATION REGARDING THE PROPERTY LOCATED AT
13120 VANIER PLACE, RICHMOND, BRITISH COLUMBIA, V6V 2A2, INCLUDING, BUT NOT
LIMITED TO, ANY SETTLEMENT AMOUNT, ATTORNEYS FEES AND EXPENSES AND ANY OTHER
COSTS, FEES AND EXPENSES, IN AN AGGREGATE AMOUNT NOT TO EXCEED ONE MILLION FIVE
HUNDRED THOUSAND DOLLARS ($1,500,000.00).
7.8
TRANSACTIONS WITH AFFILIATES.
DIRECTLY OR INDIRECTLY ENTER INTO OR
PERMIT TO EXIST ANY MATERIAL TRANSACTION WITH ANY AFFILIATE OF BORROWER, EXCEPT
FOR TRANSACTIONS THAT ARE IN THE ORDINARY COURSE OF BORROWER'S BUSINESS, UPON
FAIR AND REASONABLE TERMS THAT ARE NO LESS FAVORABLE TO BORROWER THAN WOULD BE
OBTAINED IN AN ARM'S LENGTH TRANSACTION WITH A NON-AFFILIATED PERSON AND
TRANSACTIONS PERMITTED PURSUANT TO THE TERMS OF SECTION 7.2 HEREOF.
7.9
SUBORDINATED DEBT.
(A) MAKE OR PERMIT ANY PAYMENT ON ANY
SUBORDINATED DEBT, EXCEPT UNDER THE TERMS OF THE SUBORDINATION, INTERCREDITOR,
OR OTHER SIMILAR AGREEMENT TO WHICH SUCH SUBORDINATED DEBT IS SUBJECT, OR (B)
AMEND ANY PROVISION IN ANY DOCUMENT RELATING TO THE SUBORDINATED DEBT WHICH
WOULD INCREASE THE AMOUNT OWED BY BORROWER THEREOF, SHORTEN THE MATURITY
THEREOF, INCREASE THE RATE OF INTEREST APPLICABLE THERETO OR ADVERSELY AFFECT
THE SUBORDINATION THEREOF TO OBLIGATIONS OWED TO BANK.
7.10
COMPLIANCE.
BECOME AN "INVESTMENT COMPANY" OR A COMPANY CONTROLLED
BY AN "INVESTMENT COMPANY", UNDER THE INVESTMENT COMPANY ACT OF 1940, AS
AMENDED, OR UNDERTAKE AS ONE OF ITS IMPORTANT ACTIVITIES EXTENDING CREDIT TO
PURCHASE OR CARRY MARGIN STOCK (AS DEFINED IN REGULATION U OF THE BOARD OF
GOVERNORS OF THE FEDERAL RESERVE SYSTEM), OR USE THE PROCEEDS OF ANY CREDIT
EXTENSION FOR THAT PURPOSE; FAIL TO MEET THE MINIMUM FUNDING REQUIREMENTS OF
ERISA, PERMIT A REPORTABLE EVENT OR PROHIBITED TRANSACTION, EACH AS DEFINED IN
ERISA, TO OCCUR; FAIL TO COMPLY WITH THE FEDERAL FAIR LABOR STANDARDS ACT OR
VIOLATE ANY OTHER LAW OR REGULATION, IF THE VIOLATION COULD REASONABLY BE
EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT ON BORROWER'S BUSINESS, OR PERMIT ANY
OF ITS SUBSIDIARIES TO DO SO; WITHDRAW OR PERMIT ANY SUBSIDIARY TO WITHDRAW FROM
PARTICIPATION IN, PERMIT PARTIAL OR COMPLETE TERMINATION OF, OR PERMIT THE
OCCURRENCE OF ANY OTHER EVENT WITH RESPECT TO, ANY PRESENT PENSION, PROFIT
SHARING AND DEFERRED COMPENSATION PLAN WHICH COULD REASONABLY BE EXPECTED TO
RESULT IN ANY LIABILITY OF BORROWER, INCLUDING ANY LIABILITY TO THE PENSION
BENEFIT GUARANTY CORPORATION OR ITS SUCCESSORS OR ANY OTHER GOVERNMENTAL AGENCY.
8
EVENTS OF DEFAULT
ANY ONE OF THE FOLLOWING SHALL CONSTITUTE AN EVENT OF DEFAULT (AN "EVENT OF
DEFAULT") UNDER THIS AGREEMENT:
8.1
PAYMENT DEFAULT.
BORROWER FAILS TO PAY ANY OF THE OBLIGATIONS WHEN
DUE;
8.2
Covenant Default.
Borrower fails or neglects to perform