Exhibit 10.98
WAIVER AND AMENDMENT NO. 4 TO FINANCING AGREEMENT
This WAIVER AND AMENDMENT NO. 4 TO FINANCING AGREEMENT (this “Agreement”), dated as of December 15, 2025, among (a) INVESTEC BANK PLC (“Investec”), as administrative agent (in such capacity, together with its successors in such capacity, the “Administrative Agent”) and a Lender, (b) LIBERTY BANK, as a Lender, (c) BANK OF MONTREAL, as a Lender, (d) AMALGAMATED BANK, as a Lender, (e) CONNECTICUT GREEN BANK, as a Lender and (f) FUELCELL ENERGY OPCO FINANCE 1, LLC, a Delaware limited liability company (the “Borrower”). Capitalized terms used and not otherwise defined herein shall have the respective meaning given such terms in the Financing Agreement (as defined below).
RECITALS:
WHEREAS, reference is hereby made to the Financing Agreement, dated as of May 19, 2023, among the Borrower, the financial institutions party thereto from time to time as lenders (the “Lenders”) and LC Issuing Banks, the Administrative Agent and Investec Bank plc, as the Collateral Agent (as amended by that certain Amendment No. 1 to Financing Agreement, dated as of August 11, 2023, as further amended by that certain Amendment No. 2 to Financing Agreement, dated as of January 2, 2024, as further amended by that certain Amendment No. 3 to Financing Agreement, dated as of April 29, 2024, and as further amended, supplemented or modified from time to time, the “Financing Agreement”);
WHEREAS, pursuant to Sections 5.1(z) (Reporting Requirements) and 5.24 (Proposed Operating Budget) of the Financing Agreement, the Borrower is required to Make Available (i) no later than 60 days after the end of each fiscal quarter, a reasonably detailed operating report for the previous fiscal quarter, which shall include reasonably detailed information with respect to each Project including a (A) quarterly or monthly and (B) year-to-date line item comparison of actual operating and financial results to the current budget, and shall be consistent with the sample operating report provided by the Borrower to the Lenders prior to the Closing Date, and (ii) no later than November 1, copies of the proposed operating budget setting forth the anticipated revenues and expenses (both operating and capital) of the Subsidiaries and the Projects for each fiscal year ((i) and (ii), collectively, the “Specified Reporting Requirements”);
WHEREAS, the Borrower has delayed providing (i) the operating reports for the previous fiscal quarters, (ii) the 2025 proposed operating budget, and (iii) the 2026 proposed operating budget, in each case within the applicable time periods for such Specified Reporting Requirements as set forth in the Financing Agreement (each of (i) through (iii), collectively, the “Specified Reports”);
WHEREAS, the Borrower requests that the Lenders waive, for all purposes under the Financing Agreement and Financing Documents, Borrower’s delay or other noncompliance in not providing the Specified Reports in accordance with the Specified Reporting Requirements (the “Requested Waiver”);
WHEREAS, the Borrower and the Lenders party hereto (constituting the Required Lenders) desire to amend Section 8.9 (Breach of Financing Documents) of the Financing
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Agreement to provide that, as of the Effective Date, Section 8.9 will apply to the Specified Reporting Requirements as well as other covenants under the Financing Agreement that are not otherwise addressed in the Financing Agreement and, in connection therewith, to provide a cure period for defaults or Events of Default resulting from a failure to perform or observe any covenant or agreement to be performed or observed by the Borrower under the Financing Agreement that are not otherwise addressed in the Financing Agreement, including but not limited to the Specified Reporting Requirements;
WHEREAS, pursuant to Section 9.10 (Amendments) of the Financing Agreement, the consent of the Required Lenders is required for the Requested Waiver and the amendments set forth in this Agreement, and the parties hereto have agreed to grant the Requested Waiver and amend the Financing Agreement in certain respects as provided herein.
AGREEMENT:
NOW, THEREFORE, in consideration of the premises and the covenants and agreements contained herein, and for other good and valuable consideration, the parties hereto hereby agree as follows:
“8.9Breach of Financing Documents. The Borrower, the Member of any Subsidiary, as applicable, shall fail to perform or observe any covenant or agreement to be performed or observed by it under any Financing Document other than this Agreement and not otherwise specifically provided for elsewhere in this Article 8, and such failure shall continue unremedied for a period of thirty (30) days after notice of such failure is provided to the Borrower (except that no such notice will be required for a failure to perform the covenant in Section 5.1(z) (Reporting Requirements – Operating Report) or Section 5.24 (Proposed Operating Budget)); provided, however, that if the breach or default (other than a default for the payment of amounts when due) cannot be remedied within such period despite the Borrower’s or such other party’s, as the case may be, reasonable commercial efforts to do so, then such cure period shall be extended for an additional sixty (60)-day period beyond the initial cure period, to cure such breach or default if the breach or default could not reasonably be expected to have a Material Adverse Effect if not cured within such sixty (60)-day period and if remedial action (A) could reasonably be expected to result in cure within such additional sixty (60)-day period, (B) is promptly instituted within the initial cure period, and (C) is thereafter diligently pursued until the breach or default is corrected within such additional reasonable cure period granted by the Required Lenders.”
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[Signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective officers thereunto duly authorized as of the date first above written.
INVESTEC BANK PLC, | |
as Administrative Agent and a Lender | |
By: | /s/ Steven Cowland |
| Name: Steven Cowland |
| Title: Authorised Signatory |
| |
By: | /s/ Shelagh Kirkland |
| Name: Shelagh Kirkland |
| Title: Authorised Signatory |
| |
Signature Page to
Waiver and Amendment No. 4 to Financing Agreement
LIBERTY BANK, | |
as a Lender | |
By: | /s/ Daniel J. Longo |
| Name: Daniel J. Longo |
| Title: First Vice President |
Signature Page to
Waiver and Amendment No. 4 to Financing Agreement
BANK OF MONTREAL, | |
as a Lender | |
By: | |
| Name: |
| Title: |
Signature Page to
Waiver and Amendment No. 4 to Financing Agreement
AMALGAMATED BANK, | |
as a Lender | |
By: | /s/ Guillermo “Memo” Trevino |
| Name: Guillermo “Memo” Trevino |
| Title: First Vice President |
Signature Page to
Waiver and Amendment No. 4 to Financing Agreement
CONNECTICUT GREEN BANK, | |
as a Lender | |
By: | /s/ Bert Hunter |
| Name: Bert Hunter |
| Title: Executive Vice President and Chief Investment Officer |
Signature Page to
Waiver and Amendment No. 4 to Financing Agreement
FUELCELL ENERGY OPCO FINANCE 1, LLC, | |
as Borrower | |
By: | /s/ Michael S. Bishop |
| Name: Michael S. Bishop |
| Title: EVP, CFO, FuelCell Energy, Inc. |
Signature Page to
Waiver and Amendment No. 4 to Financing Agreement