SEC Form SC 13D filed

Dated: March 8, 2021

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[Plug Power Inc. – Joint Filing Agreement]

Exhibit C

1.

Korean Won Loan Amount: The sum of amounts drawn in Korean Won;

2.

Korean Won Loan Amount Funded by Foreign Currency: The sum of amounts in foreign currency converted from the amount drawn in Korean Won at the exchange rate of _________ as of each respective drawdown date; and

3.

Foreign Currency Loan Amount: The sum of amounts drawn in foreign currency.

(1)

The Borrower shall pay principal and interest as set forth under each of the following clauses, and if a given calendar month has no date numerically corresponding to a payment date for principal or interest, the payment date shall be the last day of that month, and if a payment date for principal or interest is a bank holiday, such payment date shall be the following business day. (Check (√) the applicable box “□”.)

1.

Principal

2.

Agreed Interest

A.

The agreed interest on __________ shall be paid every _____ months in accordance with the interest calculation method prescribed by the Bank by applying the (          ) benchmark as determined by the Bank as of each interest calculation date plus _____% per annum on the outstanding balance from the day following the initial drawdown date (or preceding payment date) to the payment date. In this case, the spread may be adjusted to reflect the Borrower’s credit rating, etc.

B.

The agreed interest on __________ shall be paid every _____ months in accordance with the interest calculation method prescribed by the Bank by applying the (          ) benchmark as determined by the Bank as of the drawdown date (or benchmark adjustment date) plus _____% per annum on the outstanding balance from the day following the initial drawdown date (or preceding payment date) to the payment date. In this case, the benchmark shall be adjusted every (     ) from the drawdown date in accordance with the method prescribed by the Bank, and the spread may be adjusted to reflect the Borrower’s credit rating, etc.

A.

The agreed interest on the Foreign Currency Facilities Loan shall be paid every 3 months in accordance with the interest calculation method prescribed by the Bank by applying the benchmark (3-Month LIBOR) as determined by the Bank as of the drawdown date plus 0.55% per annum on the outstanding balance from the day following the initial drawdown date (or preceding payment date) to the payment date.

B.

The agreed interest on the __________ shall be paid every _____ months in accordance with the interest calculation method prescribed by the Bank by applying an interest rate of ____% per annum on the outstanding balance from the day following the initial drawdown date (or preceding payment date) to the payment date.

C.

The agreed interest on the __________ shall be paid every _____ months in accordance with the interest calculation method prescribed by the Bank by applying an interest rate of ____% per annum on the outstanding balance from the day following the initial drawdown date (or preceding payment date) to the day before the payment date.

D.

The agreed interest on the __________ shall be paid _____ times per year on the outstanding balance from the initial drawdown date (or the day following the preceding payment date) to the payment date during the deferred payment period, and _____ times per year on the outstanding balance from the initial drawdown date (or the day following the preceding payment date) to the day before the payment date while principal is being repaid, by applying the interest rate of _____% per annum in accordance with the interest calculation method prescribed by the Bank.

(2)	Notice of Repayment Schedule

(3)	Default Payment

-

Default interest rate: Three (3) % per annum

(4)

The calculation of the agreed interest, agreed fees and default payment hereunder shall be calculated on a daily basis based on one (1) year being comprised of 365 days (366 days for a leap year; and as determined by the fund manager, if this loan is a loan of funds under management). However, for foreign currency loans, one (1) year shall be comprised of 360 days.

(5)

The loan products and applicable interest rates have been determined in consideration of the [Borrower’s] business size at the time of this Agreement; accordingly, if there is a subsequent change in the [Borrower’s] business size at the time of a drawdown of the loan, the agreed interest rate may be changed according to any changes in loan products or interest rate terms.

(1)

The principal, interest, agreed fees and default payment of Korean Won loans funded by foreign currency shall be paid in Korean Won-equivalent amounts converted from the base foreign currency by applying the __________ rate initially announced by the Bank on the date of actual payment; provided that, if so determined by the Bank, such amounts may be paid in the foreign currency.

(2)

The principal, interest, agreed fees and default payment of foreign currency loans shall be paid in the borrowed currency or in Korean Won-equivalent amounts. If paid in Korean Won, such amounts shall be converted from the borrowed currency at the applicable T/T selling rate for major customers at the time of actual payment, and if paid in the borrowed currency, a foreign exchange commission shall be paid as determined by the Bank.

(3)

If it is not possible to verify the exchange rate on the payment date for the principal, interest, agreed fees or default payment, payment shall be made on the basis of a provisional exchange rate as determined by the Bank and any differences shall be subsequently settled once the Bank verifies the exchange rate.

(1)	The Borrower may prepay all or part of the loan amount hereunder before the maturity. In such case, the Borrower shall pay a prepayment fee calculated on the basis of the number of remaining days until maturity as follows:

(2)	The terms used in Article 4(1) have the following meanings:

1.

“Principal to be Prepaid” shall refer to loan amounts to be prepaid before a repayment date, and shall include loan amounts to be prepaid before an agreed installment payment date for loans to be repaid in installments.

2.

“Number of Remaining Days until Maturity” shall be calculated by the number of days from the day following the date of prepayment to the repayment date. If the loan period exceeds three (3) years, the repayment date shall be the corresponding day falling three (3) years from the initial drawdown date from the account, including any extended term; provided that, for loans to be repaid in installments, the number of remaining days until maturity shall be calculated per each installment amount.

3.

“Loan Period” refers to the number of days in the period from the initial drawdown date from the account to the repayment date; provided that, if the Loan Period exceeds three (3) years, including any extended term, the Loan Period shall be deemed to be three (3) years.

4.

Details of fees, etc. shall be made publicly available on the website of the Korea Development Bank (www.kdb.co.kr).

(3)	The Bank may discount all or a part of the prepayment fee if a prepayment is required by law or government policy or due to any events as separately determined by the Bank.

(4)	Notwithstanding the foregoing, if this loan is a loan of funds under management, its terms shall be as determined by the fund manager.

(1)	The Borrower shall pay a commitment fee as determined by the Bank if the Borrower makes a drawdown of the loan after the end of the availability period set forth below, which commences from the date of this Agreement.

(2)	The commitment fee shall apply on all undrawn amounts from the day following the date [of the end of the availability period] referenced under Article 5(1) to the day immediately preceding the drawdown date, and shall be paid on the drawdown date or every three (3) months.

1.

Korean Won Loan

A.

_____ % per annum between _____ months and _____ years from the date of this Agreement; and

B.

_____ % per annum after ____ years from the date of this Agreement.

2.

Foreign Currency Loans (including Korean Won loans funded by foreign currency)

A.

0.3% per annum between three (3) and six (6) months from the date of this Agreement;

B.

0.5% per annum between six (6) months and one (1) year from the date of this Agreement; and

C.

1.0% per annum after one (1) year from the date of this Agreement.

(3)	In the event of delay in payment of the commitment fee, the Borrower shall make a default payment in accordance with the provisions of Article 2(3) (Repayment Terms).

(1)	If the Bank deems it necessary for its fund management purposes, the Borrower shall deposit any borrowed funds to the fund management account of the Bank, and shall claim [such funds] in accordance with the methods determined by the Bank.

(2)	The Borrower agrees to neither assign nor provide as security to any third party the funds deposited for management pursuant to Article 7(1).

(1)	If a third party intends to pay all or a part of the Borrower’s debt hereunder by subrogation, the Borrower shall obtain the consent of the Bank.

(2)

For so long as the transaction between the Bank and the Borrower continues, interested persons, including a guarantor, joint debtor, etc., shall not exercise any subrogation rights they may have acquired against the Bank without the consent of the Bank. If the interested persons exercise their subrogation rights simultaneously with the Bank, they shall be paid only after the Bank’s claims have been fully paid.

(1)

The Borrower shall maintain appropriate financial ratios as set forth below in order to maintain its ability to repay the obligations arising out of this Agreement. Any separate agreements for improvement of financial structure shall be attached at the end of this Agreement, and the terms of such agreements shall be deemed to be a part of this Agreement.

(2)	The Borrower shall consult the Bank in advance if it intends to engage in any of the following acts:

1.

Merger, business transfer or assignment, sale or lease of material assets;

2.

Investment in fixed assets for any purpose other than for which the funds under this Agreement are to be used;

3.

Guarantees of other persons’ debt obligations;

4.

Launch of a new business or foreign investment; or

5.

There is a risk of a material change affecting the management of the Borrower, such as a petition for corporate work out or private settlement, etc.

(3)	If the Bank deems that there is significant necessity for the follow-up management of this Agreement for the Borrower to do any of the following acts, the Borrower shall comply with any requests of the Bank so to do:

1.

Sale of the real estate and securities owned by the Borrower;

2.

Investment by the controlling shareholder [of the Borrower];

3.

Capital increase or initial public offering.

(4)	The provisions of each of Article 10(1) to (3) shall apply only if there is a separate agreement between the Borrower and the Bank for such paragraph.

1.

The scope of the guarantee shall include all principal of the loan, interest, default payment and any other incidental liabilities up to a maximum amount.

2.

Any part [of the loan] guaranteed by the following financial institutions or similar institutions shall be excluded from the scope of guarantee referenced in Article 11(1):

•

Banks under the Banking Act and special laws;

•

Korea Credit Guarantee Fund under the Credit Guarantee Fund Act;

•

Korea Technology Finance Corporation under the Korea Technology Finance Corporation Act;

•

Regional Credit Guarantee Foundation under the Regional Credit Guarantee Foundation Act;

•

Korea Trade Insurance Corporation under the Trade Insurance Act;

•

Korea Housing Finance Corporation under the Korea Housing Finance Corporation Act;

•

Korea Housing & Urban Guarantee Corporation under the Housing and Urban Fund Act; and

•

Surety insurance companies under the Insurance Business Act.

3.

The Bank may amend, rescind or terminate any guarantee or security, as necessary for the transaction, with the guarantor’s consent, or when there is no adverse effect on the Bank’s exercise of indemnification right in the event the guarantor pays by subrogation, such as replacement of collateral with other collateral of equal or higher value, replacement of the guarantor with another guarantor with equal or greater ability to repay, or rescission or termination of the guarantee or security in proportion to the amount partially repaid.

4.

This guarantee agreement shall not be affected by a separate guarantee in the transaction between the Borrower and the Bank, if any.

5.

Each provision of the General Terms and Conditions of Credit Transactions of the Bank shall apply mutatis mutandis to the relationship with the guarantor, unless in conflict with the nature of guarantee.

(1)	Deposit of the Borrower’s Charges

(2)	Liability for Costs and Expenses from Breach of Agreement

(3)	Indemnification Payments

1.

The Borrower shall not raise any objection in the event the Bank, or its designee, exercises the right to claim for compensatory damages to which the Borrower may be entitled in case of any shortfall in quantity of, or damage to, the purchased items or any difference in the specifications thereof owing to the negligence of the supplier.

2.

If the Borrower or the Bank receives indemnification pursuant to Article 12(3) Clause 1, a Korean Won equivalent of the indemnification amount received shall be deposited to the managed funds account [held with the Bank] in the name of the Borrower.

(4)

If any payment date for principal and interest of a foreign currency loan falls on a bank holiday or a holiday for banks located in the country that issued the foreign currency, the payment date shall be the following business day (i.e., a day which is a business day for both the Bank and banks located in the country that issued the foreign currency). This provision shall also apply to prepayments.

(1)	The Borrower and Bank shall each bear 50% of the stamp duty levied on execution of this Agreement.

(2)	If the Bank pays the Borrower’s share of the stamp duty payable under Article 14(1), the Borrower shall reimburse the Bank in accordance with Article 4(2) of the General Terms and Conditions of Credit Transactions.

(1)	If the Bank determines that there is a risk in enforcing its security due to the worsening credit status of the Borrower and requests that measures necessary for improvement of credit status be taken, the Borrower shall comply with such request without delay.

(2)	As regards Article 4, no prepayment fee shall be charged in the event of refinancing by means of a syndication loan arranged by the Bank.

	Comparison with original Seal

1. We confirm receipt of a copy of the General Terms and Conditions of Credit Transactions and this Agreement, and have been fully informed and made aware of the key terms and conditions. 2. The guarantor has been informed and made aware of the Borrower’s debts, default, if any, and credit management or other information.		Borrower		SK E&S Co., Ltd. Representative Director Jeong Joon Yu                                      (seal) 26, Jong-ro, Jongno-gu, Seoul, the Republic of Korea